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The Unappealing Turn of Events – Part II: Supreme Court holds defense lawyer’s refusal to file requested appeal constitutes ineffective assistance, despite defendant’s appeal waiver
The Unappealing Turn of Events – Part II: Supreme Court holds defense lawyer’s refusal to file requested appeal constitutes ineffective assistance, despite defendant’s appeal waiverMarch 8, 2019Update: The matter of Garza v. Idaho first appeared on this blog on January 7, 2019. On October 30, 2018, The United States Supreme Court heard arguments to decide whether a criminal defendant’s counsel is presumptively ineffective if counsel declines to file an appeal of a conviction because the defendant already waived the right to appeal in his plea.Read More

GoFundMe “Funds” Suspension
GoFundMe “Funds” SuspensionMarch 4, 2019A West Virginia attorney’s creation of an inappropriate GoFundMe page, in confluence with other misconduct, resulted in a joint recommendation in which the attorney agreed to a 42 month suspension and a public reprimand.Read More

Former DA getting “salty” on Facebook
Former DA getting “salty” on FacebookMarch 1, 2019On February 8, the Pennsylvania Supreme Court approved its Disciplinary Board’s proposal to suspend former, Centre County District Attorney, Stacy Parks Miller, for 366 days overimproper, ex-parte communications with judges and the creation and dissemination of a fictitious Facebook page.Read More

Indiana Cautions Lawyers About Affiliations with Legal Services Companies and Out-Of-State Law Firms
Indiana Cautions Lawyers About Affiliations with Legal Services Companies and Out-Of-State Law FirmsFebruary 27, 2019 The Indiana Supreme Court Disciplinary Commission recently advised caution for attorneys who may be approached by non-lawyer companies or out-of-state law firms offering an affiliation and fee sharing to provide legal services to Indiana clients.Read More

Attorneys May Respond to Negative Online Reviews
Attorneys May Respond to Negative Online ReviewsFebruary 22, 2019In June 2018, the Florida Bar Ethics Committee voted 18-0 to approve a Florida Bar Staff Opinion that “permits an inquiring attorney to post a limited response to a negative online review that the attorney says falsely accuses her of theft.” AttorneysRead More

New York State Bar Withdraws Proposal for ABA Best Practices for Online Legal Document Providers
New York State Bar Withdraws Proposal for ABA Best Practices for Online Legal Document ProvidersFebruary 20, 2019The online legal services market is a worldwide, multi-billion dollar (and growing) industry, with clients increasingly turning to the Internet—rather than an attorney—for their legal needs. WithdrawsRead More

Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts
Louisiana Supreme Court Disbars Attorney For Anonymous Online PostsFebruary 10, 2019The Louisiana Supreme Court has disbarred a former Assistant United States Attorney for posting anonymous, online comments about cases being handled by his office.Read More

Recording Your Clients Without Their Consent May Be Illegal As Well As Unethical
Recording Your Clients Without Their Consent May Be Illegal As Well As UnethicalFebruary 6, 2019In the wake of the discovery that Michael Cohen had covertly taped a conversation between himself and Donald Trump, the following question has been raised: is it ever permissible to record a conversation with a client without obtaining his or her consent? RecordingRead More

New York Bar: Non-Resident Attorneys As Business Generators Probably a No Go
New York Bar: Non-Resident Attorneys As Business Generators Probably a No GoJanuary 23, 2019The New York State Bar’s Committee on Professional Ethics (“Committee”) recently issued an opinion regarding fee-splitting. AttorneysRead More

Fee-Sharing with Non-Lawyers? California is Considering It
Fee-Sharing with Non-Lawyers? California is Considering ItJanuary 16, 2019The State Bar of California has convened a 23-member commission, the Task Force on Access Through Innovation of Legal Services, to consider how access to justice can be increased with technology.Read More

Categories

Controversial Tweet and Social Media

Another Controversial Tweet, Another Lawyer Facing Career Repercussions

Controversial tweets and posts about current events on various social media platforms has resulted in career repercussions for many lawyers and judges. Whether it is loss of employment, a judicial reprimand, or a suspension—It is a fact of our digital existence that lawyers and judges posting controversial tweets or posts about current events may suffer damage to their careers. ...

Chatting and texting

“Chatting” or Texting with Clients During Their Testimony Led 2 Attorneys to No More Chatting or Texting with Any Clients

Arizona Attorney Suspended for Coaching Client During Virtual Cross-Examination Florida Attorney Suspended for Texting Client During a Telephonic Deposition By Jan L. Jacobowitz and Lauren Maier Chatting, texting, and suspensions, Oh My! There seems to be no number of times that is too many to remind lawyers that the legal ethics rules continue to apply ...

selective focus photo of lensball on asphalt road

Crystal Ball Conflicts? Nevada Issues 1.7 Advice on Advance Conflict Waivers

Advance Conflict Waivers–Viable or Problematic? In 2021, the State Bar of Nevada Standing Committee on Ethics and Professional Responsibility published Formal Opinion No. 58, addressing the permissibility of prospective conflict waivers (also known as “future conflict waivers” or “advance conflict waivers”) under Nevada Rule of Professional Conduct 1.7 Under Nevada Rule 1.7(b), a client may ...

Client Dishonesty

Client Lies at a Deposition–What’s a Lawyer to Do?

Client Lies: Texas Bar Issues Opinion 692 to Address A Lawyer’s Responsibility A client lies during a deposition. The lawyer know…what should the lawyer do? Recently, the Professional Ethics Committee for the State Bar of Texas published Opinion No. 692, regarding a lawyer’s requirement to correct false statements made by the lawyer’s client during a deposition ...

probate

S.C. Probate Judge Under Fire Again for Facebook Posts

Although not an attorney, a South Carolina probate judge’s social media use constituted impermissible judicial conduct A South Carolina probate judge has had a second run-in with the state supreme court for impermissible social media posts. In an order published on October 13, 2021, the South Carolina Supreme Court issued Judge Kenneth “Kenny” E. Johns, ...

Client with Diminished Capacity

Improving Attorney-Client Communication: ABA Formal Opinion 500

The ABA provides guidance on how to navigate attorney-client communication obstacles, such as language barriers Lawyers unsure about their client’s ability to understand their case or their attorney’s advice should hire a translator to avoid possible communication pitfalls, according to the American Bar Association’s (“ABA”) newly issued Formal Opinion 500, Language Access in the Client-Lawyer ...

Florida

Florida Supreme Court: Ticket Defense App Is Engaged in The Unlicensed Practice of Law

In a controversial decision, Florida’s highest court held that a nonlawyer ticket defense app was providing legal services In a 4-3 decision, the Florida Supreme Court held that TIKD, a traffic ticket defense app, was engaged in the unlicensed practice of law (“UPL”). In doing so, the court declined to adopt the referee’s recommendation of ...

pro se attorney

Pro Se Attorney Under Fire in Illinois for Provocative Statements During His Divorce Proceedings

Pro Se Attorney’s Offensive Statements to Judge and Opposing Counsel Result in Disciplinary Case A pro se Des Plaines, Illinois attorney had a run-in with the Illinois Attorney Registration & Disciplinary Commission (“IARDC”) after making provocative statements while representing himself in divorce proceedings initiated by his estranged wife. The complaint, filed by the IARDC on ...

social media

New Jersey Issues a Social Media Mulligan, But Warns Lawyers that Social Media Competence is Required

Social Media Savvy Required for Lawyers The Supreme Court of New Jersey issued an order in which it declined to impose discipline on an attorney for his improper use of Facebook in 2007.  The decision stems from events that began in 2007, when attorney John Robertelli, according to  the Supreme Court of New Jersey Opinion, ...

Passive Investment in ABS

ABA Opinion 499 Green Lights Lawyers’ Passive Investment in Firms with NonLawyer Ownership

Despite ABA Green Light, States May Not Embrace Passive Investment in Alternative Business Structures An Alternative Business Structure (“ABS”) that permits lawyers and nonlawyers to collaborate and share revenue has become a hot, revolutionary topic in the rapidly evolving practice of law.  In fact, Arizona has deleted Rule 5.4, which prohibits lawyers from being in ...

Remote Work

Remote Work: San Francisco Bar Association Advice in Ethics Opinion 2021-1

The Remote Work Discussion Continues The Bar Association of San Francisco recently released Ethics Opinion 2021-1, addressing whether lawyers who practice law remotely from another jurisdiction where they are not licensed are engaging in the unauthorized practice of law. The Opinion comes on the heels of the State Bar of California Standing Committee on Professional ...

Data

Loss of 22 Terabytes of Police Data Shakes the City of Dallas’ Criminal Courts

Data Loss and Cybersecurity Remain Top Priorities for Legal Profession A massive amount of police data was lost in a City of Dallas file transfer, but then more missing data was discovered. Although in a different context, this is yet another reminder for law firms and attorneys generally to implement and revise data maintenance and ...

Controversial Tweet and Social Media

First Amendment v. Judicial Canons Part 2

Another Georgia Judge Defending Her Social Media Posts As Compliant with Judicial Canons The Judicial Canons and social media are once again the focus of judicial woes in Georgia. On July 22, the Georgia Judicial Qualifications Commission (JQC) filed formal charges against Douglas County Probate Judge Christina Peterson, accusing the Judge of four counts of ...

First Amendment

Judicial Misconduct or First Amendment Expression?

Georgia Judge Asserting First Amendment Rights in Defending Allegation of Ethics Violations After Controversial Facebook Post A judge in Cherokee County, Georgia, has been charged with ethics violations after posting support for the Cherokee County Sheriff’s Office spokesperson who made controversial comments about Robert Aaron Long, the man accused of killing eight people at three ...

woman standing near the kitchen counter with her laptop open on table

Delaware Green Lights Remote Work in Formal Opinion 2021-1

Delaware Lawyers: Remote Work Okay If State of Residence Agrees Last month, the Delaware State Bar Association Committee on Professional Ethics released Formal Opinion 2021-1, addressing whether Delaware attorneys may practice Delaware law while working remotely from another jurisdiction. The Committee held that Delaware licensed lawyers are permitted to practice Delaware law outside the state, ...

Client with Diminished Capacity

Clients Illegal Activity: Colorado Bar Admonishes “Willful Blindness” But Departs from ABA Op. 491 “Should Know” Standard

Counseling Clients and Illegal Activity Under Rule 1.2          On July 10, 2021, the Colorado Bar Association Ethics Committee released a new opinion regarding Colorado Rule of Professional Conduct 1.2(d), analyzing a lawyer’s duty to inquire about a client’s illegal activity. Under 1.2(d), which sets a similar standard to Model Rule 1.2(d), lawyers “shall not ...

remote work

Care to Comment? California Issues Interim Formal Opinion 20-0004 on Remote Work

California Formal Opinion Interim No. 20-0004 on Remote Work Yesterday, the the State Bar of California Standing Committee on Professional Responsibility and Conduct posted Formal Opinion No. 20-0004 on remote work for comment. The opinion acknowledges the increase of attorneys remotely working driven both by technology and external circumstances that include Covid-19 and natural disasters ...

Cannibis

Cannabis Advice for Lawyers: New York and Georgia on Different Ends of the Spectrum

The legal landscape of medical and recreational marijuana remains fast-changing across the United States–cannabis remains illegal under federal law—and there are inconsistencies among various states’ legal ethics advice regarding whether lawyers may represent clients involved in the cannabis industry. On June 21, 2021, the Supreme Court of Georgia denied a motion to amend Rule 1.2 ...

Suspension

A Series of Unfortunate Events: Giuliani’s New York Law License Suspension

Giuliani Interim Suspension I did not rush out of the gate to discuss the extremely well publicized (See, for example, NPR, CNN, NYT, and Forbes) interim suspension of Rudy Giuliani’s New York law license or the reciprocal interim suspension imposed the District of Columbia. There has been so much coverage that I found it interesting ...

Social Media

More Social Media Trouble in the Legal Profession: South Carolina Orders 6 Month Suspension for Incendiary Facebook Posts

Social media update… A(nother) lawyer recently made the news for a suspension based on controversial Facebook posts. The South Carolina Supreme Court decision suspending the lawyer for six months based upon twelve offensive posts on Facebook found that the lawyer’s conduct brought the legal profession into disrepute and violated both the letter and spirit of ...

Diversity

Florida Legal Ethics Update: From Questioning Diversity Quotas to Proposals for a Regulatory Sandbox and More

Florida CLE Diversity Controversy The Florida Supreme Court attracted national attention when it recently sua sponte changed the CLE programming requirements such that The Florida Bar cannot approve CLE programming and Florida lawyers cannot receive CLE credits for attendance at any program for which there was a diversity requirement or quota pertaining to the selection ...

Sanctions for profanity

Profanity is Costly: Lawyer Sanctioned for Conduct Unbecoming and F*** You

Florida Federal Court Imposes Sanctions for Profanity and Unprofessionalism Three depositions, two lawyers, and one court reporter…what could go “wrong?” Apparently, conduct by all three that included one lawyer telling the other lawyer to, “Shut the f*** up.” The dispute seems to have exploded after one lawyer, Mr. “K” objected to the use of the ...

First Amendment

HawkLaw Attorney Advertising Being Preyed Upon By South Carolina Bar Authorities?

First Amendment v Attorney Advertising Regulation The internet’s low cost and ease of advertising has increased the focus on the tension between the state regulation of attorney advertising and attorneys’ First Amendment right to commercial speech that was  established by the US Supreme Court in Bates v Arizona in 1977. The latest episode is taking ...

super lawyer

Gig’s Up in NJ: Are You Really a #1, Super, Duper, Top-Rated, Best Lawyer?

The New Jersey Supreme Court’s Committee on Attorney Advertising Demands Verifiable “Super” Awards and Honors Last week New Jersey’s Supreme Court Committee on Attorney Advertising issued a notice cautioning lawyers that terms like “super,” “top,” “best,” and “rising star” that may be awarded to lawyers by various organizations may only be used in advertising if ...

Online vitriol

Dealing with Online Vitriol: Florida Bar to Consider Amending The Confidentiality Rule 4-1.6

Online Vitriol: Amending Confidentiality Rule 4-1.6 and Proposed Opinion 21-1 on Third Party Criticism At its recent meeting, The Florida Bar’s Professional Ethics Committee approved an amendment to Florida Bar Rule 4-1.6 Confidentiality that would provide a limited exception to permit lawyers to respond when they suffer an online vitriol attack from a former client ...

Lawyer Well-Being

What Does Lawyer Well-Being 2021 Have to Do With Legal Ethics?

Explore Lawyer Well-Being Week, May 3rd, for the Answers Lawyer Well-Being and Legal Ethics The answer to the question falls into the category of “everything.”  Why? It has been well-documented that not only does the legal profession suffer a disproportionately high statistical evidence of stress, depression, suicide, substance abuse, and other mental well-being challenges, but ...

judges

Judges on Facebook 2.0—California Offers New Advice

California Opinion 2021-42  Provides Advice for Judges Commenting on Law Related Topics The California Supreme Court Committee on Judicial Ethics Opinions (“Committee”) issued Expedited Opinion 2021-42 yesterday to provide additional guidance to judges who want to make statements on Facebook concerning “legislation related to the law, the legal system, and the administration of justice.” The ...

Geo-fencing

Geo-Fencing: Abusive or Astute Attorney Advertising?

New Jersey Opinion 46 Addresses Geo-Fencing Lawyers have discovered the electronic marketing techniques referred to as geo-fencing or geo-targeting and have inquired about the propriety of their use in attorney advertising.  The New Jersey Committee on Attorney Advertising has recently responded in Opinion 46 with guidance that permits geo-fencing with specific limitations. A bit of ...

Disclosing

Disclosing Information to Prevent Danger: When Your Clients are Those Who Contribute to Climate Change

Attorneys who represent greenhouse gas emitters are finding themselves battling their own legal and ethical risks, as some states are considering an attorney’s knowledge of greenhouse gas emissions to fall under the confidentiality exception that permits disclosure of confidential information when it could prevent death or substantial bodily danger. Disclosing

Societies

New Guidelines Address Federal Judges’ Affiliation with Liberal and Conservative Societies

An ethics opinion drafted by the Committee on Codes of Conduct of the U.S. Judicial Conference in January 2020 states that federal judges should refrain from becoming formally affiliated—either through membership or leadership roles—with the conservative Federalist Society and the liberal American Constitution Society. Societies