Tales of typos and punctuation problems.

I’ve written once or twice in the past about how questions of punctuation and typographical error can be unimportant when the issue amounts only to pedantry. Of course, punctuation can be very important. The stage phenomenon Hamilton has a good line or two about this involving “My dearest Angelica. With a comma after dearest, you’ve written … My dearest, Angelica” with this particular Schuyler sister noting how it changed the meeting and inquiring whether Alexander intended it.

There are more mundane, less lyrical examples that can be encountered in situations every day. For example, just playing around with punctuation can change entirely the meaning of two paragraphs that only differ by their punctuation:

  • Somehow I managed not to write anything for almost two weeks. I’m sick it happened. I’ll try to do better starting now.
  • Somehow, I managed. Not to write anything. For almost two weeks I’m sick. It happened. Ill! Try to do better. Starting now.

Today’s post hits two topics with nearly nothing in common other than the role that punctuation (or asserted typographical errors) plays in each one.

The ABA Journal directs all of our collective attention to this story of a Florida lawyer who has now been disbarred for breaking into his former law firm and stealing items. The headline of the article reads: “Lawyer disbarred after breaking into former law firm; blamed punctuation problem.” Now, setting aside the fact that the ABA managed not to properly use that semicolon there in that headline, the headline is one that seems like it is designed just to make you click through to see how in the world a punctuation problem could be a defense to breaking and entering.

Go ahead and click if you want, but [SPOILER ALERT] it’s not even close to a viable defense. I’d call the role of punctuation in that case mere pedantry but I think that might be insulting even to pedants. You can read more of the details in the order disbarring the lawyer here, but the flimsy reed to support some of his conduct apparently was that because his former law firm had incorporated its professional name – Barak Law Group, PA – without putting periods after the “P” and the “A,” then he could incorporate his own entity by the same name but with “P.A.” That, apparently, would give him ownership and domain over the assets of his former law firm.

He proceeded to hold himself out in public as the owner of the firm and to file hundreds of notices of liens as well as some other public record or court documents to try to cause money to be diverted in his direction.

Of course, the lawyer in question also must have come to realize that his magical argument about the missing periods wasn’t as powerful as he hoped. One of the pieces of misconduct spelled out against him in the proceedings involved surveillance video driving home the point that his punctuation arguments weren’t opening doors for him as he had hoped:

The video allegedly showed Brady and his brother backing a truck up to the Barak firm, tying a rope from the truck to the front door and using the car to rip the door open. The video showed Brady and his brother removing a safe and the computer server, Barak testified.

In the end, he got what Florida characterizes as permanent disbarment, and the article explains that a big factor in that was a complete lack of remorse for the misconduct. Or, more lyrically as the article spells out, he “clings to his justification for his actions with a ferocity that is quite disturbing.”

Shifting gears from playing with punctuation to quickly admitting and fixing a mistake in the form of a typographical error, the Tennessee Supreme Court put out an order yesterday that adopted a new revision to what was already a pretty brand new rule approving the concept of collaborative law practice.

The rule is Tennessee Supreme Court Rule 53. The fix had to be made to Section 16 of that rule and it involves replacing the word “record” with the word “agreement.” Now, strictly speaking, that isn’t exactly what I think of when I think of a typographical error. Having the rule say “agerment” or “egreement” would be a typographical error. Going with “record” when you meant to use “agreement” seems much more like just an error. But quibbling about that would truly be pedantry.

Without poring over the entirety of Rule 53, it is difficult to see what sort of difference it makes to have referenced a “record” rather than an agreement in the provision, but, I’ll paste it below so you can guess for yourself if you’d like:

Section 16. Confidentiality of Collaborative Family Law Communication. A collaborative family law communication is confidential to the extent agreed to by the parties in a signed record agreement. Evidence of conduct or statements made in the course of a collaborative family law proceeding shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.

I’m really only including reference to it because I wrote a little bit about this rule when it was adopted back in April 2019, and I don’t believe i raised one thought that I had about it at that time.

The concept of collaborative lawyering – which at least under the Tennessee rule is now embraced exclusively in the context of domestic relations law – is in some ways antithetical to a number of recognized aspects of the practice of law and in other ways is just something of an expansion of the lawyer as intermediary rule that we still have in Tennessee (RPC 2.2).

Now, the ABA long ago jettisoned Model Rule 2.2 but Tennessee is one of two U.S. jurisdictions to still have it. If the reference isn’t striking any bells for you, it is the rule that applies:

when the lawyer provides impartial legal advice and assistance to two or more clients who are engaged in a candid and non adversarial effort to accomplish a common objective with respect to the formation, conduct, modification, or termination of a consensual legal relation between them.

Thus, aspects of the role that lawyers play in a collaborative lawyering arena can be thought of a bit like if two different lawyers were engaged in a joint venture for the purpose of serving two clients as intermediaries. But, admittedly, that analogy is imperfect at best.

[P.S. I’m fully invoking Muphry’s Law here in advance of any errors anyone spots in this post.]

Asking in South Carolina and definitely not receiving.

This development in South Carolina happened last month and I saw some folks getting a little worked up about it but am only getting around to writing a little about it now. (In fairness, last month only became last month around 80 hours or so ago.) But for some people getting worked up about it, it wouldn’t actually be all that noteworthy given that all South Carolina did was adopt a comment that made plain what the rule already truly required.

Nevertheless, it makes for an interesting subject not only because of the reaction it garnered but how it came about… in response to a petition seeking to change South Carolina’s Rule 1.6 in an entirely different direction.

But, I’ve managed to get way ahead of myself with the textual throat-clearing and have started in on all of this like you know what I am talking about.

In June 2019, the South Carolina Supreme Court entered an order that rejected an attempt by the South Carolina Bar to seek to have RPC 1.6 revised to permit lawyers to make reference to published court decisions in their advertising without having to get their client’s informed consent. And, to be clear, what the bar was asking for was a very incremental level of permission. They were seeking to have the rule allow a lawyer to make reference to the citation of a published case, not the details of it, just the citation.

Now I suspect many lawyers would assume that no such revision was even necessary on the basis that they simply think that public information is public information and can be used in whatever fashion is desired. In fact, this Bloomberg article quotes someone from a law firm I used to work for saying something along those lines. That might well be a common sense approach but it is simply an entirely incorrect statement when it comes to how the ethics rule on confidentiality works.

As I’ve written about in the past (probably more times than you care to remember but most recently in August 2018), RPC 1.6 continues to impose confidentiality obligations on lawyers as to information related to representation of a client even as to the most public of events. And, what that means is, when you work through the rule and its various provisions authorizing disclosure of such information . . . there simply isn’t a provision that justifies use of the information in commercial advertising endeavors without the consent of the client.

The South Carolina Supreme Court was not interested in what the Bar was seeking. Instead, it opted to adopt a new comment to RPC 1.6 to drive the point home about what the text of RPC 1.6 already requires.

Specifically, the Court added the following new Comment [7] to its RPC 1.6:

[7] Disclosure of information related to the representation of a client for the purpose of marketing or advertising the lawyer’s services is not impliedly authorized because the disclosure is being made to promote the lawyer or law firm rather than to carry out the representation of a client. Although other Rules govern whether and how lawyers may communicate the availability of their services, paragraph (a) requires that a lawyer obtain informed consent from a current or former client if an advertisement reveals information relating to the representation. This restriction applies regardless of whether the information is contained in court filings or has become generally known. See Comment [3]. It is important the client understand any material risks related to the lawyer revealing information when the lawyer seeks informed consent in accordance with Rule 1.0(g). A number of factors may affect a client’s decision to provide informed consent, including the client’s level of sophistication, the content of any lawyer advertisement and the timing of the request. General, open-ended consent is not sufficient.

Of course, the South Carolina Supreme Court is not wrong about this. And, at a practical level, requiring client consent is not truly that onerous.

However, given the connection to lawyer advertising generally that this development has, it is worth pointing out that South Carolina is still a generally bad jurisdiction when it comes to that topic. Partly, this is because it still refuses to recognize at a fundamental level what the purpose of advertising actually is by having this kind of requirement in its RPC 7.2(a):

All advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.

Loosing a big (maybe?) idea into the world.

I had originally promised myself that the articulation of this thought would debut here at my blog. I almost managed it but I raised this notion in the real world lately among some very bright lawyers. So, before I do it again somewhere other than the Internet, I’m following through to put this idea out through this platform for anyone who wishes to chew on it to chew on it.

The only background that I think you need (even if you are not a regular reader of this space) is that there is much activity going on across the country in terms of real efforts at proposed change to the way lawyer ethics rules address certain topics that are largely viewed as barriers to information about the availability of legal services.

Two of the potentially most important, and relatively fast-moving, endeavors are the work of the California Task Force on Access Through Innovation of Legal Services, the APRL Future of Lawyering project. But there is movement happening in a number of different states to propose changes to the ethics rules to loosen, if not outright delete, restrictions on monetary and other arrangements between lawyers and people who are not lawyers, that are currently placed in rules patterned after ABA Model Rule 5.4 (generally prohibiting fee-sharing with people who are not lawyers) and 7.2 (restricting the ability of lawyers to make payments to others for referrals to, or recommendations of the lawyer).

It is anticipated that there will be some significant level of outcry over any such proposed changes on the grounds that removal of such rules erodes the protection against lawyers having their exercise of independent professional judgment interfered with. Most every time I engage with anyone on that topic, I find myself making the point that, even without those provisions, the rules still require lawyers to maintain their independent professional judgment.

But, here’s the idea I am letting loose into the world: perhaps we should make that obligation more prominent. At present, outside of any particular context, the only rule that plainly starts down this path is the first sentence of Rule 2.1 which reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Should we, as part of the coming necessary reform of the ethics rules, revise the first rule? Perhaps like this?

Rule 1.1: Competence and Independence

(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer representing a client shall not permit any person to direct, regulate, or otherwise interfere with the lawyer’s exercise of independent professional judgment.

If that rule existed, then in all places in which restrictions considered to be barriers to access to legal information but which are justified because of the risk to lawyer independence could be replaced with a pointer back to the lawyer’s obligation under Rule 1.1(b).

Tennessee transparency update

Recently I wrote a bit about the latest Formal Ethics Opinion adopted in Tennessee including a bit of additional content focused on the enactment of this opinion as the maiden voyage of the new process involving the seeking of public comment on the FEO in draft form. If you missed those, you might want to read the two links above first in order to get up to speed.

One looming question was whether the BPR was going to be making the public comments it received before adopting the opinion actually public.

I learned today that the Board has addressed that question formally by adding a mechanism for doing so as part of its process and has posted the comments that were received regarding this particular proposed FEO here.

Having had the chance to read them, it did turn out that the only public comment received that criticized the draft opinion was the letter prepared by my colleagues. They also appear to be the only lawyers focused on the defense of products cases who submitted public comments at all. Many of the eight other comments received appear to have been submitted by plaintiffs’ lawyers.

The comments make for interesting reading as it appears that a recurring theme contained therein is how the Board got the answer correct from a public policy perspective. Making public policy, of course, is not exactly the role of the Board when it comes to issuing formal ethics opinions. At least one of the comments manages to heighten the point with respect to the conflicts presented by the interest of the lawyer and the client in ways that are not exactly addressed in the FEO. Not many of the comments make any real effort to address how it would be that destruction of the product would amount to a restriction on the lawyer’s right to practice.

Nevertheless, it is still heartening to know that (1) the Board’s approach to this new policy will include making public comments available publicly; and (2) this was not a situation where the Board received a significant amount of negative feedback and moved forward despite that fact.

New good, but not perfect, guidance from the ABA

The Standing Committee on Ethics and Professional Responsibility of the ABA has been on something of a bit of a “spree” when it comes to the issuance of ethics opinions. (At least, it feels like it.) In the last 18 months, it has issued 10 opinions.

The most recent one is ABA Formal Op. 487 which offers ethical guidance to lawyers who take cases on a contingent fee basis or, more precisely, lawyers who take cases on a contingent fee basis after some other lawyer in a different firm has previously taken on the same case on a contingent fee basis. The dynamic of what exactly happens in such situations if, ultimately, there is some sort of successful result is largely the stuff of state-specific case law driven by lien laws and the distinction between whether a lawyer ends up being able to seek fees under their contract or under quantum meruit. Despite that, and relegating reference to those issues to a footnote at the end of the opinion, SCEPR has decided this area needs to be filled with guidance.

In doing so, the opinion focuses its attention upon the obligations of the new lawyer to communicate to the client about the potential – as difficult to quantify as it admittedly is – that the first lawyer might still be entitled to an amount of fees in the event of a recovery in the matter.

In giving this guidance, the ABA Formal Opinion certainly isn’t wrong (although I think it is wrong in one particular statement), but it is not entirely helpful and it is certainly not very practical.

Where a client hires successor counsel to handle an existing contingency fee matter, it does not pose an unreasonable burden on the successor counsel to advise the client that the predecessor counsel may have a claim to a portion of the legal fee if there is a recovery. In many instances, precision on this issue may be difficult as successor counsel may need to review the predecessor counsel’s fee agreement and assess its enforceability. Similarly, successor counsel may not be fully familiar with the nature and extent of the prior lawyer’s work on the matter. Successor counsel also will not know the amount of the recovery, if any, at the beginning of the representation. Nevertheless, Rules 1.5(b) and (c) mandate that successor counsel provide written notice that a portion of the fee may be claimed by the predecessor counsel.

That reading of the requirements of Rules 1.5(b) and (c) is not really an obvious and straightforward one. Thus, I don’t think it gives a very compelling foundation for the opinion’s conclusion. The conclusion is still probably correct though. Because there is an ABA Model Rule that provides a pretty compelling rationale for the conclusion even though the opinion rather remarkably never once references it — Model Rule 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”)

As to the one particular statement that I think the opinion simply gets wrong, it is the statement that talks about clients not being able to be exposed to “more than one contingent fee when switching attorneys” and that ordinarily neither the first lawyer nor the second lawyer would ordinarily be entitled to a full contingent fee. I think both of those statements are offered with far too much certainty to comport with reality. It is not at all difficult to come up with scenarios where it is only the work of the second lawyer that provides the reasons for the successful outcome triggering the availability of a contingent fee.

One thing that the opinion does very well though is make clear the way in which the rules don’t work on this topic. The opinion spends a good bit of time explaining something that should have been obvious – but has not been for some courts — the rule on fee sharing between lawyers in different firms does not have any application to this situation.

The opinion adroitly walks through the ways in which ABA Model Rule 1.5(e) is entirely inapplicable to a situation in which the first lawyer on a case has been discharged and a second lawyer has taken over the representation of the client.

Two Arkansas items involving rare procedural developments

As I attempt this week to get back into the saddle, two items – each relatively unusual and each involving Arkansas – grabbed my attention. One involves a judge and the other a lawyer.

Although Fridays are usually reserved for standard “follow ups,” the first item is in the nature of follow-up because I wrote previously about when this Arkansas judge was hit with disciplinary charges over his involvement in a protest against the death penalty around about the same time he was ruling on issues related to the death penalty in a case. The ABA Journal now has a story about the charges against the judge being dismissed by the Arkansas Supreme Court.

The reason for dismissal? The delay in the pursuit of the charges against him. The article notes that the charges were first filed against the judge back in April 2017. While both judges and lawyers alike subjected to disciplinary cases often feel like the process goes on longer than it should, and often times if you pay attention to the timelines in disciplinary opinions you see how extended the time frames often are between the opening of the case and the ultimate resolution, it is rare to see delay in disciplinary proceedings resulting in the outright dismissal of the charges. Twenty-six months would certainly be a long time if nothing at all was transpiring in the matter.

Of note, the article also mentions that the related ethics cases against six of seven justices on the Arkansas Supreme Court related to their treatment of the Arkansas judge in question (also discussed in my long-ago post) were also dismissed in November 2018 but the reasons for that dismissal are not mentioned.

On the lawyer side, a daily publication from the Tennessee Bar Association has started including disciplinary orders in its coverage of court opinions and, on Friday, it included the kind of order not seen every day on a number of fronts.

It is an order commencing a disciplinary case (or maybe not actually even truly doing that) against a Tennessee lawyer for having been convicted of a DUI offense in Arkansas. It’s unusual in a couple of respects in as much as historically there have not been many instances of any public discipline against Tennessee lawyers for criminal conduct involving drunk driving. While this order is certainly public in nature and can, itself, be something of a public censure for the lawyer involved, the order does not technically actually require the Board of Professional Responsibility in Tennessee to do anything about the situation.

The specific language of the order from the Tennessee Supreme Court reads:

This matter shall be referred to the Board for whatever action the Board may deem warranted.

Whether or not anything does come of it is unclear, the only provision that can be triggered by a DUI offense is RPC 8.4(b) and will turn on whether this particular criminal act is treated as one that “reflects adversely on the lawyer’s … fitness as a lawyer in other respects.” For what it may be worth, the lawyer in question does not have any past disciplinary history in terms of public discipline, but the Board’s website does reflect a pending petition against him that has been open since April 2018 so it would seem likely to be entirely unrelated to this offense which involved a traffic citation/arrest occurring in October 2018.

Nearly four years later… and I’m making that James Bond reference this time.

So, if any of you are still around these parts after I’ve gone some 12 days without writing any content, then you are in for me dredging someone up that I previously wrote about on June 30, 2015. An attorney named Rodger Moore.

Rodger Moore. And he was suspended for the practice of law for conduct that involved stealing adult beverages (wine) and also stealing the oil of olives. You know… olives… the garnish that goes in a martini.

I guess back in the halcyon days of this venture I considered myself above making a James Bond reference? Well, I’m four years older now and don’t consider myself above much of anything I guess. So…here goes.

Rodger Moore is no longer licensed to bill.

Also, Roger Moore was not the best Bond, but this Rodger Moore was not the best lawyer.

The need for just a bit of “dry” humor for today’s post is in order because nothing else about the story is humorous. And, in fact, while not doing so in a fashion that is at all effective for his case, Mr. Moore raises a topic in the press that is not deserving of being milked for humor of any sort — the problem of depression in our profession.

You (like me) may have seen the story in The ABA Journal about the fact that after previously being suspended for failure to disclose certain pieces of his criminal past, Mr. Moore has now been disbarred for trying to charge over $10,000 to a client he had promised to represent for free. If you’d care to read the full Ohio opinion disbarring him from practice, you can get it here.

In short-form version, a woman who qualified for legal aid representation going through a divorce agreed to switch lawyers to Moore, after Moore sent an email saying he would represent her for free. Shortly thereafter, he sent her an invoice for $9,500 but then told her she didn’t have to pay that but that he was going to seek to have the court award his fee against her husband. He never did that but did send her an $11,000 promissory note and seek to have her sign that. Eventually, he had to bow out of her case because of his suspension from practice (but not until first trying to appear in court for her the day after he was suspended). He then got an attorney he shared office space with to take over the representation. That lawyer confirmed to her that he was providing the services for free but, ultimately, filed a lawsuit against her, representing Mr. Moore’s firm, seeking to force her to pay pursuant to the promissory note.

Based on his past history, his failure to appear on his own behalf in the disciplinary case, and the fact that he tried at the eleventh-hour to proffer up his license to retire or resign from practice rather than being disciplined, the Ohio Supreme Court decided to permanently disbar him.

In a real plot twist, Mr. Moore has communicated extensively with The ABA Journal as their article reveals and shared with them a draft letter that he was thinking about sending to the Ohio Supreme Court to complain about how he was treated.

Now, I’m fortunate enough that I do not suffer from depression. As I’ve revealed before anxiety is my issue. There is no question that problems with depression are rampant in our profession and little doubt that mental health issues continue to be stigmatized, hidden, and not treated effectively when it comes to lawyers.

I don’t have the necessary clinical training to know the first thing about whether Mr. Moore’s narrative could be explained by depression but I do know that the opinion reveals that he continued to practice while suspended for a pretty significant period of time, represented himself, and that both of those facts likely played a role in his ultimate disbarment. Both of those facts are the kind of things that are also not inconsistent with side effects of depression.

Mr. Moore may not be a very good messenger for the underlying message of the continued need to preach about the awareness of mental health issues, and his claimed beef that the disciplinary process should take depression into account as a mitigating factor misses the mark because nearly all states do – through application of the ABA Standards for Lawyer Misconduct – take mental health issues into account.

But he is, albeit maybe just inadvertently, a good messenger for making an important, and hard, point. Those kinds of proceedings can only take such things into account if the lawyer is able to disclose them so that they can be considered. Mr. Moore pretty clearly didn’t disclose any issues with depression at the time of the proceedings themselves but, because of the nature of such things and, if he was representing himself, if he really was suffering from untreated depression he might not have been able to bring himself to do so.

Any lawyer interested in reading up on issues of attorney wellness can now find a variety of good resources online. Perhaps the most recent report issued by a state bar comes out of Virginia and you can read that one here if you are so inclined.

A lawsuit about a lawsuit that touches on everything about 2019?

If time capsules were still a thing (are they still a thing?), and someone wanted to capture issues facing the legal profession in 2019 for a time capsule to be buried… what sort of topics would you choose to include?

Outside of the legal dynamics at play in the political landscape of the nation (which I’m excluding for today just for purposes of sanity), a quick effort to sketch things out on scratch paper might find you listing:

  • Risks of the flow of information involving modern technology
  • Financial pressures placed on lawyers and law firms
  • Continuing difficulties in achieving and maintaining diversity in law firms
  • How #metoo and problems of power and sexual misconduct in the workplace play out in law firms.
  • The role of businesses other than law firms in the delivery of legal services and what that means for the profession.

I’m probably leaving something out, but those bullet points comprise a pretty good overview of the legal landscape, right? Surely, you couldn’t find one document that would touch all of that to throw into the time capsule?

Well, thanks to a new lawsuit filed in California in May about another lawsuit filed in New York in May, you can now fill your time capsule with just one complaint plus its Exhibit A.

You may already have read any of the stories about this lawsuit that have run at the ABA Journal or in Bloomberg Law or even this Harvard Law School and snark-centric one at Above the Law.

If you want to read the entirety of what would go in the time capsule, you can read the lawsuit filed by Pierce Bainbridge against Donald Lewis (which attaches the suit Lewis filed against Pierce Bainbridge as an exhibit) by downloading the PDF below.

The two documents combined span more than 110 pages, so here’s a summary.

Lewis joined Pierce Bainbridge as a partner in June of 2018 but ended up working there for only 4 or 5 months. He was terminated by the firm in November 2018. Both sides agree that during the five months he was there A LOT happened. They disagree pretty vehemently on exactly what though.

Lewis filed a lawsuit in New York on May 15, 2019 alleging that he was wrongly terminated as a retaliatory matter because Lewis had become aware of financial wrongdoing by Pierce Bainbridge involving misrepresentations about the value of cases to a third-party litigation funding company. Lewis’s lawsuit sought $65 million in total damages with $50 million of those being claimed punitive damages.

In support of his allegations against the firm and his claims that it is a toxic environment for those who work there, Lewis’s lawsuit publicly discloses a litany of internal Pierce Bainbridge communications including what would appear to be not just emails and text messages but some that are indicated as being from the firm’s use of the Slack messaging platform.

That same day, May 15, 2019, Pierce Bainbridge filed a lawsuit against Lewis in California alleging that pre-suit sharing of a draft of the lawsuit with certain people was actionable defamation by Lewis and that by seeking a multi-million settlement to avoid filing the lawsuit, Lewis was engaged in extortion. The firm’s lawsuit also pursues claims of negligent and intentional interference with contractual relations and prospective economic advantage on the theory that Lewis’s effort to spread false information about the firm and its partners is an effort to damage the firm’s relationship with the third-party funding company and its clients and potential future clients.

Pierce Bainbridge contends that Lewis was the subject of credible allegations of sexual assault, harassment, and retaliation leveled against him by an employee of the law firm and that he attempted to obstruct the firm’s internal investigation of those allegations and was terminated on that basis. The firm’s lawsuit paints a portrait of a lateral hire alleged to have “immediately bec[ome] a corrosive presence” at the firm.

The firm alleges that on the same day Lewis was appointed to be an “assigning partner” a legal assistant made a report about an alleged event that would have occurred in June, fewer than 2 months after Lewis arrived, and that involves Lewis doing his best impression of what might happen if Louis C.K. and Matt Lauer were collaborators on a workplace project. In response to the allegations, the firm put Lewis on administrative leave and hired an outside law firm to investigate. While on leave, the firm alleges that Lewis sent an email to many at the firm airing his allegations (many of which apparently ended up the subject of his lawsuit). For that, the firm says they terminated his employment. The firm contends that their outside counsel concluded that the allegations against Lewis were credible.

Lewis, for his part in his lawsuit which spans 486 numbered paragraphs and was not filed pro se, takes issue with the propriety of that investigation as well and alleges that another partner at the firm was terminated after voicing an opinion that Lewis had gotten “a raw deal” from the firm

Using history as a guide, I’m prepared to declare that neither side will win this lawsuit. As a teaching tool, this lawsuit of course is an easy opportunity to repeat a point I’ve made many times before (here and elsewhere) about why so many law firm disputes and lawyer departures ultimately shouldn’t end up in litigation if there is any way to avoid it. The likelihood almost always is that no one “wins.” Everyone loses. And most prominently among the losers are the clients of the law firms/lawyers who don’t want to directly or even indirectly be harmed by the battle and, if they are at all risk averse, have to find themselves wondering whether they want anything to do with any of the players.

Overreaching on attorney fees. Plaintiff’s lawyers do it too.

There are always a variety of ways that examples of overreaching by attorneys on fees manage to push into the legal news. Recently, I wrote about one example involving hourly billing. More often than not, overreaching under that system is what makes the news.

It is not the only way that attorneys overreach on fees though. It is done by plaintiff’s lawyers as well.

Today’s post is about a very recent disciplinary decision issued by the Tennessee Supreme Court that publicly censures a lawyer for overreaching in connection with a contingent fee agreement. It is a case that confirms a point I have raised with a number of lawyers over the years but for which I never had ready authority – other than the rules themselves – to back up my point. Now, I’ve got this decision in Moore v. BPR to help convince folks who need convincing.

At its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a).

The rules clearly allow a lawyer who wishes to withdraw from representing a client over a disagreement about whether to settle a case to pursue withdrawal as long as they can justify it under one or more provisions of RPC 1.16(b). The law in Tennessee also permits such an attorney, if they do withdraw, to assert a lien as authorized by statute and pursuant to either the terms of their contract or, perhaps, depending on how things turn out for payment in the form of quantum meruit.

What the rules simply do not let a lawyer do is what happened in this new Tennessee Supreme Court case — include a term in the contract with the client that says that, if the client rejects a settlement that the lawyer advises should be accepted, then the lawyer becomes entitled – as a matter of contract – to a fee of x% of the settlement offer being rejected.

And, it does not matter what x equals in that last sentence. However, the nature of the overreach is certainly easier to spot when x happens to equal the original contingent fee percentage as was the case here.

As the Court explains, such a provision is not only antithetical to RPC 1.2(a) because of how much it undermines the right of the client as to settlement but it also takes a situation that is already difficult to balance with questions of conflicts and makes it untenable. Such a provision creates a severe conflict of interest for the lawyer at the moment the other side makes a settlement offer.

You can read the full opinion here. As a bonus, this case is also a primer for those who do disciplinary defense on the potential diminishing returns involved in pursuing appeals from public censures given that the rules prohibit a hearing panel who concludes that discipline should be imposed from imposing any discipline less serious than a public censure.

Thus, any attorney who seeks to appeal from a public censure imposed by a hearing panel has to understand that victory on appeal can only be obtained through a reversal in the nature of complete exoneration on the allegations of disciplinary violations. Far too many attorneys who represent themselves or who dabble in disciplinary defense often fail to understand that dynamic.

When you’re right, you’re right. Even when you’re Right.

I’ve written a bit in the past about the differences between unified bars, like what exists in North Carolina, and voluntary state bar associations such as what we have in Tennessee. (If you are uninterested in clicking on either of those links, as a refresher, the fundamental difference is that unified bars require that anyone who is licensed to practice in the state is a member of the state bar association.)

Among the biggest differences are the risks attendant for unified bars when they take various actions, including issuing ethics opinions, that they are treated as a government entity.

A case working its way through the Texas courts emphasizes another of those risks – the risk that engaging in efforts that bar leadership may believe to be in the best interest of society will be challenged by members of the mandatory bar association on First Amendment grounds.

Those risks have been made starker by the 2018 ruling of the United States Supreme Court in Janus v. AFSCME.

Texas is a state with an unified bar and exactly such a lawsuit has been brought by Texas lawyers over the State Bar of Texas having programs involving diversity initiatives, access to justice, and programs seeking to prevent the deportation of immigrants. This matter came back into the legal news this week because the Attorney General of Texas has taken the somewhat unusual step of filing an amicus brief to side with the lawyers rather than with the government agency under fire.

You can read the Texas AG’s amicus brief here. But, in sum, the argument it makes is that the funding of speech and policies with which one disagrees using bar dues you are required to pay is coerced speech and, in light of what Janus has said about that, is a violation of the First Amendment.

Now, long-time readers of this space will know I’m not much of a fan of the current Texas Attorney General, and I have little doubt that this particular elected official would never have gotten involved in this fashion if the State Bar of Texas had been taking positions more in keeping with his personal politics. (For what it is worth, my own biases had me thinking that even before I read the part of the ABA Journal article pointing out that one of the plaintiffs to whom the AG is lending his support is a conservative group with a PAC that has donated hundreds of thousands of dollars to past campaigns of the AG as well as his wife who happens to be a state senator).

But none of that changes the ultimate fact here that – because of the downsides attendant with the unified bar structure – he’s probably on the side that has the stronger arguments under the First Amendment issue as interpreted by Janus, at least as to the hot-button issue of immigration reform. (I think it is much tougher sledding to claim that fighting for access to justice is not a core regulatory purpose of a bar association sufficient to satisfy exacting First Amendment scrutiny.)

This latest development in the Texas litigation is also further proof, in my opinion, that the voluntary bar association model used by Tennessee is such a vastly better approach overall.

The TBA has repeatedly been able to take positions that I personally view are on the right side of history on a variety of issues with the only risk being that if it somehow gets viewed as too political by someone who disagrees with what it is advocating for then it might lose that lawyer as a member. I would imagine, most of the time, people don’t decide to quit because, on the whole, our voluntary bar association is a worthwhile thing to be part of.

For example, I’m not at all pleased that the TBA has invited (and I’m presuming is paying) Ken Starr to come speak at its upcoming annual convention. I think Starr ought to be treated as persona non grata for a variety of reasons. His most recent hypocrisy regarding attacks on the contents of the Mueller Report as “too detailed” is just the latest example. His utter failure to do the right thing in his time at Baylor is likely, by far, the biggest reason I wish the TBA wouldn’t want him to be any part of any of its programming.

I’m disappointed, but I’m not going to quit my membership over it. I will simply refuse to attend the convention as my small act of demonstrating my distaste with the decision.

But, most importantly, I could never sue about the fact that my dues are being used to fund such an invitation because we’re not an unified bar. If we were, then under Janus I might just have a claim and that’s not at all a good thing for bar associations to have to deal with.