In the future, I hope to update this section more regularly with happenings in professional lawyer regulation, focusing on lawyer disciplinary matters. For now, I will highlight a few that I’ve come across as I’ve been working on my latest project.
Prosecutor Reprimanded for Biased Statements During Voir Dire
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A prosecutor in the state of Washington received a public reprimand based on a number of statements he made during jury selection for a criminal trial. The defendant, an American citizen of Hispanic descent, was charged with assault. According to the stipulated facts, the prosecutor talked to potential jurors about “border security, illegal immigration, and crimes committed by undocumented immigrants including drug smuggling.” Despite the fact that these issues were not relevant to the trial, he “repeatedly elicited potential jurors’ comments and views on these topics, referring at one point to ‘100,00 people’ ‘illegally’ crossing the border each month.”
Washington is one of the states that has adopted an anti-bias ethics provision. Under its version of Rule 8.4(g), the state proscribes “commit[ing] a discriminatory act prohibited by state law on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, gender expression, or gender identity, honorably discharged veteran or military status, or marital status, where the act of discrimination is committed in connection with the lawyer’s professional activities.” It also has a similar anti-bias provision (Rule 8.4(h)) that is tied to acts that are prejudicial to the administration of justice. In this case, the lawyer was sanctioned for violating both provisions—along with the administration-of-justice provision to boot. I’ve written about Model Rule 8.4(g), which has not received the widespread adoption many had hoped. But Washington has not only enacted an anti-bias provision, but also it has used it to sanction attorneys from time to time.
You might wonder how this misconduct came to the disciplinary authority’s attention. It turns out that the defendant appealed his conviction, arguing that the prosecutorial misconduct during voir dire deprived him of a fair and impartial trial (even though his trial attorney had not objected). Ultimately, the Washington Supreme Court agreed with his contention and reversed the conviction.
The prosecutor received a public reprimand for his misconduct and expressed great remorse for what he had done. In fact, there is a letter from the subject attorney that is included with the reprimand; it is worth a read. The attorney also resigned from his position.
Link to stipulated sanction here: https://www.mywsba.org/WebFiles/CusDocs/000000011226-0/002.pdf
Lawer(s) Advertising
Lawyer(s) Advertising
When I teach Professional Responsibility, I spend more time than most do on the lawyer advertising and marketing rules. There are several reasons why I do this. First, I find that students enjoy the subject matter. I routinely have my students break up into law firms and create their firm personas. Then when we discuss lawyer advertising and marketing, I have them create advertisements or marketing strategies that test the boundaries of the rules (and often, cross them entirely). Second, a number of my graduates go on to be solo practitioners or work in small firms—where they might be in charge of their own advertising efforts. Third, Rule 7.1 provides a great vehicle for teasing out what it means for a communication to be “false or misleading.” We watch lawyer commercials (some favorites: Adam Reposa, Jamie Casino) and print advertising. We also discuss the difference between advertising that violates the rules vs. that which is merely in poor taste.
One issue that we’ve talked about over the years is whether a solo practitioner can hold themselves out as themselves “& associates” or talk about the “attorneys” in their firm. We generally reach a consensus that this practice would violate the language of Rule 7.1, but most students believe that a disciplinary agency would unlikely sanction an attorney on that basis. I tended to believe that as well, until now.
Recently I came across two disciplinary sanctions from Massachusetts where the attorneys received public reprimands for violating Rule 7.1 by calling themselves “& associates” and/or referring to the “attorneys” in their firm. To be fair, both lawyers committed additional conduct that contributed to their sanctions. But it does show that at least one disciplinary authority takes seriously these attempts to make a practice look larger or more robust than it is.
From my empirical research, Rule 7.1 is not often cited as a basis for discipline. But one wonders whether it might increase as lawyers push the boundaries on ways to drum up business.
Link to 2022 Sanction: https://bbopublic.massbbo.org/web/f/PR2022-3.pdf
Link to 2017 Sanction: https://bbopublic.massbbo.org/web/f/pr17-4.pdf
Lifting the Veil on Private Sanctions in Alabama
Until a couple years ago, I barely realized that disciplinary agencies imposed private sanctions. But after conducting an empirical study on them, I learned that they may be used in 37 states. Furthermore, they comprise the majority of the sanctions imposed in over half of those states. I published the results of the study in my article “Private Sanctions, Public Harm?,” published in the BYU Law Review.
So what type of misconduct leads to private sanctions? Sometimes it can be a single instance of an attorney missing a deadline. But sometimes it can be much more.
Here is an example from Alabama. The information about the misconduct is thin, but egregious. According to the sanction, the attorney “text-messaged [the client] inappropriately, requested inappropriate in-home personal visits with her, and made inappropriate comments and sexual advances.”’ In connection with these actions, the attorney was found to have attempted to violate an Alabama-specific conflict-of-interest-rule, which proscribes attempting to enter into an exploitive sexual relationship with a client, along with a violation of the jurisdiction’s fitness-to-practice provision.
But that’s not all. He also “led the [client] to believe he possessed the ability to improperly influence a government agency or official.” This misconduct constituted a violation of 8.4(e) (stating or implying an ability to influence such an official), along with 8.4(c) (the fraud provision).
Why did the attorney receive a private reprimand instead of a public sanction? There’s no indication based on the information provided by the disciplinary agency. The more important question is why this type of misconduct toward clients should ever be given a private sanction instead of a public one. This kind of debate should be occurring, but thus far private sanctions have remained hidden from view.
Of course, this lawyer might go on to have an unblemished career. Or this lawyer might be sanctioned again. But we will likely never know.
Although I cannot provide a direct link to the sanction, you can search Alabama Disciplinary History here: https://www.alabar.org/office-of-general-counsel/disciplinary-history/ (search for “1.8(m)” and select “Private Reprimand” in the dropdown menu.
One of the first ChatGPT sanctions
Over the last year, nearly everyone has heard about the power of using generative AI. My former colleagues at the University of Minnesota Law School have a popular article about its performance on law school exams. But for Colorado lawyer Zachariah Crabill, the use of ChatGPT led to a one-year suspension (90 days to be served and the remainder stayed provided he compiles with the terms of a two-year probationary period).
How did it happen? The lawyer was asked to draft a motion in an area that he was unfamiliar, so he asked ChatGPT to draft it for him. He filed the motion without checking it, and it contained “incorrect or fictitious” cases—or in common parlance, it hallucinated. But even when he realized the mistake, he “falsely attributed the mistakes to a legal intern.” He finally came clean about a week later, but by then it was too late.
The lawyer stipulated that he had violated four ethical rules: 1.1 (competence), 1.3 (diligence), 3.3(a)(1) (candor to the tribunal—violated by making false statements of law to the court), and 8.4(c) (fraud provision). He was also fired by his law firm, as reported by the Washington Post.
It is not surprising to see this type of disciplinary case, and I hypothesize that the number will explode in the next 2-3 years. I do think it is interesting that the disciplinary agency cited a violation of Rule 1.1. The Model Rules added Comment 8 to Rule 1.1 about a decade ago that addresses the issue of technological competence. It states in relevant part that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” As of now, disciplinary agencies are focusing on lawyers who don’t recognize the risks. But one wonders if or when we might sanction attorneys who avoid learning about and using time-saving technology.
Attorney regulators are feverishly working on guidance related to generative AI. Florida has one of the first proposed ethics opinions on the subject, and surely more will follow.
Link to Sanction here: https://coloradosupremecourt.com/PDJ/Decisions/Crabill,%20Stipulation%20to%20Discipline,%2023PDJ067,%2011-22-23.pdf.
Massachusetts Lawyer Coaches Witness
With the increase in electronic hearings that were spurred on by the pandemic, it was only a matter of time before we began seeing disciplinary actions based on a lawyer “coaching” a witness while testifying. One the recent installments is in Massachusetts, where a lawyer stipulated to a public reprimand for “repeatedly coach[ing] his witness on answering questions” by “surreptitiously provid[ing] his client with answers.” In this instance, the lawyer and client were participating in a remote deposition and both were wearing masks. In total, there were about 50 instances of the lawyer coaching the witness—which opposing counsel was able to detect by reviewing a videotape of the deposition.
Interestingly, the Massachusetts Board of Bar Overseers noted that there was no prior sanction in the state “based solely on a lawyer coaching a witness during a deposition.” But the opinion did note that there were two cases from other states (Florida and Arizona), and perhaps unsurprisingly both are recent cases (2021) involving electronic communications.
Ultimately, the stipulation included violations of Rule 3.4(c) (knowingly disobeying an obligation under the tribunal’s rules), 8.4(d) (administration-of-justice provision) and 8.4(h) (fitness-to-practice provision, one of my personal favorites!). But it is interesting that the Board did not mention or find a violation of Rule 3.4(b). That rule proscribes “counsel[ing] or assist a witness to testify falsely.” We often talk about the subsection in the context of witness coaching, but my guess is that it’s almost impossible to prove that the attorney was coaching the witness to testify “falsely,” but rather just telling the witness how to respond.
For those who are interested, the ABA recently issued a formal ethics opinion on witness preparation.
Link to Sanction here: https://bbopublic.massbbo.org/web/f/PR-2023-12.pdf.