ABA SCEPR Increases Lifetime Batting Average.

Look at me with the super seasonally timely sports reference. Baseball. In January.

I have written on quite a few occasions in the past about the perils for lawyers in responding to criticism posted about them online. Well, the ABA has issued its latest ethics opinion to address the same topic. Behold ABA Formal Ethics Opinion 496 396 – Responding to Online Criticism.

Let’s have a double-header of untimely cultural references.

Issued January 13, 2021, ABA Formal Ethics Opinion 496 is the hottest ABA ethics opinion regarding online criticism ever.

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This opinion has everything. Sound rule interpretation. Meaty footnotes chock-full of research material for disciplinary cases and state ethics opinions. Acknowledgement of the important role that Barbara Streisand plays on this topic. Good practical guidance for what a lawyer might do.

Seriously, go read it.

The only quibble I have with it is its initial conclusion that online criticism alone from a client does not qualify as a “controversy” under Model Rule 1.6(b)(5). I think that is wrong, but the opinion goes on to even make my quibble pointless because they acknowledge that even if they are wrong about that, the lawyer wouldn’t need to respond online in kind to “establish a claim or defense on behalf of the lawyer” with respect to the controversy. I’d prefer that the opinion just rely upon that point rather than arguing that an online dust-up could not constitute a controversy.

To me, the point that is unassailable is that whether or not it is a “controversy” isn’t dispositive, the issue is whether an online response would be necessary to establish a claim or defense. Given how the internet works currently, the answer to that question with respect to the Model Rule, and any state that has adopted the same language, is obviously “no.”

You can access the full opinion here.

(Edited to fix my embarrassing mistake on the opinion number.)

Two Tennessee updates that aren’t really just Tennessee updates.

Welcome to 2021 or, as some astute observers are calling it, 2020 goes to extra time.

In an effort to feel a marginal amount of normality, I wanted to weave together two topics that might ostensibly be treated only as updates relevant to Tennessee lawyers but that actually involve developments of as much, if not more, importance outside of my own state.

Sound fun? No? Well, what if I told you that they involve the world of prosecutors on one hand and the world of lawyer advertising on the other?

Sound fun? No? Well, we’re still doing it.

Some may recall that a couple of years ago now, the Tennessee Supreme Court issued an order vacating a Formal Ethics Opinion. It was, I believe, only the second time in history that occurred in Tennessee, and it involved a Formal Ethics Opinion the Board of Professional Responsibility had issued regarding the duties of a prosecutor under RPC 3.8(d). For those who want to fully refresh your recollection of the event, you can do so here.

For those in more of a hurry, the short version is that the Court rejected the BPR’s position and indicated that RPC 3.8(d) in Tennessee was, and is, more or less co-extensive with a prosecutor’s duties under the Brady line of U.S. Supreme Court precedent.

Recently, two other jurisdictions have cited (on back-to-back days) to Tennessee’s ruling in grappling with the issue, one favorably, one not so. In Indiana, on December 29, 2020, a trial level ruling in a disciplinary case has adopted the Tennessee approach in determining that a prosecutor should not be viewed as having violated Indiana’s RPC 3.8(d). In New York, on December 30, 2020, the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York has determined that a prosecutor should be suspended for 2 years for violating NY’s RPC 3.8(b) [NY’s (b) is the equivalent of (d) in Tennessee, Indiana, and elsewhere] over failing to disclosure exculpatory evidence. In that case, the Tennessee opinion is listed just in a string citation of countervailing authorities for the New York approach to the scope of the ethics rule. You can get to the New York opinion here.

Both the Indiana matter and the New York case are good reads, and it should likely come as no surprise that the story involved in the Indiana case presents a much more sympathetic character in terms of what happened than in the New York case. You can read the full Indiana decision at this link below.

On the topic of lawyer advertising, I previously shared with you the petition filed by the TBA seeking reform to Tennessee’s ethics rules related to lawyer advertising. Should you wish to refresh your memory on that, you can do so here.

Just this week, the state of Washington has adopted its own revisions to its advertising ethics rules that are even more progressive than the proposal made in Tennessee. You can go read the new Washington rule revisions though the link below.

In Tennessee, in a not at all surprising but still extremely disappointing development, the Board of Professional Responsibility has filed a comment that opposes most aspects of the TBA proposal. Despite the fact that most bar regulators openly admit that the only people who complain about lawyer advertising are other lawyers, our BPR has staked out a position for itself where it wants to continue the status quo and keep in place relatively pointless requirements. If you truly want to hear what the regulator in Tennessee is objecting to, you can get access to its publicly-filed comment here.

Sigh.

(P.S. If you think the Board is trying too hard to make things unnecessarily restrictive, the deadline for public comments does not pass until March 2021.)

Terror in Tennessee.

So somehow, given the time of year and the absolute flood of horrific news we all get exposed to on a daily basis, you might not have heard the news that a suicide bomber detonated a large bomb in the middle of downtown Nashville, Tennessee on Christmas morning.

The bomb detonated from the inside of an RV killing the suicide bomber, hurting 3 others, and doing significant property and infrastructure damage. My firm’s Nashville office was located several blocks away but was fortunate to sustain no damage.

As the story has developed, there is now an interesting legal ethics angle (or 2) to the events. Here’s a link to The USA Today article should you want to read it first: Nashville police were warned of Christmas bomber in 2019, report shows (usatoday.com)

As this latest story indicates, the suicide bomber’s girlfriend provided some information to the Nashville police more than a year before the incident that can be viewed as cause for concern. According to the media report, and apparently the accompanying police report, present and involved in that conversation was a Nashville attorney who held himself out to law enforcement as being a lawyer for both the girlfriend and the man about whom she was making a report to law enforcement.

That doesn’t seem at all like the kind of joint representation that the lawyer could have believed — at that point — was a conflict that could still be waivable/consentable. If the news report is to be believed, the purpose of the interaction with law enforcement was to get the police to take several firearms away from the residence because the girlfriend was afraid of her boyfriend having access to them. The reporting indicates that the attorney also said of the boyfriend, Warner, that he “knows what he is doing and is capable of making a bomb.” That disclosure is itself problematic unless the lawyer either had Warner’s consent or could otherwise justify it under RPC 1.6 (about which more later) but, if nothing else, it seems pretty clearly to signify a very strong divergence of interests between the two common clients.

The story goes on to then reveal that the lawyer declined a request from law enforcement to allow a search of Warner’s RV indicating his client would not consent and doesn’t explain at all whether law enforcement tried to get a warrant for such a search.

The other ethics issue that this story prompts for discussion to one degree or another is the role of lawyers in circumstances where they are legitimately worried that their client may be about to harm themselves or others. I have no idea if, at the time of the events in the story (back in August 2019), the lawyer could be held to a standard of having a sufficient degree of knowledge of such an outcome, but it could turn out to be an interesting angle on this story if the only justification for feeling like that kind of disclosure could be made in the first place about the client was a concern for safety.

For those of you who are lawyers reading this in states that have an ABA Model Rule version of RPC 1.6, it is worth your while to know that Tennessee deviates and goes further. Our rules require a lawyer to reveal information – despite the ethical duty of confidentiality – “to the extent the lawyer reasonably believes disclosure is necessary: (1) to prevent reasonably certain death or substantial bodily harm.” Tenn. Sup. Ct. R. 8, RPC 1.6(c).

That’s all from me in the absolute horror show of the year that was 2020. I hope to see you all in 2021, and I hope that we all end up together in a better place during the coming year.

Protecting lawyers and law firms from themselves.

Let’s talk about something coming out of D.C. but entirely unrelated to politics for a change. If you know, you know. And, if you know, then based on the post title you’ve guessed we are going to talk about the D.C. Bar Rules of Professional Conduct Review Committee’s draft Report on proposing changes to the ethics rules to address outside counsel guidelines and client-generated engagement letters.

A long time ago in Internet time, I wrote a bit about how problematic the calls in certain segments of our profession for protection against outside counsel guidelines are. Even back then I made a tie-in to politics by comparing the arguments in favor of trying to change the rules to stop clients from being able to get what they want through outside counsel guidelines to demands for term limits. For those that don’t want to go back and refresh, they both suffer from a similar Achilles heel – they both are solutions to problems that have a more organic solution.

Term limits. Just stop electing the incumbent when they are awful.

Outside counsel guidelines. Don’t agree to them.

Rather than offering that solution, the D.C. bar draft report runs 26 pages, proposes revisions to RPC 1.6, 1.7, 5.6, and 1.16 in D.C., and asks for public comments on the proposed revisions by February 11, 2021. (For those keeping track, this is actually the second go-round for D.C. in asking for public comment, they previously requested public comment in 2019 with respect to issues raised by outside counsel guidelines. This report is generated in response to that feedback.)

Now, to repeat myself on the overriding issue associated with proposed changes to RPC 5.6 and 1.7 that are designed to make it unethical for clients to propose certain approaches to conflicts under an engagement letter, I fail to see how any such effort is at all consistent with the idea that lawyers can also ask clients to waive situations that would otherwise be conflicts. It is very, very difficult to find a path where it seems fair to allow lawyers to ask clients to waive conflicts but also say that clients cannot ask lawyers to agree to very broad definitions of what constitutes a conflict in a matter.

Having repeated myself on that, let me say that the D.C. report does a pretty admirable job of trying to find that path. I’ll let you go read the report for the full treatment of that issue, but the rationale offered is rooted in the notion of not allowing one client to improperly limit a lawyer from being available to represent other clients. I still don’t find it sufficiently persuasive, but they’ve laid it out as well as can be managed, I think.

The report, and the proposed revisions, also address some other issues. Some of them are a bit unique to D.C. given D.C.’s variations on aspects of the Model Rules, but at least one other topic of note has more universal applicability.

Agreements between lawyers/firms and clients involving indemnification. This again is wrapped within the mantle of provisions included by clients in engagement letters or outside counsel guidelines, but this one feels like a more appropriate topic for pushback through rulemaking, at least to me.

Specifically, the D.C. report proposes revising D.C.’s current rules to add a provision to RPC 1.8 that would prohibit a lawyer from agreeing to any conditions that would impose liability on the lawyer under circumstances where liability wouldn’t flow from either existing common law or existing statutory law.

And, I don’t think it is hypocritical for me to take this position because I think it fundamentally avoids the hypocrisy of the conflicts issue. Of course, I might only think that because I practice in Tennessee where we have a rule that restricts lawyers’ ability to ask clients, in advance, to waive any liability for malpractice. Given that RPC 1.8 deals with that issue in that fashion, I see nothing unfair – or otherwise in violation of any goose/gander protocols – with protecting lawyers from agreeing to indemnify clients for things that the lawyers otherwise could never be held responsible for.

Oh, also, there is one other topic that the report addresses on which I cannot control myself to avoid weighing in. In terms of overall importance, it might not be the most important issue, but in terms of ham-handedness it might be the most egregious piece of the report. This is so because it addresses an issue a lawyer can simply avoid on the front end and proposes a poorly-drafted rule revision as a solution.

The topic addressed is outside counsel guidelines that give the client the right to unilaterally change the guidelines/change the terms of engagement. This is another thing that lawyers could protect themselves against simply by refusing to agree to such a term. Nevertheless, the D.C. proposal would revise RPC 1.16 to provide for a new subsection on when a lawyer has the discretion to seek to withdraw reading as follows:

(5) a lawyer has agreed that a client may make unilateral changes in the
conditions of engagement or other terms of the representation, and the
client unilaterally makes a material change to which the lawyer is
unwilling to assent;

Now, if you absolutely believe there needs to be a rule revision to protect lawyers from this, why would you want to offer the protection only if a lawyer has already agreed that a client can make unilateral changes? Wouldn’t the better course of action simply be to have the rule say: “the client unilaterally makes a material change in the conditions of engagement or other terms of the representation to which the lawyer is unwilling to assent” ?

An open letter to State Bar of Texas

Dear Sir or Ma’am:

It’s been a tough year, but I hope this email finds you staying safe. I’m writing to urge you to give some real thought to whether your rule on the ability to impose an “interim” suspension on a Texas lawyer goes as far as it needs to in order to be able to protect the public.

As I understand it, the current Texas rules provide the following as what is required in order to be able to obtain an immediate interim suspension of an attorney:

PART XIV. INTERIM SUSPENSION

14.01. Irreparable Harm to Clients: Should the Chief Disciplinary Counsel reasonably believe based upon investigation of a Complaint that an attorney poses a substantial threat of irreparable harm to clients or prospective clients and be authorized or directed to do so by the Commission, the Chief Disciplinary Counsel shall seek the immediate interim suspension of the attorney. The Commission shall file a petition with a district court of proper venue alleging substantial threat
of irreparable harm, and the district court shall, if the petition alleges facts that meet the evidentiary standard in Rule 14.02, set a hearing within ten days. If the Commission, at the hearing, meets the evidentiary standard and burden of proof as established in Rule 14.02, the court shall enter an order without requiring bond, immediately suspending the attorney pending the final disposition of the Disciplinary Proceedings or the Disciplinary Action based on the conduct causing the harm. The matter shall thereafter proceed in the district court as in matters involving temporary injunctions under the Texas Rules of Civil Procedure. If a temporary injunction is entered, the court may appoint a custodian under Part XIII. If, at the conclusion of all Disciplinary Proceedings and Disciplinary Actions, the Respondent is not found to have committed Professional Misconduct, the immediate interim suspension may not be deemed a “Sanction” for purposes of insurance applications or any other purpose.


14.02. Burden of Proof and Evidentiary Standard: The Commission has the burden to prove the case for an interim suspension by a preponderance of the evidence. If proved by a preponderance of the evidence, any one of the following elements establishes conclusively that the attorney poses a substantial threat of irreparable harm to clients or prospective clients:

A. Conduct by an attorney that includes all of the elements of a Serious Crime as defined in these rules.
B. Three or more acts of Professional Misconduct, as defined in subsections (a) (2) (3) (4) (6) (7) (8) or (10) of Rule 8.04 of the Texas Disciplinary Rules of
Professional Conduct, whether or not actual harm or threatened harm is
demonstrated.
C. Any other conduct by an attorney that, if continued, will probably cause harm to clients or prospective clients.

Under this rule, your power is limited to issues that pose a threat of harm to clients or prospective clients. Normally, I’d agree that makes a certain amount of sense.

But here in Tennessee, our Board of Professional Responsibility is imbued with a broader power in this regard. Our rule reads as follows:

12.3.  Temporary Suspension. 
      (a) On petition of  Disciplinary Counsel and supported by an affidavit or declaration under penalty of perjury demonstrating facts personally known to affiant showing that an attorney has misappropriated funds to the attorney’s own use, has failed to respond to the Board or Disciplinary Counsel concerning a complaint of misconduct, has failed to substantially comply with a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel pursuant to Section 36.1, or otherwise poses a threat of substantial harm to the public, the Court may issue an order with such notice as the Court may prescribe imposing temporary conditions of probation on said attorney or temporarily suspending said attorney, or both.
     (b) Any order of temporary suspension which restricts the attorney maintaining a trust account shall, when served on any bank maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent said bank from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the Court. 
     (c) Any order of temporary suspension issued under this Rule shall preclude the attorney from accepting any new cases, unless otherwise provided in the order. An order of temporary suspension shall not preclude the attorney from continuing to represent existing clients during the first thirty days after the effective date of the order of temporary suspension, unless otherwise provided in the order; however, any fees tendered to such attorney during such thirty day period shall be deposited in a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.
     (d) The attorney may for good cause request dissolution or amendment of any such order of temporary suspension by filing in the Nashville office of the Clerk of the Supreme Court and serving on Disciplinary Counsel a Petition for Dissolution or Amendment.  Such petition for dissolution shall be set for immediate hearing before the Board or a panel.  The Board or panel shall hear such petition forthwith and file its report and recommendation to the Supreme Court with the utmost speed consistent with due process. There shall be no petition for rehearing.  Upon receipt of the foregoing report, the Court may modify its order if appropriate or continue such provision of the order as may be appropriate until final disposition of all pending disciplinary charges against said attorney.

In terms of the triggering events, the big differences it seems to me are that, in Tennessee, the Disciplinary Counsel does not have to wait on a complaint to act and can act if an attorney “otherwise poses a threat of substantial harm to the public.” Now, I readily admit that this power is one that I have taken issue with when used in Tennessee in some circumstances, but I’m still writing you this letter you will never read to suggest you might want to look into getting something like this power conferred upon you in Texas.

Why?

Well, you’ve got a couple of really big problems on your hands. I know Texas is known for bandying about that “everything is bigger in Texas” line of bragging, but this time it might really be true.

Problem #1 is named Sidney Powell. She’s on something of a crusade to demonstrate over this last month or so just how much of a threat of substantial harm to the public a Texas attorney can pose and not have the threat be directed at clients or potential clients. If you aren’t familiar with what she’s been up to lately, just try Googling her name (or, and I know this will sound silly at first, but you could also try Googling “Kraken”). I’ll give you a few minutes…

See? Between gaslighting thousands of people and scamming them into sending her cash, filing repeated meritless lawsuits, including plaintiffs in those lawsuits that she doesn’t actually represent and who haven’t consented to being included, engaging in rhetoric designed to stir up “militias” and vigilante acts of violence, and (well to be blunt) seeking to undermine democracy in our country itself, if she were a Tennessee lawyer …. I think we’d be at the substantial threat of harm to the public phase of things.

Problem #2 is … well admittedly this is going to be a bit awkward but … Ken Paxton, your current Texas Attorney General. Now, you might already be aware of his having been under a long-time Securities and Exchange Commission investigation (that’s now been dismissed) as well as some related state criminal charges, and you might even have caught the news that he is under FBI investigation for corruption because some of his former subordinates turned him in, but you might not have had a moment yet to hear of the fact that he took it upon himself today, in the name of the State of Texas, to file an original petition with the U.S. Supreme Court against multiple other states (Pennsylvania, Georgia, Wisconsin, and Michigan) to seek to have the votes of literally millions of voters in those states thrown out as a way of trying to prevent the President-Elect from taking office.

Yeah, kind of staggering, right?

Technically, he’s at least doing better than Ms. Powell on competence as he’s also filed a bill asking the U.S. Supreme Court for leave to proceed with the Petition, but still … doing better than Ms. Powell on competence is a really low bar.

You can get access to all of the Texas Supreme Court filings here. But, for convenience, here’s the Conclusion paragraph of the petition:

This Court should first administratively stay or temporarily restrain the Defendant States from voting in the electoral college until further order of this Court and then issue a preliminary injunction or stay against their doing so until the conclusion of this case on the merits. Alternatively, the Court should reach the merits, vacate the Defendant States’ elector
certifications from the unconstitutional 2020 election results, and remand to the Defendant States’ legislatures pursuant to 3 U.S.C. § 2 to appoint electors.

So, oh also, many reports are speculating (because of the aforementioned SEC and FBI investigations) that Mr. Paxton is doing this not because of any belief that the claim is anything other than a frivolous one, but to see if he can get one of those pardons the outgoing President is throwing around these days.

Theoretically, your existing rule might get you there with respect to the Attorney General since this kind of buffoonery does threaten his client – the State of Texas — but it sure would be easier if you only had to show that he poses a threat of substantial harm to the public.

Also, the suspension of a state law license wouldn’t be pardonable by the President, so that’d be a bit of a nice bonus too.

Following up after shouting into a void.

This is not really a “new content” post. With luck, I will have one of those later this week. This, however, is a follow up about something from last month. It is the best sort of follow up because it is prompted by the process of sifting back through the past year to prepare for my annual end-of-year presentation for the TBA.

It is also the best sort of follow up because it will allow me to shamelessly self-promote two undertakings while simultaneously acknowledging just how small and unimportant I actually am in the grand scheme of things.

(Prepare to watch the magic and behold.)

This year, for obvious reasons, there will be no Ethics Roadshow. Instead, there will be an Ethics RoadHomeshow. (It will happen on Zoom on December 9. If you are worried that you are too late to sign up, you’re definitely not since I haven’t even finalized the program itself yet.) In trying to put together exactly what that will look like, I was reviewing items of interest. That brought me to re-reading this post from November. The last line of that post was a cry out to readers to let me know if there was an ethics opinion out there that did what I thought the Nebraska ethics opinion did.

I received a tremendous amount of feedback in response to that invitation. Ha. Just kidding. Absolute crickets. But that’s not because there isn’t such an opinion out there, there certainly is. The lack of feedback is much more indicative of the lack of readers.

Even better, an example of such an opinion is something I should not have been so frail as to forget – because I’ve pointed it out to other people in providing advice and because it is going to be part of some new material that will be in a book I co-author and for which the Third Edition is scheduled to come out in the Summer of 2021. If you’d like to pick up the Second Edition before the Third Edition comes out, you know, to make sure you can follow the plot of the new book, you can still buy it from the ABA.

The opinion that I should have remembered when I wrote that Nebraska post is New York City Bar Formal Opinion 2016-2. It hits almost all of the topics mentioned by me earlier this month. And, if you’ve never read it or if, like me, you forgot about it for a bit, I commend it to your reading.

Three short burst updates

In case you haven’t yet “checked out” for the week to have what I hope is a makeshift, stay-at-home Thanksgiving banquet to kick-off your holiday weekend, here are four very short but, mostly timely, updates on topics of prior posts.

First, the Tennessee Supreme Court has put the TBA advertising rule revisions proposal out for public comment. You can access the order here. The deadline for public comments is March 12, 2021, so you can anticipate that if these revisions are adopted, they likely will not be going into effect prior to May or, more likely, June 2021 at the earliest.

Second, despite the fact that most if not all of the “battleground” states have certified their results, the outgoing, impeached, one-term President’s lawyers do not seem to be relenting on their insistence on court filings and out-of-court false statements. The ongoing behavior has spurred quite a few prominent voices in legal ethics to speak out on the issues, but that there appear to be clear violations and also the reasons that there will quite likely never be any discipline imposed. You can read a couple of different articles surveying the landscape here, and here. Also, as a slightly more direct follow up to my post from late last week, you can read this article from Reuters that includes some interactions with yours truly.

Third, and technically not what would typically qualify as an “update,” nor possibly even a “short burst,” lawyers continue to have difficulty navigating protecting client confidences when seeking to withdraw from representations. I haven’t written about any instances of lawyers getting disciplined for such missteps in a long time, but there now is an extremely recent example of a lawyer being publicly censured for exactly that, and it arises from my home state. You can read the press release about the public censure here.

The press release, unsurprisingly, does not contain much in the way of details beyond indicating that the problematic conduct was “negligently disclosing confidential client information in an affidavit filed with [a] Motion to Withdraw from representation.” In fact, it would be horrible if too many details were included in such a press release when the underlying problem was the lawyer disclosing too much information in connection with seeking withdrawal.

What is a little surprising is that this discipline came about only have a full trial before a hearing panel. If you’d really like to know more of the full story, you can read the Hearing Panel judgment after the trial at the link below. (Bad link replaced with PDF download.)

For those readers who may be thinking to themselves, sure but I would never make that kind of error, the lawyer in question has been licensed in Tennessee for nearly 50 years. So maybe you shouldn’t be so confident?

But, for the benefit of those same readers, the lawyer in question also made clear in his efforts to defend himself in the proceedings (a fact that likely explains the need for the trial) that he did not comprehend (even after 50 years of practice) that the ethics rules impose an obligation of confidentiality that is much broader than the attorney-client privilege.

So, maybe you can be confident?

Just the normal scrutiny.

I need something fun in my life at the moment to help deal with some of the insanity that is all around us all.

So, let’s tell something of a non-linear story about how haphazardly the disciplinary rules can be enforced as against lawyers. (Okay, so maybe you and I see “fun” differently.) Typically, many folks who do what I do for a living will tell you that the biggest divide in disciplinary enforcement is between how solo practitioners and lawyers in very small firms are more often singled out and disciplined than are lawyers who practice in large firms.

But this is a story of someone who now appears to be a solo practitioner, and who, as we will now discuss, is engaging in something of a speed-run through the rules of ethics to see if he can violate all of them in one 2-3 week period. But this solo practitioner, I’d be willing to bet (were I a betting man) will not face the consequences for his conduct that any other solo practitioner might face.

This is a story that, I think, reveals that the real imbalance in rules enforcement is between those who are powerful and those who are not. Yes, dear reader, this is a story about the absolute trainwreck of a lawyer who is the personal attorney to the outgoing President of the United States.

If you are truly a glutton for punishment, you can go listen to the complete audio recording of the hearing on November 17, 2020, during which this attorney demonstrated ignorance of enough important legal concepts to raise questions about compliance with Rule 1.1 regarding competence, but, more troublingly, also made quite a few statements to the court that could trigger discipline for untruthfulness under Rule 3.3 and Rule 8.4(c) and all in the pursuit of claims and contentions that are so unmeritorious as to run afoul of Rule 3.1.

But, perhaps even more remarkably, this attorney’s participation at the hearing only came about, at least in part, because he was willing to make false statements in his pro hac vice motion for permission to appear.

(As a side note, literally as I’m trying to write this post, this lawyer is holding a press conference, sweating his hair dye down both sides of his face, and continuing with just objectively, provably false statements that would also seem to trigger real ethical issues under Rule 3.6 if his client wasn’t also hastily withdrawing lawsuit after lawsuit through voluntary dismissals. )

Image

(Now, a different lawyer, part of the same team, is engaged in rhetoric that appears to be inciting militias to take the election outcome into their own hands. She was followed by another, different lawyer, accusing unnamed election officials of committing fraud. Again, all of these are statements being made that fly directly in the face of actual evidence. The hair dye sweat image is funny, but turns out nothing else about this is fun.)

In making his application for pro hac admission in a federal court case in Pennsylvania, and thus deciding to appear in federal court again for the first time in 30 years, this lawyer filed a motion that indicated that he was licensed and in good standing in a number of different jurisdictions, including D.C. But as this article walks you through, a number of people have confirmed that the attorney is actually current administratively suspended in D.C. for failure to pay certain fees.

That’s not how these things are supposed to work and falsely representing one’s status to a federal court to gain pro hac admission would expose regular lawyers to a significant risk of discipline. Among other rules implicated by that kind of conduct, RPC 7.1 requires lawyers to refrain from making false statements about themselves or their services.

And to keep to my commitment that this post be a non-linear story, I will close by saying that the press conference mentioned above will likely go down in history as being most memorable for the “My Cousin Vinny” reference, but that little anecdote itself was in furtherance of just the titanic levels of mendacity on display from this lawyer. The anecdote involved reference to the portion of the movie where Joe Pesci’s character impeaches the credibility of an eyewitness during cross-examination and pointing out how her version of events was unbelievable once she demonstrated that from a similar distance she could not tell how many fingers Joe Pesci’s character was holding up. Yet, the only way the story was at all germane was because this lawyer was trying to use it in aid of lying about how far away ballot count observers were when allowed to observe the counting of ballots.

Will any of this end up in the imposition of any discipline or consequences? I’m highly cynical. Candidly, given the lengths he is willing to go, and the lengths his client is willing to go, to subvert democracy, the United States will be lucky if this lawyer just continues to be subjected to public ridicule and derision.

Nebraska brings us … this.

It’s been something of a big month for Nebraska. First, thanks to its divided approach to providing electoral votes, it is contributing one of the electors totaling up to President-Elect Joe Biden’s 306 electoral votes. Second, like everywhere else in the United States (my state is doing just as bad if not worse) unfortunately, it has seen its COVID-19 numbers surge in November.

Third, and relevant to this space, it has issued an ethics opinion of note. It deserves a bit of discussion because it takes what could be a very interesting topic – one I have counseled people through in the past – and manages to make it not interesting at all. Moreover, it effectively avoids addressing the core issue on which lawyers actually need guidance.

The opinion in question – Nebraska Ethics Advisory Opinion for Lawyers 20-02 – offers an answer to the following question:

May a person/entity or group of defendants who are parties to pending litigation in a district court lawsuit brought by a plaintiff who is a trustee of a trust recommend a list of attorneys and pay for the non-party trust beneficiaries’ legal services needed to bring a county court action to
remove the trustee?

Ultimately, it only sort of answers that question because it points out that it can only give advice to lawyers and not litigants and so, instead, really just provides a refresher on the ethical obligations that a lawyer generally is going to have when they get retained to represent one person, but some other person is paying their bills.

Which is fine. But the world has a pretty good amount of guidance on that topic already. Given the actual question, this kind of ethics opinion would have been a tailor-made opportunity to address the ethics of being a lawyer who has a client who wants you the lawyer to help them secure a lawyer for someone else because the client thinks it is in the client’s best interest for that person to be represented by a lawyer.

One way the issue can come up is when a company wants to hook up a former employee with counsel. Wrestling through the ethics issues for the lawyer in that situation can be tricky as much of the analysis can turn on who came up with the idea and why they want to pursue it.

The closest that the Nebraska opinion comes to providing any sort of pointer toward guidance relevant to those questions is where it explains:

To the extent the question presented can be framed as whether the lawyer representing the litigants can recommend the hiring of another
lawyer, the Committee believes §3-508.4 applies. “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” As long as the lawyer representing the
defendants in the lawsuit brought by the trustee does not induce another lawyer to violate the ethics rules, the defendants’ lawyer has not committed an ethics violation.

Nebraska’s version of RPC 8.4(a) is patterned after the ABA Model Rule version and, thus, that can be a generally helpful pointer. But there are other risks floating around for the lawyer, even if it is their client who truly, independently came up with the idea of trying to hire a lawyer for their former employee.

One risk for the lawyer is if what is motivating the client is a desire to make the former employee “off limits” from informal communications with the opposing party because of the application of RPC 4.2. If that is in the mix, the lawyer may have to be concerned about whether the client is trying to get the lawyer to circumvent the prohibition in RPC 3.4(f) regarding requesting someone to voluntarily refrain from giving relevant information to another party. Lining up and paying for counsel for a former employee is always a safer proposition if what has prompted the idea is that the deposition of the former employee has been noticed.

Another risk for the lawyer (actually two different risks) is if the client wants the lawyer to also take on the former employee as a client rather than hire a different lawyer for that former employee. In addition to the conflicts issues the lawyer has to muddle through about that idea, if the lawyer is the one that is going to be foisted upon the former employee as a proffered free-of-charge counsel, then the lawyer also has to worry about application of the jurisdiction’s rules on solicitation of potential clients. Navigating that path very much drives home the point of the risk associated with RPC 8.4(a) – and not with respect to inducing some other lawyer to violate the ethics rules as the Nebraska opinion briefly mentions – but with respect to violating the rules “through the acts of another.”

And, at each stage, an additional ethics rule lurks in the background – RPC 1.2(d). That’s the rule that simultaneously prohibits lawyers from assisting clients in criminal or fraudulent conduct while attempting to make clear that lawyers are entitled to advise clients about all of their legal rights and the consequences of certain actions. In this context, it is the rule that means that if the client is the one that comes up with the idea, then the client may well be entitled to hear from their lawyer whether they have the right to try to make counsel available at no charge to a former employee and have a “discuss[ion of] the legal consequences” of that proposed course of conduct.

An ethics opinion offering guidance to lawyers navigating that kind of situation would be something that – if done right – lawyers in Nebraska and elsewhere would likely have found to be very helpful.

So, my question, dear readers, is this: does anyone out there know if a state has issued any kind of guidance like that? Hit me up and let me know if there is.

Increasing access to information about legal services – TN Edition

This will be a mostly short entry for this week because the most important item to put into your reading pile is what I’m writing about rather than the post itself. (Admittedly, I’m certain many of you are thinking … “well, that’s kind of always true Einstein.”)

I have written over the years here about a number of cutting-edge undertakings occurring in various states to try to address re-regulating the practice of law. I will not repeat that content here, but I will confess that I’ve fallen behind as there are some that have happened that have avoided my attention.

Many of those endeavors involve changes to the rules on legal advertising as a secondary-level improvement to other, bolder regulatory reforms. Here in Tennessee I don’t think we are very close to launching any sort of task force aimed at re-regulating the practice of law in the immediate future, but I am pleased to report that the wheels are beginning to turn on the topic of seeking reform of the rules on lawyer advertising.

Earlier this week, the Tennessee Bar Association filed a petition with the Tennessee Supreme Court asking it to adopt proposed revisions to the current ethics rules in Tennessee located at RPCs 7.1 through 7.6.

As the petition indicates, the rules revision proposal involves a blend of what APRL proposed back in 2015 and 2016 and what the ABA ultimately adopted as revisions to the Model Rules in 2018 regarding advertising matters. Like those reforms, the TBA petition would delete three rule provisions (RPC 7.2, 7.4., and 7.5) and move remaining comment guidance from those rules into the Comment to RPC 7.1. Tennessee would retain an RPC 7.3 addressing solicitation and some other issues.

The TBA also retains some existing Tennessee-specific approaches to issues, but, on the whole, the revisions would be significant progress toward two goals as explained in the petition itself:

(1) winnowing down restrictions imposed on lawyer advertising to the core requirement that lawyers not make false or misleading statements about themselves or their services, and (2) removing restrictions on communications by lawyers where the types of communications now barred are not likely to cause consumer harm.

As the petition was only filed this week, the Court has not taken any action on it such as putting it out for public comment.

Because I know a guy, if you’d like to read the petition and review its proposed changes, you can download those documents at the links below.