Attorney E-Newsletter

October 2010

ABA Provides Guidance on Websites

The Standing Committee on Ethics and Professional Responsibility of the American Bar Association has published Formal Opinion 10-457, which provides valuable guidance to lawyers and law firms who make use of websites in the public presentation of their practices. The opinion addresses content issues such as providing information about the firm or practice, publishing information about the law, and handling visitor inquiries. It also provides advice on warnings or cautionary statements intended to limit or clarify the practice’s obligations to visitors.

Some of the high points of the opinion’s coverage include:

  • A website may offer biographical and professional information about the lawyers and practice, but such statements that are “communication about the lawyer or the lawyer’s services” are subject to the requirements of Rules 7.1, 8.4(c) (generally), and 4.1(a) (when representing clients).
  • Information that identifies clients may be posted, but the clients should provide informed consent within the requirements of Rules 1.6 (current clients) and 1.9 (former clients).
  • Lawyers and firms may address legal issues on the website. Such communications should be general information rather than specific advice. Qualifying statements may be necessary to make sure that such information is not construed as legal advice.
  • Lawyers who respond to questions or inquiries from website visitors should be particularly aware of the provisions of Rule 1.18 regarding prospective clients. The opinion addresses this topic at length.
  • Finally, warnings or cautionary statements on a lawyer’s website can be designed to and may effectively limit, condition, or disclaim a lawyer’s obligation to a website reader. The opinion makes a number of observations on assuring that such statements are effective.

The opinion’s coverage of these issues is much more detailed than this brief summary. Lawyers and law firms who publish websites would benefit from reviewing the opinion and checking their own sites along the lines it suggests.

European Union High Court: No Privilege for House Counsel

On September 14, 2010, the European Court of Justice, the highest court of the European Union, handed down a decision on an appeal by Azco Nobel Chemicals Ltd., in which it held that communications by corporate officers with house counsel employed by a corporation do not fall within the client-attorney privilege. The Court wrote:

An in-house lawyer, despite his enrolment with a Bar or Law Society and the professional ethical obligations to which he is, as a result, subject, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, an in-house lawyer is less able to deal effectively with any conflicts between his professional obligations and the aims of his client.

The ruling was not a complete surprise. The High Court had held in 1982 that the privilege applied only to communications with independent lawyers, and in April the Court’s Advocate General issued an opinion recommending that the Court reach the result it did.

The decision differs from the general rule in America that many communications with house counsel are privileged. American lawyers whose practice involves European corporations and subsidiaries should probably be familiar with this difference.

More information is available in these stories and commentary from Bloomberg and the Wall Street Journal.

Notorious Notaries: Robo-Signers, Phantom Affiants, and Corners Cut

The great mortgage meltdown late in the last decade continues to reverberate through the legal profession, as in society at large. We have heard stories of days of reckoning for lawyers and paralegals, but another class of law firm staff is coming under the microscope: notaries.

In Maryland, six notaries who worked in law firms doing high volumes of mortgage foreclosure cases have lost their commissions after revelations that they did not witness the affiant sign the document or did not keep a registry as a record as required by state law. A Maryland court is reviewing 14,500 foreclosure cases in which it appears that lawyers whose names appeared on documents may not have reviewed or even signed them. Story here.

A Florida law firm is under investigation after revelations that its office manager was signing 1,000 mortgage foreclosure documents a day – 500 in the morning, and 500 in the afternoon. When she got tired, she would have paralegals take over the work for her. Story here.

All 50 state attorney generals and a federal financial fraud task force have undertaken a joint investigation into improper document preparation practices in the finance industry, including witnesses signing affidavits they have not read and automated “robo-signing” to produce documentation that no one has reviewed or read, much less verified. Story here.

Some in legal practice may come to view notarization as a technicality, but each affidavit or verification is a sworn legal document with serious implications for the signer, the notary who notarizes it, and the lawyer who prepares or uses it. At least one lawyer in Pennsylvania has been disciplined for false notarizations. See also In Re Anonymous No. 23 DB 1977, 6 Pa. D. & C. 3d 499 (1978).

Can a Sitting Judge Do Standup? When Judges Moonlight

This month brings a series of stories about judges who aspire to achievement in other venues.

For years prior to his ascension to the bench, Vincenzo Sicari, a municipal court judge in Hackensack, New Jersey, has had a thriving second career as a stand-up comic. He’s appeared in many venues on Broadway and elsewhere, and also on television and in films, under the stage name Vince August. But the Advisory Committee on Extrajudicial Activities of the Supreme Court of New Jersey was not amused. They informed Sicari twice that he could not perform as a comedian, even for charitable events, while serving as a judge. Sicari won’t take the end of his standup career as a sitting judge lying down, though; he has asked the state Supreme Court to review this case, which they have agreed to do.

Sicari isn’t the first New Jersey municipal court judge forced to choose between his seat and his muse. In May, Kenneth Del Vecchio resigned his judicial post when the same committee informed him he could not continue his career as a filmmaker, or promote his satirical movie painting President Obama as a modern-day Faust.

Perhaps Judge Sicari should seek judicial office on the other side of the Hudson. The Chief Judge of the New York Supreme Court[1] has suspended rules that barred judges from seeking outside employment, other than the practice of law. One of the major reasons for the move is the lack of progress in raising judicial salaries. Outside positions must be cleared with counsel for the state Office of Court Administration, and must be consistent with the judge’s judicial responsibilities.[2]

New York also seems to be more receptive to judges with celebrity power. An ethics opinion by the Advisory Committee on Judicial Ethics addresses the question of whether a judge may be “interviewed and photographed for an on-line commercial magazine article about personal grooming decisions.” The Committee concluded that a judge may “participate in an interview for an article intended to be an 'inspirational story’ about members of the judiciary who have chosen to present themselves in a certain way.” She or he may not, however, endorse any particular hair care product or process.[3]

Also dissenting from the New Jersey rule, the Florida Judicial Ethics Advisory Committee has determined that a judge may “participate in a program or skit for an American Inn of Court if the presenting group competes for a 'best skit’ award which includes a monetary contribution to a charity of the group's choice.”

Another hospitable climate may be South Carolina, as the Judicial Ethics Advisory Committee recently gave green lights to a judge with a record (in both sense of the term) as a singer-songwriter and a judicial clerk who sells jewelry.[4]

Apparently everywhere but Jersey, new frontiers in stardom are opening up for denizens of the bench. Check your local newspaper entertainment listings for what may be coming soon.

Got a Tip?

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[1] The Supreme Court of New York is a trial-level court, but the state’s highest court, the Court of Appeals, has approved the decision, according to the article.

[2] No word yet on whether stand-up comedy or filmmaking meets this test.

[3] Color us inspired!

[4] Give it up for Professor Mike Frisch of the Legal Profession Blog for our favorite blog headline of the month: “Free Soviet Jewelry.”