I Take No Joy in Writing This.

So, a relatively quick post for this week in terms of content as I’m thrilled to be somewhere else and to be presiding over the first in-person meeting of APRL in two years.

A lawyer in Tennessee brought my attention to an article in a recent ABA publication where two academics, Professor Peter Joy and Professor Kevin McMunigal, write to embrace another academic’s theory (Professor Jon Bauer) published 13 years ago that Model Rule 3.4(f) should be read to absolutely prohibit lawyers from participating in non-disclosure agreements. The new article is “The Ethics of Buying Silence,” and it is in the ABA Criminal Justice publication for Fall 2021. The Bauer piece was in the Oregon Law Review back in 2008 and was titled “Buying Witness Silence: Evidence Suppressing Settlements and Lawyers’ Ethics.”

The context for the more recent discussion of the argument is the pretty shameful use of NDAs in the representation of Harvey Weinstein to seek to prevent victims of a sexual predator from speaking out. But that doesn’t change the fact that the argument that this is the meaning of the rule just seems to fail on its face so obviously.

Granted, I admit that a couple of states over the years have issued ethics opinions adopting the same rationale, and I’ll admit that I haven’t had time to dig into those state’s versions of the rules to see if there is any difference from the Model Rule, but Professor Joy and others’ argument as to the Model Rule itself is, in my opinion, just wrong.

It also seems weird for these two professors to say that “[t]hose who argue that NDAs are not unethical tend to ignore the language of Model Rule 3.4(f).” No, the language of the rule itself is almost all the evidence I need to make my point.

For context, the rule we are talking about says that a lawyer shall not:

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

This is a rule, Rule 3.4, that is titled “Fairness to Opposing Party and Counsel.” This a rule that uses both the term “person” and the term “party.” This is a rule that absolutely, and clearly, contemplates the existence of litigation at the time of its application. This is a rule that prohibits a lawyer, in connection with a litigation matter, from trying to stop someone other than their own client (or as the rule indicates a family member of the client or the client’s employees or agents) from agreeing to voluntarily provide relevant information to the opposing party (or some other party) in that litigation.

Two of the four comments to the rule even more clearly make the point about the context of the rule:

[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

Model Rule 3.4(f) is not a rule that can reasonably be read to apply to an agreement that is entered into as a matter of contract between two or more contracting parties well in advance of any litigation about what is being made the subject of the contract ever existing.

It just can’t. And I don’t even have to trot out the language in the Preamble/Scope about how the ethics rules are rules of reason and must be construed as such to cut the legs out of the argument. And the proponents who are arguing that it prohibits all NDAs reveal that even they know their effort (if not their analysis) is flawed when they admit that there are certain forms of NDAs that they would agree with and that ought to be permitted, such as in the realm of protecting trade secrets or in resolving breach of contract actions before litigation is brought.

Just stop. If you want the rule revised, spend your time arguing for how to revise it. Admittedly, these two professors sort of do that by urging the ABA and states to take actions to “clarify” what RPC 3.4(f) means but trying to argue that the rule already means that – when it doesn’t – just seems disingenuous.

Florida is a hopeless place.

No, I’m not going to have to get into talking about that it has a joke of a governor and has been actively trying to not make decisions in the best interest of public health during a crisis.

I’m just going to focus on two developments in the legal ethics space that have occurred in the last 24-48 hours.

First, in something that will be given short shrift because of the second development, the Florida Bar has advanced a proposal to revise its rules to establish that disciplinary complaints filed by judges against lawyers should be entitled to greater weight than other complaints. I have defended many lawyers in disciplinary proceedings. I have defended lawyers when complaints were filed against them by judges. The fact that a judge has filed a complaint against a lawyer does not inherently mean that the complaint should be entitled to more weight nor that it should be harder to convince disciplinary counsel to drop the complaint. This kind of proposal is problematic on at least two levels – One is that it becomes ripe for abuse by judges. But the other is that it inherently indicates an existing flawed process must exist already. Either you have a mechanism for enforcing discipline that can appropriately investigate and evaluate a complaint to determine if it should be pursued or you don’t. If you tell the public that complaints from certain categories of people need to get special treatment, then you don’t.

Second, you might recall many years ago I wrote a series of posts about the TIKD app down in Florida and its fight with regulatory authorities. What you might find crazy is that up until today the Florida Supreme Court had not gotten around to ruling on the question of whether TIKD was engaged in UPL. Well, the Florida Supreme Court ruled today and what you might find even crazier is that they concluded that the TIKD app was UPL and entered an order permanently enjoining it from operation. The Florida Supreme Court did this even though that the referee that initially heard the matter granted summary judgment in favor of TIKD. Madness.

Three justices attempted to stave off this madness in their well-done dissent. That part of the opinion starts at p. 21 of the link above.

If you don’t have the time to read that part, the following two snippets would tell you what you need to know:

TIKD formulated no legal strategy. It gathered no evidence. It filed no court papers. It made no court appearances, no arguments to a judge or jury. Other than in explaining its offerings on its website, it answered no questions. It did not, because it could not, promise its customers that their communications would be privileged. In short, if you had hired TIKD to solve your legal problem and received only what the company offered—without the
services of the member of The Florida Bar it helped you find—you probably would have wanted your money back.

That is because TIKD offered not legal services, but a business proposition: hire a lawyer we introduce, at a fee we set, and you will not bear the risk that the lawyer’s services, or indeed your ticket, will cost you more than our fee. Offering that bargain does not constitute the practice of law, and thus cannot have constituted the unauthorized practice of law. Because today’s decision reaches well beyond our constitutional mandate to “regulate the admission of persons to the practice of law and the discipline of persons admitted[,]” art. V, § 15, Fla. Const., and into the business arrangements of people trying to solve their legal problems, I respectfully dissent.

If you ever wanted to think about just how difficult the task of regulating the practice of law will be and how entrenched some mindsets are within the bar and the judiciary, today is the kind of day to mull it over.

They knew he wasn’t covered. That was the original problem.

Some lighter fare for today but you are stuck with the cringeworthy title.

I have a stack of important potential topics to write about, but the ABA Journal online today reeled me in with their headline on this story (“Litigants claiming GEICO auto policy covers STD from car sex can’t proceed anonymously, judge rules.”) and reading the order in the case only fascinated me further. And it really was not just from a prurient interest perspective, nor just from an “I can’t believe someone was willing to make these kinds of arguments” perspective, but also as a fact pattern that works as a pretty good template for examining multiple ethical obligations of lawyers.

The opening scene, almost unbelievably, of this story is the inside of a 2014 Hyundai Genesis. Two adults, M.B. and M.O. are inside that vehicle and having sex. The sex was unprotected. M.O. later contracts an STD and concludes that M.B. was the source. M.O. contends that she did not know that M.B. had the STD and contends that M.B., who is alleged to be fully aware, certainly never told M.O. that he had the STD.

So, how does this end up in litigation at all, much less litigation that gets a mention in the ABA Journal online? If you guessed an automobile insurance coverage dispute prompting the filing of a declaratory judgment action by the insurance company in federal court, then … well I guess the ABA headline does help a reader ferret out that possibility.

And how did the insurance company find itself in a position where it thought it needed to file a declaratory judgment action? Well, M.O. drafted up a state court lawsuit against M.B. for negligence and negligent infliction of emotional distress, sent the draft to M.B.’s insurance company and demanded settlement with payment by the insurance company of its $1 million policy limits to avoid the suit.

When the insurance company did not agree, the lawsuit was filed and then the parties entered into an agreement under a particular Missouri statute that allows an insured to agree to settle a case but limit the other side’s ability to collect on the settlement only to what they can get from the insurance company.

The insurance company headed over to federal court to file its declaratory judgment action. The parties to the state court action agreed to arbitrate their dispute and the matter resolved with a $5.2 million judgment against M.B. They then proceeded to enroll and seek confirmation of that arbitration award in state court and try to take steps to levy against M.B.’s auto insurance policy.

What was the order that put all of this into the national legal news spotlight? A 23-page order in the federal court proceeding about whether M.B. and M.O. can proceed in the federal court litigation anonymously. Seriously, the Court managed to need 23 pages to work through all of the procedural issues created by the fact that the insurance company — taking its cue from the fact that the parties used pseudonyms in the state court litigation — filed the suit against M.B. and M.O. anonymously. The court ultimately decided that once it rules upon a motion to dismiss focused on personal jurisdiction brought by M.O. (who contends that the sexual intercourse occurred in Missouri and that she shouldn’t be able to be sued by the insurance company in Kansas) any remaining defendants will have to proceed under their real names. And, in so doing, also seemed to engage in bit of unnecessary kink-shaming: “Furthermore, any allegedly private details became less private (although the court questions how private those details actually were if they were having sex in a car) when M.O. sent GEICO a demand letter making an insurance coverage claim.”

Now setting aside the notion that this whole scenario could be used to demonstrate how broken litigation is generally and why it is such an overly expensive proposition, a variety of fun legal ethics questions can be teased out of this matter.

How in the world does a lawyer comply with RPC 3.1 by advancing an argument that the transmission of an STD as a result of sexual intercourse inside an automobile is an injury for which automobile insurance coverage would apply? At first blush, that would seem a real stretch to be able to claim you have a “good faith argument for an extension, modification, or reversal of existing law.” Yet, it is certainly likely to be a question of first impression and so some level of lenience likely exists if there is arguably no existing law addressing the claim or contention at all.

Assuming that the parties did “collude” at least a bit with respect to the arbitration of the matter, at what point, if at all, would it become ethically problematic for a lawyer for either M.B. or M.O. to knowingly go along with such events? Would it matter if those lawyers were limiting their involvement to obtaining the judgment as to M.B. and have not been involved in helping try to collect against the insurance company? And does the existence of the kind of procedural statute that Missouri has muddy that water, I mean what exactly is the purpose of a statute that says an insured can go ahead and agree to settle a case with someone as long as the other side agrees they can only collect from the insurance company other than to encourage at least marginally collusive settlements that become the insurance company’s problem in the end?

And, if the lawyer involved found a way to get comfortable that arguing for coverage under the automobile policy passes muster under RPC 3.1, does the lawyer have to be worried that they didn’t also try to pry money out of M.B. home insurance policy? After all, the federal court decision in talking about the jurisdictional questions and the kinds of issues that could come up in the underlying dispute makes the point that only some of the sexual intercourse occurred in the Hyundai while some of it occurred in M.B.’s house.

Could the lawyer carve out pursuing any other insurance companies as part of a reasonable limitation on the scope of the representation under RPC 1.2(d)?

I’m sure I’ve missed at least one other ethics issue in there somewhere… feel free to be the first to let me know.

ABA Formal Op. 499: A consumer review

So, are you a lawyer in the market for an ethics opinion that largely gets to the right answer but has to do so in such a convoluted fashion that it makes you question just how badly your profession has lost the plot on what we should be doing when it comes to regulation and the like? Would you like it even better if the ethics opinion is both technically correct but pretty clunky on what turns out to be a relatively important issue in a way that might accidentally be a bit chilling for your future conduct?

If so, then ABA Formal Op. 499: Passive Investment in Alternative Business Structures is going to be just the sort of thing you are looking for. If not, then keep shopping.

Now, if you’re the type that wants to get more into the weeds in evaluating someone’s review, here goes.

So, first in the interest of total transparency: I only even started reading this thing because I misunderstood what it was about at first. I really thought it was going to clue me into the secret of how to passively get abs, but I should have known something like that would be too good to be true. Once I figured out my original error, me and my beer gut settled in to really get a better understanding of this thing.

This ethics opinion addresses a relatively straightforward question about whether someone who is a lawyer can make a “passive” investment in a business that is allowed to operate in some other state but not in the state where the lawyer is licensed to practice law. Now, they don’t really say that clearly but that clearly is the question. The authors seem to think the question is more complicated than that because the business is something called an “Alternative Business Structure” and can apparently compete with lawyers and law firms. But, not in the lawyer’s state.

[Which, by the way, reading through this thing tells me that only a couple of states are letting more competition take place for delivering legal services at all through these ABS things. Like just Arizona, Utah, and Washington, D.C. Huh? That seems a crazy low number of places to me.]

Now, the opinion gets to what sure sounds like the correct answer – of course they can. But, man, you won’t believe how complicated the opinion makes answering the question. Wait, maybe I can give you just a snippet to show how bonkers lawyers must be in terms of being all up in their own heads about straightforward stuff. Okay, this is literally the first paragraph of the “Analysis” part of the opinion:

In general, a lawyer may own a business or an investment interest that is separate from and
unrelated to the lawyer’s practice of law. For instance, a lawyer may have an ownership interest in a restaurant, be a partner in a consulting business, invest in a mutual fund, or buy stock in a publicly traded company (collectively “unrelated personal investments”).

Goodness me. I mean … no wonder this opinion goes round and round and round the bend some more.

While it got the big answer right, it then went into all of this stuff about how even though a lawyer could invest some money in an ABS in some other state, it would probably be a conflict for the lawyer if the ABS was then involved somehow in handling something that was adverse to one of the lawyer’s clients. I had to read that part a couple of times. Still sounds pretty crazy to me.

Like, as the world works now, if a lawyer gets hired to represent the company that makes like Snickers bars then the lawyer can’t own shares of stock in Nestle? Or would it be that they can’t own shares of stock in like a company that makes weight loss products? Or would that only matter if say Snickers was suing Nestle over something? Or like if a lawyer represents Microsoft on something, they can’t own any shares of stock in Apple because those two companies are suing each other some times?

And the opinion doesn’t even mention that somehow the size of the investment would make a difference. Surely there’s got to be a different way of looking at things if a lawyer puts $100,000 into an ABS as opposed to $100, right? I bet there are lots of lawyers out there that own small amounts of stock in companies and no one ever spends a minute caring about whether those companies are on the other side of some of their clients.

Anyway, super weird to think that getting an answer to such a straightforward question is so complicated. I guess that’s why lawyers cost so much these days. LOL.

On a final note, probably would have given the opinion three stars but the copy I had to read was a bit mutilated and had some coffee stains on it.

Following up despite it not being Friday – Tennessee advertising changes

So, sort of as promised, or at least in substantial compliance with a prior promise, I wanted to elaborate a bit more on the news out of Tennessee that we have adopted revisions to our lawyer advertising rules and talk a bit about what is now a new, pending proposal put out directly by the Tennessee Supreme Court.

As to the changes that were adopted, I scooped my own blog by articulating most of those more detailed thoughts in this piece for Bloomberg Law put together by Melissa Heelan.

The one topic I didn’t really mention in that interaction was the fact that the revisions also create a new exception to allow in-person solicitation directed at “a person who routinely uses for business purposes the type of legal services offered by the lawyer.” This is a category slightly different than what the TBA had proposed to the Court but still an improvement on the existing rule.

As to the Court’s new, separate proposal for how to revise Tennessee’s treatment of “intermediary organizations,” the TBA had proposed a “surgical” revision that simply would have removed a “catch all” category from how the concept of an “intermediary organization” is defined. The TBA did not seek to propose any changes to any other aspect of the regulatory structure that requires such organizations to register with the Court.

The Court now has. It has proposed for public comment a revision that would delete Tenn. Sup. Ct. R. 44 in its entirety and that would make some significant revisions to RPC 7.6 itself but that would still leave something of a “catch all” in the definition, though not as broad as the current rule and a few other revisions to the ethics rule portions. Importantly, because the proposal removes the requirements of registration and some other obstacles, what it leaves is a rule that largely places the burden on individual lawyers to make certain they are only doing business with entities that conduct themselves in a fashion that is consistent with the lawyer’s own ethical obligations. The proposed revised rule also requires transparency from the intermediary organization in terms of the furnishing of information to those who might use its services to find a lawyer. Speaking of transparency, the proposal is transparently inspired by a similar proposal recently adopted in North Carolina. You can read the full court proposal at the link below.

Given the removal of the more onerous requirements of Rule 44, this proposal seems worthy of public support as it would seem to make it much more likely that entities that can offer “matching” services that Tennessee lawyers and consumers of legal services alike are interested in using will do so in an open, above-board fashion.

In sum, the proposed revised version of RPC 7.6, paired with the deletion of Rule 44, would appear to be a rule more likely to be complied with rather than ignored.

If you are interested in submitting any public comment to the Court, you have until November 30, 2021 to do so.

TN Adopts Revisions to Lawyer Advertising Rules

This site has not historically been a “breaking” news sort of site. Today will be an exception with very pithy editorial content.

I am very happy to report that the Tennessee Supreme Court today adopted proposed revisions to the lawyer advertising rules which I have written about in the past. You can download today’s order at the link below.

The Court did not adopt the proposal that had been made for revising our rule on lawyer intermediary services but did put out a separate order proposing different revisions. I will write more about that, and discuss these changes a bit more, later this week.

Federal court releases crackin’ sanctions ruling

I will not seek pardon for the pun. I will also try not to prolong the nature of this post because the opinion that is the subject matter for today is a very good read, worthy of the limelight.

I have written on several occasions about the problematic efforts of two particular members of my profession who so thoroughly hitched their wagons to the idea that the former guy was somehow robbed of a second term in office that it would seem un-thorough of me not to make the time to write about the most significant ruling against them to date.

So, here it is.

Judge Parker, a Michigan federal district judge, has issued today a 110-page order sanctioning Lin Wood, Sidney Powell, and others for their filing, and continued pursuit, of a particular federal lawsuit that was part of the overall effort of lawyers on behalf of the former guy to gaslight the nation. You can read the full opinion here.

For you “bottom line” types, most of the lawyers most egregiously involved in this gaslighting litigation will have to pay the attorney fees of the defendants, will have to get 12 hours of additional CLE (6 of which will be focused on pleading standards and 6 of which will be focused on election law – good luck finding classes that focus on “pleading standards” that is the stuff of law school courses), and are being referred to various state bars for potential disciplinary proceedings.

Until such time as it is reviewed by the Sixth Circuit, which inevitably will happen, this opinion from the Michigan district court could serve as something of a “short-form treatise” on the concept of sanctions and the filing, and continued pursuit, of bogus litigation. In fact, if there were ever to be a Fourth Edition of the book I’ve been honored to co-author over the last decade, this case would likely be a real frontrunner for new content in Chapter 1, the chapter on the investigation necessary to pursue a case to begin with.

We could have a lot of fun pulling quotes from the opinion that demonstrate how irreparably round-the-bend these “Kraken” lawyers were and how they managed to step on rake-after-rake by continuing to say incredibly stupid things online while their case was being decided, but that’s not really all that interesting.

What strikes me as an interesting exercise though (and maybe it only strikes me that way) is if it were possible to boil down the most instructive pieces of wisdom in the 110-page opinion to give a short talk that might be educational to brand new lawyers about how to avoid filing a lawsuit that could get you sanctioned.

So, here goes nothing. (And so that this effort is perfectly clear, everything that follows this sentence shall be excerpts verbatim from the opinion combined into one excerpt – snips and reshuffles are omitted. Reproduction of this excerpt is something for which you could seek the express permission of Major League Baseball, but they will look at you funny when you do.)

[A]ttorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

For purposes of Rule 11, an attorney who is knowingly listed as counsel on a
pleading, written motion, or other paper “expressly authorize[d] the signing, filing,
submitting or later advocating of the offending paper” and “shares responsibility
with the signer, filer, submitter, or advocate.” In this age of electronic filing, it is frivolous to argue that an electronic signature on a pleading or motion is insufficient to subject the attorney to the court’s jurisdiction if the attorney violates the jurisdiction’s rules of professional conduct or a federal rule or statute establishing the standards of practice.

Even if there are sanctions available under statutes or specific federal rules of procedure, . . . the ‘inherent authority’ of the court is an independent basis for sanctioning bad faith conduct in litigation. To award attorneys’ fees under this “bad faith exception,” a district court must find that (i) “the claims advanced were meritless”; (ii) “counsel knew or should have known this”; and (iii) “the motive for filing the suit was for an improper purpose such as harassment.” When invoking its inherent authority to sanction, “[a] court must, of course, . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”

[L]itigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation. The rule[s] continues to require litigants to ‘stop-and-think’ before initially making legal or factual contentions.

[A]n “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions. And the good or bad faith nature of actions or submissions is not what determines whether sanctions are warranted under Rule 11(b)(3). Inferences must be reasonable and come from facts proven, not speculation or conjecture. Pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation. Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”

As an initial matter, an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred. Plaintiffs are not entitled to rely on the discovery process to mine for evidence that never existed in the first instance. Attorneys are not journalists. It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences.

An attorney’s right to free speech while litigating an action “is extremely circumscribed.” Something does not become plausible simply because it is repeated many times by many people. An attorney who willingly continues to assert claims doomed to fail . . . must be deemed to be acting with an improper motive.

The nation’s courts . . . are reserved for hearing legitimate causes of action. Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order. Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

Foundations of a … misunderstanding about what an ethics opinion is supposed to be?

So, I will admit from the jump that I am seriously torn about this post. I am a strident believer that the best ethics opinions are practical in a number of respects and that they have to be to be realistic in terms of helpfulness. An ethics opinion that does little more than offer a technical and limited answer to a complicated question of ethics can often be less helpful than silence on the issue involved.

But, at the same time, an ethics opinion really ought to be an opinion that focuses on answering an actual question posed by a lawyer about a situation in which navigating the bounds of what to do, or not do, is circumscribed by the ethics rules of a particular jurisdiction.

An ethics opinion issued by a state bar, or similar group, shouldn’t try to be a law school case book nor should it try to be an exercise in giving comprehensive legal advice to lawyers that goes well beyond discussion of the ethics rules and into the realm of pure law, including contract law.

But, torn as I am about it, I can’t manage to not turn my attention to “Foundations of a Fee Agreement” which the Colorado Bar Association Ethics Committee put out as CBA Ethics Opinion 143. This 26-page treatise, accompanied by 6 pages of appendices with checklists and resources, is not an ethics opinion in any realistic sense of those words.

It doesn’t even pretend to answer a question posed by anyone. Instead, in its “Introduction and Scope” section, it simply starts things off by saying:

This opinion examines a lawyer’s ethical obligations and best practices for fee agreements.
For purposes of this opinion, best practices are those practices which may be beneficial to the lawyer and client, and which the Committee encourages lawyers to consider, but are not ethical obligations pursuant to the Colorado Rules of Professional Conduct, nor are these best practices intended to establish the standard of care. This opinion addresses the foundational components of a fee agreement. Depending on the lawyer’s practice area and facts of the legal matter, additional provisions in a fee agreement may be beneficial, but are beyond the scope of the foundational focus of this opinion.

This kind of opening should prompt an editor with a good red pen to make a margin note along the lines of “Really, then why are we doing this? What are we doing this for?”

The opinion then includes a “Syllabus” section. Literally. That word is traditionally defined to mean “an outline of the subjects in a course of study or teaching,” It then proceeds to not exactly offer that in the section in question. Instead, this section further undermines the notion that the guidance being offered should be coming in the form of an ethics opinion at all:

The Colorado Rules of Professional Conduct (Colo. RPCs or the Rules) “are rules of
reason.” While some Rules are cast as imperatives, others are permissive and define areas where the lawyer has discretion. Fee agreements are one area where a lawyer has discretion because the Rules only require a written communication under certain circumstances, but do not specifically require a fee agreement. The Committee encourages lawyers to use a written fee agreement, however, because such a document is an opportunity for a lawyer to establish client expectations regarding the representation, including: client identity, the scope of the representation, communication, other professionals who may work on the case, file maintenance and return, issues unique to the representation, termination of the lawyer-client relationship, and of course, the terms of the fee arrangement.

I mean, rev up that red pen again, right? Now, in fairness, where this document discusses what Colorado’s rules require, it certainly provides a bucket load of accurate information.

It points out that Colorado 1.5(b) requires a lawyer who hasn’t regularly represented a client previously to communicate the basis or rate of the fees and expenses to the client in writing within a reasonable time of the commencement of the representation. It also accurately explains what 1.5(c) requires for contingent fee agreements and what Colorado’s RPC 1.5(h) requires of flat fee agreements. It even remembers to emphasize that all fee agreements still have to comply with the reasonableness requirement of RPC 1.5(a). It accurately explains that RPC 1.2(c) allows a lawyer to limit the scope of the representation and mentions what a fee agreement can say to comply with one aspect of RPC 1.15’s requirements for depositing unearned fees into trust. It also discusses ways an engagement letter can be used to be helpful in potential compliance with several other rules.

But, in the end, the Conclusion of the document once more undercuts the idea that what this thing is is an ethics opinion.

Many clients have never worked with a lawyer before. The written fee agreement can be
an integral part of establishing a strong lawyer-client relationship. Best practices are to go beyond addressing the basic fee arrangement with the client and to include the foundational elements discussed in this opinion.

There is quite literally nothing to disagree with in the three sentences just quoted above. But I don’t think I’m only being pedantic in saying this document should be called something else and issued by some other committee or section of the Colorado Bar Association. Just not its ethics committee. A short-ish review of the CBA website tells me there are an array of bodies that could have put this treatise out as a “white paper” or other practice resource, like the CBA Lawyer’s Professional Liability committee, or the CBA Modern Law Practice Initiative, or the CBA Solo and Small Firm Practice section.

In fact, if it’s not too late and you are reading this with any influence at the Colorado Bar Association, give this some second thought and rescind it as an ethics opinion and, instead, have it put up as a member resource promulgated by one of those other more appropriate bodies of the CBA.

Labors of love.

Today has been a very weird sort of day.

My morning was consumed by handling a reinstatement proceeding where my client was someone who is inarguably a better human being, spouse, parent, and member of the community than I am. This person’s contributions to the community while they have been suspended from the practice of law far exceed mine to the point where my contributions cannot even see his contributions they are so far apart.

My afternoon has involved succeeding someone as President of the Association of Professional Responsibility Lawyers who is pretty clearly also a better human being, spouse, and parent than I am.

I do steadfastly believe though that I am a pretty decent lawyer. So, I hope for the best outcome for my client who I truly believe is incredibly deserving of a second chance to expand the playing field of his contributions to include contributions to our profession. Based on that steadfast belief of being a pretty decent lawyer, I also hope that I will make APRL proud in the year I get to serve as its 32nd President.

If you are dead set on getting some ethics content out of today’s post, I would point you in the direction of reading up on just how perilous it can be for a lawyer to give a second chance to a nonlawyer staff member with access to trust funds and who has already once intentionally transgressed.

If you are willing to be more flexible in terms of content let me point you to two external resources that have nothing in common other than that they are labors of love.

First, if you are a frequent reader of this space and you are not already a member of APRL. Please give some real thought to joining. No organization is perfect but APRL is a very good organization. It is made up of about 400 or so people who, like me, are ethics nerds. We are a collection of lawyers all over the United States who represent other lawyers in disciplinary proceedings, legal malpractice cases, or related matters or who are academics focusing on legal ethics or work on bar admission matters or who serve a risk management function for their law firm.  Annual membership is only $175. If you are inclined to check us out, our website is here. If you are already convinced and just want to join, you can go directly to registration here.

Second, if you aren’t interested in APRL or you are back to this page after just joining, and you are a huge fan of good television and movies as well as the implementation of awesome ideas, well please, please, please go check out Nestflix. I don’t think I’ve ever put as much time and thought into anything as the person who came up with and implemented that idea.

You will lose your entire weekend navigating that website, but you won’t regret a moment of the time.

A cautionary tale of sorts for solos

It was many, many years ago (almost exactly 5 years ago) that I wrote a bit about how important it can be for lawyers who have solo practices to have contingency plans in place in case something suddenly happens to them in order to provide a way for their clients to be protected.

As we are in the middle of a pandemic that seems like it may never end (though I guess it may not even be accurate to say “middle” when the duration seems unknowable), it seems as good a time as any to remind folks about the need for this kind of planning.

And because it is often easier to learn from actual stories that happened, and because this is a story that seems to have occurred before the pandemic and is one I can indirectly make “personal” because of a common surname, I’ll offer this one.

(Obviously, when you go look at the documents, you will see when I say “common” surname I do not mean that the surname is a common one. It is very uncommon, but it is one that I have in common with the former Florida lawyer. Given that fact, it is highly likely that we are related in some degree.)

This story, which unfortunately will double as a story of how disciplinary proceedings can go from bad to worse if not handled appropriately, involves a Florida lawyer who became seriously ill, quite suddenly in January 2018, and left Florida to move to New York to be cared for by family. This former lawyer also was plagued by additional health issues including cancer further contributing to the inability to work.

She entered into a consent judgment in Florida which was accepted by the Florida Supreme Court in January 2020 to be suspended from practice for 90 days. Because of her sudden illness, having become bedridden and unable to talk, she abandoned a litigation matter she was handling for a pro bono client. The consent judgment lays out a more complicated story — a story in which readers could conclude that the pro bono client in question had already been failed prior to any health issues as the client’s case had apparently languished with no activity for nearly two years prior to January 2018.

Nevertheless, and despite the fact that the consent judgment included the lawyer acknowledging she was likely never going to be able to resume practice, the suspension order did not become effective for 30 days in order to give her time to do what she had failed to do originally, notify clients and make arrangements, etc. That order even went so far as to say: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”

Unfortunately, the lawyer either did not do that or, if she had no other clients to notify, did not make arrangements to file the necessary paperwork to notify Florida and, thus, she was subsequently found in contempt and suspended for 91 days in August 2020. Again, even in that order, the lawyer was given 30 days until it would take effect. That order also again stated: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”

Unfortunately, the lawyer again did not do any of those things. As a result, last month, the Florida Supreme Court entered an order disbarring them on July 22, 2021. That order, unlike the ones that preceded it, was made immediately effective.

If you practice law in a firm of sufficient size, you can get away with procrastination when it comes to thinking about your own morbidity or mortality because someone else at your firm will likely step in to save your, and the firm’s clients’, bacon. If you practice law by yourself, the risk of failing to plan is much more severe.

If you are a solo practitioner in Tennessee, and you have not already put a plan together for what will happen to your clients should something suddenly prevent you from continuing to practice law, do make the time to go familiarize yourself with the provisions in Section 29 of Tenn. Sup. Ct. R. 9 that allow for the appointment of receiver attorneys. While many lawyers have heard of this concept, many only know that affords courts with the ability to appoint someone to step in when a lawyer has become unable to practice. What is even more important though is that the rule blesses, in Section 29.9, advanced planning efforts to accomplish the same purpose:

29.9.  Advance Designation of a Receiver or Successor Attorney.  An attorney may designate in advance another attorney by contract, appointment, or other arrangement to handle or assist in the continued operation, sale, or closing of the attorney’s law practice in the event of such attorney’s death, incapacity or unavailability. In the event an attorney to whom this rule applies has made adequate provision for the protection of his or her clients, such provision shall govern to the extent consistent with this Rule unless the trial court or the Court determines, upon a showing of good cause, that the provisions for the appointment of a receiver attorney under this Rule should be invoked.  

Such contracts need not be unwieldy or overly complicated, and they can not only serve the public good by protecting your clients, but also having one might just play a big role in having your story (should something happen to you from which you can recover) be one of temporary troubles rather than a downward spiral to disbarment.