Legal Ethics Forum

The Legal Ethics of Groupon

You can add Arizona to the growing number of jurisdictions offering opinions on whether lawyers can use online coupon sites, like Groupon, to develop new business.

In Opinion 13-1, the State Bar of Arizona concluded that lawyers will find it difficult to comply with the numerous ethics rules implicated by this form of marketing.  Here's a key passage:

Many ethical issues may arise if a lawyer opts to use such an Internet marketing voucher or coupon. These issues include, among others, whether a conflict with current or former clients precludes an attorney-client relationship under ER 1.7 or ER 1.9; the voucher or coupon model ensures confidentiality under ER 1.6; the fees paid directly to the Internet marketing service provider, and partially retained by the Internet marketing service provider, result in unethical fee-sharing with non-lawyers or a failure to properly safeguard an advance deposit in the lawyer’s trust account in violation of ER 5.4 and ER 1.15, respectively; the lawyer violates ER 7.2 in the course of advertising; the lawyer participating in the voucher program has adequately defined for the client that the attorney-client relationship has commenced; the scope of the engagement is specifically defined following actual consultation with the potential client leading to informed consent as to the scope of work under ER 1.2(c); the lawyer is competent to perform the work requested via the voucher as required by ER 1.1; and the lawyer is acting consistent with his or her obligations of professional independence under ER 2.1. As the facts, context and terms and conditions of any attorney-client relationship emanating from a voucher program will vary, it is impossible to address all possibilities. Lawyers are advised to carefully consider all of their ethical obligations if they intend to pursue a voucher or coupon program. Generally speaking, the strong likelihood of violating one or more Ethical Rules by using an Internet marketing service voucher or coupon make such an arrangement problematic.

The Opinion also discusses several other relevant opinions, including from Indiana, New York, North Carolina, and South Carolina.  So far, the opinions are mixed.  New York, North Carolina, and South Carolina are fairly permissive, though they all note several possible concerns.  Arizona and Indiana are considerably more restrictive.  And Alabama has flatly concluded that the use of "deal of the day" sites is impermissible.

Bill Henderson asks, "Is Law School Reform Going to Come Top Down or Bottom Up?"

At Legal Whiteboard. Read the whole post, but here's how Bill begins it:

Earlier this week, I participated in the ABA Taskforce on the Future of Legal Education (see NLJ coverage here). Ordinarily when I am part of a deliberative meeting of a regulatory or accrediting body, I don't write about it, as it would be a breach of decorum and chill a candid exchange of views, at least prospectively.  But this event was different -- it was webcast live and internet archived, and thus a public meeting. See ABA website.

These programs are laudable and, from an institutional perspective, necessary.  But will an ABA taskforce, or AALS, LSAC, or some other industry group taskforce produce substantial change?  History suggests that the answer is no and that, instead, meaningful change will come from the bottom up rather than the top down.  Change will occur at the bottom from either the desire to survive or the opportunity to do something great.  Other similarly situated institutions that feel less urgency or inspiration will eventually perish.  It is just that simple.

My guess: outside-in and bottom-up for the most part. I say "outside-in" because, as we been covering here, we're seeing innovation driven by the New York judiciary, by Law School Transparency, by the inclusion of employment stats in the US News rankings, and by the new NLJ data on how many grads from each school end up in the largest 250 firms. The ABA is designed to lead from behind and the accreditation function at the ABA has long been captured by the schools (and especially by the middle and low ranked schools). While some schools will innovate around the edges and margins, the predominant approach will probably be something like, "hunker down, trim enrollment and costs, and ride out the storm." The odds are good that when the shrinking stops, law schools will look pretty much the same as they do today, only more expensive.

Jotwell: Elizabeth Chambliss comments on Renee Knake's new article

Chambliss posts at Jotwell. Renee's new article is Democratizing Legal Education.

Rebecca Roiphe, "A History of Professionalism: Julius Henry Cohen and The Professions as a Route to Citizenship"

Article. This paper explores a topic that's been bothering me as the price of law school esclates. Abstract:

This paper revives the notion that professionalism and the legal profession can serve as a mechanism for immigrants and those who are not born into wealth or privilege to achieve status. Roiphe draws on the example of Cohen, a Jewish lawyer who achieved a great deal of success within the profession in the early 20th Century, to argue that the rhetoric surrounding the professions allows immigrants and others to use professional success to find their way to full inclusion and citizenship. While acknowledging the merits of the critiques of the professions as rent-seeking cartels, Roiphe argues that professionalism is an elastic concept that has allowed many uses, some of which have been useful and beneficial in the past.

Judy Clarke has been added to defense team for Dzhokhar Tsarnaev

Judy Clarke, one of the nation's best capital defense lawyers (who represented the Ted Kaczynski (the "Unabomber") and Jared Loughner (the man who shot Congresswoman Gabrielle Giffords)), has joined Dzhokhar Tsarnaev's defense team.

The role of defense counsel for the Unabomber defense was controversial, because many believed that the defense team wasn't candid with their client about the strategy for trial. For details, see William Finnegan's terrific article, "A Reporter At Large: Defending the Unabomber", The New Yorker, March 16, 1998.

"Conflicts Created By The Funding Terms in the Model [Litigation Funding] Contract"

At A Model Litigation Finance Contract.

"Post-Representation Failures to Correct Error Extended Period for Filing Malpractice Action"

Bloomberg carries the story about a new Connecticut decision.

Lillian Catherine Corbin, "Australian Lawyers as Public Citizens"

Article. Abstract:

While debate continues over the role of the lawyer in society, this article notes that the recently amended professional conduct rules of both barristers and solicitors prioritise the duty to the court and the administration of justice. In addition, legal education initiatives support this position. By referring to Australia’s proposed regulatory framework and associated national professional conduct rules, and drawing upon the American Bar Association’s Model Rules of Professional Conduct and a body of US literature that refers to lawyers as public citizens, this article will argue that Australian lawyers owe a duty to the public in their everyday dealings with clients. In doing so, this article will refer to some theories of citizenship; and what it means for lawyers, in a practical sense, to act as public citizens.

"Client Identities, Legal Bills Can Be Disclosed, [Pennsylvania] High Court Says"

Legal Intelligencer. Some key graphs:

The court set a fact-specific standard in determining that client identities are typically not privileged unless they would be coupled with information about what type of work the attorney has done on behalf of the client that, when disclosed together, would essentially disclose attorney-client communications. The Supreme Court determined, however, that previous disclosure that the attorney is representing a client in a grand jury investigation is not enough to protect the identity of the client.

The case stems from a Right-to-Know Law request by Associated Press reporter Marc Levy for legal bills related to the Senate's hiring of attorneys to represent former state Senator Robert J. Mellow and other Democratic caucus employees. The Senate had argued the names of the clients and the descriptions of the services the attorneys provided them were protected by the attorney-client privilege.

Readers may recall that we discussed this issue a while back, when a Los Angeles attorney was running for elective office and his opponents and the press wanted to know his client list. The lawyer-candidate claimed, correctly, that the list was confidential even if in the normal case the name of the client is not attorney client privileged.

"Seeking Justice" -- A blog seeking to enforce Brady and expose other prosecutorial misconduct

[edited since posted] When reading up on the case that Dave posted about (where the former prosecutor, now a judge, was jailed for contempt arising from Brady violations), I came across this blog, Seeking Justice. Its purpose is to enforce the law on Brady obligations by bringing violators to light and to expose other prosecutorial misconduct. I suppose it's possible (and would be laudable) that the blog could force the legal system to take Brady violations more seriously. The blog's author explains:

This blog exists to provide both a source of current information and a forum for those who have experienced or  witnessed misconduct by federal prosecutors in particular.  We are especially interested in seeking reform of the legal system in the way it deals with “Brady violations” or the prosecutors’ suppression of evidence favorable to the defense. We want to hear from you.

We will blog twice a week and strive to keep you informed of the most recent developments in efforts across the country to hold prosecutors accountable when they fail to produce all favorable evidence to the defense.  If you are an attorney representing a defendant or a defendant whose criminal conviction was reversed because a federal prosecutor suppressed evidence  that was favorable to the defense, please upload the order or opinion reversing your case here. 

If you are an attorney or a defendant who has compelling evidence against a federal prosecutor but you were not able to obtain a reversal, please upload a summary of the evidence or court's decision here. 

If you are an attorney or a defendant who filed a grievance with a bar association against a federal or state prosecutor for the prosecutor’s suppression of evidence favorable to the defense, please upload your complaint and the response of the bar association here.  

In 1963, in Brady v. Maryland, 373 U.S. 83, 87-88 (1963),  the Supreme Court established the foundation of a prosecutor’s constitutional duty to disclose evidence favorable to an accused. The Court solemnly declared that:  “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. [...] A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.”

If you would like to receive notice of updates of information from this site or obtain a free brief on Brady, please give us your email at the top right of this page.  (We will not sell or rent any of your personal information to third parties for their marketing purposes.)