“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

New UPL Complaint Against LegalZoom

A new complaint this week against LegalZoom for the unauthorized practice of law, this time from LegalForce RAPC, a patent and trademark filing firm.  The complaint alleges that non-lawyer “trademark document specialists” “provid[e] legal advice to the plaintiffs by selecting classification and modifying the goods and services description from the template thereby applying specific law to facts.”

More from the ABA Journal.

Is Ticket App violating unauthorized practice of law in Florida?

The Florida Supreme Court will hear a case from the Florida Bar, asserting that the website TIKD.com violates unauthorized practice of law. There is also an issue of whether the information advertised on the site was false and misleading.

TIKD.com had sued the Florida Bar and the Ticket Clinic in federal court back in November, and the Ticket Clinic has filed a bar grievance against the lawyers who represent TIKD.com.

The Miami Herald reports this latest development in the saga here.

The TIKD website is here.

This case will definitely be a supplement to my discussion of Chapter 2.

 

Guidance for Legal Services Lawyers on Advising w/ Nonlawyer Professionals

A preview of November’s ABA Journal Ethics piece by textbook co-author Bruce Green, discussing New York City Bar Association’s Professional Ethics Committee’s recent Formal Opinion 2017-4, which illustrates how legal services lawyers can help clients navigate the legal complexities of Medicaid while leaving it to the clients’ caseworkers to provide other necessary help.

Read the full article, which interprets ethics guidelines based on Rules 1.2(c) and 6.5.

Mayer Brown’s $1.6 Billion Malpractice Case is useful to teach “Who is the Client?” as well as conflicts & malpractice

The ABA Journal has a nice summary of the recent Seventh Circuit decision affirming the lower court’s dismissal of the malpractice lawsuit against Mayer Brown, which represented General Motors, for the erroneous release of a 1.6 billion dollar security interest against General Motors. The plaintiffs were the lenders whose security interests were released.

The Court held that Mayer Brown didn’t owe a duty to third parties who aren’t clients and that Mayer Brown’s representation of JPMorgan Chase Bank in different matter did not create a duty of care in the loan/security interest matter.  According to the Court, Plaintiff had offered 3 theories as to why Mayer Brown owed a duty of care to plaintiffs:  (a) JP Morgan was a client of Mayer Brown in unrelated matters and thus not a third‐party non‐client; (b) even if JP Morgan was a third‐party non‐client, Mayer Brown assumed a duty to JP Morgan by drafting the closing documents; and (c) the primary purpose of the General Motors‐Mayer Brown relationship was to influence JPMorgan.

Among other things, the Court stated: ““Consider the consequences of the rule plaintiffs advocate, that a law firm owes a duty of care to a party adverse to its client because the adverse party is a client in unrelated matters and has waived the conflict of interest.”  The Court’s opinion is here.

Sample Engagement Letters from ACTEC

The American College of Trust and Estate Counsel (ACTEC) has released the third edition of its book with sample engagement letters:  Engagement Letters A Guide for Practitioners (3rd ed. 2017). It is also available as a free pdf.   These samples can be useful when teaching Chapter 2, Section III on Creating the Lawyer-Client Relationship. (Hat Tip to the Elder Law Prof Blog for this news item.)

P.S. For those who don’t know, ACTEC has also issued commentaries on the Model Rules.

Supreme Court hears argument today on a lawyer’s bad advice

From today’s New York Times:

The Supreme Court is taking up the case of a longtime U.S. resident who is facing deportation to South Korea after pleading guilty to a drug crime based on his lawyer’s bad advice.

The justices are hearing arguments Tuesday in an appeal by Jae Lee, who has lived in the United States for 35 years and has never been back to South Korea since coming to the United States when he was 13.

The case has taken on increased importance because President Donald Trump has promised to step up deportations, with a special focus on immigrants who have been convicted of crimes. The American Bar Association has estimated that one of every 10 criminal defendants is not an American citizen.

Lee agreed to plead guilty to possession of ecstasy with intent to distribute after his lawyer, Larry Fitzgerald, assured him that doing so would not make him subject to deportation. The lawyer was wrong.

The issue in Lee’s appeal is whether the lawyer’s recommendation to take the deal offered by prosecutors was so bad that it amounts to a violation of Lee’s constitutional right to a lawyer.

Both sides agree that Fitzgerald’s performance was deficient in representing Lee. The Supreme Court ruled in 2010 that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation.

But Lee almost must show that the bad lawyering mattered to the outcome of the criminal case.

Full article here.