Top Ten Legal Ethics Developments in 2022

If a Louisiana lawyer were to read just one post on this blog all year, this should be it. Here are the top ten developments in legal ethics in 2022.

Louisiana Legislature Amends the Civil and Criminal Code Articles on Judicial Recusal

Effective August 1, 2022, the Louisiana Legislature amended the civil and criminal code articles governing the recusal of district court judges. This is the second amendment to the code articles governing judicial recusal in two years. The Legislature amended the code articles in several significant ways. First, in civil proceedings, the new provisions require that a judge act on the motion to recuse–by either self-recusing or referring the motion to another judge–within seven days of receiving the motion. See La. Code of Civ. P. art. 154. Second, in civil proceedings, a judge must provide written reasons for the denial of a motion to recuse if the judge declines to appoint an ad hoc judge to preside over an evidentiary hearing. Third, as to criminal proceedings, the Louisiana Legislature amended the statutory grounds for recusal of a district court judge in a criminal case. The revised code article now includes the following ground for recusal: “In a criminal cause, a judge of any trial or appellate court shall also be recused when there exists a substantial and objective basis that would reasonably be expected to prevent the judge from conducting any aspect of the cause in a fair and impartial manner.” See La. C.C.P. art. 671(B). The Legislature added an identical provision providing for recusal under an objective standard to the Code of Civil Procedure in 2021. We also covered how to keep judicial recusal professional on our blog here.

ABA Issues Two Formal Opinions on the Anti-Contact Rule

In 2022, the ABA demonstrated a heightened interested in Model Rule of Professional Conduct rule 4.2 or the so-called “anti-contact rule.” Indeed, the ABA issued two formal opinions offering guidance to lawyers on the application of Rule 4.2. First, the ABA the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 503 addressing a lawyer’s use of “Reply to All” in email communications. See ABA Formal Op. 503 (Nov. 2, 2022). The ABA opined that, “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.” See id. at 1. Second, on September 28, 2022, the American Bar Association Standing Committee on Ethics and Professional Responsibility published Formal Opinion 502 addressing whether a pro se lawyer may communicate with a person represented by counsel. See ABA Comm. on Ethics & Prof’l Responsibility, Formal. Op 502 (Sept. 28, 2022). The Committee opined that “unless the pro se lawyer has the consent of the represented person’s lawyer or is authorized by law or court order to communicate directly with the other represented person about the subject of the representation, such communication is prohibited.” Id.

Louisiana Legislature Enacts A New Statute On Legal Malpractice Damages

The Louisiana Legislature recently enacted La. Rev. Stat. 9:5605.2, which provides that “[i]n any action for damages by a client against an attorney, the client’s recovery against the attorney shall be limited to the amount of damages which the attorney shows by a preponderance of the evidence would have been the maximum amount of damages that the client could have collected in the client’s underlying action in which he was represented by the attorney.” La. Rev. Stat. 9:5605.2. The statute became effective July 1, 2022.

Advertising, Advertising, Advertising…

Everyone from the Office of Disciplinary Counsel and the Louisiana Supreme Court to the ABA is hyper-focused on lawyer advertising. The Louisiana ethics community witnessed a significant shift in the regulatory and enforcement regime in the world of lawyer advertising. First, in late 2021, the Louisiana Supreme Court publicly disciplined two Louisiana lawyers for failing to pre-file their advertisements with the LSBA. See In re Eugene P. Redmann, No. 2021-B-00955 (Oct. 5. 2021)In re John W. Redmann, No. 2021-B-01060 (Oct. 5. 2021). Then, on January 1, 2022, the Louisiana Supreme Court’s amendments to the advertising portions of the Rules of Professional Conduct became effective. The most significant amendments require that lawyer advertisements must display a “filing number” issued by the Louisiana State Bar Association. Third, the ABA chimed into the discussion to clarify ambiguities in the Model Rules of Professional Conduct regarding the types of solicitation expressly prohibited by the Model Rules and a lawyer’s responsibility for solicitation efforts of persons employed by, retained by, or associated with the lawyer. See Formal Opinion 501 (Apr. 13, 2022). Importantly, the ABA opinion provides helpful examples of when a lawyer will be responsible for the solicitation efforts for a subordinate lawyer or non-lawyer assistant. Considering the heightened focus on lawyer advertising, it should be no surprise that we receive calls and emails on a daily basis to advise clients on compliance with these rules. We covered the top ten FAQ we receive on lawyer advertising here.

LASC Amends Permanent Disbarment Rules

On May 4, 2022, the Louisiana Supreme Court amended the rules governing the available sanctions for lawyer misconduct. More particularly, the court amended LASC Rule 19, Section 10(A)(1) to codify factors in Louisiana caselaw to provide additional guidance on when permanent disbarment is an appropriate sanction for lawyer misconduct.

Professional Responsibility Lawyers Recommend Revisions to Permit the Multijurisdictional Practice of Law

In April of 2022, the Association of Professional Responsibility Lawyers (“APRL”) recommended changes to the unauthorized practice of law provisions of the ABA Model Rules of Professional Conduct. See APRL, APRL’s Proposal for a Revised Model Rule 5.5 (April 18, 2022). APRL’s proposal would allow for the multijurisdictional practice of law as follows: “[a] lawyer admitted and authorized to practice law in any United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction, subject to the other provisions of this rule.” See Proposed Model Rule 5.5(a). APRL explained that the “proposed revision of Model Rule 5.5 reflects the concept that a lawyer admitted in any U.S. jurisdiction should be able to engage in the practice of law and represent willing clients without regard to the geographic location of the lawyer or the client, the forum the services are provided in, or which jurisdiction’s rules apply at a given moment in time.”

Louisiana Supreme Court Amends Rule Requiring Lawyers to Respect the Interests of Third Parties

The Louisiana Supreme Court recently amended Louisiana Rule of Professional Conduct 1.15(d) to clarify a lawyer’s duty with respect to the interests of third parties in funds or other property in the lawyer’s possession. The rule change became effective on December 1, 2022. Two of the main take aways are as follows. First, the amended rule recognizes that third parties may have valid claims against funds or property of the client that are in the lawyer’s custody. In such cases, the rule now places an affirmative duty on lawyers to “protect such third-party claims against wrongful interference by the client.” Second, the amended rule now prohibits lawyers from unilaterally trying to arbitrate the dispute between the client and the third-party. The lawyer should, however, advise the client and the third-party that the disputed funds will remain in the lawyer’s trust account or the registry of the court, until the dispute is resolved.

Technological Competence and Professionalism

We saw plenty of lawyer discipline cases, as well as advisory opinions and court cases, addressing a lawyer’s obligations to use technology in a competent and professional manner.

Several state courts sought discipline lawyers for unethical conduct when utilizing technology in their practice. For example, an Arizona lawyer has consented to a two-month suspension from the practice of law for utilizing the chat feature of a virtual trial platform to coach his client during her cross-examination. See In the Matter of a Member of the State Bar of Arizona, Ryan Patrick Claridge, No. 2021-9088 (Ariz. Jan. 21, 2022). The lawyer admitted that his conduct violated Arizona Rules of Professional Conduct rules 3.4 (fairness to an opposing party), rule 8.4(c) (deceit), and rule 8.4(d) (conduct prejudicial to the administration of justice). As another example, a Louisiana lawyer communicated with opposing counsel’s client through social medial, telephone, and email without obtaining the opposing lawyer’s consent. See In re David Band, Jr., Docket No. 21-DB-062 (Hearing Committee Report Sept. 6, 2022). The messages are easily characterized as disturbing and hostile in nature. In one communication the lawyer ‘advised’ the litigant that his client “sought a usaf*uck.” In another, the lawyer told the litigant to “wear something lowcut” to trial. A Louisiana hearing committee recommended a six-month suspension as well as an evaluation from a mental health professional.

Judges also penalized lawyers for their improper or unprofessional use of technology. A district court judge sanctioned counsel of record for sending an unprofessional email to the judge’s clerk. See Williams v Biomedical Research, No. 22-30064 (5th Cir. Aug. 24, 2022). The lawyer emailed the judge’s career clerk to vent about her frustrations with the slow place of the litigation. Specifically, the lawyer complained that the parties had been waiting for almost a year for the judge to rule on a motion for summary judgment. The lawyer’s email also suggested that the judge’s staff bore responsibility for the mismanagement of the court’s docket.

Lawyers were not the only ones using technology to engage in unethical conduct in violations of the rules. Judges fell victim to technological misconduct as well. For example, The Louisiana Supreme Court suspended a Denham Springs judge for four months for engaging in ex parte communications via Facebook Messenger with a party in a case pending before him regarding the case. In re: Judge Jerry L. Denton, Jr., 2021-O-01801 (La. 3/25/22), (Weimer, C.J.) (Crichton, J., dissents and assigns reasons; Genovese, J., dissents and assigns reasons; McCallum, J., dissents and assigns reasons).

State bar associations also contributed to the discussion of a lawyer’s duty to safeguard client information when utilizing technology in their practice. The New York State Bar Association recently addressed a lawyer’s duty of confidentiality in regards to smart phone apps which access the contacts on a lawyer’s cell phone. See N.Y. State 1240 (2022). The New York Bar Assocation opined as follows: “If “contacts” on a lawyer’s smartphone include any client whose identity or other information is confidential under Rule 1.6, then the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

The LSBA Issued a New Advisory Opinion on a Lawyer’s Use of Percentage-Based Fees in Representing Succession Representatives

On August 25, 2021, the Rules of Professional Conduct Committee of the Louisiana State Bar Association published Public Opinion 21-RPCC-22 providing guidance on a lawyer’s use of a percentage-based fee in representing a succession representative. See LSBA Public Opinion 21-RPCC-22 (Aug. 25, 2021). Said the Committee: “It is not per se unethical for a lawyer representing a succession representative to charge a fee that is calculated with reference to a percentage (customarily, in the range of 2.5 to 3%) of the value of the estate. While not a “contingency” fee, this percentage method in succession matters constitutes a form of “fixed” fee that is permitted by the Louisiana Rules of Professional Conduct. As with all types of fees, however, the agreed-upon percentage shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, and the amount of the fee yielded by application of the percentage must be reasonable pursuant to the factors outlined in Rule 1.5(a). Succession lawyers who use the percentage method in their practices, therefore, should exercise care to ensure that this type of fee arrangement is appropriately within ethical boundaries based on considerations such as the estate’s value and the amount and complexity of the work necessary to complete the succession.”

New York Court Ruling Prohibits Enforcement of UPL Rules For Certain Non-Lawyers Providing Legal Advice

On May 24, 2022, a New York federal district court issued a preliminary injunction banning the Attorney General from enforcing the unauthorized practice of law rules against non-lawyers who seek to provide legal advice. See Upsolve Inc. v. Letitia James, No. 22-cv-627 (PAC) (S.D.N.Y. May 24, 2022). On the one hand, any form of non-lawyer advice could undermine the legal profession. You would not want an unlicensed doctor operating on a loved one. Likewise, the risks and damage caused by an unlicensed lawyer trying to practice law could be devastating. On the other hand, the Upsolve decision is a huge win for the access to justice initiative. Non-lawyer volunteers in New York will be able to guide and coordinate resources to broaden access to civil justice for all litigants. Most would say that providing access to the court system for people who do not always have the financial resources to afford that access is a good initiative. Either way, one thing is clear: at least in New York, lawyers need to make some room for the non-lawyer advisors.

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