#3 in 2017: We can’t let perfect be the enemy of good.

This week I’m counting down the 5 most-read posts of the year.  So far,

 

Starfish

The third most-read post of the year was this post on authorizing (and licensing) paralegals to perform tasks that, for now, only lawyers are authorized to perform. It’s a post in which I urge the profession not to let perfect be the enemy of the good and, more specifically, to consider whether licensing paralegals is much simpler than we’ve made it.

The post includes one of my favorite anecdotes. It’s an anecdote that reminds me of how the profession attempts to tackle the issues it confronts. I often wonder if the profession is the “man on the beach” when, what we really ought to be, is a child smiling with hope. I’ll leave you with that anecdote.

*********

“One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

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In a Season of Giving, Consider Pro Bono

It’s a season of giving.  As I’ve aged, I’ve learned that the gift of time is often more appreciated than a gift of a thing.  The lesson might translate to the legal profession.

Yesterday I noticed this tweet from Attorney Bob Carlson.  Bob is the President-Elect of the American Bar Association.  It reminded me that the need for our time never goes away.

Pro Bono is the legal profession’s way of giving time.  As Bob tweeted, one easy way to give of your time is through the ABA’s Free Legal Answers program.  Vermont participates in the program.  For more information, please visit https://vt.freelegalanswers.org/

In addition, Mary Aschroft is the Vermont Bar Association’s Legal Access Coordinator.  Please contact Mary if you’re interested in learning more about the various opportunities to provide pro bono (or low bono) legal services.

I’ve pasted in a refresher on the ethics of pro bono at the end of this post.

For now, thank you for considering a gift of your professional time.

Give Pro Bono

*******************************************************************************

These tips originally appeared in October 2016.

Per Rule 6.1,

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
    • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
      • (1) persons of limited means; or
      • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

  • Who qualifies as a “person of limited means?”
    • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”
    • Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services.  Those people need help as well.
  • My client didn’t pay, that’s pro bono.
    • Categorically false.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
    • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
    • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”
  • I’m a government attorney, so I don’t have to do pro bono.
    • False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
      • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).
  • So I’m doing pro bono work, what other rules apply?
    • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono is not license to act unethically.
  • What about the conflicts rules?
    • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
      • short term limited legal services
      • under the auspices of a program sponsored by a nonprofit organization or court
      • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
    • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
    • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.

 

 

Make Time For What Matters

Regular readers know what I blog about most: Rule 1.1 and the duty to provide clients with competent representation.

I am a firm believer that in order to satisfy that duty, you must act competently to take care of yourself.

Here’s what I mean.

Last month, I posted on Anxiety, Stress, and Work-Life Balance.  The post includes a quote from Jeena’s Cho’s ABA Journal article Talking about the elephant in the room – social anxiety. She wrote:

“Finally, remember: ‘Secure your own oxygen mask before assisting others.’ ”

Perfect analogy.

Jeena’s article was in response to the New York Times article The Lawyer, The Addict.  I also blogged in response to NYT article: Lawyers Helping Lawyers: Keep it on the Front Burner.  

To Jeena’s point about securing your oxygen mask before assisting others, let’s add Tracy Richelle High’s tips in the most recent ABA Journal: 10 ways to make time for the things that matter.  The tips are fantastic.  You should read them.  In my view, Tracy nails it in her first paragraph:

“But the answer is quite simple: You make time for the things that matter. Period.”

As a profession, we talk a lot about access to justice & access to legal services.  As I see it, lawyer well-being is an access issue.  Access to legal services requires a full complement of healthy and competent lawyers.

Make time for yourself.  It’s not unethical.

work life balance

Monday Morning Answers – #84

Happy Labor Day!

Friday’s questions are HERE.  The answers follow today’s Honor Roll

Thanks to all who offered encouragement in Saturday’s race.  It went well and the Clemson game was fantastic.  Watching the Tigers “touch the rock” and run down the hill for the first time since last year’s national championship was electric.   And we didn’t have bad seats:

IMG_2512

Honor Roll

Answers

Question 1

The rules do not require lawyers to have succession plans. However, a comment to a particular rule suggests that it’s a violation for a sole practitioner not to have a plan that designates another lawyer to review the solo’s files and contact the solo’s clients in the event of the solo’s death, disability, or unavailability.  It’s the rule on:

I used this question as a reminder following Hurricane Harvey.  Remember – there are many ways in which a solo might become unavailable.  Seminars often focus on the doom & gloom of death or disability.  Yes, those things happen.  But, if you’re traveling and a weather emergency keeps you from getting home for a few extra days, can your clients make it without you?

Question 2

Valerie and Eddie divorced many years ago.  Eddie is over a year in arrears on court-ordered spousal maintenance payments.

Valerie asks Lawyer to represent her in a motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Valerie.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.  V.R.Pr.C. 1.5(d)(1)(i)
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Valerie.
  • D.   There is no violation because it was Valerie, the client, who proposed the contingent fee.

Here’s a very simple way to help provide access to legal services: the rules clearly allow contingent fees in certain post-judgment family cases.  Rule 1.5(d)(1)(i) allows them in cases involving past due maintenance & property division, while subsection d(1)(ii) allows contingent fees, with court approval, when child support is past due.

DO NOT say to me “but Mike, I’ll never make a difference with access by taking a post-judgment spousal maintenance case on a contingent fee.”   You will make a difference to that client.  And, while this is likely best addressed in a blog of its own, my opinion is that, as a profession, we too often let perfect be the enemy of the good.  Instead of forming commission after study commission after blue-ribbon commission, we should strive make a  difference whenever and wherever we can, no matter how small “whenever and wherever” seems.  Like to the one client who you represent on a contingent fee basis in a post-judgment matter where court-ordered spousal maintenance is past due.

Question 3

Lawyer represents Organization.  Lawyer leaves Organization for private practice.

True or false:   Lawyer’s general knowledge of Organization’s practices and procedures ordinarily will preclude Lawyer from representing a party adverse to Organization.

False.  See, V.R.Pr.C. 1.9, Comment [3].  As Professor Alberto Bernabe puts it, “being familiar with the organization’s ‘playbook’ does not typically disqualify the lawyer.”

Question 4

Rule 8.4 prohibits some types of conduct that do not involve the practice of law.  Although it no longer appears in the text of the rule, what’s the 2-word term used to draw the distinction between non law-related conduct that violates the rules and non law-related conduct that does not? Conduct involving ” ________  ___________.”

“Moral Turpitude.”  V.R.Pr.C. 8.4, Comment [2].  A phrase that drove me nuts in the old days!  Professor Bernabe has some great posts on the continued use of the phrase in the rules.

Question 5

This is a fictional scenario.  A prop device, if you will.  Play along.

I received an ethics complaint from a woman complaining how her brother was treated in a criminal case.  The thrust of her complaint was that her brother was framed for the murder of his best friend, Andy, who had just confessed to an affair with her brother’s “cheatin’ wife.”

Referring to her brother’s defense attorney, she wrote that her brother never should’ve “trusted his soul to no backwoods southern lawyer.”  She alleged that the proceeding was “a make believe trial” and that the “judge in this town has got blood stains on his hands.”

Interestingly, her brother WAS framed! In fact, the sister is the one who did it! Not only did she admit to killing Andy, she wrote that her brother’s “cheatin’ wife had never left town and that’s one body that’ll never be found.” It’s the first complaint I’ve ever received in which the complainant confessed to a crime.

Anyhow, Vermont’s Professional Responsibility Program and Judicial Conduct Board don’t have jurisdiction over the defense attorney and judge.

Name the state to which I referred the complainant.

Georgia.  The question refers to the AM smash The Night Light The Lights Went Out in Georgia.  After Liza Minelli and Cher turned it down, one-hit wonder Vicki Lawrence took it to #1.  As a few readers mentioned, once the title-line gets in your head, good luck getting it out.

Finally, Friday’s questions included a reference to Johnny I Hardly Knew Ye by The Irish Rovers.  My apologies to the (several) readers who prefer The Dropkick Murphys’ version.

 

Chatbots as Associates?

I’ve been on a hiatus from blogging.  To those of you who missed having quizzes today and last Friday, I apologize. The #fiveforfriday quiz will return next week.

Also next week, I intend to explore the distinction between conduct that should be considered “unethical” and conduct that “violates the rules as they are written.”  I’ll do so through the lens of New Jersey’s recent advisory opinion on Avvo’s Legal Services Program.  For an excellent primer on the topic, check out this post from Above The Law.

Now, on to chatbots.

Chatbot

A few months ago, I asked whether robots are non-lawyer assistants.  Referring to the idea that lawyers have a duty to ensure that their nonlawyer assistants comply with rules, I wrote:

  • “As I’ve often said, Rule 1.1’s duty of competence includes tech competence.  Read together, do Rules 1.1 and 5.3 require lawyers who use robots to have some sort of understanding of the coder’s qualifications?  Perhaps we will eventually treat the purchase of robots as we do the selection of a cloud vendor and hold that ‘a lawyer must take reasonable precautions in choosing a robot that will perform mundane legal tasks.'”

It probably seemed far-fetched.

It’s not.

Today, Robert Ambrogi’s LawSites blog posted DoNotPay Launches Service to Let Anyone Create a Legal Bot.  Essentially, the service allows a lawyer to create a robot assistant.

As I’ve often said, do not fear technology.  Advances in technology are not inherently unethical.  Think of the ways you use technology today that were not imaginable, or available, 20 years ago.

For example, compare (1) a secure email with a password-protected attachment & read-receipt, to, (2) a stamped letter, dropped off at 5:27 PM on a Friday, with a return-receipt requested.

Whether Monty Hall or Wayne Brady, I’ll take Door Number 1.

Would you rather that the rules be interpreted so as to require use of the U.S Mail?

Technological advances create opportunities for lawyers & firms to operate more efficiently and to provide wider access to cheaper legal services.

 

ALF

Yes, my columns often include references to sports, music, movies, and TV.

No, this column is not about this Alien Life Form and his tv show:

alf

Rather, this post is about Alternative Litigation Financing.

Earlier this year, I praised an advisory ethics opinion in which the Philadelphia Bar Association concluded that crowd funding litigation is not necessarily unethical.  Crowd funding is an alternative method of financing many things, including litigation.

Last week, the ABA’s Law Practice Today blog ran a piece on Why Alternative Litigation Financing is Poised to Disrupt Litigation.  It’s an interesting post that raises issues related to legal ethics, access to legal services, access to justice and, in a way, tech competence. It also gives me an excuse to use the word “champetry” for, perhaps, the first time since law school.

As I wrote in my post on the Philadelphia advisory opinion, the fact that something is new or different does not render it unethical.  As ALF platforms continue to grow in popularity, remember that it is not a platform or technology that poses an ethics risk – – it’s the lawyer who uses the platform or technology.  Indeed, the post in Law Practice Today quotes from a white paper that the ABA’s Commission on Ethics 20/20 issued in 2012:

  • “[this]Report should not be interpreted as suggesting alternative litigation finance raises novel professional responsibilities, since many of the same issues…arise whenever a third party has a financial interest in the outcome of the client’s litigation. A lawyer must always exercise independent professional judgment on behalf of a client… “

In other words, ALF is permissible as long a lawyer doesn’t violate any other rules while representing a client who uses ALF to pay for the lawyer’s services.

A few rules more likely to arise than others:

  • Rule 5.4(c) states that a “lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”
  • Rule 1.8(f) prohibits a lawyer from accepting “compensation from one other than the client unless:
    • (1) the client gives informed consent;
    • (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
    • (3) information relating to representation of a client is protected as required by Rule 1.6.

Also, I’d suggest that having read this post, Rule 1.1 might come into play.  The rule requires lawyers to provide competent representation to their clients.  Arguably, the duty of competence includes advising a client who lacks resources on alternative sources of litigation financing.  Is it a stretch to say that the failure to do so is unethical?  Yes.  But what would it hurt to keep a few of the ALF providers in mind?  The post on Law Practice Today lists and links to 4 of them.

In any event, I urge you not brand crowd funding and other forms of ALF as unethical for no other reason than “that’s not how we’ve done it in the past.” Is it new?  Yes. Is it different? Yes.

But, it’s not lost on me that one of the cases cited in the post on Law Practice Today involved a group of college students who turned to crowd funding to finance litigation that they otherwise could not have afforded.  You too, some of my loyal readers, were once on the cutting edge, doing things that left more senior lawyers fretting for their licenses: like using fax machines.

Attorney Stephen Embry authored the post that appears on Law Practice Today.  In it, he lays out some of the concerns with ALF, but then provides strong counter-arguments to those concerns.  Above all, his final paragraph bears keeping in mind:

  • “Balanced against the risks is the upside. In a world where over 60% of small businesses who experienced a legal event in the past two years report not hiring a lawyer (LegalShield Survey Report ), where 80% of the legal needs of the poor and middle class go unmet (See Legal Service Report)and where some 40% of law school graduates can’t find full time jobs (ABA 2015 Report) anything that tears down barriers to justice and allows an underserved population to be served may be worth the risk.”

 

Power of Pro Bono

I’ve written lately on using the rules to increase access to legal services.  A few of my posts referenced compassion.

This post isn’t part of that series.  Rather, I’m simply sharing a story that I liked. A story that involve compassionate lawyers working pro bono not just to increase access, but to make their community a better place.

The story, by David Lash, is at Above the Law and is entitled A Remarkable Experiment Taking Place in Los Angeles.  Give it a read.  Here’s the closing sentence:

“And in the middle of this revolution of outreach are the lawyers, again demonstrating the unique and powerful way that only the justice system, particularly when fueled by collaborating experts from the most compassionate and expert legal aid organizations, can touch the lives of those most in need as can no one else.”

Increasing Access: Financial Assistance to Clients

This is Part 4 in my series on using the Rules of Professional Conduct to increase access to legal services.  I expect it might be controversial.  Nevertheless, in my opinion, the problem has reached the point that nothing should be off the table. And, to be clear, this is not a recommendation for a rule change. It’s a recommendation that we never stop thinking about what we’re doing and whether we can do it better.

First, a quick refresher:

Now, here’s an idea that might belong on the table.

As most of you know, Rule 1.8(e) prohibits lawyers from providing financial assistance to clients.  Here’s the rule:

  • “A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
    • (1) A lawyer may advance or guarantee court costs and expense of litigation, including expenses of investigation, expenses of medical examinations, and costs of obtaining and presenting evidence, the repayment of which my be contingent upon the outcome of the matter; and
    • (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of a client.

Comment 10 reads as follows:

  • “Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.  These dangers do not warrant a prohibition on a lawyer lending a client court  costs and litigation expenses, including the expenses of investigation and medical examination and the costs of obtaining evidence, because these advances are virtually indistinguishable from contingent fees and help ensure access to the courts.  Similarly, exceptions allowing lawyers representing indigent clients to pay court costs and litigation expenses regardless of whether these funds will be repaid are warranted.”

A handful of states have adopted limited exceptions to the general prohibition on providing financial assistance to clients.  The exceptions might not necessarily increase access, but they help to maintain access.

In Louisiana, Rule 1.8(e)(4) states:

  • “(4) In addition to costs of court and expenses of litigation, a lawyer may provide financial assistance to a client who is in necessitous circumstances, subject however to the following restrictions.
    • (i) Upon reasonable inquiry, the lawyer must determine that the client’s necessitous circumstances, without minimal financial assistance, would adversely affect the client’s ability to initiate and/or maintain the cause for which the lawyer’s services were engaged.
    • (ii) The advance or loan guarantee, or the offer thereof, shall not be used as an inducement by the lawyer, or anyone acting on the lawyer’s behalf, to secure employment.
    • (iii) Neither the lawyer nor anyone acting on the lawyer’s behalf may offer to make advances or loan guarantees prior to being hired by a client, and the lawyer shall not publicize nor advertise a willingness to make advances or loan guarantees to clients.
    • (iv) Financial assistance under this rule may provide but shall not exceed that minimum sum necessary to meet the client’s, the client’s spouse’s, and/or dependents’ documented obligations for food, shelter, utilities, insurance, non-litigation related medical care and treatment, transportation expenses, education, or other documented expenses necessary for subsistence.”

In a previous post, I quoted from an opinion of the Louisiana Supreme Court that’s illustrative here.  In Louisiana State Bar Ass’n v. Edwins, a commissioner concluded that a lawyer had “been guilty of professional acts and omissions which do not conform to the standards of character and conduct laid down by the profession.”

Whoa! Acts & omissions that don’t conform to the standards we’ve laid down!  What might they be?

Well, among other things, advancing funds to a client to help the client avoid foreclosure and seek necessary medical treatment.

The Louisiana Supreme Court disagreed with the commissioner, stating:

  • “no bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim.”

Similarly, in Minnesota:

  • “a lawyer may guarantee a loan reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits, provided the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation and, further provided, that no promise of such financial assistance was made to the client by the lawyer, or by another in the lawyer’s behalf, prior to the employment of that lawyer by that client.”

It’s Rule 1.8, and Minnesota’s rules are here.

With respect to the rule, the Minnesota Office of Lawyers Professional Responsibility has stated:

  • “While perhaps not a perfect solution, Minnesota’s approach to financial assistance to clients allows lawyers to act in a humanitarian fashion if the situation requires, and yet avoid troubling conflicts with the representation.” (Borrowing and Lending with Clients, Marcia Johnson, Minnesota Office of Lawyers Professional Responsibility, (August 1995)).

Alabama’s Rule 1.8(e)(3) authorizes lawyers to “advance or guarantee emergency financial assistance to the client, the repayment of which may not be contingent on the outcome of the matter, provide that no promise or assurance of financial assistance was made to the client by the lawyer, or on the lawyer’s behalf, prior to the employment of the lawyer.”  The policy reasons underpinning the rule are in the comment.

In Mississippi, and “under dire and necessitous circumstances,” Rule 1.8(e) authorizes a lawyer to advance up to $1500 to a client for reasonable and necessary medical or living expenses.  (At the link, scroll to pages 33 and 34)  The rule indicates that permissible assistance includes “minimal living expenses of minor sums such as those necessary to prevent foreclosure or repossession or for necessary medical treatment.”

Finally, in New Jersey, Rule 1.8(e)(3) authorizes certain non-profits to provide financial assistance to indigent clients that the non-profit is representing without a fee.

Again, I don’t know if this is an access issue.  At the very least, however, when there is no legitimate concern of a conflict of interest or frivolous litigation, the Rules of Professional Conduct should not prohibit common sense compassion.

 

 

 

 

 

 

 

 

 

 

UPDATED! Increasing Access: Ghostwriting

IMPORTANT UPDATE! 

Thank you to John Serafino of Ryan Smith Carbine for pointing out that Local Rule 32.2 of the US Court of Appeals for the Second Circuit provides:

“A pro se party who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’ Unless the Court orders otherwise, the attorney’s identity and address need not be disclosed.”

Here’s my updated post:

********************************************************************

This is part 3 in my series on using the Rules of Professional Conduct to increase access to legal services.  It focuses on Rule 1.2(c) and ghostwriting.  Making it clear that ghostwriting does not violate the rules might encourage more lawyers to market limited services and, in turn, expand access to legal services.

Part 1 – Increasing Access: It MUST be Ethical.

Part 2 – Increasing Access: Limited Licenses .

Rule 1.2(c) authorizes a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”  Limited-scope representation is often referred to as “unbundling” or “providing unbundled legal services.”  Unbundling is not a new concept.  Still, it’s an underutilized tool.

The Reporter’s Notes to the 2009 Amendments to Rule 1.2 include instructive comments. For example:

  • “Although lawyers enter into fee agreements in a variety of practice settings, this proposal is intended in part to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal services to low or moderate-income persons who otherwise would be unable to obtain counsel.”

And:

  • “In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.”

A word of caution: a limitation must be reasonable under the circumstances. So, while there is not per se prohibition on “excluding actions that the client things are too costly,” a lawyer cannot exclude means or actions that are part and parcel of the duty to provide a client with competent representation.

Limited representation can take several forms. One is ghostwriting.  For the purposes of this post, “ghostwriting” is when a lawyer drafts a pleading for a client, and neither the lawyer nor the client discloses the lawyer’s involvement to the court or to the opposing party.

For many years, there was great debate as to whether ghostwriting was ethical.  Indeed, in 2007, the ABA Journal published an article entitled Scary Parts of Ghostwriting.  While highlighting the scary (aka: “unethical”) parts of ghostwriting, the article called attention to two key factors.

The first was the “Trendy Dilemma.”  As the ABA Journal described the trend:

  • ” . . . courts around the country increasingly are coming to grips with the practice, one of a number of services that lawyers are offering as part of the recent trend of unbundling. In contrast with traditional full-service representation, lawyers agree to be responsible for only carefully delineated portions of a client’s case. In addition to ghostwriting, services can include drafting a settlement agreement without participating in the negotiations, researching a legal issue for a client without getting involved in the larger case, or reviewing client-drafted documents strictly for compliance with court rules.”

The second was ABA Formal Opinion 07-446.  In the opinion, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that ghostwriting is a permissible form of limited representation allowed by Rule 1.2(c), stating:

  • “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”

Opponents had often raised two points while arguing that ghostwriting was unethical.  Some continue to raise the arguments today.

One argument is that judges give liberal construction to pro se pleadings, thus it’s unfair for a litigant not to disclose having received legal assistance.  The ABA’s response:“if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal” and there will be no reason to apply liberal construction.

The Committee added:

  • “[i]f the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage. Because there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed.”

Doesn’t this make sense? It does to me.

Another argument is that the failure to disclose a lawyer’s involvement constitutes misrepresentation by omission.  The ABA (and several bar associations) disagree.  Their position is that it is only dishonest if (1) the litigant is asked and lies; or (2) local court rules require the disclosure of trained legal assistance and no disclosure is made.   Absent an affirmative misrepresentation or a violation of court rules, it’s not dishonest.

Again, this makes sense to me.

Of course, as John points out, Local Rule 32.2 requires a self-represented litigant “who submits a paper that an attorney has drafted in whole or substantial part must state at the beginning of the paper, ‘This document was drafted in whole, or substantial part, by an attorney.’”  It strikes me, then, that the lawyer who provides the assistance has a duty to advise the client of the disclosure requirement.

Here are my thoughts on ghostwriting:

  • For simple pleadings, we should consider it a permissible form of limited representation authorized by Rule 1.2(c).
  • For more substantive pleadings, we should, at the very least, remain open to the same.
  • The next disciplinary counsel should commit to vigorously investigate & prosecute ghost writers who fail to provide competent advice or otherwise violate the Rules of Professional Conduct.

At least one New England state agrees.  In 2010, the Connecticut Bar Association issued Informal Opinion 2010-04.  The CBA concluded:

  • “We therefore now conclude that under the Connecticut Rules of Professional Conduct a lawyer who prepares and controls the content of a pleading, brief or other document to be filed with a court is not required to inform the court that the document was prepared by the lawyer. Nor do the Rules require that the lawyer demand that the pro se litigant make such disclosure. To the extent, however, that a law of the jurisdiction or a tribunal rule requires disclosure of such assistance, the lawyer must, of course, comply with the law or tribunal rule.”

I agree.

Ghostwriting will not bridge the access gap or suddenly make legal services available to everyone.  However, dispelling the notion that ghostwriting puts a lawyer’s license at risk will only serve to increase access to legal services.

Tech Competence as Access

False advertising? Guilty as charged.

tech-ethics

No, this post isn’t part of my series on Ethics as Access: Using the Rules of Professional Conduct to Increase Access to Legal Services.

However, the only reason it isn’t is that the Vermont Supreme Court’s Advisory Committee on the Rules of Civil Procedure has yet to act upon the recommendation that Vermont adopt Comment 8 to Rule 1.1 of the Rules of Professional Conduct. The proposed comment makes it clear that the duty of competence includes a duty of tech competence.

I first reported on the recommendation here.  As of September 30, and according to Robert Ambrogi’s phonemenol LawSites Blog, 25 states had adopted Comment 8.

Here, the recommendation has been before the civil rules committee for nearly two years.

Wait…are you thinking “why is the civil rules committee reviewing proposed amendments to the rules of professional conduct?”  Me too.

It’s inexplicable to me why, in Vermont, the committee that advises the Court on the Rules of Civil Procedure vets proposed amendments to the Rules of Professional Conduct.  I’d assume that the Professional Responsibility Board would play that role. After all, when it promulgated Administrative Order 9, the Court vested responsibility for, and supervision of, the Professional Responsibility Program with, that’s right, the Professional Responsibility Board.

Further, the Board employs a full-time bar counsel who, you know, blogs about issues related to attorney ethics. Finally, as most of you are udoubtedly aware, the Rules of Professional Conduct are not part of the Rules of Civil Procedure. Indeed, Rule 16 of Administrative Order 9 clearly states that “[d]isciplinary proceedings are neither civil nor criminal but are sui generis.”

One might think that just as proposed changes to the Rules of Civil Procedure shouldn’t go through the PRB, proposed changes to the Rules of Professional Conduct shouldn’t go through the Civil Rules Committee.

But one might think a lot of things.

And, anyhow, I digress.  Back to tech, ethics, and technological competence as access.

Not sure how to fit in pro bono work?  Here’s an interesting post from the ABA on how technology is making it easier to do pro bono work.

As I’ve preached, competence includes tech competence. I’ve also blogged about pro bono work.  If you accept the proposition that competence includes tech competence (which the ABA and 25 states have accepted), and if you believe in pro bono work, then remember that tech can make it easier for you to comply with Rule 6.1’s aspirational goal.

For all my posts on tech ethics, go here.