Legal Ethics Forum

More on Metadata

At this rate, we're going to have quite a few ethics opinions on metadata over the next couple of years.  Here is what Arizona has to say on the topic. 

In essence, the Arizona State Bar Association has concluded that senders of electronic documents must take reasonable precautions to prevent the disclosure of privileged metadata.  As for recipients, the opinion joins New York, Alabama, and Florida in concluding that, in most cases, lawyers shouldn't rummage through metadata.  The opinion says that, except in specific circumstances, such as when an opponent consents or other law or rule (such as a discovery order) allows it, “a lawyer who receives an electronic communication may not examine it for the purpose of discovering the metadata embedded in it.”

If you're keeping score, that's Alabama, Florida, New York, and Arizona saying that we shouldn't normally be allowed to look at metadata.  And then there's Maryland, the D.C. Bar, and the ABA saying that it should typically be permissible.  Finally, there's Pennsylvania, which has staked out a middle ground approach. 

Ads?

You may notice our new look over on the right side -- advertisements.  (Sorry, Florida Bar.)

In the blogosphere, even in the academic blogosphere, many (most?) blogs have ads, so our feeling is that it doesn't take away from the seriousness of the blog or affect in any way the content that we put up.  (We're not being sponsored by anyone in particular; the ads are generated automatically through google, using some algorithm I will never understand.)

We also thought that, if the ads generate a few bucks, we could use the money to host some happy hours at the ABA National Conference or the AALS Annual Conference.  It would be a fun way to say thanks to our readers.  (I guess that creates a bit of a conflict of interest for you readers our there, since I've now offered you an incentive to like the ads.) 

And if it generates even more surplus cash (hey Volokh, how about a few more links to our site?), we thought we could use it to take out our significant others for an occasional night on the town compliments of google.  My wife, at least, has been a little skeptical about how much time I spend blogging; it would be cool if I could bribe her with a free dinner.

In any event, feel free to post your reactions in the comments.  We thought we'd give the ads a try, but they don't have to be a permanent fixture of the blog. 

Lynne Stewart's appeal

Via Althouse, here's news of the appellate argument in Lynne Stewart's case.  As I understand it, there is a legitimate issue of about the required intent under the statute, but if any of the three appellate judges opines that what Stewart did in jail counts as "lawyering," then we will have taken a major step backwards in the law of lawyering.

Update on Unbundling in New Jersey

Last year, I blogged about a controversial court opinion in New Jersey, which held that a lawyer had violated the rules of professional conduct because he ghostwrote a brief on behalf of a pro se litigant.  As I suggested in my post, I thought the court was unduly restrictive regarding the practice of ghostwriting.

Apparently, there were quite a few other people who felt the same way.  The New Jersey Supreme Court's Advisory Committee on Professional Ethics has now issued an opinion stating that lawyers should be allowed to ghostwrite briefs, except "when such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance" or when the lawyer is "effectively in control of the final form and wording of the pleadings and conduct of the litigation."  Here's the story.

Symposium on Ethics and Evidence

Some of you may have recently received a copy of the Fordham Law Review, which has a nice collection of articles related to evidence and ethics.  In case you missed it, here's information about the symposium from the Evidence Law Blog, which plans a series of posts related to the articles.

Pennsylvania Issues Opinion on Metadata Mining

Hmmm... as noted elsewhere here, the question of whether it is ethical to look for metadata in a document e-mailed among opposing counsel has split the bar associations.  Pennsylvania recently issued opinion 2007-500 (not available on line, but at 30 Pa. Law. 46 and on westlaw).  After surveying those opinions, the committee concluded that "it woudl be difficult to establish a rule applicable in all circumstances and that consequently the final determination of how to address the inadvertent disclosure of metadata should be left to the individual attorney and his or her analysis of the applicable facts."

Pretty wild, what is happening on this point, with some states saying it's dishonest, some saying it's not, and Pennsylvania saying "it depends." 

Professional Protectionism from East to West

Take a look at this story out of Massachusetts.  Some doctor groups there fought (unsuccessfully) to keep pharmacies from opening nurse-staffed in-store medical clinics, arguing that such clinics would jeopardize patient safety. 

And now compare that story to this one in Hawaii, where the Bar is trying to ban non-lawyers from performing routine and minor law-related functions on the grounds that it could hurt clients' interests.

It's basically the same story, just in different states and involving different professions.  But the bottom line is the same: professions protect their turf by citing consumer safety, even though there is little or no evidence of harm from nurse-staffed medical clinics or the provision of routine law-related services by non-lawyers.

Legal Ethics in the Times

The always superb Adam Liptak covers two recent legal ethics stories in the New York Times.  First, there is this story from today's Times on whether the zealous advocacy norm should be relaxed in the mass tort context. 

And then there is this story (hat tip to the ABA Journal) involving a West Virginia Supreme Court justice who recused himself from a case involving a coal company, because the justice had gone on vacation with the company's CEO.  The latter story sounded very similar to the Justice Scalia duck-hunting trip story, but with a notably different outcome.  Can anyone distinguish the two cases?

Florida Bar sued over ads

The Florida state bar's advertising restrictions have been challenged in court on first amendment grounds.  (hat tip to Legal Profession Blog)  I'd like to see sanity prevail, but if the Florida bar starts obeying the constitution we'd lose some "news of the weird" items for the blog.  My advice to the folks suing the bar: don't settle for less than you deserve!

Sheller v. Superior Court:

A new California Court of Appeal case reversed sanctions against a Texas lawyer, but suggested that the lawyer's pro hac admission could be revoked.  Full opinion here.  (Scroll down to January 17, 2008; Sheller v. Superior Court)  Key graf here:

A Texas attorney appearing pro hac vice for plaintiffs in a class action sent a communication to prospective class members which contained at least one misrepresentation.  The trial court issued an order to show cause why the attorney’s pro hac vice status should not be revoked.  After a hearing, the trial court declined to revoke the attorney’s pro hac vice status, and instead ordered the attorney to reimburse the defendant for substantial attorney’s fees, as a condition of retaining his pro hac vice status.  The trial court also formally reprimanded the Texas attorney.  The attorney appeals.  We conclude the trial court lacked authority to impose attorney’s fees as a sanction and also lacked authority to issue the formal reprimand.  We therefore reverse the trial court’s order. However, we also conclude that the trial court has the authority to revoke an attorney’s pro hac vice status in certain circumstances, and therefore remand for further proceedings. 

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