Call for Papers: New Voices in Professional Responsibility—Works in Progress Session AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

The Professional Responsibility Section is pleased to host a works in progress session during the 2019 Annual Program. Papers selected will be presented at the session along with commentary from a scholar in the field. Papers can be on any professional responsibility topic from professors with seven years or less of full-time teaching experience. Submitted drafts should be near completion with the expectation that they will be submitted for publication during the spring law review submission cycle.

Papers should be submitted to Melissa Mortazavi, via email at melissa.mortazavi@ou.edu, no later than September 17, 2018, with the subject line: PR Works in Progress.

ABA House of Delegates Amends Lawyer Advertising and Solicitation Rules (updated with information about MPRE testing)

From the ABA Journal:

The ABA House of Delegates on Monday voted in favor of amending Rule 7 of ABA Model Rules of Professional Conduct, which addresses lawyer advertising.

Lucian Pera, of Adams and Reese in Memphis, Tennessee, and chair of the Center for Professional Responsibility, told delegates that in the decades since the 1977 U.S. Supreme Court decision in Bates v. State Bar of Arizona allowed for lawyers to advertise their services, there’s been a “breathtaking variation in advertising rules” among states. He said the amendments were necessary to clarify and simplify these rules.

Resolution 101 amends Rules 7.1-7.5, and was informed 2015 and 2016 reports by the Association of Professional Responsibility Lawyers. The Standing Committee on Ethics and Professional Responsibility worked on the edits over the course of two years, holding at least two open hearings. A detailed article on their work is available here.

No one rose to oppose the amendment, and the majority of delegates voted in favor of the amendments.

For those of you teaching PR during 2018-2019, you may wish to advise your students regarding the appearance of revised rules on the MPRE. Here is the position of the NCBE as posted on its website:

Amendments to the ABA Model Rules of Professional Conduct or the ABA Model Code of Judicial Conduct will be reflected in the examination no earlier than one year after the approval of the amendments by the American Bar Association. Until that time, the examination may include questions that test on the rules before amendment.

Leading Voices Weigh In On TIKD Antitrust Suit – National Law Review by Annie Dike

Opposing Views

“The Florida Bar basically said: ‘This is our monopoly. TIKD is violating it, and any lawyer that participates with TIKD is putting their license at risk.’ Now you have the fox guarding the henhouse, and the Florida Bar does not have the authority to do that,” Pete Kennedy, attorney for TIKD in the ongoing antitrust suit against the Florida Bar that we reported on in December, recently told us in an exclusive IMS interview.

Kennedy had previously argued this position in 2016 when he joined forces with other “access to justice” companies in filing a persuasive amicus brief on behalf of LegalZoom in the antitrust case the Supreme Court decided against the North Carolina Dental Examiners Board. Like the tooth whiteners in the Dental Examiners case, TIKD, a tech startup that makes legal services (e.g., handling traffic tickets) accessible to Florida residents through a smartphone app, is now pursuing similar antitrust claims against the Florida Bar for using unauthorized practice of law allegations to push TIKD out of the Florida market. After the DOJ filed a Statement of Interest in the TIKD case, we spoke with the following lead voices in this matter:

  • Pete Kennedy, the antitrust attorney for TIKD and LegalZoom in the filing of an amicus brief in the Dental Examiners case;
  • Tom Spahn, President and COO of TIKD;
  • Ken Friedman, VP and in-house counsel for LegalZoom, the first legal tech company to sue a state bar association;
  • Tom Gordon, Executive Director at Responsive Law, who joined LegalZoom in the amicus brief filed in the Dental Examiners case; and
  • Renee Knake, Professor of Law & Doherty Chair in Legal Ethics, University of Houston Law Center who contributed to the amicus brief filed by LegalZoom in the Dental Examiners case.

Questions to Consider

Our initial question to these parties: Why all the work of filing a costly and protracted antitrust suit against the Florida Bar? “We really struggled with the decision to file this suit,” Tom Spahn, TIKD President and COO, explained. “It is incredibly costly for a startup company to assume the legal costs of a suit like this, but we believe in the legal industry we are creating.

Not only do we provide an affordable, guaranteed service to the economically-disadvantaged who cannot easily clear a check the size of a traffic ticket, we also provide guaranteed clients with a legal need to the many lawyers out there who are underworked or underemployed, and we wish the Florida Bar could see that. We’ve been transparent from the beginning in trying to set up a business model that would not violate the Bar’s rules, and the Bar refused, and still refuses, to speak with us.”

“What is unique about this case is the incumbent,” Kennedy explained. When TIKD, a company that is operating successfully in Georgia, Maryland, Washington, D.C., Virginia and California, began offering its services to residents of Florida, a competitor, The Ticket Clinic, a law firm based in Miami that offers similar traffic ticket-handling services, filed an ethics complaint with the Florida Bar. While the complaint was under investigation, the Bar issued an informal ethics opinion giving the impression that attorneys working with TIKD were acting in violation of the ethics rules governing the unauthorized practice of law. “We do not know how the informal opinion was disseminated or how it got in the hands of The Ticket Clinic lawyers, but they began using it to contact attorneys who were working with TIKD and telling them, in doing so, they were putting their license at risk,” Kennedy said, which essentially put TIKD out of business in Florida.

In response, Tom Gordon, Executive Director at Responsive Law, who joined in the LegalZoom amicus brief, explained: “Just like Avvo and JustAnswers offers users an answer to a legal question for a two-digit price as opposed to a four-digit price, these tech companies are not engaging in an unauthorized practice of law. Rather, they are making legal services more affordable and accessible to disadvantaged people. It is frustrating and unfortunate to see an organization of lawyers thwart competition in this area and they are not immune.”

Supervision

When it comes to antitrust allegations, are state bars immune? Not according to the DOJ. Not entirely, at least. In its Statement of Interest recently filed in the TIKD case the DOJ has made it clear: without active supervision (not an ongoing rubber stamp of approval) by the state supreme court, state bar associations are not immune.

However, even with supervision from the supreme court, Renee Knake, Professor of Law who contributed to the LegalZoom amicus brief, claims: “It’s a legal monopoly. The legal profession is unique in that, in support of their argument for immunity, they claim they are an ‘arm of the court,’ but the court is also made up of lawyers, many of whom will soon be returning the practice. Meaning, at every stage of the intended separation of powers, there are lawyers; their regulations are all enacted, enforced, and interpreted by lawyers.”

“The Supreme Court made clear in the Dental Examiners case that letting professionals enforce their own monopolies creates a ‘real danger’ that they will act to further their ‘own interest,’ rather than the public interest,” Ken Friedman, VP and in-house counsel for LegalZoom, commented. “State bars should not be able to argue sovereign immunity to sidestep the Supreme Court’s ruling and I am not at all surprised by FTC vigilance where they feel the Dental Examiners decision is not properly followed.”

By filing a Statement of Interest in the TIKD suit, a case that will likely change the face of the legal tech sector, the DOJ has definitely solidified its interest in the matter and aligned its position with that of companies like TIKD, LegalZoom, and Avvo that are seeking to compete in this market.

“To be sure,” the DOJ explained in this Statement of Interest, “new and innovative mobile device apps can be disruptive. Business models entrenched for decades have witnessed new competition from mobile platforms that can profoundly change an industry. But almost invariably, the winners from the process of innovation and competition are consumers.”

In response to a request to the Florida Bar for a statement concerning this matter, we were informed: “It is the policy of the Florida Bar never to comment on pending litigation.” We were encouraged instead to include their position as stated in the Bar’s filings in this matter wherein the Bar has asserted that it is immune from antitrust allegations because it is “an agency of the State of Florida, an arm of the Florida Supreme Court, specifically authorized to conduct investigations of the unlicensed practice of law.” Meaning, according to the Bar, the anticompetitive conduct alleged in TIKD’s complaint was not “taken by or controlled by ‘active market participants.’”

Conclusion

Now that you have heard from many of the lead voices in this matter, including the DOJ, we want to hear from you, followers: What do you think of the Florida State Bar’s conduct in this matter, its argument for immunity, and the likely outcome of this pivotal case?

 

Link to the National Law Review article here.

ILEC 2018 Melbourne Call for Proposals due July 31, 2018

International Legal Ethics Conference VIII
Legal Ethics in the Asian Century

6-8 December 2018
Melbourne

Proposals for presenting a paper or panel at ILEC VIII are cordially invited. Presenters are encouraged to submit papers within one of the following streams:

  1. Technology, Legal Ethics and Society
  2. Interdisciplinary and Empirical Approaches to Legal Ethics
  3. Philosophy and Legal Ethics
  4. Regulation of the Profession(s)
  5. Ethics and Legal Education
  6. Globalisation and Legal Ethics
  7. Legal Ethics and Access to Justice

The Conference will be organised into sessions of 90 minutes each. Normally, three to four papers will be presented in any one session.

Proposals for a paper should include a title and abstract of between 100 and 300 words. Please also include your name, institutional affiliation (if any) and up to six keywords describing your topic.

Alternatively, a proposal for a Panel involving discussion or other formats will be considered. If you are proposing a panel, please state the title of the panel, with a brief description, together with the names of the panellists presenting. Where possible, we would encourage panel proposals to be submitted with the full set of abstracts appended.

Proposals should either indicate the stream in which the paper or panel is to be presented or clearly identify an alternative theme within which the proposal sits. We will seek to accommodate alternative themes where viable.

In order to accommodate as large and diverse a group of presenters as possible, participants are requested to submit no more than two proposals.

The deadline date for proposals is July 31, 2018.

Proposals should be submitted by email to law-lprn@unimelb.edu.au with the subject heading “ILEC8 paper proposal.

From the ABA Journal: “Opinion makes confidentiality exception for ‘generally known’ info”

Here are my thoughts on the new Formal Opinion 479 from the ABA Standing Committee on Ethics and Professional Responsibility offering guidance about what constitutes “generally known” information under ABA Model Rule 1.9, as published in the March 2018 issue of the ABA Journal.

“I agree that this definition makes sense, though I don’t think it necessarily resolves what is generally known in every instance,” says Renee N. Knake, who teaches legal ethics at the University of Houston Law Center and recently co-wrote Professional Responsibility: A Contemporary Approach. “Inevitably gray areas will arise, but I do think that the opinion offers helpful guidance as to what may constitute ‘generally known.’ ”

She says questions remain as to what “minimum threshold of publications” are necessary to establish that the information is generally known.

“What about other sources, such as a public survey or opinion poll?” she says. Regarding wide recognition in the former client’s industry or profession, Knake asks whether it is “possible to rely as well on expert opinions.”

Further, “information that is publicly available is not necessarily generally known,” the opinion reads. “Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).”

“The opinion is striving to achieve a balance here,” Knake says. “Defining ‘generally known’ to include any public record would address the gray area problem, but it doesn’t sufficiently protect the sort of information contemplated under the umbrella of confidentiality afforded by Model Rule 1.9.”

Model Rule 1.9(c)(2) prohibits a lawyer from “revealing information about a former client,” Knake says. “The difference between ‘reveal’ versus ‘use’ is significant, and the lawyer may only use a public record that has otherwise been revealed by another source and spread widely.”

You can read the full article here: http://www.abajournal.com/magazine/article/ethics_opinion_makes_confidentiality_exception_for_generally_known_info

 

 

 

 

 

 

 

 

“This sounds like my ethics class in law school…” Justice Sotomayor

The Supreme Court heard arguments today in McCoy v. Louisiana, which presents the question of whether it is unconstitutional for defense counsel to tell the jury that a client is guilty when the client insists he is innocent. It also raises interesting questions about the ethical obligations under ABA Model Rule 1.2 that “a lawyer shall abide by a client’s decisions concerning the objectives of representation” and ABA Model Rule 3.3, Candor Toward the Tribunal.

As Justice Sotomayor observed in questioning McCoy’s attorney, “this sounds like my ethics class in law school, and this very hypothetical of what do you do with a lying client?” Full oral argument transcript is here.

Adam Liptak noted in the NY Times that the justices seemed likely to side with McCoy: “Several justices said a decision as fundamental as admitting guilt in a capital case belonged to the client rather than the lawyer.” Full article here.

Cross-posted at the Legal Ethics Forum