The good and bad of social media on display

Today’s title refers to two developments worth writing about that caught my attention in the last little bit that only have the issue of social media in common.  I will try to let the reader decided which is which (or if both are both) in due course.

The first development is an example of a lawyer behaving badly who managed to get caught in a lie because of his own social media posts proving that he had not been truthful with a federal judge.  Now lying to a federal judge is never a good choice to make, but doing so and then providing the seeds through social media for someone to prove that you did is just… well… “sloppy” seems like the wrong sort of word given that it appears to imply a value judgment that the “wrong” here is not the falsehood, but the careless unwillingness to try to maintain the facade.  Nevertheless, that is the one of the takeaways of the short version of the story of how this New Jersey lawyer ended up in this situation.  In summary form, lawyer blew some important deadlines, told the court it was because of a family medical emergency, but posted on several occasions during the time period in question on Instagram pictures showing she was on vacation in Miami, traveling and sightseeing in New York City, and other places.  You can read the much longer version at the link.  In the end, it was the freedom (and accompanying folly) that robust use of social media can bring that brought the lawyer down but that also brought the truth to light.  As the story reveals, the lawyer now no longer represents the clients in question and, instead of learning the art of the Latergram has, at least, now managed to set her Instagram account to private.

The second is a new judicial ethics opinion issued out of Massachusetts that continues the process of taking Massachusetts down a path in which judges cannot have lawyers as “friends” on Facebook at all if those lawyers are likely to appear before the judge.  I learned about CJE Opinion No. 2018-03, and the earlier opinion on which it builds (Letter Opinion 2016-01), because it was circulated on a very robust (and very valued) listserv/forum that is available to members of the Association of Professional Responsibility Lawyers.  (If you aren’t an APRL member, it is always a good time to explore the benefits of membership.)  This opinion talks about the obligation of judges to disclose to litigants whether they used to be Facebook friends with any of the lawyers appearing before them since the earlier opinion mandated that they delete lawyers as friends.  I normally like to proffer original content here, but, in this instance, I’ll simply restate the opinion I offered on that forum a few days ago.  (Repasting it seems particularly appropriate where loyal readers will recognize that the sentiment is pretty much repetitious of earlier content here anyway.]

Well, that’s a pretty silly add-on to an inherently silly underlying opinion.  The judicial ethics rules don’t prohibit judges from having friends who are attorneys.  If someone can be a friend IRL, then there is no reason they cannot appear as a friend on social media.  The fact that this entity had to issue this opinion about how long you have to disclose that you essentially tried to cover your tracks by deleting attorneys from your connections belies the point that allowing/encouraging judges to go about their normal friendships on social media is actually a good thing since it permits a way to “search up” information they might not disclose about relationships they have with the attorneys appearing before them.

In fact, the only thing that judicial ethics opinion writing bodies ought to be mandating is that judges make certain that they have their settings established in a way that lets the public have access to their list of friends/connections even if they put all of the rest of it into a “private” setting.

A tale of two ethics opinions.

So, I’ve made something of a habit of writing about ethics opinions.  Bad ones and good ones.  Mostly bad ones though.

As the trite – almost hackish – title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from a well done ethics opinion on the kind of issue that cries out for guidance in the form of an ethics opinion and the harm that can come from the kind of ethics opinion that likely should not be issued at all.

First, the good – an opinion issued out of Texas (which Karen Rubin has already written some about) that tackles a thorny problem that can confront a lawyer who has been retained by an insurance company to represent one of the company’s insureds in a piece of litigation.

The particular question addressed in Texas Opinion 669 is this:

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer retained by an insurance company notify the insurance company that the insured client he was assigned to represent is not cooperating in the defense of the client’s lawsuit?

The answer the Texas opinion provides, as difficult as it might be for insurance defense lawyers to hear, is “no.”  And, that answer is the correct one in any jurisdiction where the way the “tripartite” relationship is structured is that the lawyer’s only client is the insured and the insurance company is merely someone who is permitted to pay the lawyer’s bills as long as the lawyer complies with the state’s version of Model Rules 1.8(f) and 5.4(c).

In Tennessee, for example, RPC 1.8(f) specifically states one of the requirements for permitting the lawyer to accept compensation or direction from someone other than the client as being that “information relating to representation of a client is protected as required by RPC 1.6.” (Interestingly, the Texas opinion makes no mention of, or reference to, any of those kinds of rules but simply uses only its confidentiality rule to justify its analysis.)

The unfortunate opinion comes out of Virginia.  Virginia, you might recall, recently made a great leap forward in streamlining its rules on attorney advertising by revising its rules to look very much like the proposal circulated by APRL.  After adoption of those revisions, which became effective on July 1, 2017, Virginia’s ethical restrictions on advertising were largely capable of being described as simply prohibiting false or misleading communications.

Unfortunately, with the issuance of Legal Ethics Opinion 1750, Virginia manages less than a year later to undermine much of its progress by simply re-issuing and updating a lengthy opinion it has released on multiple past occasions that attempts, in advance and not in response to evaluating any particular real advertisement, to provide “guidance” about what kinds of advertising practices should still be avoided because of the potential to be considered to be misleading.

Unlike the Texas opinion, which answered a real dilemma that lawyers can face and for which definitive guidance can be provided, the Virginia opinion is the kind of ethics opinion designed almost exclusively to chill commercial speech.  Even if the guidance it gave on all of the topics it unilaterally decided to address were correct, it would still be the type of opinion that ought not be issued.

Certainly, it says some things that are undoubtedly true and fun to read about ways that a lawyer could engage in truthful advertising that would still be a problem because it would be misleading by omission.  I’ve spoken at seminars before where I’ve tried to make this point by saying that a lawyer whose ad truthfully proclaimed “I’ve never lost a jury trial,” but fails to also mention, for context, that they’ve never actually been involved in a jury trial is going to be at risk under any fair set of ethics rules.  The Virginia opinion grabs a slightly different version of this rich vein by explaining that a lawyer truthfully crowing that “They secured a $1 million jury verdict in case,” but not mentioning that it came only after turning down a $2 million settlement offer before trial would have disseminated a misleading advertisement.

But, even that guidance is something that really ought not be opined about unless there were an actual lawyer seeking actual guidance about just that sort of advertisement.

So many other pieces of the opinion are even worse, however.   Cautions about using actors in ads, hand-wringing over “no recovery, no fee” statements, and subtle digs at the use of testimonials by actual clients in the opinion appear to be rolled back out for no real reason other than to undermine the progress on lawyer regulation of advertising that had appeared to be achieved by streamlining the rules themselves.

On wellness: An indirect explanation of last week’s lack of content

Content is a hungry beast.  I starved it last week.  Apologies.

It was really a bit of a rough week to let things get away from me and not be able to write anything because there were actually quite a few things worth delving into that happened.  Perhaps the biggest piece of news actually came the same day that I had a speaking engagement at a CLE for in-house counsel here in Memphis.  There were California in-house lawyers with the hosting corporation who were attending remotely and I apologized at the outset for the fact that the differences between their rules and Tennesssee’s were going to make their next hour of time pretty wasted and, also, mentioned that they were certainly striving to change their rules but then saying that we all strive toward lots of things …  implying that they’d never manage to adopt rules that look like the ABA Model Rules.  That very same day California was able to announce that, after 17 years of effort to get there, rules patterned after the Model Rules are being adopted and will become effective in November 2018.  I can’t write much more about that in any meaningful way because I haven’t had time to study any of it, so I won’t.  You can read the first wave of information about what those rules will look like here.

I’m also not going to “write” today about any other ethics topic of interest.  But, I do want to ask for 6 minutes of your time today in the name of the important issue of attorney well-being to watch the clip you can get at the link I’m posting below. (I promise this is not me trying to “pivot to video.”)

The last 12 minutes of the 2017 Ethics Roadshow

I shared this story about me for the first time during last year’s Ethics Roadshow after staying quiet about it for more than 7 years.  If you didn’t attend, or you didn’t stay for the last 12 minutes, then you won’t have seen it.  It offers an indirect window into why there was no new content offered here last week.  (Also, I know I said I’m only asking for 6 minutes of your time.  My personal story starts at the 6 minute mark on the clip.)

All things considered, I remain very lucky.  Client obligations and family obligations come first in terms of what gets accomplished.  After that, speaking engagements and all that entails comes next.  Pretty much everything else, including this blog, ends up third on the depth chart.  Sometimes I’m not deep enough to get that far down in the chart.

Throwback Thursday on Cinco de Cuatro Eve

Usually the concept of Throwback Thursday should reach back farther than merely months ago, but I can’t resist given yesterday’s news.

So, I throw you back to this February 15, 2018 post.  And I do so to point out something about which I was right and something about which I was quite wrong  but with a twist.

At the end of that post, I wrote this:

Instead, I want to point out my own opinion, given the way a certain someone is known to operate, about how this likely went down:

Cohen is likely telling the truth about paying with funds of his for which no one reimbursed him, but omitting the most salient detail.  He probably wasn’t “reimbursed” by anyone after making the payment because he was probably provided those funds, pretty much immediately in advance of the transaction, as some sort of bonus or even a “gift” with the tacit understanding about what he was expected to do with those funds — purchase Ms. Daniels’s silence.

This was me sort of making things too complicated when I should have stuck with simple.  And, yet, I wasn’t too far off the mark.

Earlier in the post, I wrote this:

(c) It also is quite likely that Cohen’s version of the events is probably not 100% the truth, key details have been omitted, and it could very well, if nothing else, be a violation of a rule such as RPC 8.4(c).

That bit, at least if you are now willing to believe another lawyer for the same client over the earlier lawyer for the same client and the client himself now explaining in a series of tweets clearly written by another lawyer – though one who either can’t spell “role” or who knows enough to know his client can’t spell “role,” was pretty much spot on.  You can read a pretty decent, condensed version of the roller coaster events of that last 12-18 hours – including links to a deeper dive, in this The ABA Journal piece.

The fact that we now know more about this situation because the latest in a parade of what may go down in history as the worst high-profile legal team ever assembled blurted out this latest on cable news leads me to my segue.

For many reasons, Jeffrey Tambor ought to play the 45th President when the movie of this unprecedented period of American history is filmed.

And, on that note, and in news entirely unrelated to legal ethics but about which I’m even more excited and nerdy than I am about legal ethics generally, tomorrow, on Cinco de Cuatro, the creator of Arrested Development is releasing an entirely re-cut and transformed version of the 4th season of this incredible show.  If you’re interested [Ron Howard voice: they were not interested], you can read all about that development here.

TN BPR releases two more “stealth” ethics opinions

Earlier this month, and again in a fashion that seems a bit more in keeping with NOT wanting people to know they’ve been released rather than to give advice and guidance intended to be disseminated far and wide, the Board of Professional Responsibility here in Tennessee issued two new Formal Ethics Opinions.

The only way to know they had been released would be to have not only paid attention to a Board Notes newsletter that was sent out, but to also have gone in and read said newsletter to see that it contained these two FEOs.  Other than being quietly rolled out at the same time, the two FEOs do not have much in common.

One, 2018-F-165, blesses – with a laundry list of caveats – lawyer participation in an unnamed legal marketplace website that would essentially be a bit like an eBay for legal services where people looking to hire lawyers could pay for access to the site to post requests for needed services and lawyers interested in being hired could pay for access to the site and purchase the right to make a certain number of bids for services.  You can go read the opinion if you’d like here, but I’m not inclined to spend any real time talking about it because there really isn’t much to say about it and the service it addresses simply doesn’t sound, realistically, like much of the kind of thing any regular consumer is going to be seek to use since it would require the consumer to pay merely to have the ability to use it to try to hire lawyers.  (I could be wrong about that, of course, but, even so, this particular opinion is not of the earthshaking variety.)

The other is one that I do want to discuss at some length.  It weighs in on whether the ethical duty of a prosecutor under RPC 3.8(d) is the same as the duty to disclose under the constitutional series of cases most readily referredto in shorthand as Brady.

First, based on numbering alone, it is has been in the works and obviously on hold for a bit.  It is 2017-F-163.  It is a bit silly for the Board to stick with, and insist on titling it a 2017 opinion, since it was signed on March 15, 2018.  (For context, Opinion 165 was signed on March 9, 2018.)  Though, in fairness, perhaps the Board decided to stick with a “2017” title for this FEO because it didn’t update its research from the summer of 2017 when it crafted this particular opinion.  This can readily be gleaned from the fact that footnote 4 still cites to a 2005 Louisiana Supreme Court opinion as part of a “majority of states hold[ing] that the ethical duty of a prosecutor is broader and extends beyond Brady.”  That decision though was overruled/repudiated by the Louisiana Supreme Court in October 2017 in In re Seastrunk:

We reject ODC’s efforts here to broaden Rule 3.8(d) beyond that which Brady and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and Brady are coextensive

Second, the opinion unfortunately persists in speaking of a prosecutor’s ethical duty of disclosure as going to “favorable” evidence.  This is not a helpful approach because it isn’t what the rule being interepreted actually says.  At all.  RPC 3.8(d) doesn’t use the term “favorable evidence,” and this opinion truly should not either.

What RPC 3.8(d) speaks of [other than with respect to sentencing] is the duty to disclose “information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”  Those are objective categories of things and not susceptible to the kind of subjectivity that is involved in trying to decide whether people agree as to the status of evidence as “favorable.”

Third, and related to the second, the opinion’s ultimate conclusion that the ethical duty under RPC 3.8(d) is “broader than and extends beyond Brady” is an acceptable conclusion to reach to the extent it is intended to mean that the actual language of the rule and what it says must be disclosed is not to be read to include the word “material” before “information” but, and particularly given the erroneous reference to what has to be disclosed as “favorable evidence,” it is also a woefully incomplete message to send to the bar and to prosecutors without also expressly explaining that the ethical duty is also narrower than Brady in some respects.

Specifically, what is missing from this opinion, to further explain to the public and to members of the bar generally and to remind prosecutors specifically, is language along the lines of the following:  It should be noted, however, that there are aspects of the disclosure requirements of Brady that are broader than the disclosure requirements of RPC 3.8 as well.  One example being that Brady may require disclosure of information that would provide a basis for impeachment even if it was not evidence that tended to negate the guilt of the accused.

 

A short post-mortem for Tennessee’s proposed RPC 8.4(g)

With the flood of comments in opposition, and particularly the fact that the Attorney General of our state felt the need to file not just one but two comments in opposition, the unsuccessful end of the effort to convince the Tennessee Supreme Court to adopt a version of RPC 8.4(g) has felt inevitable for the last month or so.

Yesterday, the inevitable end came in the form of this one-page order from the Tennessee Supreme Court rejecting the petition.

I’m personally very grateful for the handful of entities that lent their support to the TBA/BPR petition which included not just specialty bar associations such as The Ben F. Jones Chapter of the National Bar Association and the Association for Women Attorneys, but also the Memphis Bar Association, the Knoxville Bar Association, and the Lawrence County Bar Association.

I’m not inclined to spend much space here discussing just how deeply disappointed I am in the outcome.  Given that I’m not likely to be the victim of any of the harassment and discrimination we were really aiming to protect against with this proposal, my disappointment is, at best, vicarious.  There are other lawyers in Tennessee who this impacts more directly.  Lawyers who have been told by many of those who filed comments that they are fair targets for disparagement as long as the lawyer disparaging them is not representing a client.

I wrote more than an 18 months ago about how skeptical I was that a state like Tennessee would adopt a black-letter rule addressing harassment and discrimination.  Admittedly, I let myself get a bit too optimistic along the way.  I remain convinced that the sentiments expressed by the most strident lawyers (mostly male, and nearly entirely Caucasian) who submitted comments opposing the proposal do not represent the future of our profession in this state even though they prevailed in the present.

If you have the stomach for plowing through knowing that some of them truly serve as only a forum for attorneys who look like me to sound off with typo-filled paeans to a Limbaugh-esque worldview, I will again state that reading through the comments is an educational experience.

If you’d rather not, I can sum up alot of them with the following TL/dr:

“When you’re accustomed to privilege, equality feels like oppression.” – original source to quote a bit unknown as explained here.

 

Client Number Three – Seven lessons learned

I can’t believe I’m doing this as neither of these people deserve any benefit of the doubt or serious treatment afforded for their contentions.  But, based on spending time on the web reading comments (despite the always-spot-on advice “don’t read the comments”), there are so incredibly many people who do not understand these concepts and, thus, yesterday’s events do present a good teachable moment about privilege and confidentiality.

Lesson the 1st – it can never be said too many times that the concept of, and the scope of, attorney-client privilege and the ethical duty of client confidentiality are different.  Attorney-client privilege is an evidentiary concept and a privilege with respect to testimony and compelled production of communications in connection with litigation.  Client confidentiality is an ethical duty that imposes shackles on lawyers with respect to voluntary disclosure of information about clients or information about the representation of clients.  If you are familiar with Venn diagrams, then you can think of attorney-client privilege as a smaller circle within the much larger circle that is confidential client information under Model Rule 1.6 and its state analogs.  Client confidentiality is also different because while it imposes real restrictions on attorneys voluntarily disclosing information, it can fall to a court order requiring disclosure.  (See, for example, Model Rule 1.6(b)(6)).

Lesson the 2nd – both privilege and confidentiality will adhere to communications between an attorney and a prospective client during conversations or written communications while deciding whether or not to form a relationship.  Under the ethics rules, most states have adopted a specific rule to drive this point home patterned after Model Rule 1.18.  New York’s version of that rule reads, in pertinent part, as follows:

(a) Except as provided in Rule 1.18(e), a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Lesson the 3rd – the identity of a client, though rarely a piece of information that is itself privileged, is always confidential information under the ethics rules.

Lesson the 4th – if a prospective client communicates with an attorney in order to see if they might want to form an attorney-client relationship, those communications should not involve the actual giving of legal advice to the prospective client.  If they do, then the person is not a prospective client anymore because they have now become your client even if only for a limited time period.  If a person asks you for legal advice, and you have given them the legal advice they asked for, then they are your client.  (A much more pedestrian way this can be a problem for lawyers is along these lines:  A lawyer who decides not to take on a plaintiff’s case because the lawyer has concluded that the statute of limitations on the claim has run and the lawyer tells the plaintiff that conclusion.  The lawyer turns out to be wrong about that conclusion, but the plaintiff relies on the advice, later realizes that it was wrong, and then sues the lawyer for malpractice.  Lawyer is going to be unable to defend the malpractice claim on the basis that they were not the plaintiff’s lawyer because they gave the plaintiff legal advice.)

Lesson the 5th – you don’t have to pay a lawyer any money at all to be a client.  Communications can be protected by the attorney-client privilege without respect to whether any money ever changes hands.  And, most certainly, client confidentiality adheres without regard to payment to the lawyer.

(NB: Here endeth the legal ethics lessons.  These two bonus lessons are not about legal ethics.)

Lesson the 6th – there is no point in discussing journalistic ethics when talking about Client Number Three.  He ain’t a journalist.

Lesson the 7th – if a lawyer with only two clients takes on a third client and the common subject-matter of representation of the other two clients involves facilitating hush money payments regarding sexual improprieties, you don’t have to be Sherlock Holmes to begin to think you know the kind of services the third client was seeking.

 

 

Awesome post. Except for the part that isn’t.

There is an awful lot to like and agree with in this post from Dan Lear, one of the folks who have been the face of Avvo for quite some time.  But there is a piece of it that is just simply wrong, and while it would be hyperbole to say it is dangerously wrong, it certainly is wrong in a way that lawyers don’t need to have reinforced.  Lear writes:

Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.

Even understanding the larger point Lear is attempting to make, this is utterly and simply wrong.  ABA Model Rule 8.4 – with language that is tracked in I believe pretty much every U.S. jurisdiction — does not limit itself to situations in which a lawyer is only representing a client and also does not draw a bright line around a lawyer “being a lawyer,”

The easiest, and most obvious, part of the rule that makes the point is RPC 8.4(b) which gets lawyers in ethical trouble for certain criminal acts even having nothing to do with, or not happening while, they are working as a lawyer.

But there are two other, more broadly problematic ways that RPC 8.4 does extend to, and actually govern, the conduct of people who happen to also be lawyers while they are doing things that they don’t think of as working as a lawyer know matter how much they may subjectively think they are being “awesome.”

Those two other pieces are RPC 8.4(a) and (c).  When combined those pieces of the rule read:

It is professional misconduct for a lawyer to . . .

(a) violate or attempt to violate [the ethics rules], knowingly assist or induce another to do so, or do so through the acts of another . . . [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation….

I’ve often joked about 8.4(c) as being the only ethics rule in the books that has to mean something other than what it actually says because, as written, it would make it professional misconduct for me to answer questions from children about Christmas presents or bluff while playing poker or dive to get a call while playing over-35 soccer on Monday nights.  I’ve also, once before and also in response to something written by a lawyer more famous than I, advocated that it shouldn’t apply to a lawyer operating a parody account on social media.   But there are aspects of how that rule truly does apply to dishonesty by lawyers, even when not acting as lawyers, which are quite serious.  Easy examples from the recent past involve deans and others affiliated with administrative positions at law schools lying about statistics to improve enrollment numbers and the like.

And, perhaps the most perplexing and concerning of the examples Lear offers of things a lawyer could do where they wouldn’t be bound by the ethics rules is serving as an expert witness.  I’ve been fortunate enough to serve as an expert on more than a handful of occasions in my career, and, suffice it to say, RPC 8.4 is not the only ethics rule that will still apply to the lawyer when serving in that capacity.

They got away with it, but that doesn’t make it worth trying.

Lawyers billing clients on the basis of time spent is less than ideal for all involved.  For lawyers, it isn’t the best proxy for value delivered in terms of service and incentivizes inefficiency.  For clients, it isn’t the best proxy of value received in terms of service and leaves clients feeling like the only way to cut corners on costs is to either demand limited time on a task or to just not agree for a lawyer to perform a particular task.  For clients and lawyers alike, it also creates distrust of lawyers with respect to second-guessing the amount of time they spend on tasks (or claim to have spend on tasks).  It also doesn’t give clients much of a sense that they are paying for results or accomplishments.  Lots of pieces have been written, over many, many years, about how the billable hour model is outdated or on its way out the door.  Yet, it persists.

This is not going to be one of those pieces today.  Rather, I want to write a few words about a case out of Wyoming that I would worry is going to send exactly the wrong message to lawyers.  That case is a ruling on fee dispute litigation out of the Wyoming Supreme Court, Manigault v. Daly & Sorenson, LLC.  You may have seen headlines of stories about it that are in the nature of: Court rules billing in 15-minute increments was not abusive.

All lawyers who bill by the hour end up having to pick some base line minimum increment for billing purposes.  I, and my firm, do so using 6-minute increments (.1) as the baseline.  It is certainly possible to measure time more accurately than that, but (I believe) that the standard minimum these days for keeping time is to carve time up into 6 minute blocks.  There was a time when the standard minimum for those blocks were 15 minute intervals, but technology has advanced, timekeeping has improved, and the time when minimum quarter-of-an-hour billing was acceptable (in my opinion) has passed.

In the Wyoming decision, the Court ultimately found that this particular law firm’s use of a 15-minute minimum increment with this particular client was ultimately reasonable.  Remarkably, it did so even when the firm did not have a written fee agreement with the client.  But there are a couple of things about the case that – to me – stand out as crucial to the particular result and also help drive home the point that this is not something that most lawyers could get away with and, thus, should not attempt to do.

The first, and I think the more outcome-determinative, is that the fee dispute was one that was with a very long time client of the firm and, thus, someone who, over time, would be much less sympathetic to be heard complaining about 15-minute billing increments as the minimum.  Since apparently that was how this client and that firm had interacted over the course of almost 100 prior matters over 15 years.

The second is that the record indicated that the firm was relatively diligent about aggregating tasks into the minimum increments so that the minimum increment was not used as a method of easily increasing the charge to the client.

The Wyoming Supreme Court explained quite cogently the difference between the situation it had before it this time and other, prior circumstances in which it took lawyers to task for how they used their 15-minute minimum billing increment approach:

Manigault likens the firm’s use of a fifteen-minute billing interval to that which was the subject of a disciplinary proceeding in Casper.  In that case, the attorney employed a number of unethical billing practices and admittedly misused her fifteen-minute minimum billing interval.  She billed fifteen minutes every time she signed a document, and several times she billed fifteen minutes for reviewing a one-page document.  She also billed fifteen minutes to review a short document and then billed the same amount of time again for signing it.

In Casper, this Court discussed the practice of billing according to minimum intervals of six, ten, and fifteen minutes. . . . we observed it would be abusive to bill two fifteen minute charges for two five-minute phone calls in the same fifteen-minute period.

Nothing approaching that sort of unreasonable or abusive billing is evident on this record.. . .

[snip]

What is not often discussed is this concept of the need to still attempt to hew toward composite accuracy in the amount of time billed regardless of what minimum increment is used.  “Composite accuracy” might not be the right phrase but what I’m using it to attempt to describe is that the ultimate measure for a lawyer who bills by the hour has to be that you don’t use it to bill clients for more time in the day than the total time you actually spend working.

The truly pernicious problem for lawyers who attempt to still use 15-minute increments as their method of billing is how easily that can lead them to bill a collection of clients for 8 hours of time while only putting in 3 or 4 hours of actual work.  Or, more likely, billing 14 or 15 hours for a day where 6 or 7 hours of actual time was spent performing work for clients.

The Wyoming case also, unfortunately, gave credence to a common attempted justification by lawyers confronted with trying to justify the 15-minute billing increment that – to me – involves a significant amount of disingenuity:  that billing a client 15 minutes of time for a phone call that they know full well may have taken only 5 minutes is justified because the 15 minute time period also captures the time associated with stopping one task, shifting to the client’s task, making a note in the file about the interaction, and then trying to get back into the mindset of whatever you were working on before.

In modern practice, however, there is one dominant form of communication that simply – and often unequivocally – undercuts any lawyer that tries to use that justification.  Email.  Find me a lawyer who wants to justify a 15-minute minimum increment based on that kind of rationalization, and I strongly suspect that I can show that lawyer, by way of a review of their email history, that they turned much more quickly from answering an email for one client, to crafting an email for another client, then on to responding to some other email.

What that means is, if a lawyer is out there trying to charge their clients for 15 minutes of time for reading and responding to an email, which may have only taken them 5 minutes, and then attempting to justify it based on other things that were done or time lost as part of that, then it will often be extremely easy to demonstrate that within the same 15 minute period they will have replied or sent other emails to other clients on other matters and, likely, they will have billed that client for a 15 minute block as well.  This quickly adds up and is how a lawyer could easily manage in only 20 minutes of actual working time to attempt to bill for an hour of work.

That fudging of the numbers, of course, can also happen using 6-minute increments of time, which raises the ultimate larger point that I fear escapes notice of far too many lawyers:  no matter the minimum increment you pick (unless you are recording and billing for your time truly down to the minute), you are supposed to still be using that system as a proxy toward attempting to best capture your actual time spent.

That means that even if you are billing in 6-minute increments, you are supposed to be trying to bundle smaller tasks during the course of the day together into one of the minimum increments.  If, for the same client, you respond to 2 and only 2 emails during the course of a day and each one took you only a couple of minutes to address, you are supposed to bill that client for one .1 time entry – because you spent a total of 4 minutes working for them that day and you have arranged to bill them at a minimum increment of 6 minutes.  You are not supposed to bill .2 (12 minutes) for that 4 minutes of working time.  When lawyers do both this and opt for the minimum 15 minute incremental block, then the problems with the arrangement increase in magnitude because the lawyer ends up billing the client for 30 minutes of time for 2 tasks that only took 4 minutes to perform.

The intersection of the First Amendment and the Ethics Rules

So, I don’t know if any of you have ever played HQ Trivia.  In any session, they have between 500,000 and almost 2 million players, so statistically speaking, I guess there is a chance you have.  While it has nothing to do with legal ethics, in order to understand the context of what follows, let me give you a quick primer.

It is something that would have been 5 years ago the stuff of science fiction or an even an episode of Black Mirror.  It is an app on your phone through which you can play trivia in real-time answering questions read by a human being host.  Each question is presented with three multiple-choice answers and you have 10 seconds from when the host starts reading the question to click your answer.  If you answer correctly, you get to move on to the next question.  If you don’t, you are eliminated.  In the standard format, the quiz consists of 12 questions and, if you answer all the questions correctly, you win or split the pot with any other players who have done so.  (When the largest pots are offered they increase the number of questions to 15 or, quite recently, they have experimented with as many questions as is necessary to narrow down to just winner in a winner-take-all format.)

The dollar amount of the prize varies.  It is typically $2,500 but, as it appears they are closer to whatever plan they have in place for monetizing the app approaches, they have recently offered a pot as large as $100,0o0.  Reportedly, tonight they will be offering a $250,000 pot.  I have won the game on one occasion and, of course, when I did there were so many other winners that my share came to just shy of $2.  (I also know there are other companies doing similar games and some of those are competing against HQ on the basis of how awful one particular financial backer of HQ reportedly is, so I’m not going to link or provide publicity to the game, but it is the one I play [for better or worse] so if you decide to sign up for it and put in my user name – bsfaughnan- as a referral code then I will get some extra lives.)

Now all that is background for today’s topic – which is the intersection and overlap of the ethics rules and what they prohibit members of our profession from doing and the First Amendment.  This topic is frequently one I spend time thinking about because for many years my practice has also involved representing clients on First Amendment issues and, in fact, though I continue to not be listed in Best Lawyerfor Legal Ethics and Professional Responsibility, in addition to being listed for Appellate Law, I am listed for Litigation-First Amendment.  It is also a topic that I have been thinkng about frequently because of various events that have worked their way into my line of sight either directly or indirectly.  Those three events are: (1) the outpouring of comments from particular portions of the bar in Tennessee arguing that the proposed RPC 8.4(g) in Tennessee is an assault on their First Amendment rights; (2) the latest post from Avvo’s GC criticizing ABA Formal Op. 480; and (3) the head of a prominent law firm speaking out publicly to indicate that a star lawyer of his firm turned down the opportunity to represent the current occupant of The White House.

So, here’s the HQ-style question and, remember, there is only one correct answer.  You won’t be limited to 10 seconds to answer from the time you start reading the question however:

Which of these presents the most compelling case for finding that discipline against a lawyer would violate the lawyer’s First Amendment rights?

  • A lawyer tweets – without client permission – about a jury verdict she obtained in order to advertise the successful outcome.
  • A lawyer, during a CLE or bar association social event, decides to lecture everyone in the room about why he considers marriage between two persons of the same gender to be an abomination.
  • A lawyer, consulted by a politician who she finds to be vile, or have views she finds to be vile, holds a press conference or tweets that she refused to represent that politician because she disagrees with everything he stands for.