A new opinion issued by the Professional Ethics Committee of the New York City Bar Association discusses whether -- and under what circumstances -- an attorney may threaten another lawyer with disciplinary charges. From the digest:
An attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules of Professional Conduct (the “New York Rules” or “Rules”). Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purpose other than to embarrass or harm another person or that violates other substantive laws, such as criminal statutes that prohibit extortion.
Disclosure: I chair the committee that issued this opinion.
This time religious freedom is the apparent excuse for blatantly unprofessional conduct in the face of a Supreme Court ruling.
Religious freedom of state employees cannot possibly mean that two Jewish people or two Muslim people should have more difficulty or delay in getting married than two Christians, simply because they live in an overwhelmingly Christian county where state employees do not wish to serve them. As of this week, it is clear that two men or two women who want to get married have the same legal rights. Yet some state AGs are making it clear that they will do what they can to stand in the way.
Oh, yes, it can be fun to read Scalia's sarcastic and rude insults of a colleague's opposing opinion. When offended, I have to wonder whether it's because of his ideas or because...his language so harms the Court and the profession.
In today's same-sex marriage case, Scalia crossed a line I would have expected him to avoid.
In footnote 22, quoting Kennedy's opening sentence for the 5-4 majority, Scalia writes:
"If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to allwithin its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning ofJohn Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
How after this can Kennedy work with him?
Scalia has himself "descended" from the manner of argument found in opinions of John Marshall and Joseph Story to the invective and mockery of the Internet. Lawyers have been chastised for less derisive comments in briefs. Yet here we have it from our Supreme Court.
Scalia sets a bad example that will harm civility in lower courts and at the bar.
Attorney advertising regulations are overly restrictive and underenforced, according to a new report by the Association of Professional Responsibility Lawyers (APRL).
From the report:
Simply stated, current regulations of lawyer advertising are unworkable and fail to achieve their stated objectives. Survey results show that there are too many state deviations from the ABA Model Rules, actual formal lawyer discipline imposed for advertising violations is rare, lawyers are disheartened by the burden of attempting to determine which regulations apply to the ever-changing technological options for advertising, and consumers of legal services want more, not less, information about legal services. The basic problem with the current state patchwork of lawyer advertising regulations lies with the increasingly complex array of inconsistent and divergent state rules that fail to deal with evolving technology and innovations in the delivery and marketing of legal service The state hodge-podge of detailed regulations also present First Amendment and antitrust concerns in restricting the communication of accurate and useful information to consumers of legal services.
The report is based, in part, on information collected from disciplinary authorities throughout the country in response to a survey, which is contained in Attachment 3 to the Report. According to the report, the survey responses confirmed that:
complaints about lawyer advertising are rare;
people who complain are predominantly other lawyers, not consumers (78% vs. 3%);
most complaints are handled informally, even where there is a provable advertising rule violation;
few states engage in active monitoring of lawyer advertisements (only 17%); and
many cases in which discipline has been imposed involve conduct that would also violate Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).
The report recommends dramatic changes to the advertising provisions of the ABA Model Rules of Professional Conduct. APRL's proposed change is simple. Eliminate all advertising rules except for prohibitions on false and misleading communications. (The report does not address solicitation rules and incorporates some of the concepts from the deleted advertising rules into the comments as "practical guidance on what conduct or statements may fall within the prohibited category of 'false and misleading' and what statements are not considered misleading"). The goals of APRL's proposed revisions are (1) to establish "a uniform and simplified rule that prohibits false and misleading advertisements"; and (2) to ensure "that consumers have access to accurate information about legal services while not being deceived by members of the Bar."
The report also recommends that states implement a non-disciplinary framework for dealing with lawyer advertising, which would give lawyers an opportunity to remedy advertising violations before a complaint is processed as a disciplinary matter.
ISSUE: May a California lawyer ethically represent a client in respect to a medical marijuana enterprise in California?
DIGEST: A California attorney may ethically represent a California client in respect to lawfully forming and operating a medical marijuana dispensary and related matters permissible under state law, even though the attorney may thereby aid and abet violations of federal law. However, the attorney should advise the client of potential liability under federal law and relevant adverse consequences and should be aware of the attorney’s own risks.
A new opinion issued by the Professional Ethics Committee of the New York City Bar Association recommends that lawyers acting as local counsel enter into limited scope engagements, pursuant to Rule 1.2(c) of the New York Rules of Professional Conduct. As explained in the opinion, "[a] written agreement that clearly limits the role of local counsel can benefit all parties by managing expectations, avoiding misunderstandings about the scope of the lawyer’s responsibilities, minimizing disputes over the allocation of responsibility between lead counsel and local counsel, and managing costs."
Here is the opinion's digest:
Attorneys who act as “local counsel” are subject to the same ethical rules as all lawyers. An attorney who is retained as local counsel may circumscribe her role by entering into an agreement to limit the scope of representation, provided the agreement complies with Rule 1.2(c). It is the attorney’s obligation to communicate to the client any limits on the scope of the representation, rather than to rely on undefined terms, such as “local counsel.” Any limitations to the scope of representation must be reasonable under the circumstances and the client must give informed consent. Local counsel must also comply with any relevant court rules governing the responsibilities of counsel. Such rules are beyond the scope of this Committee’s jurisdiction, which is limited to interpreting the New York Rules of Professional Conduct.
Disclosure: I chair the committee that issued this opinion.
On the assumptions (without doing lots of digging to verify whether it is true) that (1) 40% of law school graduates over the last four years have not found legal employment and (2) there are people with unmet legal needs who could afford to pay something for a lawyer, just not the fees that lawyers are currently charging, why haven't we seen downward pressure on attorneys' fees? Wouldn't really basic economics - you know, supply and demand and all that good stuff - predict that new producers would enter the market and attempt to compete on price? As I understand it, however, we haven't seen downward pressure on fees. In particular, the standard fee for personal-injury representation in most locales is still one-third. (Nora Engstrom at Stanford has done excellent work on the "stickiness" of fees in PI cases.) Why haven't some entrepreneurial recent law graduates tried to start up a shop that offers 20% contingent fees? They could be the next Uber and totally disrupt the industry.
I realize the answer to this is a market failure story, so what I'm asking is, what exactly is behind the market failure? The NYT piece suggests a couple of explanations which I've seen:
1. Recent graduates have massive debt repayment obligations and can't afford to take low-paying jobs providing legal service for poor people.
2. Recent graduates have inadequate training in the kinds of nuts-and-bolts skills they would need to open up a law practice - not only skills like drafting pleadings, interviewing clients, and taking depositions, but also law practice management skills like dealing with trust accounts and billing.
My response to #1 is that I'm not talking about legal services for indigent people, but competing for paying clients in areas such as personal-injury, consumer debtor representation, matrimonial law, and so on. I understand that if someone has $1,500 per month in loan repayment obligations, he or she would prefer to work at a large firm rather than starting a brand new Main Street practice. But the assumption of problem is that the recent graduate isn't choosing between working at Dewey Cheatham & Howe and hanging out a shingle; rather, the choice is between working at Starbuck's and hanging out a shingle.
As for #2, I can see that being part of the problem, but inadequate skills training in law school hasn't deterred generations of lawyers from hanging out shingles. Many state bars (NY, for example) have training programs for recent graduates which attempt to give them the basics. Again, it may be scary and not anyone's first choice to open a solo practice, but it must beat at least some of the available options in the non-legal employment market.
That leaves other possible explanations. When I've asked around, I've heard this one, which seems plausible:
3. Recent graduates don't have access to the start-up capital that they'd need in order to rent office space (or establish a virtual office, if that's allowed in the jurisdiction), get the minimum required subscriptions to Westlaw and whatnot, advertise their availability, purchase malpractice insurance, and tide over the business for the first 12-18 months before clients came in, work was done and billed for, and clients paid the bills. Restrictions on the form legal practices may take further exacerbate the problem by inhibiting innovation. One might imagine, for example, a venture capital firm providing seed money to 25 new law graduates to start their practices, in exchange for 25% of their billings, figuring at at least half of these practices would fail, but the successful ones will provide an adequate return. Of course that sort of structure is straightforwardly prohibited by Rule 5.4.
I still find it kind of hard to believe, however, that there is a big, unoccupied market niche that some smart person hasn't figured out a way to occupy. Again, I'm not talking about indigent legal services - that raises other problems of political will and indifference to the problems of poor people. The question is about Main Street practices serving the legal needs of ordinary individuals. Why haven't we seen downward pressures on attorneys' fees?
Most readers have probably seen Lee Siegel's notorious op-ed in the New York Times that effectively urged individuals with students loans to default on them.
I won't re-hash the trenchant criticisms of Siegel's piece. Two critiques that appeared in the Times can be found here and here. I would also highly recommend Jordan Weissmann's piece in Slate.
What most troubled me about Siegel's piece, however, was his inability to see the issue of whether to default on debt as a legal issue. It is, of course, a financial decision and a life decision. But it is one that is laden with legal consequences, far beyond harm to one's credit score.
It is not shocking that an Ivy league-educated writer who advises young people to "marry well" to solve their debt problems isn't especially versed in the nuances of wage garnishment, personal bankruptcy, and student loan repayment programs. But Siegel was provided a platform in a newspaper that is (was?) regarded as the leading light of American journalism. Would the Times publish health advice from someone who has no expertise or interest in public health?
As I set out in my recent paper, Americans often do not conceive of their problems in legal terms. When leading newspapers publish editorials on legal topics by people who not only have no expertise in the relevant law but also no interest in it, they make it less likely that people will recognize legal issues and bring them to lawyers.
In the internet age, expertise is not valued as much as it once was. But lawyers regularly help clients to navigate problems such as unmanageable debt. The defining access to justice issue of our time may not be whether to license non-lawyers or to permit non-lawyer ownership. It may be how to convey to the public what lawyers actually do and the value we provide.
Interesting discovery battle in the Freddie Gray case out of Baltimore. The prosecutor's office has asked the court to seal the autopsy results but, in the alternative, suggests that the court might fashion a procedure for discovery to be revealed to the public. The prosecutor says she does not want the defense to see the autopsy and then reveal selected portions of it to the press. Excerpt from the Baltimore Sun article:
Baltimore State's Attorney Marilyn J. Mosby wants a judge to block defense attorneys from selectively releasing evidence in the Freddie Gray case — or facilitate an agreement between the two sides to post all of the evidence online in one fell swoop.
In an unusual Circuit Court filing this week, Mosby's office requested a protective order barring defense attorneys for the six Baltimore police officers charged in Gray's arrest and death from releasing any of the evidence due to them June 26 through court discovery, including Gray's autopsy.
Absent that order, however, prosecutors said in the filing they would rather accept a deal to post all of the evidence online than "remain silent" — as is required of them by law — while defense attorneys leak evidence that suits their needs, which Mosby's office said they are inclined to do.
"Indeed, if the Defendants were to consent and the court would so order, the State would have no objection to posting the entire autopsy report on the internet, along with all of the discovery in the case," the prosecutors wrote. "Defendants, however, want to have it both ways. They want the freedom to publicize selected aspects of the discovery, while requiring the State to follow the law that prevents comments in order to ensure a fair trial."
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This article was prepared for the Symposium on Combating Money Laundering and Terrorist Financing, which was the first academic symposium of its kind, and included speakers from the U.S. Department of the Treasury, the FDIC, and the IRS. It focuses on the legal profession and explains how the US has implemented the FATF Recommendations that address the role that "gatekeepers," including lawyers, can serve to combat money laundering and terrorist financing.
After setting forth introductory material about the intergovernmental organization called the Financial Action task Force or FATF, the FATF Recommendations, and the degree to which the FATF Recommendations have influenced lawyer regulation in other countries, this article examines the manner in which the U.S. government and the legal profession have implemented the FATF Recommendations. The article explains that U.S. lawyers are subject to both criminal and disciplinary sanctions for knowingly engaging in money laundering or terrorist financing or assisting clients involved in such activities. The US actively enforces these provisions and US lawyers have been criminally prosecuted, convicted, and disbarred for assisting clients in money laundering.
Because of the wide array of existing laws that prohibit lawyers from assisting clients who are engaged in money laundering or terrorist financing activities, the U.S. legal profession has focused on what might be called "application" issues. Numerous efforts have been undertaken to educate lawyers so that they recognize the types of situations and fact patterns in which these types of criminals seek to involve lawyers in their activities. The goal of this type of education approach is to make lawyers as sensitive to money laundering and terrorist financing issues at the intake stage as these lawyers are to issues such as conflicts of interest. Moreover, as is true with a conflict of interest analysis, lawyers must continually reassess the situation as new facts emerge. Both the ethics rules and criminal law require lawyers to decline (or terminate) representation if it would result in lawyers assisting client in their criminal activities. The goal of this type of education approach is to have lawyers internalize these issues, rather than simply engaging in a formalistic "check-off-the-box" approach to these issues.
This article documents the education steps that already have been undertaken and outlines some additional steps that could be taken in the future. It concludes that while there is still education work to be done, progress has been made.
This article should prove useful when the U.S. undergoes its 4th Mutual Evaluation as a member of the intergovernmental Financial Action Task Force (FATF). During its previous Mutual Evaluation, the U.S. received several “non-compliant” ratings with respect to the U.S. legal profession. Since that time, the U.S. legal profession has undertaken a number of additional steps in the effort to educate lawyers so that lawyers do not unwittingly assist clients in these criminal activities. (U.S. legal profession representatives have expressed the view that if a lawyer is intentionally engaged in, or assisting, criminal money laundering or terrorist financing, then it is unlikely that additional rules or sanctions would discourage the lawyer, given the existing criminal and disciplinary sanctions.)