Remotely Ethical

In this episode of Remotely Ethical, we provide some recent updates, discuss radical changes to the Arizona Rules of Professional Conduct, and offer five tips for protecting your attorney escrow account.

Case notes from captivity

Finally, we each talked about what we are reading, watching or doing to get us through lockdown.

Tyler has a new addition to his family - a red Betta fish. Pics included in the video.

Nicole has been watching the Australian miniseries "Upright" on Sundance Now, starring the incomparable Tim Minchin. Highly recommended.

In this episode of Remotely Episode, we give some COVID-related updates for New York lawyers.  We also discuss whether lawyers working remotely from jurisdictions where they are not admitted to practice law are engaged in the unauthorized practice of law (UPL).

COVID updates for NY lawyers

Are lawyers working remotely engaged in UPL?

Case Notes From Captivity (where we discuss what we are reading, watching or doing to get through lockdown)

You can watch all of our Remotely Ethical episodes on our YouTube channel. 

In this episode of Remotely Ethical, Nicole and Tyler discuss three stories that illustrate different aspects of physical presence in the practice of law, particularly during the COVID-19 era.

First, we have an update on a short-lived federal lawsuit filed by public defender organizations in New York City to enjoin the New York state courts from reopening too quickly during the ongoing COVID-19 crisis. We discussed the lawsuit in our previous episode of Remotely Episode and our colleague Ron Minkoff blogged about it here and here.

Second, we discuss the first in-person criminal jury trial in New York since the COVID-19 crisis hit.  The trial originally began in March but was adjourned due to COVID-19. That trial just resumed in The Bronx, with the court implementing various social distancing precautions. You can also read Tyler's blog post about it here.

Third, we discuss a 1909 New York statute which requires New York-admitted lawyers who reside in other states to establish a physical law office in New York, if they wish to practice law in New York.  A bill has been introduced in the New York state legislature to repeal the statute, which by most accounts was  antiquated even before the COVID-19 crisis and which has now become even more obsolete and impracticable.  Nicole blogged about the proposed legislation here.

Finally, we discussed our Case Notes From Captivity, where we talk about something we are reading, watching or doing to get through lockdown.

Watch videos of Remotely Ethical on our YouTube channel.

In this episode of Remotely Ethical, Nicole Hyland and Tyler Maulsby discuss updates of previous topics and a new federal lawsuit seeking to enjoin the New York state courts from reopening.

We cover:

You can watch all of our Remotely Ethical episodes on our YouTube channel or subscribe to our podcast here or on your favorite podcast app.

For COVID-19 updates for New York lawyers, check out our regularly updated COVID-19 Resource blog post.

Topic 1: I made a mistake on a client matter! What should I do

In this segment we discuss the what lawyers should do if they realize they have made a mistake on a client matter.

We cover:

· Determining whether the mistake needs to be reported to the client. See NY State Bar Ethics Op. 1092 (2016)

· Getting advice from in-house or outside professional responsibility counsel

· Ensuring that communications within the law firm are protected under the intra-firm privilege rule. See Stock v. Schnader Harrison, which Tyler has previously written about

· Determining whether to report the mistake to your malpractice carrier

· Lawyers should also consider the potential conflict of interest that may arise when a lawyer commits a mistake in a client-matter. We do not discuss that here but will cover it in a future episode!

Topic 2: Is the bar exam obsolete?

In this segment, we discuss advocacy efforts around the country to eliminate the bar exam and implement a "diploma privilege" that would allow graduates of accredited law schools to practice law without passing the bar.

Here are some other resources on the "diploma privilege":

· An emergency law being proposed in New York state to allow law school graduates to practice law without passing the bar, reported in Law.com

· Efforts by law graduates advocating for the diploma privilege, reported in Law360

· The disparate impact of the bar exam on people of color, as discussed in Above the Law

· Whether New York should eliminate the Uniform Bar Exam, as previously discussed on our blog

Whether the bar exam is effective at ensuring attorney competence, as discussed on the ABA website

Case Notes From Captivity

Tyler’s Case Notes: For the past two weeks, Tyler has literally been in captivity. He is heading to Vermont for a one-week vacation, so he has been completely quarantined prior to the trip, which means no going for walks or trips to the store, even with social distancing and other precautions.

Nicole’s Case Notes: Nicole has been watching the HBO show Perry Mason starring Matthew Rhys (of The Americans) whose name she could not remember during the episode. So far, it is an origin story that takes place before Perry Mason becomes a defense lawyer and offers a creative take on the classic character. 

Watch videos of Remotely Ethical on our YouTube channel.

Topic 1: NY Lawyers Charged With Serious Crimes

This segment covers the arrest and prosecution of two attorneys who stand accused of throwing a Molotov cocktail at a police vehicle during a Black Lives Matter protest.

We discuss:

· The recent battles over whether bail should be granted for the attorneys, which went up to the Second Circuit Court of Appeals

· An amicus brief submitted by former prosecutors arguing that the Government's position on bail was too aggressive

· Whether the Government's position was unusually aggressive, because the individuals involved were lawyers

· Whether lawyers should be held to a higher standard in criminal matters because they are "officers of the court"

· The possible disciplinary ramifications for lawyers who are charged with or convicted of serious crimes.

Topic 2: An Unusual Sanctions Order

In this segment, we are joined by special guest, Ned Rosenthal, to discuss a recent sanctions order issued by a federal judge against copyright lawyer Richard Liebowitz, which made waves within the copyright bar.

Ned and Tyler wrote a blog post on this unusual sanctions order, which you can read here.

We discuss several extraordinary aspects of the sanctions opinion, including that the Court ordered Liebowitz to:

· serve a copy of the opinion on all of his current clients

· file a copy of the opinion in all of his pending cases

· file a copy of the opinion in all new cases he files for the next year

· include a deposit copy of the allegedly infringed works with all copyright complaints that he files for the next year, in order to establish that the copyrights have been registered

We also discuss whether the Court had the power to issue such a far-reaching sanctions order and what affect it could have in a future grievance proceeding against Liebowitz.

A contrasting view of Liebowitz can be found in a 2018 profile published by Slate.com, which you can read here.

Case Notes From Captivity

Tyler’s Case Notes: Tyler has been taking a nostalgic trip back to the 1990s, by watching episodes of The Practice on Hulu.  In addition to being very entertaining, the show offers a host of legal ethics hypotheticals.

Nicole’s Case Notes: Nicole has been enjoying an irreverent cooking show on YouTube called Nat’s What I Reckon, hosted by an extremely potty-mouthed Australian bloke. Seriously, you have never heard anyone swear this much on a cooking show. NSFW.

You can watch videos of Remotely Ethical on our YouTube channel.

Topic 1: Tips for Ethically Marketing Your Legal Practice

In this segment, we discuss our top five ethics tips for marketing your legal practice online during the COVID-19 crisis. 

Topic 2: Substance Use and Abuse Among Lawyers

In this segment, we are joined by special guest, Greg Boyd, to discuss substance abuse in the legal profession.  Greg is a partner at Frankfurt Kurnit, but in a previous life, he was a scientist, researcher and medical doctor.  Greg shares his scientific insights and clears up some misinformation about substance use. We cover:

· The 2016 Hazelden study commissioned by the ABA, which reported on the prevalence of substance abuse in the legal profession

· The importance of using scientific knowledge to demystify and destigmatize substance use

Qualities of different substances, including the effective dose, the lethal dose, the safety ratio, and the dependency potential.  You can see copies of the substance use chart that Greg discusses here.  You can watch our webcast version of this segment on YouTube here.

For information and resources on substance use in the legal profession, here are some links:

· ABA Mental Health Resources

· ABA Directory of Co-LAP (Lawyer's Assistance Programs) in each state

· The ABA Task Force Report on Substance Use

· The newly-formed NY State Bar Task Force on Lawyer Well Being

Case Notes From Captivity

Greg’s Case Notes:  Greg is watching Yellowstone, starring Kevin Costner, an experience he enjoys sharing remotely with his father during their FaceTime chats.  He also recommends the animated series The Midnight Gospel by Duncan Trussle, who lives in a trailer out in the universe and interviews real-world individuals on his “spacecast.”

Tyler’s Case Notes: Tyler has taken up fishing with his four-year-old son at a local pond in New Jersey (where they practice social distancing of course).

Nicole’s Case Notes: You may recall that Nicole previously talked about a potting bench she built from Home Depot pallets. While researching woodworking tips, she came across the YouTube channel “Woodworking for Mere Mortals.”  She particularly enjoyed this funny video where the host, Steve Ramsey, spoofs overly-dramatic woodworking videos, while building a hurdle that he is trying to teach his cat to jump over.

You can watch videos of Remotely Ethical on our YouTube channel.

For more information about attorney ethics and professional responsibility, please visit our blog.

Topic 1: Can I Practice Law Under a Trade Name?

In this segment we discuss:

· Until recently, Rule 7.5 of the New York Rules prohibited lawyers from using trade names, because they were viewed as inherently deceptive

· A recent lawsuit against New York and other states challenged the trade name rule as unconstitutional because it infringed on commercial speech

· In response, New York opted to change the trade name rule to permit trade names

· Why this is a positive trend that makes sense because it gives lawyers more options for naming their law firms

Topic 2: Does a New Rule Change Allow Lawyers to Post Bail for Clients?

In this segment we discuss:

· Until recently, Rule 1.8(e) of the New York Rules of Professional Conduct prohibited lawyers in litigation from providing financial assistance to clients for non-litigation related expenses

· We discussed the rule in a previous episode about whether lawyers can pay bail for their clients

· Rule 1.8(e) has now been amended to allow financial assistance to indigent clients in pro bono cases, as long as certain conditions are met

· Whether this rule change - called the "humanitarian exception" - would now permit lawyers to pay bail for their clients and, if so, would that create a conflict under other rules

If you are interested in contributing to a charitable bail fund or learning more about how bail funds work, here is a list of organizations:

· The Bail Project

· Brooklyn Community Bail Fund

· New York Immigrant Freedom Fund

· National Bail Fund Network

Case Notes From Captivity

Tyler’s Case Notes: Tyler ordered and assembled his new standing desk, which he says is a “life saver.”  Here is a link to the desk that Tyler got, but there are many other options on the market.

Nicole’s Case Notes: Nicole has been riveted by a podcast called Breakdown from the Atlanta Journal Constitution, which covers criminal trials in Georgia and addresses issues relating to the justice gap.  Most recently, Breakdown has been covering the Ahmaud Arbery shooting.  You can download and listen to Breakdown on your favorite podcast platforms.

You can watch videos of Remotely Ethical on our YouTube channel.

For more information about attorney ethics and professional responsibility, please visit our blog.

Topic 1: The Court Awarded Me $1 in Legal Fees. What Should I Do?

In this segment we discuss:

Topic 2: Is My Litigation Funding Deal Enforceable and Ethical?

In this segment we discuss:

Case Notes From Captivity

Tyler’s Case Notes: Tyler has been making his own delicious cold brew coffee. Here is the recipe. Nicole will not be making cold brew coffee, because she thinks it tastes terrible.  She recognizes that this may be a minority view.

Nicole’s Case Notes: Nicole spent last weekend building a potting bench out of two pallets that came with a Home Depot delivery. You can see photos of the original pallets and the final potting bench on Nicole’s (otherwise rarely used) Instagram account here.

You can watch videos of Remotely Ethical on our YouTube channel.

For more information about attorney ethics and professional responsibility, please visit our blog.

In this episode of Remotely Ethical, Nicole Hyland and Tyler Maulsby discuss the following topics:

Topic 1: As a lawyer, can I pay for my client’s bail?

In this segment, we discuss:

In this segment, we discuss:

Case Notes From Captivity

Tyler’s Case Notes: Tyler is enjoying Bad Blood, a book about the Theranos scandal, written by John Carreyrou, the journalist who broke the story. He says it’s a fascinating and quick read.

Nicole’s Case Notes: Nicole is enjoying the YouTube videos of, Randy Rainbow, who writes and signs satirical songs about current events, usually to the tune of musical theater songs. A recent favorite is “Andy,” – Randy’s tribute to Governor Andrew Cuomo, set to the tune of “Sandy” from the musical Grease. Or, if you’re a traditionalist, enjoy John Travolta singing “Sandy” from the movie version of Grease.

Watch our Remotely Ethical webcasts on our YouTube channel. 

For more information about attorney ethics and professional responsibility, please visit professionalresponsibility.fkks.com.