Proposed Changes to DC Bar Admission Rules

The DC Court of Appeals is seeking comments on whether it should “amend D.C. App. R. 46 relating to admission of graduates of non-accredited law schools.”   The proposed changes affect the rule that allows foreign LL.M. students to sit for the DC bar exam, as well as graduates of U.S. non-ABA accredited schools who have been in practice for less than 5 years.  Responses should be sent to the Clerk of the DC Court of Appeals by July 31, 2018.

In February 2018, the DC Board of Governors voted in favor of the proposed amendments that would, inter alia, change the bar eligibility requirements for foreign LL.M. students.  The proposed changes would reduce from 26 to 24 the number of U.S. legal education credits that provide a pathway for bar exam eligibility, change the required courses, and allow the same number of distance education courses as are permitted by ABA accreditation rules. The proposed new language, which is used in multiple locations in Rule 46, states:

Of such 24 credit hours, a total of six credit hours shalJ be earned in courses of study in the following subiects: two credit hours of instruction in professional responsibility (based on the ABA Model Rules of Professional Conduct or rules of professional conduct of a U.S. jurisdiction}; two credit hours of instruction in U.S. legal institutions (including the history, goals, structure, values, rules and responsibilities of the U.S. legal system); and two credit hours of instruction in common law legal reasoning, research, and writing. A minimum of six credit hours shall be earned in courses of study, each of which is substantially concentrated on a single subject tested on the Uniform Bar Examination.  The law school issuing the credit hours shall certify in writing that its courses comply with the specific course requirements in this rule. Any amount of such 24 credit hours may be completed through distance education from the ABA-accredited law school, provided the law school issuing the credit hours certifies in writing that its distance education methods comply with ABA distance education standards; 

The DC Bar’s February 2018 proposals were based on the Jan. 2018 Final Report from the DC Bar’s Global Legal Practice Task Force (“Task Force“).  The DC Bar’s transmittal letter begins on p. 3 of the Court’s Notice & Comment pdf; the Jan. 2018 Final Report begins on p. 11 of the pdf, and a redline version of the proposed changes begins on p. 25 of that Final Report, which starts at p. 41 of the Court’s Notice & Comment pdf.  As the DC Bar’s transmittal letter describes, the January Task Force 2018 Final Report and the February 2018 Board vote reflect comments the Task Force had received on its July 2017 consultation draft.

The topics addressed in this Notice and Comment are covered on pp. 3-4 of the Casebook (especially the “Global Perspective” box) and in Chapter 9(1). For information about why U.S.-based clients might want access to foreign-trained lawyers, see Diane F. Bosse, Testing Foreign-Trained Applicants in a New York State of Mind, 83(4) The Bar Examiner 31–37 (Dec. 2014); Laurel S. Terry, Admitting Foreign-Trained Lawyers in States Other than New York: Why it Matters, 83(4) Bar Examiner 38 (Dec. 2014).

AVVO Ethics Bar Stands: New Jersey Supreme Court

Supreme Court Won’t Take Up Avvo Ethics Case

An opinion by New Jersey legal ethics authorities that deemed Avvo off-limits to lawyers in the state will not be reviewed by the state Supreme Court.

In an order dated June 1 and obtained by the Law Journal on Monday, the court denied a petition for certification by Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals.

The organization, called Responsive Law for short, had asked the court to review the June 2017 opinion, jointly issued by the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising and the Committee on the Unauthorized Practice of Law, which found that Avvo facilitates improper fee-splitting and may not be utilized by New Jersey lawyers.

Opposing the petition were the Attorney General’s Office, representing the committees, and the New Jersey State Bar Association.

Responsive Law executive director Tom Gordon said in a statement Monday that the court, “by summarily declining to review the decision … has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”

“According to the U.S. Supreme Court’s [North Carolina State Board of Dental Examiners v. Federal Trade Commision (2015)] decision, active supervision by a disinterested government agency is a prerequisite for antitrust immunity when policy decisions are made by market participants,” Gordon said. “The real losers here, though, are the people of New Jersey, who are being prevented from finding affordable lawyers online using the same tools they use to find doctors, babysitters, and mechanics.”

Now-former State Bar president Robert Hille, of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, filed a brief on behalf of the bar urging the court to pass on the case. The NJSBA issued a statement Monday from current president John E. Keefe Jr. of the Keefe Law Firm in Red Bank.

“The court’s decision to let stand the joint opinion is an important one that provides clarity for New Jersey lawyers and protects consumers,” Keefe said.

“The association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys,” he said, adding that the court’s denial of certification “has ensured that a client’s interests are paramount and that they are represented fairly and impartially by lawyers adhering to our long-established rules governing professional conduct and ethics.”

Representing the state was Deputy Attorney General Steven N. Flanzman. An email to an Attorney General’s Office’s spokesman didn’t get an immediate response Monday.

The June 21, 2017, opinion was issued in response to an NJSBA inquiry asking whether lawyers may “participate in certain online, non-lawyer, corporately owned services.” The inquiry named Avvo, LegalZoom and Rocket Lawyer specifically.

The shortcomings of LegalZoom and Rocket Lawyer could be fixed simply by registering with the state, the committees held. But they found ethical trouble with the very structure of Avvo’s “pay-for-service” programs. The opinion decreed that “New Jersey lawyers may not participate in the Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a nonlawyer in violation of Rule of Professional Conduct 5.4(a), and pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).”

According to the opinion, Avvo offers “Avvo Advisor”—through which customers buy 15-minute phone conversations with a lawyer for a $40 flat rate, of which Avvo keeps a $10 marketing fee—and “Avvo Legal Services,” which allows customers to pay flat fees to Avvo for legal services provided by affiliated lawyers, after which Avvo pays the lawyer but keeps a marketing fee.

“The participating lawyer receives the set price for the legal service provided, then pays a portion of that amount to Avvo,” the committees said. “The label Avvo assigns to this payment (“marketing fee”) does not determine the purpose of the fee. … Here, lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.”

The opinion also held that marketing fees lawyers pay to Avvo are not for advertising but amount to an “impermissible referral fee” by the definition contained in RPCs 7.2(c) and 7.3(d), and Avvo’s practice of holding the lawyer’s fee until the service is provided violates an attorney’s requirement to maintain a registered trust account per Rule 1:28(a)-2.

 Believe the Autocrat – Greg Sargent – The Plum Line – WaPo

Believe the Autocrat  – The Plum Line – WaPo

Source: OTHERWISE: Believe the Autocrat – Greg Sargent – The Plum Line – WaPo

A year of Special Counsel Robert Mueller’s investigation has produced many indictments and a tsunami of leads.  The corruption is unapologetic and gross.
And now a full scale attack is underway on the Department of Justice and the FBI.  We are watching a slo-mo Saturday Night Massacre as prosecutors and investigators are called up on the Presidential carpet.  As the President declares : I hereby demand…” that those investigating him and his associates be themselves investigated.  ​The slo-mo judicial dismantling of the New Deal pales​ in comparison. [See Epic Systems – goodbye 8 hour day]
The above post by Greg Sargent relies on a recently published history of presidential control of the Department of Justice by my Fordham colleague Bruce Green and Rebecca Roiphe.  They write

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

​We have a President whose ignorance of such norms is surpassed only by his contempt for them.​  And his political party has fallen in behind him with only meek dissent.
It is hard to conclude that there is anything more important to us as defenders of law’s integrity than the threat presented by Donald Trump.

TRUMP’S LAWYER AND ATTORNEY-CLIENT PRIVILEGE

The recent search of President Trump’s Lawyer, Michael Cohen’s, office, home, safety deposit box, and hotel room is a very big deal when it comes to issues of attorney-client privilege and client confidentiality.  It has been reported that the search is part of an investigation into Cohen for possible bank fraud and wire fraud. President Trump has tweeted that attorney-client privilege was “dead” and “now a thing of the past.”  As the case before Judge Kimba Wood in the Southern District of New York is demonstrating, President Trump is wrong and he just doesn’t understand attorney-client privilege.

Judge Wood has yet to decide who will have the first look at materials the government seized with the search warrant, though she has signaled that it won’t be President Trump, most likely won’t be Cohen, and may not be a government “taint” team walled off from the prosecutors doing involved in the investigation.  Rather, it is more likely that Judge Wood will appoint a special master to review the material and decide what is and is not covered by attorney-client privilege and possibly work-product.  Both attorney-client privilege and work product are allied with client confidentiality, and all three rules or doctrines are based on the assumption that effective legal representation requires free and open communication between client and counsel.  All three are aimed at encouraging such open communication by keeping certain information from one’s adversary and the public.

Faculty teaching attorney-client privilege, client confidentiality, and work-product should think about using the issues Judge Wood and possibly a special master have to consider.   For example, the materials seized will likely contain the following information:

  • Client names;
  • Communications between Cohen and clients; and
  • Possible materials prepared in anticipation of litigation if Cohen worked on any matters in which litigation was a possibility.

Ask your students to be the special master, and ask them to identify which category or categories apply to the above materials or information.  When it comes to the communications between Cohen and clients, the students will need more information to see if the communications fit the definition of attorney-client privilege:  (1) a communication; (2) made between privileged persons (typically the lawyer and client); (3) in confidence; and (4) for the purposed of obtaining or providing legal advice or other assistance to the client.  Communications that do not involve legal advice would not be covered.  Also, communications in furtherance of a crime or fraud would fit the crime fraud exception.

When it comes to client names, they are not covered by attorney-client privilege.  On the other hand, the names may be covered by client confidentiality as “information relating to the representation of a client” under Rule 1.6(a), as New York State Bar Association Ethics Opinion 1088 (2016) explains.  There are some state advisory ethics opinions take a different position, such as California Formal Op. 2011-182 (2011), which stated:  “In most situations, a client’s identity is not considered confidential . . . .”  This is just another reminder that it is important for a lawyer to research and understand how one’s jurisdiction is likely to approach ethics issues.

How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

Source: OTHERWISE: How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

The furious tweets of Donald Trump that attorney client privilege is dead are repeated in the restrained language of his lawyers’ memorandum.

 As usual the best source of information is the primary source: the United States Department of Justice, whose memorandum (excerpted in the post above) explains how any documents protected by attorney client privilege will be handled.  In essence the process is to determine if documents seized  contain communications between attorney and client which relate to the representation. Confidentiality is protected – unless the communication is evidence of the attorney’s participation in a crime – in which case a judge’s review till be sought.  – gwc

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion BY GEOFFREY MARCUS A recent opinion from the New York Cit…

Source: OTHERWISE: Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

BY GEOFFREY MARCUS

A recent opinion from the New York City Bar Association’s Committee on Professional Ethics finds that a lawyer may disclose a limited amount of confidential information when a prospective client with serious diminished capacity is at risk of substantial physical, financial, or other harm.  Read the full opinion here.

The opinion describes a scenario in which a neighbor brought a tenant facing immediate eviction to an attorney for legal assistance. During their meeting, the attorney became concerned that the tenant was so seriously mentally incapacitated that she could not retain a lawyer. Despite the absence of an attorney-client relationship, the attorney still wanted to help the tenant.

Rule 1.14 of the ABA Model Rules of Professional Conduct explicitly addresses the circumstances in which a lawyer may take protective action for the benefit of current clients with diminished capacity. The rule remains silent as what a lawyer can do for prospective clients, but the Committee’s recent opinion provides guidance on this issue.

The Committee concluded that mental capacity is not a factor in determining whether a person is a prospective client and that lawyers owe the same duty of confidentiality to prospective and current clients alike. The Committee references Rule 1.14(c), which provides lawyers with implied authorization under Rule 1.6(a) to disclose confidential information reasonably necessary to protect current clients with diminished capacity. Therefore, the Committee reasons that Rule 1.14(c) applies to prospective clients.

In addressing the earlier scenario with the tenant, the Committee noted that the “lawyer is impliedly authorized to reveal confidential information about the prospective client to a court, a social services agency or another, but only to the extent reasonably necessary to protect the prospective client’s interests.” However, the Committee emphasizes that, when a lawyer interacts with the court and others, she must clarify that she does not represent the prospective client and that no attorney-client relationship exists.

OTHERWISE: Lawyer investor in litigation funding in conflict with client it finances – NY State Bar Assocation

In an advisory ethics opinion the New York State Bar Association has says that RPC 1.8. bars a lawyer with a substantial interest in a litigation finance company from representing a client whose litigation is financed by that company.  This seems right to me.  For access to justice reasons we allow a lawyer to have a stake in the outcome of litigation.  But a significant ownership interest in the financier adds another layer to what is already an inherently conflicted representation. Read the full opinion here.

Source: OTHERWISE: Lawyer investor in litigation funding in conflict with client it finances – NY State Bar Assocation