Lawyers Representing Lawyers

ABA Formal Opinion 502 on Pro Se Lawyers: Molding Verbiage to Fit Policy

Daniel Q. Harrington wrote the article, “ABA Formal Opinion 502 on Pro Se Lawyers: Molding Verbiage to Fit Policy” for the American Bar Association Litigation Section’s website. The article discusses ABA Formal Opinion 502. This Opinion clarifies that the prohibition against lawyers contacting an opposing party represented by counsel applies even to lawyers in the role of a pro se party. 

To read the full article, click here.

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What Do You Do When You Inadvertently Produce Privileged Documents? Lessons Learned from the Sandy Hook Elementary School/Alex Jones Defamation Trial

The recent litigation surrounding Alex Jones and Infowars Podcast, relating to defamatory statements Jones made about the Sandy Hook Elementary shooting victims and their families, focused on an issue that was not supposed to be the center of this defamation trial.  During the trial, Plaintiff’s counsel confronted Jones on cross-examination with the fact that Jones’ legal team had inadvertently turned over two years’ worth of Jones’ text messages relating to his baseless claims that the Sandy Hook shooting never took place.  The inadvertent production was bad for Jones, however, how it was revealed was even worse. Plaintiff’s lawyer, Mark Bankston, had the following exchange with Jones:

Mr. Jones, did you know that 12 days ago, your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you’ve sent for the past two years? And when informed, did not take any steps to identify it as privileged or protect it any way, and as of two days ago, it fell free and clear into my possession and that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook.  Did you know that?

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What is Going on With SCOTUS and Arbitration? – They Love FAA, They Love It Not

Lawyers who assume that the arbitration provisions within their carefully drafted agreements will be enforced may have to re-examine these assumptions. Within the space of less than one month, the Justices waded into three civil matters that dealt with the constant re-arrangement of the deck chairs and fine tuning of the parties’ rights and obligations relating to the application of the Federal Arbitration Act leaving those who practice with less than crystal clear guidance about how to proceed.

On May 23, 2022, in Morgan v. Sundance, Inc., SCOTUS, in a unanimous decision, ruled, contrary to the current positions of 9 of the 11 Circuits, that the requirement by the 8th Circuit that a showing that the other side has been prejudiced by a delay is not required for a party that has proceeded with litigation to be deemed to have waived its contractual right to arbitrate.  Although the Opinion was only nine (9) pages, the beginning, middle and end focused on one seeming objective of lesser ultimate important; that Courts may not establish law relating to the enforcement of arbitration agreements solely in order to protect the sanctity of arbitration agreements under the FAA.  To quote:  “… federal courts may not create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s ‘policy favoring arbitration.’ If an ordinary procedural rule – whether of waiver or forfeiture or what-have you – would counsel against enforcement of an arbitration contract, then so be it.  The federal policy is about treating arbitration contracts like others, not about fostering arbitration.”

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Heightened Focus on Judicial Security and Fair Administration of Justice

The recent arrest of an armed man who planned to kill Supreme Court Justice Brett Kavanaugh has brought renewed attention to the issues surrounding the personal security of federal judges and their families.  The suspect told investigators that he found Justice Kavanaugh’s home address online.

On June 3, a retired Wisconsin circuit court judge, John Roemer, was shot and killed at his New Lisbon home in what the state attorney general described as a “targeted act” against the judicial system.

There were over 4,500 threats against judges in 2021, according to the U.S. Marshals Service.[1] Credible security incidents and threats against federal judges and court officials quadrupled from 2015 to 2019.

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Be Solicitous of New ABA Ethics Guidance on Solicitation

In mid-April, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 501 clarifying the meaning of “solicitation” within the Rules of Professional Conduct. More specifically, the new opinion addressed the interplay of the general prohibition against in-person solicitation with the rules relating to misconduct and supervision of non-lawyers. While the new Formal Opinion does not represent a sea change in guidance, it provides crucial reminders about careful management of marketing practices for lawyers seeking paying clients, i.e., most of us.

Model Rule 7.3 on Solicitation prohibits live in-person solicitation of clients for the lawyer’s pecuniary gain, unless the client is another lawyer, a person the lawyer already knows or a person who routinely uses the type of legal services that the lawyer offers. There is significant jurisdictional variation from the Model Rule, with almost every state adopting a somewhat modified version. (See, ABA Jurisdictional Rules Comparison Charts) According to Comment [2], the rule is designed to prevent overreaching by lawyers particularly when potential clients are most vulnerable. The Committee found that there is continuing ambiguity about in-person solicitation by non-lawyers and whether the lawyers benefitting from the solicitation should be ethically responsible for their actions. The Committee examined these issues by way of the following four hypotheticals.

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The Delaney Decision – The NJ Advisory Committee’s Redux

The Supreme Court of New Jersey recently issued its ruling and opinion in the closely watched case of Delaney v. Trent S. Dickey and Sills Cummins & Gross, P.C. (Dec. 21, 2020)(“Sills”), relating to enforcement of a mandatory arbitration agreement in the Sills engagement letter. The Court refused to compel arbitration in that case because Sills had not adequately communicated with its client about the risks and benefits of agreeing to mandatory arbitration in order to make an informed decision. The Court did not go so far as to declare all mandatory arbitration provisions in engagement letters unenforceable, as some feared it might, but it requested additional guidance from the New Jersey Advisory Committee on Professional Ethics on the scope of an attorney’s disclosure requirements in this context.

On January 18, 2022, the Advisory Committee did that and more. The Committee expanded the scope of its mandate by asking the Court to reconsider its decision in Delaney and pronounce that New Jersey lawyers are prohibited from including mandatory arbitration provisions in their engagement agreements, even with appropriate disclosures and counseling. The Committee further proposed uniform guidelines for a separate rider addressing arbitration provisions and stressed the need for oral discussion with a client and recommendation to seek review by independent counsel.

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