The Ethics Guru: Legal Ethics Blawg

The Nursery Rhyme Lawyer

2011-09-28T08:56:00.000-07:00

Have 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:

http://video.thebillablehour.com/video/Throwing-Toasters-performs-Nurs#

Most significant changes in the practice of law

2011-09-08T11:36:00.000-07:00

A 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.

New Rule 1.18 Adopted by Supreme Court of Virginia

2011-08-02T06:59:00.000-07:00

The 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.

Casey Anthony . . . Get Over it, people!

2011-07-20T09:24:00.000-07:00

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.

New Rule Encourages Pro Bono Work By Corporate Counsel

2011-04-25T14:23:00.000-07:00

The 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.

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.

New Article Published on Lawyer Websites and Blogs

2011-04-25T14:14:00.000-07:00

The April 2011 issue of The Virginia Lawyer has my latest article on lawyer websites and blogs and the ethics issues that arise out of their use. Check it out!

http://www.vsb.org/docs/valawyermagazine/vl0411-consultus.pdf

New Article Published on Cloud Computing

2011-03-02T08:17:00.000-08:00

"Cloud Computing--Silver Lining or Ethical Thunderstorm for Lawyers" is published in The Virginia Lawyer (Feb. 2011)

Check it out!

http://www.vsb.org/docs/valawyermagazine/vl0211_consultus.pdf

Proposed Florida Bar Opinion Requires Lawyers to Scrub Hard Drives

2010-11-05T06:12:00.000-07:00

A 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 http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/04F704C626B79C2E852577AB006FD349/$FILE/10-02%20PAO.pdf?OpenElement

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.

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.

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.

It will be interesting to see how this opinion reads when it is finally adopted.

Prosecutors May Advise Police to Communicate with Represented Defendant

2010-11-03T07:30:00.000-07:00

Effective 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 Miranda v. Arizona and wants to give a statement to a law enforcement officer without his counsel present.

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?

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.

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.

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.

California Bar Goes After Prosecutors for Misconduct

2010-10-18T10:27:00.000-07:00

The 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.

Access Virginia State Bar's Ethics Hotline By E-Mail

2010-08-05T07:26:00.000-07:00

Lawyers 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: http://www.vsb.org/site/regulation/ethics/

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.

Members Can Download Legal Forms at VSB Website

2010-08-05T07:23:00.000-07:00

Virginia 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.

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.

Prosecutors in Daryl Atkins Case Face Disciplinary Charges

2010-03-15T13:42:00.000-07:00

Two 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--

http://valawyersweekly.com/blog/2010/03/15/york-prosecutors-face-bar-discipline/

Payee Notification Bill Withdrawn

2010-03-09T12:06:00.000-08:00

In this session of the General Assembly, the Virginia State Bar asked Senator Norment to put a bill before the legislature that would require insurance companies to notify a claimant or plaintiff that a settlement check has been sent to the claimant's or plaintiff's lawyer. Insurance companies typically send settlement checks directly to the claimant's lawyer, payable jointly to the client and the lawyer. This procedure allows the lawyer to protect his or her lien on the settlement proceeds. Because the insurer typically does not communicate with a represented claimant, including when it sends a settlement check to the claimant's lawyer, a dishonest lawyer can steal the client's portion of the settlement by forging the client's signature and settle the client's claim with the insurance company without the client's knowledge or consent. Stephen Conrad, a now disbarred lawyer who practiced in Woodbridge, Virginia, is estimated to have stolen millions of dollars from personal injury clients whose cases he settled without their knowledge. A dishonest lawyer will stall the client by lying about the status of the client's case so the client is deceived into thinking the case is still pending. The victims of these thefts usually cannot succeed in getting the fraudulent settlements set aside because the insurance company has the right to rely on the apparent authority of the lawyer to settle the client's case. The client's only recourse then is to make a claim against the client protection fund, but the Fund limits payment to $50,000 for losses incurred on or after July 1, 2000.

Experience has shown that these problems are substantially reduced in states that have adopted payee notification laws like the proposed bill introduced in the Virginia General Assembly this session. The ABA has a Model Payee notification rule--which is not part of the Model Rules of Professional Conduct, that simply requires the insurer, when making payment in excess of a threshold amount (such as more than $5000) in settlement of third party liability claim, to send a written notice to the claimant that a settlement check has been sent to their lawyer.

The Virginia Trial Lawyers Association objected to the bill (SB 511) submitted on behalf of the Virginia State Bar and contacted the Chief Justice of the Supreme Court of Virginia, who in turn requested that the bar withdraw its bill from consideration by the General Assembly this session. Chief Justice Hassell, in a conference call with VSB Executive Director Karen Gould, and VTLA Executive Director Jack Harris, advised that this decision was made with unanimity among the justices at the Court. The Chief Justice said he wants to discuss the issue at a meeting with representatives from 17 statewide bar groups that he generally convenes once a year. HB 511 passed the Senate by a vote of 38 to 2 and crossed over to the House where it was stricken from the docket by the Commerce and Labor Committee on March 2, 2010. A similar bill, HB 738, was introduced by Del. Albo on behalf of the VTLA but the bill never made it out of the Courts of Justice Committee in the House.

Hopefully, the powers that be will see the wisdom of this measure--to protect clients and third parties from lawyers stealing their funds--and get this law on the books before another Stephen Conrad comes along. Critics of the bill, particularly personal injury lawyers, voice the concern that the proposed bill would invite insurance company reps to communicate directly with their client and would create mischief. This concern was easily addressed by language included in HB 738 that stated "No other information is authorized by this section to be communicated orally or in writing to such a claimant by a payer."

Lawyers Getting Stung by Internet Scammers

2010-02-23T16:12:00.000-08:00

Scammers continue to target Virginia lawyers with promises of high fees for purported collections actions, followed by bogus cashier’s checks — and the scams are becoming increasingly sophisticated.

The Virginia State Bar warned about the scams in June and July 2009: http://www.vsb.org/site/news/item/e-scam-fraudulent-certified-checks/

A newer scam that nearly claimed a Virginia victim is an e-mail that requests help collecting a judgment from a collaborative law agreement for a divorce. The purported creditor is a wife who recently relocated to Japan, and the purported debtor is the husband. The client creditor may appear to be referred by an out-of-state lawyer. The husband quickly agrees to pay the judgment and sends a cashier’s check. The attorney targeted by the scam deposits the check in his or her escrow account, waits for it to be credited to the account, and then wires the funds minus his fees to the wife in Japan. As the check makes its way through the banking channels, it is found to be fraudulent. The lawyer is left owing his bank or other clients a significant amount of money. To make matters worse, some legal malpractice insurers take the position that client losses caused by these scams are not covered under their policy.

Danger Signs or Red Flags:

• The transaction moves very quickly, and you will be asked by the “client” to wire or expedite disbursement of funds from your trust account.

• A party to the transaction is in a foreign country.

• The deal is too good to be true (you don’t get paid big bucks for doing nothing).

Avoiding the Scam:

• Do not enter into a transaction unless you have verified the parties and the claims. Identify and know the “client” with whom you are dealing.

• If you enter into these transactions, do not disburse any funds in your trust account until you have verified the funds with the issuing bank and the check has finally cleared. It may take weeks for the bank to determine that the check is counterfeit.

• Instruct the debtor to make one check payable directly to the “client” for the exact amount owed and a second check payable to you for your fee. Instruct the debtor to have the checks drawn on a local or national bank with branches in your area. Cash your fee check at the issuing bank.

Reporting the Scam

If you have been scammed, call the VSB Ethics Hotline at (804) 775-0564 and your bank for advice. Lawyers who think they might be the target of a scam can also make a report to the Internet Crime Complaint Center at http://www.ic3.gov.

BLOGGING & SOCIAL NETWORKING FOR LAWYERS: ETHICAL PITFALLS

2010-01-20T15:32:00.000-08:00

As social networking websites like Twitter, Facebook, MySpace and LinkedIn become increasingly more popular among lawyers, judges, support staff and clients, lawyers have to be mindful about some ethical concerns that may not be obvious. Some lawyers may say that social networking does not present any novel issues for lawyers to worry about. Lawyers cannot afford to be so cavalier. Experienced lawyers and seasoned judges have suffered professional discipline for the improper use of social networking tools. The informality and speed with which communications are made using social network tools like Twitter and Facebook may contribute to errors and ethical transgressions. Also, lawyers need to appreciate that communications over social networks are public, easily searched and permanently archived.

Confidentiality

Rule 1.6 of the Virginia Rules of Professional Conduct requires a lawyer to protect and not disclose a client’s confidences and secrets, unless the client consents to the disclosure. Confidences are communications between lawyer and client that are protected under the common law attorney-client privilege. Secrets embrace all other information gained in the course of the lawyer-client relationship that the client wants kept confidential or if disclosed would be detrimental or embarrassing to the client. Unlike Virginia, most states did not keep the “confidences and secrets” formulation when they adopted a rule modeled after ABA Model Rule 1.6. ABA Model Rule 1.6 requires that all information relating to the representation of the client be kept confidential. It is important for Virginia lawyers who are admitted in other jurisdictions to know that other jurisdiction’s rule on confidentiality. Under ABA Model Rule 1.6, even the client’s identity and the fact of representation is confidential, whereas under Virginia’s Rule 1.6, that generally is not the case.

A lawyer who discusses his or her cases on Twitter, Facebook, or a blog runs the risk of violating Rule 1.6, absent client consent. A lawyer could easily breach confidentiality on Twitter simply by tweeting to followers what they are doing at that particular time. A lawyer could try to avoid disclosing specific client information by keeping the message very general and vague but this would not be interesting to read. A lawyer may consider having the client agree up front to permitting the lawyer post information about the client’s matter on a social networking site. However, the lawyer must ensure that any disclosure will not hurt the client’s legal position or embarrass the client. Since there may be quite a lot of information that is unknown at the outset of an engagement, an advanced consent may not be effective because it was not informed. The client may be quite angry with the lawyer for posting information learned after the consent was given. In addition, there is a risk that the posted information may be read by the client’s adversary, opposing counsel, or other third parties. While it may be improper under certain circumstances for lawyers or their agents to go mining for an opposing party’s personal information on a social networking site, some lawyers don’t think, don’t know, or don’t care that obtaining and using your client’s information may be unethical.

The Illinois Attorney Registration and Disciplinary Commission has commenced disciplinary action against an experienced assistant public defender who discussed her cases on her blog. Here is what she posted on her blog:

#127409 (the client's jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he's no snitch.” I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.

In another post, the assistant public defender stated:

“Dennis,” the diabetic whose case I mentioned in Wednesday's post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn't being managed well.

In yet another post, the assistant public defender vividly described her client’s perjury in a criminal case. In addition to the blog entries described above, the lawyer referred to a judge as being “a total asshole,” and in another she referred to a judge as “Judge Clueless.” The Illinois Board has recommended her disbarment.

Criticizing a judge in a blog got lawyer Sean Conway in trouble. In a conditional plea, Conway agreed to a reprimand for calling a judge an “evil, unfair witch” in a blog post. He claimed in a brief submitted to the Florida Supreme Court that his remarks were protected by the First Amendment, but the court disagreed and affirmed the disciplinary agreement.

On Facebook, a user's profile, photographs, and updates are sometimes available to the public at large or more generally to any other member who is authorized by the first user. Facebook’s platform allows users to add such “friends” and to send them messages, as well as leave postings on “friends’” profile pages through what are called “comments” and “wall posts.” Fortunately, privacy and security settings on Facebook allow the user to restrict or limit access the user’s profile to only members, the user’s “friends” or even a select few “friends.” If the user is not careful, information can easily fall into the wrong hands. For example, in People v. Liceaga, a Michigan murder trial, the prosecutor sought to admit photographs found on the defendant's MySpace page as evidence of intent and planning. Specifically, the defendant's profile Web page contained photographs of himself and the gun allegedly used to shoot the victim, and in which he was displaying a gang sign.

In In the matter of K.W., a North Carolina court admitted into evidence an alleged child abuse victim’s MySpace page as impeachment evidence. Specifically, the court held that the victim’s posting of suggestive photographs along with provocative language could be used to impeach inconsistent statements made to the police about her sexual history.

Courts have also permitted information gathered on a person’s social networking site to be used as evidence at the sentencing stage of a criminal proceeding. In United States v. Villanueva, the court found that post-conviction images on the defendant's MySpace page of the defendant holding an AK-47 with a loaded clip taken after the defendant had been convicted of a violent felony could be used as evidence to enhance sentencing.

Trial Publicity

Virginia Rule 3.6 prohibits a prosecutor or a defense lawyer from making public statements about pending criminal cases in which they are involved if the statement will have a substantial likelihood of interfering with the fairness of a trial by jury. Other states’ versions of Rule 3.6 impose the ban in civil cases as well. As jurors use the Internet when they go home for the evening, there is a risk of a mistrial if the lawyers participating in the case are blogging or tweeting about it.

A 40-year-old California attorney has had his law license suspended for 45 days over a trial blog he wrote while serving as a juror. Because of a blog post by Frank Russell Wilson, an appeals court reversed and remanded the felony burglary case, reports the California Bar Journal. As a juror, Wilson was warned by the judge not to discuss the case, orally or in writing. Wilson evidently made a lawyerly distinction concerning blogs: “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial,” he writes, before posting unflattering descriptions of both the judge and the defendant. He also failed to identify himself as a lawyer to the trial participants, the bar journal notes.

Using Pretext to Obtain a Person’s Information on a Social Networking Web Site

As social-networking websites such as Myspace, Facebook, and Twitter continue to become more popular, criminal and civil attorneys across the nation are beginning to find these websites useful for gathering evidence and personal information relevant to their cases. However, lawyers must be mindful of Virginia Rule 8.4(c) which prohibits deception and misrepresentation and Rule 8.4(a) which states that a lawyer cannot use the agency of another to violate the ethics rules. A recent ethics opinion by the Philadelphia Bar Association holds that a lawyer violates Rule 8.4 by employing a third party to go online and gain access to a person’s information on Facebook by asking to be their “friend.”

Misrepresentation

A lawyer requested a continuance claiming a death in the family, but the Galveston, Texas judge checked her Facebook page and discovered news of a week of drinking and partying. The judge informed the lawyer’s senior partner of her misrepresentation. The judge told the ABA Journal that the lawyer “defriended” her.

Ethical Lapses by Judges

A North Carolina judge has been reprimanded for “friending” a lawyer in a pending case on Facebook, posting and reading messages about the litigation, and accessing the website of the opposing party. See In the Matter of B. Carlton Terry, Jr., North Carolina Judicial Stds, Comm’n, No. 08-234 (April 1, 2009). Both the Virginia Rules of Professional Conduct and the Canons of Judicial Conduct prohibit ex parte communications between lawyers and judges about pending matters, subject to some limited exceptions. Virginia Rules of Professional Conduct, Rule 3.5 (e); Canons of Judicial Conduct, Canon 3B(7).

The Florida Supreme Court’s Judicial Ethics Advisory Committee has issued an opinion holding that it is judicial misconduct for a judge to add as “friends” on Facebook lawyers who may appear before that judge. The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. See also Va. CJC, Canon 2B.

Lawyer Advertising Rules

Lawyers should review Virginia Rules 7.1 and 7.2 to make sure all statement or claims made via a website, a blog, Twitter, Facebook, or LinkedIn are in compliance with the advertising rules. Rule 7.1 prohibits a lawyer in his or her public communications from making false or misleading statements about the lawyer or the lawyer’s services. Rule 7.2 imposes additional requirements on “lawyer advertising,” including identifying by name and office address the lawyer responsible for the advertisement. Rule 7.2(e). Consider also reading Virginia LEO 1750 (Advertising, Compendium Opinion). Lawyers must ensure the advertising rules are followed if using Internet media to promote their services especially if using celebrity endorsements, client testimonials, specific case results, specialization claims, or comparative statements. Moreover, advertising with electronic media is subject to Rule 7.2(b) which requires a record be maintained of the advertisement for one year from its last appearance date.

For example, LinkedIn has a section on “specialties.” In many jurisdictions, lawyers are either forbidden from holding themselves out as specialists or must meet certain requirements to do so. In some states this means the lawyer must be certified as a specialist under that state’s specialization certification program. Virginia does not have such a program. However, Virginia does not prohibit a lawyer from holding out generally as a specialist or expert in an area or field so long as the claim can be factually substantiated. Virginia’s Rule 7.4 does prohibit a lawyer from saying that he or she is certified as a specialist, unless the communication also has a required disclaimer that the state of Virginia does not have a procedure for approving or certifying specializations.

A lawyer who “tweets” about obtaining a huge verdict in a case will likely violate Rule 7.2’s prohibition against advertising specific case results because the 140 character limitation on tweets makes it impossible to include the required disclaimer. Rule 7.2(a)(3). Rule 7.2(e)’s requirement of responsible attorney identification may also preclude the use of Twitter as an advertising media.

Client recommendations or endorsements must be scrutinized by the lawyer for compliance with the advertising rules. South Carolina Ethics Advisory Opinion 09-10 states that a lawyer is responsible for any recommendations, endorsements or ratings ascribed to that lawyer on a third party website. If the lawyer cannot monitor and remove or edit non-compliant statements, the lawyer must cease participation on that website. Some legal ethics experts believe a lawyer should not be held responsible for an unsolicited endorsement or recommendation.

LinkedIn has a section on recommendations in which the member can ask other members for a recommendation. Some states do not allow client testimonials, so Virginia lawyers admitted and practicing in other states need to be aware of that state’s rule. Even if the state, like Virginia, allows client testimonials, endorsements, or recommendations, the testimonials must be monitored, revised, or removed so as to comply with Rules 7.1 and 7.2. For example, the lawyer cannot permit to remain on his LinkedIn page a client recommendation that says the lawyer is the “best personal injury lawyer in town,” because it is a comparative statement that cannot be factually substantiated.

Is There a Form of “Solicitation” that is Prohibited or Restricted?

Virginia’s Rule 7.3 regulates direct communication with prospective clients and states “[i]n person communication means face-to-face communication and telephonic communication.” Thus, invitations from a lawyer to a prospective client into the lawyer’s LinkedIn or Facebook page would likely not fall within the rule. However, lawyer solicitation rules vary from state to state, so a Virginia lawyer licensed in other jurisdictions should review the ethics rules of that particular state to determine whether these forms of communication are subject to regulation as a form of solicitation.

Creating Unintended Lawyer-Client Relationships

The lawyer must consider whether informational advice on a blog or website creates the impression of giving legal advice that can be relied on by a visitor. Clear disclaimers can be helpful in resolving this problem. The question to ask is, “Does the online resource do anything that would create client expectations?”

Legal information of general application about a particular subject or issue is not “legal advice” and should not create any lawyer-client issues for the blogging or posting lawyer. Appropriate disclaimers will assure this conclusion. However, if a lawyer by online forms, e-mail, chat room, social networking site, etc. elicits specific information about a person’s particular legal problem and provides advice to that person, there is a risk that a lawyer-client relationship will have formed. Virginia LEO 1842 (2008) addresses this issue somewhat in connection with visitors on a law firm’s web page. The Committee believes the lawyer does not owe a duty of confidentiality to a person who unilaterally transmits unsolicited confidential information via e-mail to the firm using the lawyer’s e-mail address posted on the firm’s website. The person is using mere contact information provided by the law firm on its website and does not, in the Committee’s view, have a reasonable expectation that the information contained in the e-mail will be kept confidential. On the other hand, if the law firm’s website invites the visitor to submit information via e-mail to the law firm for evaluation of their claim, there will be a limited lawyer-client relationship for purposes of Rules 1.6, 1.7 and 1.9. The law firm may be disqualified, under these circumstances, if they are also representing a client adverse to the website visitor. The website disclaimer might state, for example, that no attorney-client relationship is being formed when a prospective client submits information, and that the firm has no duty to maintain as confidential any information submitted. The disclaimer should be clearly worded so as to overcome a reasonable belief on the part of the prospective client that the information will be maintained as confidential. In addition, the Committee recommends the use of a “click-through” (or, “click-wrap”) disclaimer, which requires the prospective client to assent to the terms of the disclaimer before being permitted to submit the information.

Law Firm Policies and Supervision of Employees

Lawyers in law firms have an ethical duty to supervise subordinate lawyers and non-lawyer staff to ensure that their conduct complies with applicable rules of conduct, including the ethical duty of confidentiality. See Rules 5.1 and 5.3. To this end, law firms need to have policies in place regarding employees’ use of social networking websites during and after normal business hours.

Court Rules Must Be Admitted to Practice Law in India

2010-01-06T10:21:00.000-08:00

In a setback for U.S. firms who seek access to India's legal markets, the High Court of Judicature at Bombay Dec. 16 held that foreign or transnational law firms cannot set up satellite offices in India unless each lawyer is licensed to practice law in that country, even if the firm limits its activities to consulting and other nonlitigation work (Lawyers Collective v. Union of India, Bombay H.C., No. W.P. 1526/1995, 12/16/09).

Transnational firms that set up “liaison offices” in India to draft and review documents, conduct negotiations, and advise clients on international standards and practices are deemed to be engaging in the unauthorized practice of law notwithstanding the work's nonlitigation nature and even though the legal work does not involve the application of India's laws. This is not surprising, however, because most states in the U.S. also consider such activity to be "practicing law."

Disclosure of Conflicts Information When Lawyers Move Between Law Firms

2009-11-05T13:33:00.000-08:00

A new ABA opinion concludes that limited information related to a representation and necessary for lateral-hire conflict-checking may be communicated to the hiring firm without the candidate violating Rule 1.6. The opinion considers various exceptions to confidentiality under Rule 1.6(b), but concludes that they do not apply. Op. 09-455 (October 8, 2009) concludes that Rule 1.6(b)(6) -- disclosure of client information "necessary. . .to comply with other law" -- does not apply because "other" seems to mean "other than the Rules."
Op. 09-455 concludes, nonetheless, that certain limited information that is covered by Rule 1.6 may (unless there are other problems, such as actual harm to the client) be disclosed as necessary for lateral hire conflict-checking. The conclusion is based on the Rules being "rules of reason," on analogies to other ABA opinions and rule amendment, and (above all) because "disclosure of conflicts information otherwise protected by Rule 1.6 should be considered permissible as necessary to comply with the Rules." Put differently, public policy permits that which Rule 1.6(b)(6) addresses generally, but does not permit.
I think the ABA Model Rules should permit the disclosures permitted by Op. 09-455. However, the straightforward way to do that is to delete "other" from Model Rule 1.6(b)(6) (or otherwise make clear that "law" includes the Rules), rather than have a series of ABA opinions that have the same effect as such a rule amendment would.

Federal Judge Holds Red Flags Rule Over-Reaches When Applied to Lawyers

2009-10-30T07:40:00.000-07:00

A federal judge has called the Federal Trade Commission’s Red Flags Rule over-reaching in its application to lawyers, and granted partial summary judgment on October 29, 2009 to the American Bar Association (“ABA”). Counsel for the ABA says it has won all the relief it sought in its challenge to the regulation, including injunctive relief.

The Red Flags Rule is an identity-theft prevention matter. It requires creditors who defer payments for goods and services to develop and implement written programs to identify, detect, and respond to warning signs of identity theft. In spring 2009, the FTC concluded that lawyers are considered creditors under the rule.

On August 27, 2009, the American Bar Association filed suit in the U.S. District Court for the District of Columbia against the Federal Trade Commission, seeking an injunction to block the application of the "Red Flags Rule" to practicing lawyers.

After the October 29, 2009 hearing, ABA President Carolyn B. Lamm issued a statement:

“This ruling is an important victory for American lawyers and the clients we serve. The court recognized that the Federal Trade Commission’s interpretation of the Fair and Accurate Credit Transactions Act over-reaches and its application to lawyers is unreasonable. By voiding the FTC’s interpretation of a statue that was clearly not intended to apply to the legal profession, the court has ensured that lawyers stay focused on the mission of their work: providing aid and counsel to the individuals and organizations that need us.”

An account of the hearing quotes Walton as saying, “I have a real problem with concluding that Congress intended to regulate lawyers when these statutes were enacted.” http://legaltimes.typepad.com/blt/2009/10/judge-ftc-cannot-make-lawyers-comply-with-identity-theft-laws.html

On October 30, 2009, Judge Walton entered an Order granting summary judgment as to Count I of the ABA’s Complaint alleging that the Commission's application of the Red Flags Rule to attorneys violates 5 U.S.C. § 706(2)(C) as it is "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." A memorandum opinion with points and authorities will issue within 30 days.

Legal Malpractice

2009-10-22T06:53:00.000-07:00

The New Jersey Supreme Court is about to take another look at the "settle and sue" syndrome: When a client settles a case and then sues his or her lawyer over it. The case is Guido v. Duane Morris.

ABA Commission to Study Globalization of Legal Services and Impact of Techonology on Law Practice

2009-10-21T11:46:00.000-07:00

ABA President Carolyn B. Lamm created the Commission on Ethics 20/20. The Commission will perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation, and will ultimately propose policy recommendations that will allow lawyers and law firms to better serve their clients, the courts, and the public now and well into the future. The Commission members represent a broad spectrum of expertise in U.S. and global ethics rules, lawyer regulation, globalization, and technology. They come from the judiciary (state and federal), law firms (large and small), corporate counsel, government, and academia. You can learn more about them and the Commission’s work at www.abanet.org/ethics2020

Due to globalization and technology's impact on how lawyer's practice--enabling lawyers and law firms to have a virtual presence in other countries--questions have arisen regarding how the practice of law may be regulated in the future, including choice of law issues. Overseas, in the U.K and Austrailia, for example, there are significant changes being made in how legal services are delivered that are currently prohibited by bar regulators in the U.S.

The Commission will engage ABA and affiliated entities, the judiciary, the bar (including international, state, local, and specialty bar associations), and the public in framing and discussing the issues, and enlist their support in fashioning policy recommendations. The Commission will hold public hearings, roundtables, and present educational programs live and via the web. It will conduct e-surveys and provide broad opportunities for written submissions and comments. At the conclusion of its three-year term, the Commission will issue a report with its recommendations.

Trial Conduct: Lawyer denied right to wear baseball cap in court

2009-10-14T07:09:00.000-07:00

A federal district court in New York has ruled that a lawyer has no free speech right to wear a baseball cap while appearing in court as a pro se litigant. (Bank v. Katz, E.D.N.Y., No. 08-cv-1033, 9/24/09). The lawyer's desire to make a “fashion statement” is not a fundamental right that trumps the state court's legitimate interest in “maintaining proper decorum, etiquette, and respect for the judicial process,” the court wrote. Judge Nicholas G. Garufis stated: “[I]t is appropriate for a court to expect litigants to appear in attire that is suitable to the dignity of a courtroom, rather than to show up in clothes they might have worn to a baseball game.”

Prosecutor's Duty to Disclose Exculpatory Information

2009-09-30T14:58:00.000-07:00

The ABA's Standing Committee on Legal Ethics and Professional Responsiblity has just issued a new opinion, Formal Op. 09-454 (2009) which holds that a prosecutor's ethical duty under Model Rule 3.8 is broader in scope than the constitutional requirements under Brady v. Maryland. The key difference, according to the Committee, is that Rule 3.8 (d) "requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on the trial's outcome." (emphasis added). In contrast, the constitutional standard is that the prosecutor need only turn over material evidence which means that the trial's outcome would likely had been different had the disclosure been made.

Ex Parte Contacts with Employees of Represented Corporation

2009-09-29T06:31:00.000-07:00

A new decision in this developing area of law holds that plaintiffs' counsel may contact non-supervisory employees of the defendant company that is represented by counsel in a Title VII action in federal court. The case is Smith v. United Salt Corp, USDC W.D. Va. (Sept. 9. 2009). The defendant argued that Lewis v. CSX Transp. Inc., 202 F.R.D. 464 (W. D. Va. 2001) is controlling and that such employee's are "off limits" for ex parte contacts by plaintiff's counsel. Plaintiffs counsel relied in part on Cmt. [4] to Va. R. Prof. Conduct 4.2 which indicates that employees that cannot bind the employer or who are outside the "control group" are not regarded as "represented" by counsel for the employer. Judge Sargent ruled that statements by non-supervisory employees in a Title VII case do not bind the employer and cannot be used as admissions or impute liability to the employer. The employer is subject to vicarious liability only for acts of supervisory personnel. Applying both Rule 4.2 and Fed. R. Evid 801 (d)(2)(D), Judge Sargent held that the ex parte contacts are not prohibited.

Justice Sotomayor and Per Curiam Orders

2009-08-10T15:06:00.000-07:00

In Ricci vs. DeStefano, more than a dozen white firefighters, as well as one Hispanic, sued New Haven, Conn., for discrimination after the city threw out the results of its lieutenant and captain exams because black firefighters performed disproportionately poorly and wouldn't have been promoted. A federal district court judge found in 2006 that the city was justified. The firefighters appealed, and the case was assigned to a three-judge panel of the 2nd Circuit Court of Appeals that included Sotomayor. In February 2008, the panel issued a summary order, without comment, upholding the lower court's finding. Another 2nd Circuit judge asked the full appeals court to rehear the case, but the court's other judges declined. After that, Sotomayor and the other two judges on the panel issued a new "per curiam" order that adopted the lower court's ruling as their own, calling it "thorough, thoughtful, and well-reasoned."

The issue of the per curiam order came up during the Senate confirmation hearings.

In a July 1, 2009, column in Human Events headlined "So much for wise Latinas," conservative columnist Coulter wrote that "Sotomayor threw out their lawsuit in a sneaky, unsigned opinion — the judicial equivalent of 'talk to the hand.'" Coulter's criticism was unfair.

Practicing lawyers understand that "unsigned" means the ruling was "per curiam," or "for the court" — simply, that everyone on the panel agreed with the decision and decided to issue a single opinion. The panel that heard the case stands behind its decision. Coulter's attempt to distort the truth by accusing Sotomayor of hiding behind a "bad decision" is disingenuous. There was nothing sneaky or underhanded about the decision made in this case, even if you do not agree with it. Moreover, federal judges cannot be removed for making unpopular decisions so what motivation would Sotomayor, or any other federal judge have to "hide behing a per curiam order?" The court's file, a public record, will reveal which judges heard the case even if they are not identified in the per curiam opinion.

Perhaps this discussion raises the question of whether judges should be required to at least sign or be identified as the author of an opinion. If a per curiam opinion represents the opinion shared by the three-judge panel that heard the case, why should they not be identified or sign off on the opinion?

Lawyer Advertising Rules Challenged in Federal Court

2009-08-10T11:44:00.000-07:00

On August 3, 2009, U.S. District Court Judge Martin L.C. Feldman issued an order and reasons ruling on cross motions for summary judgment. Judge Feldman's order upheld most of the challenged provisions of the Louisiana advertising rules scheduled to go into effect on October 1, 2009, while also denying the defendants' motion to dismiss. Washington D.C.-based Public Citizen, Inc. and lawyers Morris Bart, William N. Gee III and Scott G. Wolfe, Jr. sued the Louisiana Attorney Disciplinary Board, its chair and its chief disciplinary counsel to block enforcement of the Rules claiming that they were unconstitutional.

Citing the U.S. Supreme Court in Edenfield v. Fane, the Court stated, "The State may not by scatter-shot condemn lawyer advertising, but does indeed have a substantial interest in addressing the ethical standards of the profession, as well as in preventing public confusion or deception."In its 39-page Order, the Court upheld:

Rule 7.2 (c) (1) (D) - References to Testimonials of Past ResultsThe Court stated that "reference to past results, even if truthful,...could... be inherently misleading."

Rule 7.2 (c) (1) (E) - Communications that Promise ResultsThe Court said "prohibition of communications that promise results regulates only speech that is inherently misleading."

Rule 7.2 (c) (1) (J) - Portrayal of a Judge or JuryThe Court said it agreed that "portrayal of a judge or jury in an ad is inherently misleading." It further stated "such material simply conveys an untrue message. It is compellingly misleading."

Rule 7.2 (c) (1) (L) - Use of Mottos that State or Imply An Ability to Obtain ResultsThe Court found that this provision "materially advances the State's interest in preventing deception of the public, and is narrowly tailored to achieve those ends."

Rule 7.2 (c) (1) (I) - Non-Authentic ScenesThe Court cited Zauderer, which held that "an advertizer's (sic) rights are adequately protected as long as the disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." The Court stated "such dramatizations are in and of themselves capable of unintended guile or delusion."

Rule 7.2(c)(10) - Disclosures and DisclaimersFurther citing Zauderer, the Court stated that "the written disclaimer requirements of Rule 7.2(c)(10)" do not violate the First Amendment and "this Court believes such disclaimers would have a beneficial purpose."

Rule 7.2(c)(11) and Rule 7.6(c)(3) - Payment by Non-Advertising Lawyer and Electronic Mail CommunicationsThe Court noted that the plaintiffs did not address these Rules in their motion for summary judgment, "thus, their attack does not reach those Rules."

Finding a lack of evidentiary support, Judge Feldman struck down the additional disclosure requirements for a non-lawyer spokesperson under Rule 7.5(b)(2)(C) and also struck down Rule 7.6(d), and Rule 7.7 as it applies to the filing requirements for Internet advertising.

To review the court's order go to this link:

http://www.lsba.org/2007MemberServices/Advert0609/OrderandReasons8-3-09.pdf

Raid on Client Security Funds

2009-07-28T10:44:00.000-07:00

Desparate times lead to desparate measures. Blame it on the recession as state governments strapped for cash look for ways to balance the budget. The August 2009 issue of The ABA Journal "Fast Moves in the Nutmet State" reports how the Connecticut legislature signed into law a measure that would allow it to siphon $2 million from the Client Protection Funds established by the Connecticut Bar Association. Fortunately, the bar fought the law and won!

Like the Virginia State Bar, the Connecticut Bar Association (CBA) collects dues from the lawyers and uses some of those dues to fund the Client Protection Fund (CPF). The purpose of the CPF is to remimburse clients who have suffered a loss of money due to dishonest conduct by their lawyer. Often the CPF is the only resort or remedy because malpractice insurance does not pay claims involving dishonesty by a lawyer. A CPF also does not generally pay claims involving negligence by a lawyer. The client will have to sue the lawyer for malpractice. Only the state of Oregon requires lawyers to have malpractice insurance although many lawyers have malpractice insurance anyway.

The CBA attempted to negotiate with the legislature but had to file suit and also launched a campaign to educate the legislators and the public about the nature and purpose of the CPF, emphasizing that the legislature's impoundment of those funds was an improper exercise of governmental power and an inappropriate way to bail out the state budget no matter how dire the circumstances. Not long after the CBA filed suit, the Connecticut General Assembly agreed to restore the funds to the CPF. The CBA lobbied successfully for a statute that would prohibit any future attempts to use CPF funds for any other purpose except as specified by the state supreme court which oversees the CPF.

The Ethical Duty of Confidentiality and the Attorney-Client Privilege

2009-07-28T07:26:00.000-07:00

Lawyers often misunderstand the differences between the Ethical Duty of Confidentiality [Rule 1.6 of the VA or ABA Rules of Prof. Conduct] and the "Attorney-Client Privilege." There are some similarities but first and foremost the scope of information protected under the ACP is much more narrow than information protected under Rule 1.6. The ACP only protects the essence of a communication made in confidence between a client and a lawyer when the client is seeking legal advice or representation. Information from other sources given by the client to the lawyer does not make that information protected under the ACP. For example, a client's ordinary business records do not become privileged by handing them over to their lawyer. Lawyers often believe a client's file is "privileged" when in fact most of the material in the file is not likely protected under the ACP.

On the other hand, under ABA Model Rule 1.6, any information relating to the representation of a client is protected as confidential under Rule 1.6 even though it is not "privileged" under the ACP. In certain instances, even the client's identity or the fact of the representation may be information protected under Rule 1.6, meaning that the lawyer and/or her staff cannot disclose that information unless the client consents. Also, that fact the information relating to the representation is known or shared by others, or even "a matter of public record" does not remove that information from Rule 1.6's protection. Even if the client has shared the same information with others--which would waive protection under the ACP--a lawyer cannot reveal that information to others without client consent.

Virginia's version of Rule 1.6 is not quite as broad in scope as ABA Model Rule 1.6. Virginia's rule protects a client's "confidences," i.e., information protected under the ACP and "secrets" any other information which either the client has requested be kept confidential or which, if disclosed, would be "detrimental or embarrassing to the client."

Like information protected under the ACP, information protected under Rule 1.6 remains confidential and that protection survives the termination of the lawyer-client relationship and even the death of the client.

The ACP is an evidentiary doctrine meaning that a client's adversary is not entitled to discover, use or admit into evidence information that is protected under the ACP. A party in litigation may be entitled to a protective order as to matters that are privileged under the ACP or work product doctrine. A court commits legal error if it incorrectly orders a party to disclose information that is protected under the ACP. Such a ruling may leave a party and their lawyer with a difficult choice because generally rulings made on the ACP occur in the context of pre-trial discovery and there is generally no interlocutory appeal that may be taken to challenge the court's decision. A party may refuse to comply with an order requiring disclosure of information that the party insists is privileged and be found in contempt. The contempt order is a final order from which an appeal may be taken. On the other hand, if the party complies with the court's order and discloses information it unsuccessfully defended as protected under the ACP, the privilege will be deemed waived, and subsequent appeal of an adverse decision will be of no avail.

Unlike the ACP, the ethical duty of confidentiality is not an evidentiary matter and may not serve as a basis to resist a court's order to disclose information otherwise protected under Rule 1.6. Both the ABA and Virginia Rule 1.6 permit lawyer to disclose information otherwise protected under the rule when required by law or a court order.

Information protected under the ACP may be disclosed if the client consents or if there has been a waiver of the privilege. The ACP does not attach to communications by and between jointly represented clients and their common lawyer. The ACP does not apply if the client is communicating with a lawyer for the purpose of securing legal advice to commit a crime or fraud. This is called the "crime fraud" exception to the ACP. A client will be deemed to have waived the ACP if he or she accuses the lawyer of wrongdoing or unethical conduct or if a dispute arises between the lawyer and the client relating to the representation. Under those circunstances, the lawyer may reveal information that would otherwise be privileged when necessary to defend herself against the client's accusations of misconduct or to establish a claim against the client for unpaid legal fees. Similar exceptions apply to information protected under Rule 1.6. Under ABA Rule 1.6 the lawyer may reveal information necessary to prevent serious bodily injury or death to another, or to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial economic injury to another, or to mitigate the consequences. Under Virginia's Rule 1.6 a lawyer must reveal the client's stated intent to commit any crime and must advise the court if the client insists on committing perjury or has perpetrated a fraud on the court. Under ABA Model Rule 3.3, a lawyer must take remedial measures if the client insists on committing perjury or if the lawyer has submitted evidence or information that the lawyer has since learned is false or fraudulent

A lawyer may be "impliedly authorized" to disclose information protected under Rule 1.6 if necessary to carry out the representation of the client. Information given by the client to non-lawyer support staff employed by the lawyer (paralegal or secretary) may also be protected under both the ACP or Rule 1.6.

Law Firm Names: Use of the term "Associates"

2009-07-27T10:56:00.000-07:00

Law firms must have at least two lawyers in them in order to use the word “Associates” in their name, and at least three lawyers to use the phrase “& Associates,” according to a Minnesota legal ethics opinion (Minnesota Lawyers Professional Responsibility Bd., Op. 20, 6/18/09).
Sole practitioners must refrain from including the word to describe their practice, the board said, because it would convey the impression that the practice has more attorneys in it than is actually the case. Use of the term "Associates" is also improper if the lawyer is merely sharing office space with other lawyers.

Ethics of Tweeting and Blogging

2009-07-24T13:23:00.000-07:00

I spoke on a panel today about the ethics issues that lawyers may face when blogging, tweeting or using LinkedIn. One of the panelists, Jeff Geiger, a partner at SandsAnderson in Richmond, VA commented that law firms need to have a policy for employees that use social media and networking. It seemed that most lawyers in the audience did not blog or tweet but were interested in how these tools could be used to market legal services. I talked about whether blogs and tweets were subject to bar rules regarding lawyer advertising and the importance of not revealing client information (without client consent) or giving legal advice through this type of media.

Is Secret Recording Unethical?

2009-07-22T07:55:00.000-07:00

The Supreme Court of Virginia rejected an attempt by the Virginia State Bar to amend Rule 8.4 of the Rules of Professional Conduct that would allow lawyers under certain circumstances to conduct an investigation on behalf of a client using a recording device. In Virginia, undisclosed recording is not illegal under federal or state law if the recorder is a participant in the communication. The legal ethics committee of the Virginia State Bar, however, has opined that it is unethical for a lawyer to record or advise another to record a conversation without the other party's knowledge and consent. In other words, conduct that is legal is nonetheless unethical. The Court did not provide any comment in its order rejecting the bar's petition. Lawyers have to "walk the tightrope" when a client asks if he or she can tape record a spouse that is abusing them. It seems to me that lawyers should be able to advise clients regarding conduct that is legal. Unfortunately, doing so places the lawyer at risk of being disciplined. This is not a satisfactory state of affairs, in my view.

D'ya Think?

2008-02-13T12:15:00.000-08:00

Do you think prosecutors have an ethical duty to turn over evidence that tends to show that the person they convicted is innocent? You would think so but don't try to find that in the ethics rules that govern lawyers who are public prosecutors. It's not there. Do you think the rules of conduct governing prosecutors should require them to turn over evidence of innocence after convicting a person who likely did not commit the crime?

At its Midyear Meeting this month the American Bar Association's House of Delegates voted in favor of a proposal to amend Rule 3.8 of the ABA Model Rules of Professional Conduct to identify prosecutors’ obligations when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense of which he was convicted.

This doesn't mean a whole lot, though, unless each state formally revises their rules on the subject and there is no assurance that will occur. The ABA Model Rules are precisely that--model rules--which are not binding on any lawyer practicing in this country. Each state in the U.S. has its own ethics rules that are binding on the lawyers practicing in that state.

Prosecutors have an ethical obligation to do more than just convict. They are to see that justice is done. Prosecutors do not have a client they are beholden but they have a constituency to whom they are responsible. That constituency is the voters that put the prosecutor in office. Surely the public that elected a district attorney does not want persons who are wrongfully convicted to stay in prison. What if was you or a family member incarcerated in prison and the person holding the key to freedom is the prosecutor?

Unfortunately, most prosecutors do not recognize or accept their responsiblity to reveal evidence of innocence post-conviction and will likely oppose measures like the amendment recently adopted by the ABA.

Finders Keepers? I Don't Think So!

2007-12-26T09:39:00.000-08:00

Although legal ethics rules can be counterintuitive, many ethical dilemmas can be resolved by the application of common decency and morality. One basic norm we were taught as early as kindergarten, is that when you find something that does not belong to you and you know its rightful owner, you return the property to that person.

Picture this: Somehow your opposing counsel ends up with your twelve pages of notes of a meeting you and your experts had preparing a defense for your client. Instead of returning to you your attorney work product, your opponent makes copies of your notes, shares them with co-counsel, and uses them to prepare a line of questions to impeach one of your experts at trial.

Does this seem like ethical behavior to you? I hope not. The Supreme Court of California declared this conduct unethical and disqualifed the errant lawyer and his firm in Rico v. Mitsubishi Motors Corp., Cal., No. S123808, 12/13/07.

The appropriate course of action that the plaintiff's lawyer should have taken was explained by the court:

When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.

Exploitive behavior of this type is a recipe for disaster. Perhaps some lawyers need to go back to kindergarten to learn that you simply don't take or use property that does not belong to you.

Waterboarding: Does this look like torture to you?

2007-12-12T12:45:00.001-08:00

No, it's not a form of recreation, dude, but a means used by interrogators to extract information from prisoners. The technique of waterboarding involves strapping the person being interrogated on to a board as pints of water are forced into his lungs through a cloth covering his face while the victim's mouth is forced open. Waterboarding's purpose is to simulate drowning and produces the gagging reflex in the subject. This fear of drowning coerces confessions, admissions and information from the subject.

All countries, including the U.S., that are signatories to the United Nations Convention Against Torture and the Universal Declaration of Human Rights have pledged against the use of torture. Numerous experts have declared waterboarding is torture and countries, including the United States, have criminally prosecuted persons charged with employing waterboarding. According to Republican United States Senator and Presidential Candidate John McCain, who was tortured as a prisoner of war in North Vietnam, waterboarding is "torture", "no different than holding a pistol to his head and firing a blank" and can damage the subject's psyche "in ways that may never heal."

It has been reported that U.S. CIA agents used waterboarding to interrogate Guantanamo detainees as part of the War on Terroism. The use of waterboarding to interrogate prisoners has been justified by the Bush Administration because of valuable information the Government has obtained. For example, it has been reported that Khakid Sheikh Mohammed was waterboarded while being interrogated by the CIA. According to the Bush Administration, Khalid Sheikh Mohammed divulged information of tremendous value during his detention. He is said to have helped point the way to the capture of Hambali, the Indonesian terrorist responsible for the 2002 bombings of night clubs in Bali. According to the Bush Administration, he also provided information on an Al Qaeda leader in England.

In view of the reports that the U.S. Government had employed waterboarding as an interrogation technique, more than 100 law professors wrote an open letter ( http://hrw.org/english/docs/2006/04/06/usdom13130.htm ) urging then Attorney General Gonzales to declare that waterboarding is an unlawful form or torture prohibited under international law and the 2006 Defense Authorization Act prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody. The law professors quoted appropriate sections of the law:

The Convention Against Torture prohibits practices that constitute the intentional infliction of “severe pain or suffering, whether physical or mental.” The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause “severe physical or mental pain or suffering.”

Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward.

Waterboarding, when used against people captured in the context of war, may also amount to a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding is also an assault, and thus violates the federal assault statute, 18 U.S.C. § 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. In cases involving the U.S. armed forces, waterboarding also amounts to assault, and cruelty and maltreatment under the Uniform Code of Military Justice.

Of course, Alberto Gonzales and others under his direction, counselled the President that captured members of Al Quaeda and the Taliban were outside the scope of the Geneva Convention and other international law governing the treatment of prisoners of war. For a thorough analsis of the "torture memos" issued by the Office of Legal Counsel of the DOJ in 2002 see: http://lawofwar.org/Torture_Memos_analysis.htm

A lawyer has an ethical duty to competently advise a client when the client's actions are illegal, fraudulent or immoral. Certainly the Attorney General owes a duty to declare such conduct inappropriate and to advise the President to direct that such conduct not be employed or tolerated. Gonzales failed to discharge his duty to the client. Michael B. Mukasey, during his confirmation hearings to be the next Attorney General told the Senate that he refused to take a position on whether waterboarding is torture because he did not know enough about it!

This position is astonishing for a federal judge aspires to the next Attorney General and is seemingly not plausible. Torture, and water-boarding in particular, is one of the top issues facing the Justice Department, the subject of numerous lawsuits and one of the most obvious, predictable topics at the hearing. It has been discussed literally thousands of times in the media during the last six years. To say he is unfamiliar with the technique is incredible and disingenous.

On November 9, 2007, Michael B. Mukasey was confirmed to serve as the 81st Attorney General of the United States.

Worst Lawyer TV Ad

2007-12-11T08:32:00.000-08:00

EZ Divorce Law--A Florida law firm has posted perhaps the most tacky lawyer ad I have witnessed to date. Check it out on YouTube:

http://youtube.com/watch?v=JXiJQVyLelM

Let me know what you think!!

Be Careful Who You Hire and Supervise Your Staff

2007-12-11T08:14:00.001-08:00

Lawyers and law firms cannot be too careful, even if the trusted staff person is a long-term employee with a reputation for competence and integrity. Harvey Latney Jr., the part-time commonwealth’s attorney in Caroline County who maintains a practice in Richmond, discovered that Shelia Mae Boone, his secretary for 27 years, is a crook. She pleaded guilty in November to a federal bank fraud count related to the theft of at least $92,930 from an estate administered by Latney. Boone’s attorney claims that’s all his client took, but an attorney for Latney insists Boone stole about three times that amount from estates administered by Latney and from law firm accounts. An estate is suing Latney for more than $200,000, and he is contending that he can tap a legal malpractice insurance policy with limits of $100,000 per occurrence and $300,000 in total coverage. The insurer, ALPS, maintains that the claim is excluded under the policy.

Some policies, however, do contain an endorsement for fidelity claims arising out of employee theft. In fact, lawyers conducting real estate settlements in Virginia must have coverage for employee defalcation under state law, i.e., the Consumer Real Estate Settlement Practices Act (CRESPA).

Lawyers have an ethical duty under Rule 5.3 of the Rules of Professional Conduct to supervise and monitor the activity of non-lawyer staff in a law office and can be subject to discipline for failing to do so.

Confidentiality of Unsolicted E-Mail Messages

2007-11-19T10:34:00.001-08:00

Is an Unsolicited E-Mail From a Prospective Client “Confidential?”

Here is the scenario: You're a lawyer and you have a website with some biographical information and description of the areas of practice in which you engage and the typical legal services you provide. You also post on the web site your e-mail address. A person sends you an e-mail saying that they need a lawyer because they were involved in an automobile accident. They also admit that they were drinking before getting behind the wheel and want advice about the legal issues. You open and read this e-mail, but then realize that you are representing a guest passenger that may have a claim against the driver that sent you the e-mail. Do you have a duty to keep the e-mail confidential or can you share the information with your client? Do you now have a conflict and must terminate the representation of the passenger, because you have received confidential information from the driver that you are ethically prohibited from using? Would it be wise to add a disclaimer or warning on the website that persons should not include confidential information if they send an unsolicited e-mail, or that any information sent via an unsolicited e-mail may not be kept confidential?

A number of state bar associations have issued opinions struggling with these issues. One bar legal ethics opinion holds that in the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm website must hold the information in confidence, even if the lawyer declines the representation. Massachusetts Bar Opinion 2007-01. The opinion also addresses whether the lawyer’s firm can represent a party adverse to that prospective client. Another bar's legal ethics opinion advises that a lawyer who provides web site visitors a means for electronic communication may effectively disclaim owing a duty of confidentiality to web-site visitors only the lawyer’s disclaimer is in sufficiently plain terms to defeat the visitors’ reasonable belief that the lawyer is consulting confidentially with the visitor. Simply having a visitor agree that an “attorney-client relationship” or “confidential relationship” is not formed would not defeat a visitor’s reasonable understanding that the information submitted to the lawyer on the lawyer’s web site is subject to confidentiality. California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal, Op. 2005-168.

I think it is reasonable to conclude that an unsolicited email sent to you and possibly several other attorneys, asking if you are interested in representing the sender, would not by itself create an attorney-client relationship. In that case, however, would the information contained in the unsolicited email be considered disclosed or released by the sender and not subject to attorney-client confidentiality? I think these are two separate issues and the fact that there is no attorney-client relationship does not answer the question as to whether the information contained in the e-mail must be kept confidential under Rule 1.6. Pre-retention communications by persons seeking a lawyer have typically been regarded as confidential even if no legal representation ensues. As the Preamble to the Rules of Professional Conduct states in pertinent part:

“Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.”

But what conduct on the part of the lawyer demonstrates that he or she has agreed “to considering whether a client-lawyer relationship shall be established?” Is this test met simply by virtue of the lawyer maintaining a web site in which persons may communicate with the lawyer via e-mail? Does a lawyer, by placing his or her phone number in the Yellow Pages Directory “agree to consider whether a client-lawyer relationship shall be established?”

It is well-settled that communications with a lawyer in which a person is seeking that lawyer’s assistance are protected as confidential, even if the lawyer does not agree to represent that person. All that is necessary is that the person has a reasonable expectation of confidentiality in regard to the communication with the lawyer. However, when a lawyer is unaware of the person’s communication, as in the case of an unsolicited e-mail, is the person’s expectation of confidentiality reasonable?

The answer seems self-evident until you consider this scenario. Mayor X calls a law firm and cannot get through to a lawyer so he leaves a message on the firm’s voice mail: “Hello, this is Mayor X and I need an appointment to see a lawyer right away. I just shot and killed my wife!” In this situation, no one in the firm is aware that the City Mayor has communicated with the firm. No one has invited this communication. Yet, most lawyers would conclude that they could not disclose this information outside the law firm and would be subject to bar discipline for doing so. So, perhaps there is a reasonable expectation that this information is confidential. Whether the information is conveyed via e-mail or by telephone makes no difference in the analysis. Both communications would be “unsolicited” but nonetheless treated as confidential. Thus, the analysis turns not on whether the communication was “unsolicited” but whether, under the particular circumstances, there is a reasonable expectation of confidentiality. Moreover, application of this test should be applied liberally in furtherance of the policy that supports privileged and confidential communications—to encourage a person to seek assistance of counsel and instill confidence that their communications will not be used to that person’s disadvantage.

The State Bar of Arizona's Committee on the Rules of Professional Conduct issued a recent opinion (No. 02-04) that addressed this issue directly. The majority of the Committee on the Rules of Professional Conduct determined that the receipt of an unsolicited email by an attorney did not result in an attorney-client relationship. The committee also concluded that the attorney did not have an obligation to maintain client confidentiality based upon the receipt of the unsolicited email and could disclose the information to the existing client.

In finding that a subjective test was applied by the Arizona Supreme Court to determine whether an attorney-client relationship existed, the committee acknowledged that Arizona courts "have considered the following factors: (1) the would-be client sought and received advice/assistance from a lawyer; (2) the nature of the services rendered; (3) the circumstances under which confidences were divulged; (4) the client's reasonable belief that an attorney-client relationship existed; (5) the client's expectation of confidentiality; and (6) payment of a fee (citations omitted)."

After applying these factors, the committee concluded that the limited personal information revealed through the email did not create an attorney-client relationship that would then require the attorney to maintain confidentiality and not disclose the contents of the email to the attorney's existing client. The committee also analyzed whether the attorney had an obligation to maintain confidentiality based upon duties owed by the attorney to a prospective client. The committee noted that the concept of prospective clients and the use of unsolicited email was an area of significant debate. In fact, part of the committee issued a dissenting opinion on this point. The majority opinion noted that further consideration must be given before determining whether an unsolicited email to an attorney would create an attorney-prospective client relationship and the obligations that stem from that relationship. The committee stated:

"If the attorney simply maintains an email address, then declining to extend certain duties of confidentiality to unsolicited email is consistent with the principles explained above. On the other hand, if the attorney maintains a Web site without any express limitations on forming an attorney-client relation, or disclaimers explaining that information provided or received by would-be clients will not be held confidential, the analysis changes. The absence of express disclaimers suggests that the attorney may have implicitly 'agreed to consider' forming a relation. Under these circumstances, duties of confidentiality may arise. Accordingly, the use of appropriate disclaimers with a Web site may be essential to prevent unsolicited email from being treated as confidential."

The dissenting opinion said that the email contact with the lawyer should be treated as confidential communication, based upon the dissenters' view that the unsolicited email declared the individual's intention to seek to retain an attorney, and such contact, in and of itself, should be held confidential because the prospective client intended that information to be kept confidential. The dissenting committee members concluded that the confidentiality rules prohibited the attorney from communicating the information received from a potential client through an unsolicited email to an already existing client, if that information relates to a claim that the potential client may bring against the already-existing client.

The Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York, in Formal Opinion 2001-1, came to a somewhat different conclusion. The Committee on Professional Judicial Ethics held that information provided in good faith by a prospective client to a lawyer through an email that was generated in response to an Internet Web site maintained by the lawyer would not disqualify the lawyer from representing a present client in the same matter; however, the information received in an unsolicited email should be held in confidence by the attorney and not disclosed to a present client unless the Web site adequately warns the prospective client that information transmitted to the lawyer will not be treated as confidential. This committee concluded that the receipt of a unilateral, unsolicited communication by a prospective client did not rise to the level of creating an attorney-client relationship so as to preclude the lawyer from representing a present client in the same matter. The committee, however, had more concerns regarding the ability of the lawyer to disclose the information received from the prospective client through the email. The committee stated its concern as follows:

"Thus, in the situation presented here, we believe that prospective clients who approach lawyers in good faith for the purpose of seeking legal advice should not suffer even if they labor under the misapprehension that information unilaterally sent will be kept confidential. Although such a belief may be ill-conceived or even careless, unless the prospective client is specifically and conspicuously warned not to send such information, the information should not be turned against her. Indeed, we see no reason that the other client should be benefited by the fortuitous circumstances that the lawyer approached by the prospective client turned out to be the same lawyer retained by the adverse party. Nor do we believe that zealous advocacy compels a different result. After all, there are many circumstances where a lawyer comes into possession of an adverse party's information and cannot use it. We recognize that this solution may not be a perfect one, and that there exists the possibility that the prospective client could still suffer at least some residual harm from the transmission of confidential information because the bell cannot be unrung and the lawyer cannot unlearn the information. However, the result is no different from other circumstances where an adversary lawyer gains inadvertent access to privileged information such as inadvertently produced privileged material."

The committee went on to suggest the use of a disclaimer to avoid the issue of disclosing confidential information:

"In this connection, in dealing with law firm Web sites, we note that an adequate disclaimer - one that prominently and specifically warns prospective clients not to send any confidential information in response to the Web site because nothing will necessarily be treated as confidential until the prospective client has spoken to an attorney who has completed a conflicts check would vitiate any attorney-client privilege claim with respect to information transmitted in the face of such a warning. If such a disclaimer is employed, and a prospective client insists on sending confidential information to the firm through the Web site, then no protection would apply to that information and the lawyer would be free to use it as she sees fit (footnotes omitted)."

Lawyers need to be cognizant of the potential ethic issues that can arise when they market and advertise their services, including the possibility of receiving an unsolicited e-mail from a prospective client. While an attorney-client relationship may not be created by the receipt of an unsolicited e-mail, the lawyer may nonetheless be required to keep the information confidential. Whether this duty of confidentiality may conflict the lawyer from representing another party will depend on the state's ethics rules and opinions. So far, the ethics opinions seem to conclude that the lawyer is not disqualified from representing another party merely because he or she received an unsolicited e-mail from a legal adversary.

Stay tuned.

How Do You Define Sex?

2007-10-31T13:18:00.001-07:00

Remember President Bill Clinton, the Monica Lewinsky scandal, and his deposition testimony that he did not have sex with her because there was no sexual intercourse? Evidently, the Wisconsin Supreme Court agrees. The bar in Wisconsin brought ethics charges against a lawyer which included allegations of misconduct arising out of the lawyer persuading one client to share his girlfriend in a ménage à trois with the lawyer.

In a per curiam opinion, the court ruled that the lawyer's three-way romp did not violate the rule prohibiting sex “with” clients. Although the client was present when the lawyer had sex with the girlfriend, the court said the language of the rule clearly indicates that the prohibited act must involve intimate touching between a lawyer and a client, not just proximity. There was no evidence that such contact occurred here, it said. The Wisconsin rule required the bar to prove that the lawyer had "sexual relations" with the client. The bar's case was not clear as to the client's role in this sexual trist, so that particular charge of misconduct was dismissed.

However, this lawyer was such a crumb bum, that there were other ethics charges that did stick. Those charges included mismangement of client funds, use of cocaine and marijuana with clients, and having another client videotape the lawyer having sex with the client's girlfriend. Yuck!!

Surprisingly, the lawyer only got a three-year suspension for this highly reprehensible conduct. The case is In re Inglimo, Wis., No. 2005AP718-D, 10/18/07.

Justice Denied

2007-10-31T12:54:00.000-07:00

Ali Saleh Kahlah al-Marri has been locked up for more than four years without being charged. Yes, amazing but it is true. Al-Marri — a student at Bradley University in Peoria, Ill. — had faced federal charges of credit card fraud, identity theft, and lying to the FBI in a post-9/11 investigation. But those charges were dismissed after Bush signed a one-page executive order in 2003 that declared al-Marri was an “enemy combatant” who must be imprisoned “to prevent him from aiding al Qaeda in its efforts to attack the United States.” The Justice Department has alleged that al-Marri attended an al-Qaida terrorist training camp in the 1990s, received funding from al-Qaida operatives, and had a laptop computer at his Illinois home that contained technical information about cyanide and other poisonous chemicals.

This week, Al-Marri's lawyers challenged the Bush Administration's terroism policy in court in the United States Court of Appeals for the Fourth Circuit, the most conservative of the Courts of Appeals, which has upheld the Bush Administration's postion in prior matters. Al-Marri's arguments likely fell on deaf ears as Judge J. Harvie Wilkinson III said he didn’t understand “all of the hoopla” surrounding al-Marri’s case, given that only a handful of people in the United States have been declared enemy combatants, unlike the roundup of German citizens during World War I and the large-scale internment of Japanese citizens during World War II. “We’re not talking about a dragnet,” he said. “We’re not talking about a sweep.”

Gregory Garre, principal deputy solicitor general for the Justice Department, told the court that both legal U.S. residents and U.S. citizens could be declared “enemy combatants” by the president and that there was no definite time period required for their release. That statement triggered a skeptical response from Judge M. Blane Michael. “You’re going to keep this man in custody for a lifetime. That’s what it looks like,” Michael said. “You don’t have a traditional war [with a definite ending]. You’re in uncharted territory.”

The Bush Adminstration relies on the Authorization for Use of Military Force, passed by Congress shortly after 9/11, which permits indefinite detentions of enemy combatants because the law gave the president the power to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] attacks.” The Act would allow the U.S. to detain "enemy combatants" until the cessation of hostilities. Given the nature of the "war on terrorism, Judge Michael may be right that Al-Marri will be detained for the rest of his life!!

Attorney General Gonzales Does Not Use E-mail

2007-03-30T07:42:00.000-07:00

The ABA Journal Online reports that US Atty General Gonazales and other top officials like Condolezza Rice do not use e-mail. The article states that White House officials may be concerned because of aggressive prosecutions based upon e-mail. Hmmm. . . . Makes you wonder what they have to hide, especially given the Attorney General's less than candid statements regarding his personal involvement in the firing of the 8 U.S. Attorneys.

You can find the article at http://www.abanet.org/journal/ereport/m30email.html

Well I'm Back

2007-03-18T07:01:00.000-07:00

It's been a long time since I posted to this blog. In the interim, my son has joined the Marines and is at boot camp in Paris Island. My daughter is still "E the Intern" at the Saddleback Church in Orange County, CA. My office has finished its move to one floor above our original space.

The ethics issues of the day are as much political as they are ethical. First, is the issue about how the DOJ goes about detaining and trying the prisoners at Guantanamo Bay. We are told that very few of these approximately 285 detainees are actually charged with anything, but many have been in captivity since 2002. Those that are actually charged and to be tried for any offenses have military lawyers appointed to represent them. Two of these military lawyers appointed to defend detainees spoke at the Mid-Year Meeting of the Association for Professional Responsibility Lawyers in February at Miami Beach. They do not have access to the same information the Government has and uses against their client. In fact, the defense lawyers do not have the requisite security clearance to have access to the so-called evidence the Government uses to prosecute their client. The information could be based on second or third-hand hearsay, but there is no way for the defense lawyer to challenge its reliability.

Does this sound like a fair due process hearing? The Bush Administration and the DOJ take the position that the Gitmo detainees are not entitled to the constitutional protections afforded U.S. citizens that are arrested and charged with a crime. The weird irony is that these detainees, most of whom have not been accused of anything, are being held in isolation indefinitely, while persons who have been charged with a crime have more protections even though there is at least probable cause and therefore some evidence that they committted an offense. I am not saying that persons accused of a criminal offense should not have these rights. I am merely saying that persons who are being detained indefinitely without charges pending ought to have some procedural rights.

The second hot issue of the day is the Bush Administration's firing of some 93 United States Attorneys for "underperformance" issues--whatever that means. The extent to which Attorney General Alberto Gonzales and Karl Rove participated in the decisionmaking is unclear at this time. On Tuesday, March 20, the White House is expected to announce whether it will let former White House counsel Harriet Miers, political strategist Karl Rove and other presidential advisers testify before Congress — and whether it will release more documents to lawmakers, including additional e-mails and other items. That decision was to be made on Friday, but the White House asked for more time. The jury is still out on this one, but it will be interested in finding out what truly motivated the dismissals of these prosecutors. Legally, the United States Attorneys serve at the will of the President who holds the power to remove them from office.

So Much Ethics, So Little Time

2006-08-20T08:40:00.000-07:00

As I prepare to teach my Ethics class at U of R Law this fall, I realize that 2.0 semester hours is not enough class time to teach this course. I will have to cut out two full chapters on Advertising and Judicial Ethics. Unfortunately, these topics will appear on the Multistate Professional Responsibility Exam (MPRE) and the students will have to study these areas on their own. This course needs to be a 3.0 hour course!!

Teaching Legal Ethics

2006-08-18T08:54:00.000-07:00

This is the first post on my blog or blawg (since it will have legalese in it). I think it will help me work out some issues I struggle with in the world of legal ethics. If you are not a lawyer, you will probably find much of what I post here will be useless, unless, of course, you have hired a lawyer and you think your lawyer is not acting ethically. I hope that I will have the time to post often, but we shall see.

I post on this server as bluesburner because in addition to being a lawyer (I am the Ethics Counsel for the Virginia State Bar) I play guitar and sing in a blues/alt country/rock band. We are called the Tin Foil Militia and you can learn more about that at the band's website-

http://www.myspace.com/thetinfoilmilitia

I am employed by the Virginia State Bar, which is an administrative agency of the Supreme Court of Virginia. The bar's website is:

http://www.vsb.org