Another Tennessee-centric offering.

Using the term “Tennesentric” would probably be more efficient, but two items involving potential rule revisions relating to ethics and lawyering in Tennessee are worth briefly discussing.  One of the two has gone out for public comment and has a deadline, while the other has just been filed with the Court and does not.

I’ve written at length in the past about Tennessee’s effort at cleaning up some problems with comity admission standards and the extended amnesty period for certain folks in need of getting properly registered as in-house counsel.

Our Board of Law Examiners has recently filed a petition, which the Court has put out for public comment, to further extend the dates and deadlines for folks to have gotten into compliance in these areas.  Interestingly, the Petition seeks to extend the time period but not all the way up until the petition itself was filed, but rather has sought a cut-off period that would be December 31, 2016.  If enacted, the impact of this rule change would appear to be to make amnesty available to in-house counsel who did not get into compliance by July 2016 but who would have if the deadline for compliance was December 31, 2016 and to afford the Board with the same flexibility in making rulings on comity applications that were filed as late as December 31, 2016 but for which the Board didn’t rule – for obvious reasons – before the end of the year.  The deadline for public comments on that proposal is April 14, 2017.

The other proposal – which has not yet been put out for public comment —  is a filing by our Board of Professional Responsibility to clarify in our Rule 9 itself that the hearing in a disciplinary proceeding is public, unless a protective order is obtained.  This has long been the practice, but the rules presently do not exactly say that.  If this petition is granted, the result would be that the rules would bless the traditional practice.  But one even better benefit of this revision, if adopted, is important for cases of potential public and media interest, because this would make clear that the Tenn. Sup. Ct. R. 30 Media Guidelines ought to govern media coverage of such proceedings.  Such a clarification would be important so that hearing panels in Tennessee understand that the attorneys of record in a case are entitled to know of a request for media coverage so that counsel can then proceed to make a timely motion to seek to prohibit such coverage under the terms of Rule 30.

Suffice it to say, this does not always happen.

You can read the BPR Petition Filed to Amend Tenn Sup Ct R 9 § 32 at the link.

A weird-ish court opinion here in Tennessee.

On the heels of my criticism of an ethics opinion out of New York as weird-ish, let me turn my attention closer to home to discuss a Court of Appeals opinion this week here in Tennessee that is fortunate for the law firm involved but unfortunate for lawyers in Tennessee in general.

In Guo v. Woods & Woods, PP (which you can read by clicking on this link: guox_031417 ) the Tennessee Court of Appeals issued an opinion that held that a lawyer (and his firm) were entitled to keep the entirety of a $7,000 fee paid to them at the beginning of a representation because it was earned when paid.  The outcome was certainly fortunate for the lawyer involved, and it is likely the correct outcome in the appeal if for no other reason than the inept nature of the effort of the pro se plaintiff on appeal, as the opinion describes.

The really unfortunate part of the opinion, however, is that it makes no reference whatsoever to our ethics rule – Tenn. Sup. Ct. R. 8, RPC 1.5(f) – that addresses what is necessary to charge a nonrefundable fee.  Instead, the Court of Appeals looked to an earlier appellate opinion from 2005 [before our state enacted RPC 1.5(f)] and applied a three-part test for non-refundable retainer fees established in that case, Stalls v. Pounders.

Charging and enforcing non-refundable retainer fees or other non-refundable fees is a tricky enough area.  The last thing Tennessee lawyers need is two separate tracks of authority to have to work through and seek to reconcile.  Particularly when one of them relates to potential discipline against their law license.  Unfortunately, this Court of Appeals opinion adds to that risk by not even acknowledging the existence of RPC 1.5(f).  The ethics rule reads:

A fee that is nonrefundable in whole or in part shall be agreed to in a writing, signed by the client, that explains the intent of the parties as to the nature and amount of the nonrefundable fee.

Given the pro se nature of the losing party in the matter and the small stakes involved, it seems unlikely that the case will go to the Tennessee Supreme Court where there would be an opportunity to make clear that a nonrefundable fee has to comply with RPC 1.5(f).  So, hopefully, over time there will not be any further appellate opinions in Tennessee that tackle this kind of matter without acknowledging the rule.

Until such time, the safer course for lawyers is to make sure to comply with the rule because it is hard to decipher a way that satisfying the rule would not also satisfy the Court of Appeals’ three-part test.  (Although insisting on saying that the fee has to be “just and reasonable” when the rule only requires that it be “reasonable” as explaned in cmt. [4a] to the rule at least creates a smidgen of doubt,)  The converse is not as clear particularly if you look at the language of the letter in Guo, take heed of footnote 2 in that opinion, and analyze the requirement in the rule that the writing has to “explain() the intent of the parties as to the nature and amount” of the nonrefundable fee.

A weird-ish ethics opinion out of New York.

I have written a few times about the ABA’s adoption of a new Model Rule 8.4(g).  One point that was brought up in the run-up to that rule actually finally being adopted was that some more than 20 jurisdictions already had an anti-discrimination rule in place in the black letter of their rules in one form or another.

One of those jurisdictions is New York, and the New York State Bar Association Committee on Professional Ethics issued an ethics opinion back in January of this year that says it addresses an interpretation of NY’s Rule 8.4(g) and whether it prohibits a lawyer from refusing to accept a representation because of a lawyer’s own religious affiliation.

Specifically, the scenario addressed in NYSBA Ethics Opinion 1111 is this:

A lawyer has been requested to represent a person desiring to bring a childhood sex abuse claim against a religious institution.  The lawyer is of the same religion as the institution against which the claim is to be made.  Because of this religious affiliation, the lawyer is unwilling to represent the claimant against the institution.

The opinion, ultimately, doesn’t really answer the question of whether refusal to accept under those facts would be illegal discrimination.  Instead, the opinion first provides reassurance (at least of the rhetorical variety) that lawyers do not have any ethical obligation to accept every request for representation that they receive.  Then, though, it mostly punts on how to reconcile that fact with the fact that lawyers cannot engage in conduct that would violate a federal, state, or local anti-discrimination statute.  The opinion references New York case law which addresses certain kinds of professional services as being “place[s] of public accommodation” and directly admits that New York’s 8.4(g) contains language acknowledging that law could limit a lawyer’s ability to freely choose to decline a representation, but, despite the fact that the very rule itself that New York chose to adopt requires for its enforcement a conclusion about “unlawful discrimination,” just punts on whether the facts trigger such a conclusion.

At some level I get why the opinion goes that route as typically bodies providing ethics opinion have refrained from ruling on questions of law as being outside the scope of the rules.  But it does seem to me like once you adopt a rule that envelops the need for such a legal determination into the enforcement of the rule, you lose some of the ability to credibly punt on such an issue.

For context, here is the language of the rule New York has in place providing that a lawyer shall not:

(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding….

For what it is worth, you would think that the body issuing the opinion could — at least on this particular inquiry – have been able to comfortably say that since the facts presented did not even involve a lawyer turning down a potential client because of the potential client’s religious affiliation that it would be safe to say that it is highly, highly unlikely that a credible case of unlawful discrimination could be made out against the lawyer.

One thing that this opinion does help sharpen in terms of a salient point is that ABA Model Rule 8.4(g) appears to be a better drafted approach to this issue given its explicit terms protecting decisions on whether to take on the representation of a client.  Unlike the New York version of the rule, the ABA Model — in addition to not having all the language about the need for a ruling by a tribunal to be a condition precedent in certain instances — includes this sentence in the black-letter of the rule:  “This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”

Jurisdictions adopting a version of Rule 8.4(g) with that kind of language would appear to be much better positioned to actually address questions like the one raised in the New York opinion by providing the lawyer with assurance about the ability to simply choose not to take on the representation of a client where doing so would require them to sue their own church.

 

Lateral moves can be hard. One type in particular is harder than the rest.

In 2017, a lawyer moving from one law firm to another is a pretty common place occurrence.  Anyone who has been through the process knows how personally difficult and stressful the ordeal can be no matter how excited you are about your next destination.  The emotional and personal components alone can be trying, but the pressures imposed by the ethics rules are often overlooked … even though they shouldn’t be.

One area where the requirements of the ethics rules can make a potential lateral move nearly impossible is if a lawyer is looking to join a firm that is on the other side of an ongoing legal matter.  A well-done, quite succinct ethics opinion out of North Carolina issued near the end of January 2017 explains what the ethics rules actually require in order for such a move to be possible.   (And, important note to add, we’re only talking about if the lawyer looking to lateral is looking at moving from one private practice position to another private practice position.  Moves into and out of government employment are different and governed by different rules.) North Carolina Formal Ethics Op. 2016-3, titled “Negotiating Private Employment With Opposing Counsel,” lays out the sticking point that make this kind of lateral move more difficult than others — there comes a point in time when any such discussions have become serious enough — even though there is not yet any done deal — that both sets of clients have to give their informed consent for the negotiations/discussions to continue.

The ethics risk that mandates this result is the “material limitation” conflict that arises from the personal interests of the lawyers involved requiring consent under Rule 1.7(a)(2).  In laying this out, the North Carolina opinion echoes sentiments previously expressed in (1) an ABA Formal Opinion from 1996, (2) The Restatement (Third) of the Law Governing Lawyers, and (3) a Kentucky ethics opinion issued in 1998.

The North Carolina opinion also provides a similar description as did those other authorities of the moment in time that matters in terms of triggering the need to obtain the client’s consent: when the discussions become “substantive.”  The opinion also describes, in practical terms, what is necessary for each side of the potential lateral discussion to seek out and obtain consent from its respective client:

To obtain the client’s informed consent, the job-seeking lawyer must explain to the client the current posture of the case, including what, if any, additional legal work is required, and whether another firm lawyer is available to take over the representation should the lawyer seek to withdraw.  If the client declines to consent, the job-seeking lawyer must either cease the employment negotiations until the client’s matter is resolved or withdraw from the representation but only if the withdrawal can be accomplished without material adverse effect on the interests of the client.  Rule 1.16(b)(1).  Because personal conflicts of interests are not imputed to other lawyers in the firm, another lawyer in the firm may continue to represent the client.  Rule 1.10(a).

Similarly, the hiring law firm must not engage in substantive employment negotiations with opposing counsel unless its own client consents.  If the client does not consent, the firm must cease the employment negotiations or withdraw from the representation.  The firm may only withdraw if the withdrawal can be accomplished without material adverse effect on the interests of the client.  Rule 1.16(b)(1).

Most lawyers like to think of themselves as being risk averse as a general matter.  Interestingly enough, when the depths of the details are fully mined, the notion of doing what the North Carolina opinion indicates is required might seem riskier than not saying anything at all.  The situation gets more difficult for some lawyers to work through because it can be viewed as something of a modified prisoner’s dilemma situation — each side of the potential employment discussion may be making its own independent decisions about whether the situation has escalated to a point of seriousness where client notification and consent is required, and each side has its own thoughts about what is the right answer for each side (stop talking or withdraw) if the affected clients won’t consent.  While the two parties to the discussions might seemingly be in harmony about the potential move otherwise, they may very well have starkly different views in terms of balancing how important they value the business of the affected client versus the business that could be gained from the lateral move.

As a result, I have long suspected that most such moves that actually come to fruition are the products of one side or the other not strictly complying with their ethical requirements.  No, that is probably too cynical a thing to say and certainly a bit of an exaggeration of my view.

Some percentage of the moves that actually work out are the product of something less than strict compliance.  Probably not the majority, however.

The majority of them likely either involved matters for clients who are so incredibly important to the economics of the deal that there is a need to know sooner rather than later whether the impacted clients will consent or matters for clients who are of such little economic significance that all of the lawyers involved would be happy to jettison their matter if consent is not forthcoming.

An even more important factor in play that likely can be dispositive about whether such a move can be made is whether the jurisdiction involved permits the use of nonconsensual screening to avoid imputation of a disqualifying conflict.  No mention is made of this topic in the North Carolina opinion because North Carolina does not have any language in its version of Rule 1.10 to permit such screening.

In Tennessee, scenarios involving lawyers who aren’t litigators are potentially much more viable lateral moves because of our weirdish rule that treats “side switching” situations in litigation differently than in other contexts.  In Tennessee, whether a nonconsensual ethics wall can be erected to avoid disqualification from a lateral move can have a different answer depending on whether the matter is a litigation matter or not.

Our RPC 1.10 reads in relevant part:

(c) Except with respect to paragraph (d) below, if a lawyer is personally disqualified from representing a person with interests adverse to a client of a law firm with which the lawyer was formerly associated, other lawyers currently associated in a firm with the personally disqualified lawyer may represent the person, notwithstanding paragraph (a) above, if both the personally disqualified lawyer and the lawyers who will represent the person on behalf of the firm act reasonably to:

(1) identify that the personally disqualified lawyer is prohibited from participating in the representation of the current client; and

(2) determine that no lawyer representing the current client has acquired any information from the personally disqualified lawyer that is material to the current matter and is protected by RPC 1.9(c);

(3) promptly implement screening procedures to effectively prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the firm; and

(4) advise the former client in writing of the circumstances that warranted the implementation of the screening procedures required by this Rule and of the actions that have been taken to comply with this Rule.

(d) The procedures set forth in paragraph (c) may not be used to avoid imputed disqualification of the firm, if:

(1) the disqualified lawyer was substantially involved in the representation of a former client; and

(2) the lawyer’s representation of the former client was in connection with an adjudicative proceeding that is directly adverse to the interests of a current client of the firm; and

(3) the proceeding between the firm’s current client and the lawyer’s former client is still pending at the time the lawyer changes firms.

Thus, a Tennessee lawyer could make a move from one side of the table to the other in the middle of a $50 million real estate deal but could not make the same move if it involved moving from one side of the “v” to the other in a $10,000 automobile accident lawsuit.

Theater of the absurd.

This is something of a stretch from what I normally write about, but sometimes you simply have to write about something and simply ask for forgiveness rather than permission.

Recently, an article made the rounds written by Adam Gopnik of The New Yorker who posited that two recent events were the clearest sign yet that we were living in a computer simulation and that someone was trying to make the programming so absurd that we would become self-aware.  The two events were the outcome of the recent Presidential election in the United States and the ending of the Oscars (which I wrote about a couple of weeks ago).

If you’d like to go read the article, and haven’t already, you can go read it here.  It is a fun read, but I have a hard time taking any of it seriously.  Gopnik, of course, as even he admits, is just riffing off of the thoughts of a philosopher at NYU – David Chalmers – who has written more extensively about the whole idea that we aren’t really what we think we are.

Perhaps it is purely out of a need for self-preservation and the kind of ego for which lawyers are notorious, but again I say that I can’t really take seriously the idea that we are but simulacrum.  But then, there came this story.

A criminal defense lawyer representing a man accused of arson had his pants catch fire in court.  In Florida.  I mean . . . how “on the nose” can a situation get, right?  When I first saw the headline, “lawyer’s pants catch fire during arson trial” – I mean, lawyer’s pants catch fire during arson trial?!  That alone was enough to just for the splittest of split seconds to remember and briefly rethink my reaction to the Gopnik story.

Actually, the details of the story indicate that the situation was a lot less over-the-top than the headline reports.  The lawyer in question apparently had 2 or 3 e-cigarette batteries in his pocket, and they started to smoke but he quickly got himself out of the courtroom.  The real question that bears asking — and that the lawyer in press reports certainly understands will be people’s suspicion — is whether the whole event itself was staged.

The lawyer vigorously denies that it was purposefully staged, and he should deny that because “stagecraft” has been the kind of thing that can get a lawyer into ethical trouble.  (Look at me just barely getting a hook into this to make it a passably ethics-based post.)  This is true even though fictional lawyers such as Perry Mason have been permitted to do such things in the name of the truth and even though legendary stories about the antics of Clarence Darrow involve conduct that under modern ethics rules would be problematic.

One of my favorite examples of this kind of misguided approach, involving twins, was written about by Jack Marshall at his site many years ago, and you can read about it here.

And to make this post officially and well and truly about ethics and lawyering, the issue with the kind of stagecraft that was put in place by the lawyer that Marshall wrote about is that it runs afoul of several rules in place in jurisdictions that have rules patterned after the ABA Model Rules.  Those rules include, at least, Rule 8.4(c) prohibiting lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation;” and Rule 3.3(a) which prohibits lawyers from making false statements of fact to a tribunal.

Tennessee has adopted the Ethics 20/20 changes effective immediately.

I’ve written a couple of times in the past about the status of the Tennessee Bar Association’s petition seeking to have the Tennessee Supreme Court adopt essentially all of the ABA Ethics 20/20 changes.  Yesterday, the Tennessee Supreme Court entered an order doing just that – effective immediately — which now adds Tennessee to the list of jurisdictions that have adopted that package of ABA Model Rule changes focused on updating certain aspects of the rules to address technology and the role it plays in modern law practice.

I’m pleased to be able to report that as to the issues where our Board of Professional Responsibility had offered counter proposals to certain aspects that would both be contrary to the Ethics 20/20 language and for which the TBA expressed a level of disquietude with the proposals, the Court opted to stick with what the TBA was proposing.

You can read the Court order and the black-line of the changes made to those rules impacted at this link.  As a result of the order, effective immediately, Tennessee now has:

  • a definition of “writing” in RPC 1.0 that refers to “electronic communications” rather than just “e-mail”
  • paragraphs in the Comment to RPC 1.1 that provide more guidance about the need to obtain informed consent from a client before involving lawyers from outside the lawyer’s own firm in a client matter
  • language in the Comment to RPC 1.1 that makes clear that the lawyer’s duty to “keep abreast of changes in the law and its practice” includes “the benefits and risks associated with relevant technology”
  • more modern language in the Comment to RPC 1.4 making clear that not just telephone calls from clients but all modern forms of communication by clients need to be responded to or acknowledged promptly
  • a specific discretionary exception to confidentiality under RPC 1.6(b) for disclosing information “to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in composition orr ownership of a firm”
  • black-letter treatment in RPC 1.6(d) of the duty to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client”
  • a little clearer, and more focused, guidance in RPC 1.18 about what kinds of communications will suffice to trigger a lawyer’s obligations to someone as a prospective client
  • important distinctions described in the Comment to RPC 5.3 as to a lawyer’s supervisory obligations as to nonlawyer assistants within and outside of the lawyer’s firm
  • important guidance in the advertising rules about the appropriateness of working with certain companies providing lead-generation services

In addition to adopting the ABA Ethics 20/20 changes, the black-line materials also reflect some housekeeping revisions we had proposed to catch a few items that needed changing in terms of cross-references from other Tennessee Supreme Court rules that had changed over the last few years.

That’s not a Rule 8.4(c) violation. THAT’s a Rule 8.4(c) violation.

In February 2017, more than a dozen law professors filed an ethics complaint against Kellyanne Conway, Counselor to the President, alleging that she violated the attorney ethics rules applicable in D.C. through several false public statement she made — most notably, her repetitive statements about a terrorist incident that never actually occurred – the “Bowling Green Massacre.”  Now, many people were not aware of the fact that Ms. Conway is an attorney — she doesn’t work as an attorney in the present administration.  (In fact, her D.C. law license is already administratively suspended.)  The core rule that the professors contend Ms. Conway violated is Rule 8.4(c) which makes it a violation for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Unlike many other ethics rules, Rule 8.4 does not contain language limiting its scope to when “representing a client.”  While I am not a fan of Ms. Conway, I very much disagree with the notion that her public statements in her political role are the kind of conduct to which Rule 8.4(c) should be applied.  A reporter with The Blaze was kind of enough to let me comment in an article about the ethics complaint against Conway where I elaborate more fully on why I disagreed.  You can read the article with, including my extensive comments, here.

Now, I feel compelled in fairness, instead of just knocking something down the opinion of others, to try to offer a good example of lawyer conduct that I think would fit as a Rule 8.4(c) violation but that doesn’t involve representing a client.

So, let me try a scenario.

Say you are a lawyer, and you are undergoing a job interview.  If you lie in response to questions that are important to whether or not you get the job, that would be fodder for a Rule 8.4(c) violation.  Or, maybe to make the violation even more palpable (if not clearer), let’s say you are seeking a public job.  Perhaps, a really high-profile one, involving the government.  And you lie during your job interview or on the application you have to submit for the position as part of a background check.  That would definitely trigger Rule 8.4(c) in my view.

Heck, while I am just freewheeling on this whole scenario, let’s really ramp up the stakes.  Let’s go with an attorney position in the federal government where your appointment has to be confirmed by the U.S. Senate.  And, let’s say you lie in response to written questions posed to you by a Senator or you give a false and misleading response to a Senator’s question during a confirmation hearing or, gosh, maybe you do even both of those things.  That would definitely be a Rule 8.4(c) violation.  And, given that there would be also be lying under oath involved and lying to Congress involved, Rule 8.4(b) would actually come into play as well.  That’s the rule that prohibits a lawyer from “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

So, yes, that would to me be a very solid foundation for multiple Rule 8.4 violations.  And, in my scenario, the lawyer engaged in dishonesty, deceit, and misrepresentations would not even have to have been undergoing the job interview to be the Attorney General of the United States, but if it helps to put flesh on the bones of the hypothetical to think I was talking the whole time about the current U.S. Attorney General then, well, have at it.

[And, as to the title of this post, you’re going to have to read that title in a Paul Hogan as “Crocodile Dundee” Australian accent.  And if you aren’t familiar with him or that movie, it was a lot more popular back in 1999 when Mr. Sessions said this to explain his vote to impeach a different President of the United States.]

Can lawyers learn anything from the ending of the Academy Awards?

Well, of course, they can.  Or at least that is the conceit I’m going to stick to in order to write this post about a lawyer’s obligation to talk to their client about mistakes and make it seem topical and culturally relevant.

By now, unless you live a very, very cloistered life you’ve at least heard about the unprecedented and crazy ending to this year’s Oscars.  Many of you, like me, were watching it as the event unfolded with Bonnie and Clyde as the presenters for the Best Picture award to end the night, Clyde opening the envelope, noticing something wasn’t right, being reluctant to say anything, and then showing to Bonnie… who then blurted out La La Land.  After that all of the folks associated with that film, made their way up to the stage and one of them began giving an acceptance speech.

Meanwhile, in the background on stage, people associated with the broadcast in some fashion are disseminating information somewhat frantically and, quickly, it falls upon one of the members of the La La Land team — incredibly graciously — to speak out and let the people responsible for the film Moonlight, that they have actually won Best Picture and not the film that was announced.  It is then stated out loud by one of the La La Land contingent that this is not a joke and the card reflecting Moonlight as the Best Picture winner is revealed.

As the Moonlight folks make their way to the stage, Clyde then proceeds to explain what had happened, that he had noticed something was wrong, wasn’t trying to be funny, but then when he showed to Bonnie, Bonnie announced La La Land as the winner of Best Picture.

The folks on behalf of Moonlight then did get to make an acceptance speech and then the host of the program, Jimmy Kimmel, said words to the effect that “he knew he’d screw this show up” and that they wouldn’t have to invite him back.

While it was a pretty atrocious moment for all involved, it made for really amazing television.  We have all now learned through media reports and from its own statement to the press that the most culpable in the creation of the mistake were folks with the accounting firm which tabulates the votes, keeps the results confidential, and distributes the votes.  We’ve also now learned that a two-envelope system that actually makes some pretty good logistical sense with all the “stage right” and “stage left” of the theater created an entirely unnecessary risk in terms of handing over a wrong envelope.

But, and here I go with the conceit, this incredibly high-profile event also teaches several great lessons about mistakes that anyone can take to heart, including lawyers — ways to be more likely to avoid mistakes, ways to deal with mistakes once made, and lessons not limited to being about mistakes — but before laying those lessons out, it is important to stress something about when a client is negatively impacted by a lawyer’s mistake.

Under the most reasonable reading of the rules of ethics, a lawyer in any jurisdiction that has a rule analogous to ABA Model Rule 1.4 has an ethical obligation — when a mistake of real significance has been made by the lawyer in a matter –to communicate what has transpired to the client.  Lawyers who don’t realize the ethical obligation though can have self-interested reasons for promptly telling a client about a mistake — to establish a clear time-frame for a statute of limitations on any claim against the lawyer by a client to begin running.  This is a particularly prudent course to take in a jurisdiction like Tennessee where there is a relatively-short statutory period and where precedent establishes that the time for a suit is not tolled merely because the lawyer continues to represent the client.  Thus, in addition to being a requirement of the rules, a lawyer who has committed an error in the handling of the case could most certainly see her way to figuring out that communicating about it quickly to the client, particularly if a simultaneous reasonable plan for correction can be communicated as well, is the right thing to do from a purely personal, selfish standpoint.

The lessons for lawyers?  I think there are, at least, six of them that can be learned from Sunday night.

One.  How to acknowledge a mistake:  The accounting firm did it exactly the right way – complete candor, no hedging, and with a true sense of contrition.  Here was the first statement made early the morning after the Oscars:

“We sincerely apologize to ‘Moonlight,’ ‘La La Land,’ Warren Beatty, Faye Dunaway, and Oscar viewers for the error that was made during the award announcement for best picture. The presenters had mistakenly been given the wrong category envelope and when discovered, was immediately corrected. We are currently investigating how this could have happened, and deeply regret that this occurred.

“We appreciate the grace with which the nominees, the Academy, ABC, and Jimmy Kimmel handled the situation.”

In subsequent media communications explaining the two-envelope procedure and who was where and did what, the United States Chairman of the accounting firm has continued to give accounts that are straight-forward and apologetic without attempting to deflect any blame.  (Lawyers should remember though that you are going to need to make sure you have the client’s permission to speak publicly if that becomes necessary about your mistake because of the constraints of client confidentiality under Rule 1.6.)

Two.  Don’t be the guy publicly throwing someone under the bus:  Clyde.  The whole “let me further interrupt these poor people from getting to have their moment by making sure everyone knows that as between me and Bonnie, Bonnie deserves the blame” is a bad look.

Three.  Make sure you’ve actually made a mistake before saying you screwed up:  It is particularly important for lawyers not to do what Jimmy Kimmel did and start taking responsibility for an error if you truly weren’t involved. Kimmel was surely trying to be gracious in the situation, but lawyers can be quick to describe things they’ve done in an overly critical way — and if they do so publicly or hastily in an email — those words can come back to haunt in a deposition even if the self-castigation was unwarranted.

Four.  Trust your gut instincts:  Clyde’s gut was actually correct.  He was smart enough to know that “Emma Stone” is not the name of a movie, but he didn’t trust his instinct enough to make more control of the situation than he did by saying out loud that he had been given the wrong envelope.  Had he done that, so much of this could have been avoided.

Five.  Think before you act:  Looking at you Bonnie.

Six.  How to be more likely to avoid mistakes in the first place?  Pay attention – the job of an attorney is important.  This lesson comes about as the pieces have been better put together and it appears that the particular employee of the accounting firm that handed over the wrong envelope had pretty closely in time before that screw up been taking a photo of Emma Stone after she won Best Picture.  And posting it to his Twitter.  A Tweet which he subsequently deleted, but which others got a screen capture of and saved so it can still be viewed on the Internet. 

Dear ABA – Embrace reform of the lawyer advertising rules. Please.

I have written in the past about the APRL white papers providing the rationale for, and data supporting the need to, reform the way lawyer advertising is regulated in the United States by state bar entities.  You can read those prior posts here and here if you are so inclined.

Jayne Reardon, the Executive Director of the Illinois Supreme Court Commission on Professionalism, over at the 2Civility blog has posted a very thorough report on events that transpired in Miami earlier this month and that reminds folks that the deadline put together by the ABA working group looking at whether to back APRL’s proposals is March 1, 2017.

I am a proud member of APRL – actually presently I’m even fortunate enough to serve as a member of its Board of Directors – but was not able to make it down to Miami for our meeting and the ABA meetings this year.  If you are a reader of this blog, you know that my view is that the only advertising rule that ought to be necessary is a version of RPC 7.1 that states, as does the ABA Model:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Period.  Full stop.

Now Jayne’s report from the ground mentions that some folks criticized or complained about APRL’s proposal because it would not apply only to advertisements by lawyers.  To me that is a feature, not a bug.  As I’ve also written and spoken about, RPC 7.1 is violated when a lawyer sends a fraudulent bill to a client saying they spent more time on something than they really did and that’s a good thing.  It also, for example, applies to lawyers who lie on their resumes as we saw with this recent instance of lawyer misconduct.

The concern expressed by someone that it could result in discipline against a lawyer politician (presumably one who would have to have lied about some aspect of their personal history I guess) does not give me much pause because if it were so applied it would likely fail First Amendment scrutiny because of the higher standards afforded to protect political speech rather than constitutional speech.

While I think RPC 7.1 ideally is the only rule that ought to exist, I recognize that people are going to insist there be some restriction on in-person solicitation so I also support APRL’s proposed approach to having an additional rule, over and above RPC 7.1, to address that.  As I’ve said before, my only quibble with APRL’s proposal on that front is as to how it defines a sophisticated user of legal services:

If I had one criticism of the APRL proposal, it is with the way it defines a sophisticated user of legal services.  The second part about regular retention of legal services for business purposes is likely where it should have stopped, as the first portion of the definition is pretty amorphous and subject to manipulation.  For example, would a recidivist offender who has gone through repeated jury trials and spent many years in prison someone who would qualify as having had significant dealings with the legal profession?  Seems like a pretty clear argument could be made that the answer would be yes.

I’m going to send this post in to the ABA working committee as my own personal comment.  If you have a viewpoint on these issues (whether it jibes with mine or not), I’d encourage you to send your thoughts as well to them at this email address: modelruleamend@americanbar.org.  (Unless you don’t think lawyer advertising rules are strict enough already.  Then I’d encourage you to stay busy doing other things.  Kidding, just kidding.  But more like Al Franken’s kidding on the square actually.)

Learn something new every day. Or two things. Or three things. I’m not your boss.

About a week or so ago, I learned something new about South Carolina’s ethics rules – thanks to the law-student-powered blog of the University of Miami (FL) School of Law, Legal Ethics in Motion.  They wrote about a South Carolina federal court case in which a motion to disqualify premised on South Carolina Rule 1.18 was denied.  I learned a second new thing about South Carolina’s ethics rules in reading that opinion.

The first new thing I learned about South Carolina was that it has a weird-ish wrinkle in its Rule 1.18(a).

Most jurisdictions, including Tennessee, follow the lead of ABA Model Rules and have a version of Rule 1.18(a) that defines a “prospective client” as someone who “consults with” or “discusses with” a lawyer the “possibility of forming a client-lawyer relationship with respect to a matter.”

South Carolina, however, takes a different approach.  Its RPC 1.18(a) reads as follows:

A person with whom a lawyer discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form a relationship.

Now, that “only when there is a reasonable expectation that the lawyer is likely to form a relationship” language can have some obvious benefits in avoiding having to deal with certain situations where most folks would agree that the array of protections afforded to a person as a prospective client under RPC 1.18 just shouldn’t come into existence.  Like, if the only reason someone is reaching out is to get a lawyer disqualified – usually just dealt with through language in the Comment — this language should suffice to prevent RPC 1.18 protection from coming to pass.  Likewise, if say a person a lawyer has never met before calls out of the blue and starts running on at the mouth about their case before the lawyer could get a word – like “stop” – in edgewise, this rule’s “reasonable expectation” and “likely to form” language would be a very good tool for shutting down any RPC 1.18 argument.

But, even having only just learned of the existence of such language, I was still surprised to then learn what the federal court in South Carolina thought it meant.  Instead of resolving a disqualification motion on the basis that there didn’t seem to be any “significantly harmful” information that was ever transmitted, the court concluded that a series of events spanning a voice mail message, a telephone conference about a possible engagement, and an email exchange thereafter with a South Carolina lawyer was not sufficient to ever create the existence of a prospective client at all.

The court’s own description of the events is really all that should be needed to understand my surprise:

On July 7, 2016, Plaintiff’s attorney Jay Wolman (Wolman) called and left a voice mail for Wyche attorney Tally Parham Casey (Casey) about a possible engagement in a case.  Wolman and Casey discussed the possibility of Wyche’s serving as local counsel for Plaintiff in this matter in a telephone conference on July 11, 2016.  Wolman subsequently emailed Casey on July 11, 2016, and provided Plaintiff’s and Gari’s names “[f]or conflict purposes” and requested a fee agreement “[i]f there is no conflict.”  Casey responded on that same day with applicable hourly rates and stated, “I hope we get the opportunity to work together.”  On July 12, 2016, however, Casey sent Wolman an email stating, “I’m afraid we have a conflict and will not be able to assist you with this matter.”

Pardon the wordplay and all, but I’m not sure it is “likely” that a multitude of judges would agree with how that particular line was drawn on the RPC 1.18(a) front in this particular South Carolina decision.

While I am on the subject of South Carolina and its ethics rules, one other development is worthy of mention here.   South Carolina’s Supreme Court has issued a public censure against an Arkansas lawyer for his role regarding using investigators to “pose as customers in an effort to obtain evidence to prove that the defendant was violating the intellectual property rights of the plaintiffs.”  The Court explained that the Arkansas lawyer’s investigators “made false statements to the defendant’s employees and used tactics designed to prod the employees into making statements about the product,” and also “tape-recorded these conversations without notice to the employees.”

Many, many moons ago (2012), I wrote an article for an ABA publication called Landslide about the ethical problems for lawyers stemming from investigations relying on pretext in intellectual property matters.  I don’t think I’m bragging when I say that billions of people never read that article.  While it is probably a pretty safe bet to guess that this Arkansas lawyer was among the billions of people who didn’t read it, I can’t actually call that something I truly learned today because the conduct for which he is now being punished in 2017 with that public reprimand actually took place back in 2009.

Thus, if I’m flailing around trying to add one more thing to my list of nuggets learned today, it would have to be this, the South Carolina Court was actually a bit kind to this Arkansas lawyer in terms of how it described the problems.  It pointed out, in issuing a public reprimand against the lawyer in question, that the lawyer was “unaware that secret tape-recording, pretexting, and dissembling were in violation of the South Carolina Rules of Professional Conduct.”   Had it wanted to be a bit more damning in its explanation of events, it could have pointed out that the South Carolina rules upon which the discipline against the Arkansas lawyer rested (RPC 4.4(a) and RPC 8.4) say the same thing that Arkansas’s own version of those rules say and, thus, that it probably would not be a stretch to say that Arkansas’s ethics rules are also violated by (at least) pretexting and dissembling.