Source: OTHERWISE: Non-refundable retainers impermissible – ABA Formal Opinion 505

Under the Model Rules of Professional Conduct, a fee paid to a lawyer in advance for services to be rendered in the future must be placed in a client trust account and may be withdrawn only as earned by the performance of the contemplated services. This protects client funds and promotes client access to legal services in the event the representation terminates before all contemplated services have been rendered. All fees must be reasonable, and unearned fees must be returned to the client. Therefore, it is not accurate to label a fee “nonrefundable” before it actually has been earned, and labels do not dictate whether a fee has been earned. 

Disgraced and disbarred California attorney Thomas V. Girardi corruptly wielded his influence, reaching even into the State Bar of California – the state’s governing body for attorneys. – GWC

The State Bar of California Board of Trustees released today two redacted reports on its past handling of complaints against disgraced and disbarred attorney Thomas V. Girardi. The Board decided to release the reports in furtherance of the agency’s public protection mission and its commitment to transparency and accountability. In releasing these reports, the State Bar has redacted information that is protected under the law, including California Business and Professions Code section 6086.1, and the right to privacy.

The first report was prepared by attorney Alyse Lazar, who in 2021 was retained by the State Bar to review 115 files of past complaints against Girardi. Her review, limited to documents in investigative files, identified numerous instances in which complaints were closed without complete investigations or despite the development of facts warranting discipline. A redacted version of the report is posted here.

Source: OTHERWISE: State Bar of California Releases Reports Detailing Past Unethical Conduct in Handling Girardi Complaints – The State Bar of California – News Releases

The California State Bar, alone among the state lawyer licensing authorities, has not adopted the American Bar Association ‘s rule requiring lawyers to report their knowledge of another attorney’s ethical fitness to practice. The ABA  Model Rule Provides in part:

Rule 8.3: Reporting Professional Misconduct

Maintaining The Integrity of The Profession

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

But, reeling under the impact of treports of the State Bar’s failure to respond to grossly unethical conduct by two high profile attorneys – Thomas Girardi and Michael Avenatti – the State Bar has proposed that the Supreme Court of California be obligated to report misconduct or unfitness of which they have knowledge.  The the State Bar is a governmental body but the state’s Supreme Court will decide any changes. – GWC

Source: OTHERWISE: New California Rule Compelling Attorneys to Report Misconduct by Other Attorneys to Circulate for Public Comment – The State Bar of California – News Releases

A complaint has been filed with DC Bar Ethics Council against Stefan Passantino.  He represented Cassicy Hutchinson, who gave dramatic testimony to the (now dissolved) January 6 Committee.  Lawyers Defending American Democracy explains:

We file this complaint because the testimony Ms. Hutchinson provided to the Committee, and other publicly available information, reveal numerous serious ethical breaches by Mr. Passantino. Among them, Mr. Passantino represented conflicting interests where informed consent was not requested, and no reasonable attorney could consider that the conflicting interests could be reconciled; where his advice to Ms. Hutchinson suborned perjury and placed her in jeopardy of criminal sanctions to protect other clients represented by his firm; and where his conduct also likely violated other federal criminal statutes by encouraging her to give false testimony to Congress. These breaches violated both his duties to Ms. Hutchinson and his obligations to the administration of justice. Set forth below are the facts as we understand them and an analysis of the violations of the District of Columbia Rules of Professional Conduct (the Rules) that we believe those facts reveal.

Source: Attorney John Eastman Charged with Multiple Disciplinary Counts by the State Bar of California – The State Bar of California – News Releases

Attorney John Eastman Charged with Multiple Disciplinary Counts by the State Bar of California

The State Bar of California’s Chief Trial Counsel George Cardona announced today the filing of a Notice of Disciplinary Charges (NDC) against attorney John Charles Eastman (State Bar No. 193726). The 11 charges arise from allegations that Eastman engaged in a course of conduct to plan, promote, and assist then-President Trump in executing a strategy, unsupported by facts or law, to overturn the legitimate results of the 2020 presidential election by obstructing the count of electoral votes of certain states.

Specific charges allege that Eastman made false and misleading statements regarding purported election fraud, including statements on January 6, 2021, at a rally in Washington, D.C., that contributed to provoking a crowd to assault and breach the Capitol to intimidate then-Vice President Pence and prevent the electoral count from proceeding.

The Office of Chief Trial Counsel (OCTC) intends to seek Eastman’s disbarment before the State Bar Court.

In March 2022, Cardona invoked a public protection waiver to announce that an investigation of Eastman was underway. Eastman now faces multiple charges that he violated Business and Professions Code section 6106 by making false and misleading statements that constitute acts of “moral turpitude, dishonesty, and corruption.”

“There is nothing more sacrosanct to our American democracy than free and fair elections and the peaceful transfer of power,” said Cardona. “For California attorneys, adherence to the U.S. and California Constitutions is their highest legal duty. The Notice of Disciplinary Charges alleges that Mr. Eastman violated this duty in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land—an egregious and unprecedented attack on our democracy—for which he must be held accountable.”

As has been widely reported, Eastman drafted two “legal memos” that laid out proposed strategies to block then-President-elect Joe Biden from taking office by circumventing established procedures for the counting of electoral votes in front of the U.S. Congress and overseen by Vice President Pence. The NDC alleges that the strategies proposed by these memos, as well as in remarks Eastman made publicly and privately to President Trump, Vice President Pence, and others, were unsupported by law, based on false and misleading assertions of fact, and designed for the purpose of keeping Trump in office. The NDC alleges that, after hearing from the U.S. Department of Justice that it had not seen any election fraud on a scale that could have affected the election’s outcome, and after multiple courts had rejected election fraud lawsuits, Eastman knew, or should have known, that the factual premise for his proposals―that massive fraud was at play―was false, and that Trump had lost his bid for re-election.

The NDC also alleges that Eastman ignored these truths when he spoke at the “Save America March” on January 6, 2021, inciting the crowd to take action when, with the intent to convince them that the outcome of the presidential election had been affected by fraud, he said that “dead people had voted” in the presidential election, that Dominion voting machines had fraudulently manipulated the election results, and that Vice President Pence did not deserve to be in office if he did not delay the counting of electoral votes. These statements contributed to provoking the crowd that participated in the violent attack on the U.S. Capitol that occurred after the rally.

A Notice of Disciplinary Charges filed by OCTC contains only allegations of professional misconduct. The licensee is presumed to be innocent of any misconduct warranting discipline until the charges have been proven.

The State Bar Court of California is the only independent court in the U.S. dedicated solely to attorney discipline. Attorney discipline matters are investigated and prosecuted by OCTC, acting on behalf of the public. The State Bar Court oversees disciplinary proceedings and adjudicates charges filed by OCTC. The court rules on whether OCTC has proved charges of professional misconduct by clear and convincing evidence and may recommend that an attorney be suspended or disbarred.

State Bar proceedings include a legal requirement during the prefiling period to provide respondents with a “fair, adequate and reasonable opportunity to deny or explain the matters” which will be the subject of any charges, and, prior to the filing of disciplinary charges, respondents have the “right to request an Early Neutral Evaluation Conference” before a State Bar Court hearing judge.

If a disciplinary ruling involves disbarment or suspension, the State Bar Court’s recommendation is transmitted to the California Supreme Court, which determines whether to impose the recommended discipline. See rule 9.18, California Rules of Court.

You can search more extensive State Bar Court records and documents related to this case, or any attorney discipline matters, using the court’s Case Search feature. Input either the case number or attorney’s name (last, first middle).

Source: OTHERWISE: ABA Opinion: Reply all error does not violate RPC 4.2

Formal Opinion 503 addresses ABA Model Rule 4.2,  the no-contact rule, which says that a lawyer representing a client may not communicate about the matter with another represented person, unless that person’s lawyer consents.

The new ABA Opinion summarizes its conclusions:

“Reply All” in Electronic Communications In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.

The Yale Law Journal – Forum: The Pitfalls and False Promises of  Nonlawyer Ownership of Law Firms Stephen P. Younger ABSTRACT.  Whether non…

Source: OTHERWISE: The Yale Law Journal – Forum: The Pitfalls and False Promises of Nonlawyer Ownership of Law Firms

ABSTRACT. Whether nonlawyers should have ownership roles in law firms has been and remains a hotly debated topic. The debate concerns potential reforms to Rule 5.4 of the American Bar Association’s Model Rules of Professional Conduct, which sets guidelines for maintaining the professional independence of lawyers, as well as the impact of those revisions on the legal profession. Although advocates for such reform argue that nonlawyers must be allowed ownership roles in law firms in order to foster innovation and increase access to legal services, many lawyers have raised significant concerns about the impact that nonlawyer ownership would have on the independence of lawyers. Lawyers have concerns about allowing nonlawyers—who have not sworn to uphold the ethical obligations that attorneys promise to uphold when becoming members of the bar—to have decision-making authority in the day-to-day practice of law. There is also no evidence that nonlawyer ownership actually improves access to justice for the needy. This Essay argues against rewriting Rule 5.4 to allow nonlawyer ownership of law firms. It concludes that nonlawyer ownership not only fails to solve the problems that advocates of reform promise it will address but in fact creates meaningful risks for the legal profession.

Source: OTHERWISE: Comparative awards must be verifiable – New Jersey Supreme Court – Advertising Committee

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics has published this opinion. Under New Jersey law and practice it is subject to discretionary review by the Supreme Court on the Justices own motion, or the request of any member of the bar or any bar association.

No such review is expected. – GWC

Source: Advisory Committee on Professional Ethics (ACPE) Opinion 744 – Lawyers May Use Regulated Cannabis, and Operate or Invest In a  Regulated Cannabis Business; No Violation of RPC 8.4(b).

OPINION 744
Lawyers May Use Regulated Cannabis,
and Operate or Invest In a Regulated
Cannabis Business; No Violation of RPC
8.4(b)
The Advisory Committee on Professional Ethics received an inquiry about whether New Jersey lawyers may, consistent with the Rules of Professional Conduct, use regulated cannabis. In addition, the Secretary received attorney ethics research assistance hotline calls from New Jersey lawyers who inquire about the application of the Rules if they were to operate or invest in regulated cannabis businesses. As explained below, the Committee determines that the Rules of Professional Conduct do not forbid lawyers from engaging in such conduct. While the conduct remains technically illegal under federal law, it does not, as a general matter, violate Rule of Professional Conduct 8.4(b) (prohibiting lawyers from committing “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”).

Concluding that Donald Trump and his lawyer and former law dean John Eastman “more likely than not” conspired to obstruct Congress. California Federal District Judge David Carter has in Eastman v. Thompson Carter concluded the crime-fraud exception applied to a draft memo for Trump’s lawyer Rudy Giuliani that otherwise would be protected by attorney-client privilege. – GWC

Source: OTHERWISE: ‘ Crime-fraud exception compels John Eastman to turn over emails for Donald Trump re January 6| The Recorder

Source: 25th Annual Statewide Ethics Symposium

Presented by the Committee on Professional Responsibility and Conduct

April 15, 2022  
9:30 a.m.–4:10 p.m. Live Stream via Zoom
Cost: Free (Registration limited to 1000 participants)

This program offers up to 5 hours of participatory MCLE credit (4.0 hours of legal ethics and 1.0 hour of elimination of bias). This program has also been approved for legal malpractice legal specialization credit by the State Bar.

Program schedule
Registration information
Printable brochure
Register online

Program schedule

9:30 a.m.–9:45 a.m. Welcoming Remarks

• Justin J. Fields: Chair, Committee on Professional Responsibility and Conduct
• Ruben Duran: Chair, Board of Trustees of the State Bar of California

9:45 a.m.–11:00 a.m. Recent Developments in Legal Ethics and Professional Conduct–What You Need to Know

This panel will discuss important developments in legal ethics, centering on recent and developing advisory ethics opinions prepared by COPRAC and other professional conduct developments. Topics will include client file release and retention duties, ethics of in-house counsel, cryptocurrency, and civility and professionalism.

• Justin J. Fields: Moderator; Chair, Committee on Professional Responsibility and Conduct; Partner, Duane Morris LLP, San Francisco
• Sarah J. Banola: Vice-Chair, Committee on Professional Responsibility and Conduct; Partner, BRB Law LLP, Oakland
• Dena M. Roche: Advisor, Committee on Professional Responsibility and Conduct; Partner, O’Rielly & Roche LLP, San Francisco

11:10 a.m.–12:25 p.m. Entry Into the Practice of Law

This panel will address significant issues, impediments, and developments related to entry into the practice of law. These will include barriers to admission related to legal education and bar pass rates, the level of ethics education new lawyers receive, and ethical pitfalls new lawyers face, as well as proposals to expand access to legal service.

• Brandon N. Krueger: Moderator; Member, Committee on Professional Responsibility and Conduct; Shareholder, Sall Spencer Callas & Krueger, A Law Corporation, Laguna Beach
• Carole J. Buckner: Partner and General Counsel, Procopio, San Diego
• Erin M. Joyce: Shareholder, Erin Joyce Law P.C., Pasadena
• Toby J. Rothschild: Of Counsel, OneJustice, Westminster

12:25 p.m.–1:30 p.m. Lunch

1:30 p.m.–2:45 p.m. Ethical Issues – Attorney Fees and Billing

This panel will address ethics issues and recent developments regarding attorney fees and billing practices. The panel will discuss proposed COPRAC opinions regarding flat fees and conversion clauses in contingent fee agreements and the impact of the current Rules of Professional Conduct, recent cases and developments in the field of attorney fees, billing, mandatory fee arbitration, suspect billing practices, and other fee and billing ethics issues.

• Kenneth E. Bacon: Moderator; Member, Committee on Professional Responsibility and Conduct; Senior Counsel, Mastagni Holstedt, A.P.C., Sacramento
• Joel Mark: Attorney, Joel Mark, Esq., Palm Desert
• Lorraine M. Walsh: Attorney, Law Office Lorraine M Walsh, Walnut Creek

2:55 p.m.–4:10 p.m. Eliminating Bias in the Courtroom

This panel will discuss eliminating bias in the litigation arena with a focus on the courtroom. This panel will cover recent studies in bias on the bench, new laws governing jury selection in criminal cases, and guidance on how to eliminate conscious an unconscious bias from trial work in the context of ethical requirements.

• Hunter E. Starr: Moderator; Member, Committee on Professional Responsibility and Conduct; Deputy District Attorney, Kern County District Attorney, Bakersfield
• Amyra C. Cobb-Hampton: Deputy Public Defender, Solano County Office of the Public Defender, Fairfield
• Terrance J. Evans: Partner, Duane Morris LLP, San Francisco
• Ivy B. Fitzpatrick: Managing Deputy District Attorney, Riverside County District Attorney, Riverside
• Jeanine E. Kraybill, PhD: Associate Professor of Political Science and Pre-Law Program Director, California State University Bakersfield, Bakersfield

Registration information

This year the Ethics Symposium is being offered for free and is limited to 1,000 registrants. Register online no later than April 6, 2022.

Note: All registrants will receive a confirmation email with the link and password to the Zoom webinar. Only those who attend will receive an email following the event, containing a link to their MCLE certificate. When registering for the event, provide the email address associated with your Zoom account. You will use this email address to log into the event and this will allow us to verify your attendance.

MCLE credit

This program offers up to 5 hours of participatory MCLE credit (4.0 hours of legal ethics and 1.0 hour of elimination of bias). This program has also been approved for legal malpractice legal specialization credit by the State Bar. The State Bar and the Committee on Professional Responsibility and Conduct are approved State Bar of California MCLE providers.

Questions

For questions regarding registration, program content, or requests for special assistance, please call 415-538-2116.

In compliance with the Americans with Disabilities Act, those requiring accommodations for this event should notify Angela Marlaud at: (415) 538-2116. Please provide notification at least 72 hours prior to the event to allow sufficient time to make arrangements for accommodations.

Source: OTHERWISE: With Sotomayor dissenting Scotus lets convictions stand despite defense lawyer’s glaring conflicts of interest

In Delaney v. Dickey the New Jersey Supreme Court held that an attorney may  include provisions in their retainer agreements that bind the client to arbitrate a future fee dispute or legal malpractice action, provided lawyers adequately explain the provisions to the clients. But the court said that their opinion would not be the last word – and announced it was referring the issue to its Advisory Committee on Professional Ethics.

Sometimes you get what you asked for: here the ACPE urged the Court to reconsider its decision, saying that obtaining informed consent to arbitration of malpractice before any dispute has arisen is a practical impossibility.

The link below will bring you to the ACPE’s report and proposals in the event the Court does not agree to revise their view on the issue. – GWC

[Disclosure – I am a member of the ACPE]

Source: Notice – Arbitration Provisions in Retainer Agreements and the Scope of an Attorney’s Disclosure Requirements (Delaney v. Dickey) – Comments Requested by March 23, 2022

NOTICE TO THE BAR – Supreme Court of New Jersey
ARBITRATION PROVISIONS IN RETAINER AGREEMENTS AND
THE SCOPE OF AN ATTORNEY’S DISCLOSURE REQUIREMENTS
(DELANEY V. DICKEY) – COMMENTS REQUESTED
The Supreme Court requested the Advisory Committee on
Professional Ethics (ACPE) to study the issues arising in the case
Delaney v. Dickey, 244 N.J. 466 (2020), and to “make recommendations to [the] Court and propose further guidance on the scope of an attorney’s disclosure requirements.” 244 N.J. at 474. The Court in Delaney found that lawyers may include provisions in their retainer agreements that bind the client to arbitrate a future fee dispute or legal malpractice action, provided that the lawyer adequately explains the provisions to the client. In its attached report, a majority of the ACPE has recommended that the Court reconsider permitting lawyers to include provisions in their retainer agreements that require the client to arbitrate future fee disputes or legal malpractice actions. Should the Court determine not to
reconsider, the full ACPE included in its report both proposed further
guidance on lawyers’ disclosure requirements and suggested uniform
language intended to ensure that lawyers adequately explain any such arbitration provisions to clients.
The Court requests comments on the ACPE report and  recommendations by March 23, 2022. Comments should be sent to:
Advisory Committee on Professional Ethics
Attention: Carol Johnston, Committee Secretary
Richard J. Hughes Justice Complex
P.O. Box 970
Trenton, NJ 08625-0970

Source: OTHERWISE: New Jersey Legal Community Urges Comprehensive Effort to Reduce Bias and Discrimination in the Judicial System

NEW BRUNSWICK – The New Jersey State Bar Association urged the Judiciary to take a holistic and comprehensive approach in the effort to reduce bias in the jury selection process to ensure defendants in criminal cases face a more fair and representative jury. 
   
NJSBA President Domenick Carmagnola delivered a powerful speech to the Judiciary’s Judicial Conference on Jury Selection held last week. He said it is critical to collect and examine data, as well as remain open-minded and thoughtful in the path to reform the system for the better, especially for Black criminal defendants who, in New Jersey, are incarcerated 12 times more often than their white counterparts – the highest disparity in the nation.  

“We believe this conversation and effort should be expansive, thoughtful, and comprehensive in its focus on rooting out bias – both implicit and explicit. The pursuit of a representative justice system, one that all of our citizens can trust and believe in – and be proud of – requires a complex, deep dialogue in order to determine the best ways to rid our system of the systemic and harmful presence of implicit bias and prejudice in jury selection. … We sincerely hope these matters are not pre-ordained and that this is the start of a meaningful journey to reform and improve our system of justice,” he testified. “Action for the sake of action is not the answer, and the wrong action could damage our justice system significantly and have dire consequences for the lives and the liberty of participants in it. We agree that this is the time to act – but we must do so with the goal of getting it right… An appropriate starting point is the means which the pool of jurors is created; greater diversity can most immediately be achieved by the expansion of that pool, and by an examination of the persons who are excused from jury duty, as the Supreme Court required in Dangcil. A critical area of study should be the voir dire process and how courts address challenges, both for-cause and peremptory. Reducing or eliminating peremptory challenges, which have long been viewed as the only tool available to Black and other criminal defendants of color to ensure unbiased juries, should certainly not be viewed as the only available mechanism when, as we have heard, and as we discuss in our interim report, other means achieve these essential goals.”

Read the full remarks here or watch them here. 
    
Carmagnola’s comments were amplified by the over 20 affinity and county bar associations that joined in support of the NJSBA Working Group on Jury Selection Interim Report, which was submitted to the Judiciary in advance of the Judicial Conference. 

U.S. District Judge James E. Boasberg We are accustomed to the idea that attorney discipline is the province of the state where we took th…

Source: OTHERWISE: GOP Election Lawyer must face Committee on Grievances

Personal passion, zealous loyalty to a cause does not justify litigation.  RPC 1.1 Competence demands “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”  It is failure to heed that principle that led federal District Judge James E. Boasberg to refer Minnesota lawyer Erick G. Kaardal to the District’s Committee on Grievances.  Boasberg had dismissed a suit brought by Kaardal, a Minnesota lawyer, on behalf of an ad hoc group called Wisconsin Voters Alliance.  The case challenged the lawfulness of the election of Joseph R. Biden as President of the United States.

Source: OTHERWISE: Remote Work: San Francisco Bar Association Advice in Ethics Opinion 2021-1 – Legal Ethics Advisorremotework

OPINION 2021-1
[Issue date: August 2021]
ISSUE:
Is a lawyer, who is licensed in one or more jurisdictions but practices law remotely from another jurisdiction where the lawyer
resides and is not licensed, engaged in the unauthorized practice of law?
DIGEST:
A lawyer who is not licensed in California, and who does not advertise or otherwise hold himself or herself out as a licensed
California lawyer, does not establish an office or other systematic or continuous presence for the practice of law in
California, and does not represent a California person or entity, but is merely physically present in California while using
modern technology to remotely practice law in compliance with the rules of the jurisdiction where the lawyer is licensed,
should not be held in violation of California’s Unauthorized Practice of Law (“UPL”) rule and laws, specifically California
Rules of Professional Conduct (“CRPC”) Rule 5.5, or the State Bar Act, Business & Professions (“B&P”) Code §§6125-6126.
If such a lawyer does represent a California person or entity, whether the lawyer violates the UPL rule and laws will depend
on the nature of the representation, whether the representation complies with the regulations of the jurisdiction where the
lawyer is licensed, the role of other California lawyers in the representation, and other factors relevant to whether the
California client is protected consistent with the purpose of the UPL rule and laws.
A lawyer who is licensed to practice law in California, but who resides in another jurisdiction where the lawyer is not licensed
while continuing to remotely practice law under the lawyer’s California license, must adhere to California’s rules and law as
required to maintain a California law license and must also comply with the applicable regulations of the jurisdiction where
the lawyer resides but is not licensed. CRPC Rule 5.5(a); see also ABA Model Rule 5.5(a). A California lawyer who fails to
comply with that jurisdiction’s UPL regulations could be at risk for criminal and/or civil liability and could also be at risk for
discipline for violation of CRPC Rule 5.5(a).
AUTHORITIES INTERPRETED:
California Rules of Professional Conduct, rule 5.5. Business and Professions Code sections 6125, 6126.

Source: Professional Responsibility Blog: ABA issues new opinion on lawyers passive investment in law firms that include non-lawyer owners

Thanks to Alberto Bernabe for the tip:

A lawyer may passively invest in a law firm that includes nonlawyer owners (“Alternative Business Structures” or “ABS”) operating in a jurisdiction that permits ABS entities, even if the lawyer is admitted to practice law in a jurisdiction that does not authorize nonlawyer ownership of law firms. To avoid transgressing Model Rule 5.4 or other Model Rules and to avoid imputation of conflicts under Model Rule 1.10, a passively investing lawyer must not practice law through the ABS or be held out as a lawyer associated with the ABS and cannot have access to information protected by Model Rule 1.6 without the ABS client’s informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction.

Not The Onion

Ethics Opinion 1225 – New York State Bar Association

Topic: Counseling clients engaged in recreational marijuana business; accepting partial ownership of recreational marijuana business in lieu of fee; personal use of recreational marijuana.

Source: OTHERWISE: Lawyers can grow, use, and get paid in marijuana: NY State Bar Ethics Opinion 1225 – New York State Bar Association

Source: Opinion: As the Giuliani Case Goes Forward, Courts Should Think Deeply About the First Amendment

By Bruce Green (Fordham) and Rebecca Roiphe (New York Law)

Washington Post – June 27, 2021

From the digest:

In representing  a client with diminished capacity, a lawyer must sometimes make difficult judgments relating to the client’s capacity. Provided that such judgments are informed and disinterested, they should not lead to professional discipline.

When the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek the client’s informed consent to take protective measures. If the client cannot or does not give informed consent, the lawyer may be unable to protect the client against harm. A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper.

Source: OTHERWISE: Clients with diminished Capacity – Proposed formal opinion – California State Bar invites comments