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.
Thursday, August 05, 2010
Members Can Download Legal Forms at VSB Website
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.
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.
Monday, March 15, 2010
Prosecutors in Daryl Atkins Case Face Disciplinary Charges
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/
http://valawyersweekly.com/blog/2010/03/15/york-prosecutors-face-bar-discipline/
Tuesday, March 09, 2010
Payee Notification Bill Withdrawn
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."
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."
Tuesday, February 23, 2010
Lawyers Getting Stung by Internet Scammers
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.
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.
Wednesday, January 20, 2010
BLOGGING & SOCIAL NETWORKING FOR LAWYERS: ETHICAL PITFALLS
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.
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.
Wednesday, January 06, 2010
Court Rules Must Be Admitted to Practice Law in India
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."
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."
Thursday, November 05, 2009
Disclosure of Conflicts Information When Lawyers Move Between Law Firms
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.
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.
Friday, October 30, 2009
Federal Judge Holds Red Flags Rule Over-Reaches When Applied to Lawyers
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.
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.
Thursday, October 22, 2009
Legal Malpractice
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.
Wednesday, October 21, 2009
ABA Commission to Study Globalization of Legal Services and Impact of Techonology on Law Practice
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.
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.
Wednesday, October 14, 2009
Trial Conduct: Lawyer denied right to wear baseball cap in court
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.”
Wednesday, September 30, 2009
Prosecutor's Duty to Disclose Exculpatory Information
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.
Tuesday, September 29, 2009
Ex Parte Contacts with Employees of Represented Corporation
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.
Monday, August 10, 2009
Justice Sotomayor and Per Curiam Orders
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?
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
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
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
Tuesday, July 28, 2009
Raid on Client Security Funds
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.
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
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.
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.
Monday, July 27, 2009
Law Firm Names: Use of the term "Associates"
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.
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.
Friday, July 24, 2009
Ethics of Tweeting and Blogging
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.
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