Keith Swisher 2012-12-12 01:13:17
Three interesting ethical changes are the subjects of this note: lawyers’ trade names; wrongful convictions; and ABA’s “Ethics 20/20” guidance. At least one—if not all—of these changes should interest every lawyer. The three changes come to Arizona in three stages of development: recently adopted, under consideration, and on the horizon. First, at the time of this note, lawyers in Arizona cannot use trade names as their firm names. Although we can have a “distinctive website address,” such as CutestDUILawyer.com, we cannot use trade names, such as Cutest DUI Lawyer, PLLC. The ABA Code formerly banned such trade names, and several states still ban them. In responding to a rule change petition—one ultimately supported by the State Bar—the Supreme Court just amended Ethical Rule 7.5 to permit Arizona lawyers to use trade names. The rule change petition relied, in part, on Friedman v. Rogers1 to suggest that the ban on trade names was unconstitutional under the First Amendment. That was a curious construction—given that Friedman specifically upheld a prohibition on trade names. But what is done is done, and effective January 1, 2013, Arizona will permit trade names for lawyers. The new rule and accompanying commentary arguably are in tension with each other: the rule wisely reminds us not to use misleading trade names—such as those that falsely “imply a connection with a government agency or with a public or charitable legal services organization;” but in the next breath, the official commentary states that private firms may call themselves “legal clinics”—which to me (and some other states) misleadingly suggests non-profit or reducedrate clinics. The private “clinics” of the near future should be able to resolve this tension through appropriate disclaimers on their websites and letterhead. Second, in response to a different rule change petition (which Larry Hammond, Karen Wilkinson, and I filed), the Supreme Court is commendably considering adopting an amendment that would give prosecutors guidance when they learn that they might have convicted an innocent person. The current ethical rules provide almost no guidance— despite the well-documented problem of wrongful convictions. The amendment would require prosecutors: (1) to disclose “new and credible evidence that the prosecutor knows creates a reasonable likelihood” that an innocent person has been wrongfully convicted; and (2) when that evidence is clear and convincing, to set aside the innocent person’s wrongful conviction. The change is supported by the ABA, Mark Harrison, Terry Goddard, Grant Woods, two retired chief justices of the Supreme Court, and a host of important others.3 Moreover, several prosecutorial offices and organizations nationally and in other states have supported a similar rule change. Various Arizona prosecutorial offices, however, have objected to the change. If you would like to have your voice heard on wrongful convictions and prosecutorial ethics, please go online to the Arizona Supreme Court’s Rules Forum and comment on the Petition to Amend ER 3.8 (No. R-11-0033). Third, and finally, the ABA Ethics 20/20 Commission’s work is nearing closure. The commission was charged with, in short, tailoring the ethical rules to changes in technology and globalization. (U of A’s own phenomenal professor, Ted Schneyer, is one of the commissioners.) The ABA House of Delegates recently adopted several of the commission’s recommendations. Although a rule change petition has not yet been filed in Arizona, the changes have significant support and are likely to be adopted in Arizona in whole or part in the future. To be sure, many of the changes are relatively minor or had been previously announced in ethics opinions. But the changes do offer helpful guidance for Arizona attorneys on the following subjects (among others), by: • Permitting lawyers to disclose certain confidential information to clear conflicts of interest when lawyers are moving firms or when firms are merging; • Reminding lawyers to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to,” the client’s confidential information; • Providing guidance to lawyers as to when a social media or website user becomes a “prospective client;” • Defining solicitation in legal advertising; and • Providing guidance to lawyers considering outsourcing work to other law firms and vendors. Please feel free to email me at firstname.lastname@example.org if you would like to talk about any of these or other ethical developments. In sum, these are three particularly noteworthy or high-profile changes in effect or in serious discussion. Unlike ethical principles, the rules of legal ethics can change—and sometimes should.
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