Supreme Court Allows Distance Learning for All 2021 CLE
In response to the continuing COVID-19 pandemic, the Supreme Court of Pennsylvania entered an Order
on December 23, 2020, stating that all CLE credits to satisfy 2021 compliance deadlines may be obtained through completion of distance learning programs.
ABA Issues Ethics Opinion on Lawyers Working Remotely
The ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 495 (December 16, 2020)
, discussing the application of Rule 5.5 of the ABA Model Rules of Professional Conduct to lawyers practicing remotely in jurisdictions to which they are admitted, but where they are not physically located.
Model Rule 5.5(b)(1) prohibits a lawyer from “establish[ing] an office or other systematic and continuous presence in [the] jurisdiction [in which the lawyer is not licensed] for the practice of law.” Some have expressed a concern whether this would prevent a lawyer who lives in one state from remotely practicing in another, such as a Pennsylvania-licensed lawyer who lives in New Jersey but is not licensed there practicing from a home office physically located in New Jersey.
The ABA Committee dismisses this concern. It states, “A local office is not established within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.” It adds, “The lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law.” If the lawyer’s website, letterhead, business cards, advertising, and the like clearly indicate the lawyer’s jurisdictional limitations, do not provide an address in the local jurisdiction, and do not offer to provide legal services in the local jurisdiction, the Committee states, the lawyer has not “held out” as prohibited by the rule. The Committee found that the purpose of the rule is to prevent the unauthorized practice of law. That purpose would not be served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, solely because the lawyer is physically located in another jurisdiction, but for all intents and purposes is invisible there.
ABA Notes Top Five Legal Tech Stories for 2020
The American Bar Association Journal has identified its Top Five stories about legal technology for 2020
. Not surprisingly, innovations in response to the COVID-19 pandemic dominate the list.
The Top Five are:
- 1. The unprecedented transition to remote work.
The need for social distancing led to an unprecedented explosion of legal interactions moving to the remote/online space. Remote working tools such as v
ideoconferencing, e-signature, virtual notaries, and cloud computing replaced procedures that had long been conducted in person. Courts as well as private practices adapted with expansion of e-filing and virtual trials, hearings, and depositions. Continuing legal education moved online, and CLEs about videoconferencing and remote practice became hot items.
- 2. Videoconferencing became the norm.
Videoconferencing became the new normal out of necessity for both meetings and court appearances, even with court administrators who had previously resisted any move away from in-person appearances. Even the U.S. Supreme Court held oral arguments by telephone
for the first time in its history.
- 3. #Barpocalypse.
The pandemic wrought havoc on bar exams. Virtual administration of bar exams suffered from technology failures, allegations of biased facial recognition tools and data breaches, and a lack of bathroom breaks. Problems also plagued in-person exams, such test-takers alleging that bar examiners failed to provide safe, socially-distanced facilities for the administration of tests. Some ascribed declining exam passage rates in some states to the testing conditions.
- 4. Mergers, acquisitions, and funding rounds in legal technology
2020 saw a large number of mergers, acquisitions, and funding rounds in legal technology companies. Some argued that the pandemic was the driving force behind many of the events, but others believed this continued an overall trend of increased technology spending and growth over recent years.
- 5. Utah and Arizona relax rules on non-lawyer participation
A trend is developing in some jurisdictions to relax ethics rules relating to nonlawyer ownership of law firms, fee sharing with non-lawyers, and non-lawyers appearing in court. The Utah Supreme Court voted to approve a two-year trial period in which non-lawyer ownership or investment in law firms would be permitted, and also amended the state’s Rules of Professional Conduct to permit fee sharing with nonlawyers upon written notice to the client. The Arizona Supreme Court approved “alternative business structures” that allow non-lawyers, defined as “legal paraprofessionals,” to represent clients in court.
Law Graduate Fails Bar Exam Due to Software Glitch
A New York man experienced #barpocalypse
personally when he learned that a software malfunction caused him to fail the bar examination.
Colin Darnell was disappointed, as anyone would be, when he was informed he had failed the Multistate Performance Tests (MPT) section of the New York online bar exam. However, he suspected the result may not have been correct due to problems he experienced during the test, administered by Examsoft. He requested review of his results, and learned that an entire blank page was scored with his MPT. When the filled‑in page was uploaded, his score rose from 247 to 288, and he passed the exam. Darnell suspects that the blank page was uploaded by Examsoft support while attempting to resolve problems he experienced during the exam.
Lawyers Behaving Badly, Part 1: Court Roundup
This month brings several stories of lawyers disciplined or otherwise sanctioned for misconduct in court.
The 11th U.S. Circuit Court of Appeals at Atlanta upheld sanctions for Florida bankruptcy lawyer Peter Wizenberg
and imposed additional penalties for his actions on appeal. Representing himself in probate and bankruptcy proceedings, Wizenburg engaged in a number of questionable tactics, including making an argument in the form of a haiku: “All know: talk is cheap; Liars can claim anything; No evidence?! Balk!” He earned additional sanctions by quoting Bugs Bunny in his appellate brief: “So, at the very most, there were just two and only two nonglobal allegations, yes, a mere two at the most, and, to quote Bugs Bunny, as far as any specific allegations are concerned, ‘That’s all, folks!’”
The New Jersey Supreme Court overturned the conviction of a bank robber
because the prosecutor used a photo of actor Jack Nicholson’s “Here’s Johnny” moment in the 1980 movie The Shining
during closing arguments. The robber handed a teller a note that on its face was polite and nonthreatening. An issue arose as to whether this constituted the use of threat of force in order to determine the grade of robbery. In her closing presentation, the prosecutor inserted the Nicholson image to convince the jury that words that are not threatening on their face can become so in the context in which they are presented. The Court found this prejudicial error, stating: "Prosecutors must walk a fine line when making comparisons, whether implicit or explicit, between a defendant and an individual whom the jury associates with violence or guilt. The use of a sensational and provocative image in service of such a comparison, even when purportedly metaphorical, heightens the risk of an improper prejudicial effect on the jury. Such a risk was borne out here."
A lawyer involved in litigation over the presidential election did not incur discipline or sanctions, but attracted wide and derisive attention for a motion drawing on rather curious authority – the Lord of the Rings
. Paul MacNeal Davis, a former corporate attorney who lost his job after posting a video of himself at the January 6 incursion at the U.S. Capitol, filed a lawsuit contending that President Biden and the Congress were illegally elected and seeking to restrain them from taking office. As part of his Amended Motion for a Temporary Restraining Order
, he drew on J.R.R. Tolkien's classic, “Lord of the Rings
,” advancing as an argument that “Gondor has no king.” He further explained, "During the course of the epic trilogy, the rightful king of Gondor had abandoned the throne. Since only the rightful king could sit on the throne of Gondor, a steward was appointed to manage Gondor until the return of the king, known as ‘Aragorn,’ occurred at the end of the story. This analogy is applicable since there is now in Washington, D.C., a group of individuals calling themselves the president, vice president and Congress who have no rightful claim to govern the American people."
Davis subsequently retreated from invoking Tolkien as legal authority
, but not before the Internet picked up on the story and had a good time with it. He complained that “other media outlets, apparently due solely to Counsel making a literary analogy (something not remotely uncommon to legal writing) have characterized this lawsuit as a mere fantasy. And perhaps they are right in a sense.”
Lawyers Behaving Badly, Part 2: Social Media Roundup
A Florida lawyer was arrested and disbarred
after posting a pattern of wild accusations and threats against judges and opposing counsel on his Facebook page and blog posts. A disciplinary referee’s report
found that Edward Lynum had made numerous and unfounded accusations against judges, especially those involved in his dissolution and child custody case. The accusations included allegations of witchcraft, Satanism, racism, child molestation, domestic terrorism, and criminal activity. He then escalated that criticism into threats of violence, stating that the judges “can’t hide from my almighty God’s vengeance; Like David, I will kill Goliath and hold up his bloodied and severed head with a smile on my face.” On the recommendation of the referee for immediate disbarment, the Supreme Court of Florida disbarred
Lynum. He was also arrested
based on the threats.
Winston Bradshaw Sitton, a Tennessee lawyer, was suspended based on a Facebook post
in which he appeared to advise a friend how to use the castle doctrine as a defense if she shot a former boyfriend she had accused of abuse. After instructing on how to use less lethal loads first, Siddon wrote, “If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.” Sitton claimed the post was “dark humor” and “sarcastic,” and his intent was to dissuade the woman from carrying a gun in her car, but a hearing panel found that a reasonable person would not read it that way. The hearing panel recommended a 60-day suspension, but in a Jan. 22 opinion
, the Tennessee Supreme Court suspended Sitton for four years, with one year to be served on active suspension and the remainder on probation.
Software for Remote Practice: A New Priority
As the COVID pandemic stretches on and law firms and practices are more and more forced to rely on remote technology, the choice of legal software adapted to distance has grown in urgency. Nicole Black, an attorney, author, journalist, and legal technology evangelist who works with MyCase, offers suggestions for lawyers and law firms looking to upgrade their practice management software
to better support a remote workforce.
Her first advice is to research the provider before choosing software. She gives examples of providers who have developed advanced legal software for remote practice management. One factor a practice should carefully review when choosing a cloud-based product is how the provider, along with any of its integration partners, will be hosting the practice’s confidential data. Lawyers have an ethical obligation to understand how the data will be handled by both the law practice management software company and all of the companies that provide a product that integrates with it. This includes knowing who will have access to it, how and when it will be backed up, and how the firm’s data can be exported and in what format.
She also describes features the practice should look for. Some companies offer comprehensive packages that meet several functions. For remote practice, document storage, access, sharing, and collaboration features may be important. Time tracking, billing, and communication features may also be built in. Some practices find that these functions may be better served with separate applications than by a comprehensive system. Ethics opinions such as ABA Formal Opinion 477R
and Pennsylvania Bar Association Formal Opinion 2020-300
emphasize the importance of maintaining confidentiality and secure communications with clients and other involved parties.
Another new function offered by many companies is lead management or CRM (customer relationship management) tools. These features streamline the intake process by providing tools that manage communications and appointments with potential clients.
Black notes that remote practice compelled by the pandemic provides an opportunity for practices to move beyond outdated and impractical IT infrastructure to more modern and efficient cloud-based law practice management, both to cope with the short-term challenges of the pandemic and to offer more effective business management in the future.
When it comes to cross-examination, is less more?
Veteran trial attorney and humorist Marcel Strigberger has a beef with how many attorneys approach cross examination
. He thinks they try too hard to do it. Also, he observes that many seem to have learned their cross-examination strategy by watching TV programs.
For instance, many attorneys see the need to predicate their questions with flourishes such as “Isn’t it a fact that …” or “Do you really expect this court to believe that …” He questions whether such introductions will ever elicit a different answer, such as “No, I guess I really don’t expect the court to believe that.”
He also cautions attorneys not to fashion their cross-examination philosophy on the exploits of Perry Mason, who had a unique knack for eliciting murder confessions by the briefest of cross examinations. 127 times out of 127.
Finally, he reiterates the advice that a lawyer should always know the answer to a question asked on cross-examination. The witness gets to answer, and too often that answer will begin, “Actually, now that you asked …”
Sometimes less is more.
Cat Got Your Tongue? Lawyer Embarrassed by Filter
A Texas lawyer made an impression on the Court, and subsequently on the Internet, when he accidentally turned himself into a cat
during a court hearing on Zoom. Attorney Rod Ponton unintentionally activated a filter that turned his image into a cute, googly-eyed kitten during the hearing. Judge Roy Ferguson was nonplussed, calmly advising him, “Mr. Ponton, I believe you have a filter turned on in your video settings.” As he struggled to alter his settings, Ponton assured the court, "I'm prepared to go forward with it. I'm here live -- I'm not a cat."