WhatsApp at Atrium? A lot, but also WhatsApp with you?

Now, I’m certain the 5 or 6 of you still left who haven’t been alienated by the long hiatus are a bit miffed about the lack of content over the last couple of weeks.

Fair, but technically there has been new content posted to the blog first on January 10 and then on January 12, just not by me. Two interesting comments on this post of mine about Atrium Law were left by someone who — other news sources tell me – may well have been one of the lawyers laid off by Atrium in the past few weeks.

Now I’m not really in the breaking of legal news business as much as the commenting on breaking legal news business so the fact that I life and work conspired to cause me to miss the opportunity to be among the first to speak on that development is not so bad. My delay allows me to instead point you to a number of good pieces that have been written about the goings on over at Atrium. Try here, here, and here.

For today, I want to try getting slightly out in front of a different issue that needs to be relevant to lawyers struggling with finding the right balance for how to engage in electronic communications with clients on various platforms. While “scary” is an overused term in a world as unstable as ours and where wealth is unevenly distributed and people all over the world truly live in scary conditions, concerns associated with the security of communications platforms can at least be “scary” at the “world of lawyering” level.

With WhatsApp being a pretty prominent texting platform, particularly for international organizations, the news of one or possibly two very prominent apparent hacks through use of that platform should make lawyers very cautious about using it to communicate with clients. The one that seems more concrete is the news regarding Amazon’s CEO having been hacked by a Saudi Arabian royal through the sending of a link through WhatsApp. You can read a good article about that trending story here. That article also helpfully reminds users of the fact that a similar-sounding vulnerability was acknowledged and patched by the app in November 2019.

The more speculative story making the rounds ties together these stories about potentially improper use of personal devices and apps to pursue official White House business and the known friendship Jared Kushner and the particular Saudi Arabian royal involved in the alleged Jeff Bezos hack.

Now, others have written long ago about reasons to be concerned about whether this particular app can be used ethically at all given other issues that are known risks, like this article that was in Above the Law more almost a year ago.

Prominent news stories such as these raise the specter of concern over less obvious risks of use. Such risks tied in with the fact that almost every state now has adopted some version of the “ethical duty of technical competence” concept through embrace of language in paragraph [8] of the Comment to ABA Model Rule 1.1 just adds more fodder for lawyers to be wary of the risks associated with third-party platforms when communicating with clients and to be deliberate about deciding whether to address such concerns in advance through language in engagement agreements.

Two more ethics opinions explore restrictions on lawyers’ ability to enter (or even offer) certain contracts.

First, this is not being titled as a “Friday Follow Up” post because, like the rest of you, I have no idea what day of the week it is at this point.

Second, there is way much more important events afoot in the world and if you want to know my thoughts about those you can go find me on Twitter. Given the complete lack of even a fig leaf to connect to legal ethics on that front, I’m sticking to sports here.

Third, two ethics opinions from two different states came out late last year addressing two different variations on ways that the ethics rules makes lawyers “special” when it comes to the right to contract. Because states like mine have been engaged in the issuance of ethics opinions really pushing the boundaries of this concept (at least as to the scope of RPC 5.6), it seems worth mentioning these two opinions albeit each for slightly different reasons.

The first of the two is almost entirely straightforward in addressing something that I certainly think is undoubtedly clear from the Comment to the ABA Model Rule — whether the scope of RPC 5.6 is somehow different for in-house counsel. Nevada, in Formal Op. 56, has made plain that the scope is not different, explaining that an in-house counsel cannot accept a stock award agreement that is made contingent upon agreeing to a one-year covenant not to compete. It somewhat helps to understand why Nevada would have to issue an ethics opinion on this question to know that Nevada has no Comments adopted along with its rules. Instead, Nevada’s Supreme Court has offered that both the preamble and the comments to the ABA Model Rules are something that “may be consulted for guidance in interpreting and applying the Nevada Rules of Professional Conduct.”

Here in Tennessee, we actually have our own Comment identical to the ABA Model Rule version so an ethics opinion wouldn’t really be necessary to cover the fact that the Comment specifically says it applies to organizational employers as well as private firms. One nuance that the opinion introduces but does not explore in any real depth is that an in-house counsel could agree to a non-compete that would only apply to the performance of business functions, rather than legal services, at a competitor. Thus, an in-house lawyer serving as both General Counsel and Executive Vice President at one corporate employer could be required to agree as part of a stock bonus not to take any similar employment with a competing company in the future by focusing only on the executive portion of the existing job.

The Nevada opinion also delves a bit into a way that a confidentiality agreement as part of such a stock award could also run afoul of RPC 5.6 by extending beyond the requirements of RPC 1.6 and RPC 1.9 under the ethics rules.

The other opinion I wanted to touch on comes from Los Angeles. LA County Bar Op. 532 tackles a question that does not require application of RPC 5.6 to resolve but that is not entirely unrelated to that rule — whether a lawyer can agree to indemnify the adverse party as a condition of a settlement. The LA County opinion correctly reaches the conclusion that the lawyer cannot do so because of the conflict that creates between the personal interests of the attorney and the client’s interests. It is an uncontroversial conclusion as the opinion admits because there are some 20+ other jurisdictions, including here in Tennessee, that have likewise made such a settlement provision improper.

Two other aspects of the opinion are much more interesting, however. One is that the primary ground on which the opinion nixes the possibility is that doing so would be the lawyer improperly paying the client’s business or personal expenses in violation of California’s RPC 1.8(b)(5). The other is that the opinion also involves RPC 8.4(a) to create the same dynamic that is in play when RPC 5.6 is triggered – it is unethical for a lawyer to propose such an agreement to the plaintiff’s lawyer because it would be unethical for the plaintiff’s lawyer to agree to it. While RPC 5.6 states plainly that it is an unethical for a lawyer to “participate in offering or making” the kind of agreement addressed by Nevada as discussed above, the potential reach of RPC 8.4(a) when it comes to negotiating contracts is often overlooked. California’s rule, like the ABA Model, makes it a disciplinary violation for a lawyer to “knowingly … induce another” lawyer to violate the ethics rules.

My favorite post of 2019

For the second straight year, I’m ending the year with an homage to a concept (ripping off an idea) pursued by Nate DiMeo the writer and performer of The Memory Palace podcast. I’m going to re-post what was my favorite post from the past year.

Deciding what to put out there again this year was fairly easy as it is a post that (I think) offers the most solid and original idea about anything related to ethics that I offered up this year. It also continues something of a theme of last year’s repeat offering as it focuses on what the profession should be moving toward and, thus, also is a nice way to usher in a new year — particularly a new year where the numbering offers plenty of opportunities for puns about vision.

Of course, as often happens when I think I have offered up a solid and original idea, it ends up pretty much entirely ignored. So, let’s give this one another chance to gain relevance.

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).

The perils of letting your clients speak for themselves.

I’ve been known in the past when writing or speaking about Model Rule 4.2 and the restrictions it imposes to make the point that our ethics rule treats grown up adults as incapable of making decisions for themselves. Mostly jokingly I make that point. When elaborating it is merely to focus on the idea that in order to protect clients from overreaching by adverse counsel the rule does not allow the client to make the decision it wishes to communicate with the lawyer for their adversary. The consent to allow such a communication to occur has to come from the lawyer for that person.

But, what can happen when a represented client decides to freelance and talk about their legal issues without the input of their counsel? Well, as luck would have it during this extremely historic week in the United States, we have an example that can be taught and learned from.

An example where the client made a public communication that could be described by those who read it as “incoherent,” “utterly frivolous,” “chock-full of impenetrable arguments and unsupported assertions,” “organized in ways that escape our understanding,” and that “capitalizes words seemingly at random.”

You probably know exactly what I am referring to.

What? No, I didn’t see that the third President in U.S. history to ever be impeached sent a letter out earlier this week that his lawyers didn’t bless. I’ll have to check that out.

No, I’m referring to a brief that was filed in the Seventh Circuit Court of Appeals by a represented party but that wasn’t actually authored or approved by the lawyer for the party.

The ABA Journal has a story about it here. You can give the two opinions of the Court of Appeals that resulted a read if you’d like here and here.

Though as both the article and the opinion stress in their own ways, the true problem for the lawyer involved in this situation, and the reason for sanctioning, was the decision to let the client’s filing appear as if it had been the work-product of the lawyer and not a pro se filing by the client. The Seventh Circuit was particularly chapped when it first ruled at the notion that an attorney was responsible for a “monstrosity of an appellate brief.”

The patently frivolous nature of this appeal isn’t the only thing that troubles us. The hopelessness of McCurry’s cause didn’t deter her lawyer, Jordan Hoffman, from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law.

That, in and of itself, is a rare variation on a topic much-discussed, and likely much more common, when a lawyer offers behind-the-scenes assistance to a client but then has the client make the filing pro se and without disclosing that a lawyer’s assistance was provided. That is a set of circumstances that can also bring about ire from a court but for entirely different reasons.

As a reminder to my Tennessee-based readers, we have a Formal Ethics Opinion addressing that particular ghostwriting issue, which you can refresh your memory about at this link.

Two updates: Ruff[alo]ed feathers in Georgia & Piercing personal jurisdiction in California

Apologies for the drought in content over the last little bit as I’ve been traveling my state for my Ethics Roadshow doing a three-hour presentation in four cities about what I think the future looks like for those who will still be practicing in 2025.

For today, two updates of note that involve important, ongoing topics but that also involve strikingly different interactions.

I’ve written quite a few posts during 2019 and I’ve had subsequent interactions with lawyers involved in two of those matters. One of the interactions has been cordial and one has not. As with all things in the world, their situations and lives have continued and more has transpired regarding their disputes since I interacted with their stories.

The lawyer taking on whistleblower status in a high-profile dispute with his former law firm that involved litigation on both coasts that I wrote about earlier this year (under the heading “A lawsuit about a lawsuit that touches on everything about 2019?”) has emailed me on a few occasions to update me about the litigation proceedings. His dispute with his former law firm involves very serious allegations being thrown in both directions by the adversarial sides.

Most recently, the California lawsuit that was filed against him by his former firm, after he had filed his own lawsuit against his former firm in New York, appears to have been dismissed/quashed on the basis of a lack of personal jurisdiction.

The New York litigation between the parties is ongoing, however. One piece of the ongoing dispute appears to be over whether the lawyer will be entitled to obtain a copy of the investigative report upon which the firm allegedly relied in deciding to terminate him and whether another sealed litigation matter in New York should be unsealed. Should you be interested, you can read the firm’s opposition to those efforts and the lawyer’s reply to that opposition at the buttons below.

Another post I wrote earlier this year was about a Georgia lawyer who was being disbarred and who provided an example of how difficult it can be in a disciplinary case to plead the Fifth Amendment without being visited with dire consequences for one’s license. She has also corresponded with me, but her interactions with me have involved demanding that I delete my prior post about her disbarment.

Given that my prior writing on her situation relied upon both the Georgia Supreme Court disbarment order and reporting by the ABA Journal online, I’m not concerned about any threats or demands to delete content. What I’ve written is clearly covered by fair report privilege as well as worthy of protection under my state’s anti-SLAPP statute.

But I did want to share a filing she has sent me that she has made with the United States Supreme Court because it raises issues of potential real importance in the world of lawyering and disciplinary defense.

As I wrote back at the time, even though disciplinary proceedings are treated as quasi-criminal, lawyers who plead the Fifth when trying to defend their licenses invariably have such refusal to testify held against them. This particular lawyer is now seeking relief from the U.S. Supreme Court to hear her case and to stay the disbarment, in part, on the basis of arguments over the correct application of In re Ruffalo and other U.S. Supreme Court decisions addressing the impact of asserting the Fifth Amendment on a disciplinary matter.

Her effort to have the Court take her case and overturn the disbarment also raises an issue that I talked about some during my recent Ethics Roadshow, the impact of the United States Supreme Court’s ruling in North Carolina State Dental Board v. FTC on the risks for unified bars of potential attacks based on antitrust liability when the majority of the decision-makers are active practicing lawyers.

I would imagine that the likelihood of the Court taking this lawyer’s case up is small, if for no other reason than that statement is true about any effort to get the Supreme Court to hear a case. But the motion seeking stay makes arguments that, if the Court does take the matters up, could make for interesting developments and it makes for interesting reading in terms of how those arguments are constructed as well.

You can read that U.S. Supreme Court motion filing at the button immediately below:

For attorney’s eyes only.

Okay. It helps to get into my mindset while writing this if you hear the title in the voice of the musical snippet “For British Eyes Only” from Arrested Development. If you can’t make the frame of reference, then so be it. We’ll have to work to find common ground all the same. (Actually, for the briefest of moments I forgot that we live in 2019 when everything is but a link away, so here is what you want the title of the post to sound like: clip.)

Ethics opinions are interesting creatures. They provide a group (usually) of people with law degrees with an opportunity to elaborate on otherwise potentially unsettled (or even unsettling) questions of application of the ethics rules. As a result, they can be used to set a trend in one direction or another toward either expanding or limiting the scope of a rule.

Usually, they are most influential when they involve an interpretation of the standard version of a particular ethics rule. In Tennessee, as I’ve written about a few times now, formal ethics opinions are being used (for better or worse) to severely expand the scope of what RPC 5.6 means in terms of when an agreement entered into in connection with the settlement of client’s matter will be deemed to involve an improper restriction on the attorney’s right to practice. Those opinions are potentially of particular moment because they are interpreting language that is pretty widespread in its uniformity: “A lawyer shall not participate in offering or making … (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” Over the course of a few opinions now, the Tennessee Board of Professional Responsibility has added layer upon layer of kinds of provisions that could be in a settlement agreement for a number of potentially legitimate reasons but that are being ruled out because they are being treated as an improper restriction under RPC 5.6.

A recent ethics opinion in Ohio addressing another variation of same seems to be rowing in the same direction as it concluded that a plaintiff’s lawyer could not be asked to commit to the fact that they did not actually have any other clients at the moment of settlement with similar claims against the settling defendant. You can read that one here.

So, I was briefly intrigued when I saw a tweet about a proposed ethics opinion in North Carolina that was concluding that a lawyer could ethically agree to an “attorney’s eyes only” restriction on the production of certain documents in a case without first getting their client’s consent to such an arrangement. That seemed like a very difficult position to justify and it seemed like it was something of a polar opposite of what is going on in the thread of Tennessee ethics opinions about RPC 5.6. The 5.6 series of opinions is almost going out of its way to find conflicts between an attorney’s interest and their client’s interest in order to shoehorn the situations into RPC 5.6. Yet, here was a nearby state proclaiming that something that seemed squarely like a real conflict for the lawyer would be kosher even in the absence of seeking client consent.

(Admittedly, my initial reaction also was to be skeptical about the conclusion. I’ve certainly encountered my fair share of AEO provisions in protective orders but I’ve never signed off on one without running it by the client so that they can decide in advance if they are going to have a problem with the arrangement. Seems like a pretty clear creation of a conflict of real importance to the attorney-client relationship where the client should be signing off on accepting such a situation before it transpires.)

But, in reading the proposed opinion, which you can access here,what I learned is that it leans heavily upon non-standard language in North Carolina’s rules that provides strong justification for the conclusion. Specifically, it relies upon the fact that North Carolina has divided its RPC 1.2 into a number of subparts, including an (a)(3) that gives the lawyer the ability to “exercise his or her professional judgment to waive or fail to assert a right or position of the client.”

On its face, the existence of such a rule could provide grounds to think this is a correct conclusion, but, if you really think about it, that provision if it is without limit is … I believe the technical, legal term would be BANANAS!

Surely, it was never intended to impact things that are vital to the representation and for which the client should have final say. Right? I mean, on its face, it would allow a lawyer to exercise professional judgment to waive the client in a criminal case’s right to choose not to testify.

To the extent the comments provide us with any insight about what was intended it seems pretty important to note that paragraph [1] of the Comment provides only one elaboration on the concept: “For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.” That is both an innocuous example of the use of the rule and one that seems pretty redundant for RPC 1.2(a)(3) given that North Carolina’s RPC 1.2(a)(2) also addresses that kind of situation by saying: “A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.”

Hoosier overseer?

If you are a reader of legal publications or legal blogs, you’ve likely already read something about the nightmarish night out in Indiana that resulted in two state court judges being shot and three state court judges being disciplined. You can read all of the underlying facts if you’d like in the decision that was issued earlier this month imposing judicial discipline here.

Beyond making, by pretending I’m not making, a joke about how their trip to White Castle went much worse than Harold and Kumar’s, I’m not particularly interested in piling on with opinions about that situation.

If you’ve ever personally allowed yourself to consume much more alcohol than you should – and as a result experienced a situation in which you stopped making new memories (which as I understand it is actually what scientists and researchers believe happens when you “blackout”) — then even if you think what happened would never happen to you, you know deep down that maybe, just maybe, you’ve been at risk of such an outcome. But, I do want to use this story to make two points that are worth continuing to think about.

First, each of the judges was a lawyer in the past (and still had a law license at the time) and all of the discussions that we have as a profession about mental health and substance abuse issues in our profession apply equally, if not more in some circumstances, to those on the bench. The need to de-stigmatize seeking help and treatment for judges is just as topical as it is for lawyers.

Second, these judges ultimately were subjected to discipline over this. That is because when it comes to lower level judges we have bodies that oversee their compliance with judicial ethics rules and impose judicial discipline. If the players in the events outlined in the Indiana opinion were not Indiana state court judges, but instead were Justice Kavanagh, Justice Alito, and Justice Kagan experiencing a drunken night on the town that went horribly wrong, there would not be any potential for any disciplinary repercussions whatsoever because we have no regulatory body that is imbued with the authority to enforce any code of federal judicial ethics as against any members of the United States Supreme Court.

Sure, it is possible that articles of impeachment could be pursued to seek to remove a Justice from the bench over conduct like that, but . . . well, let’s just agree that a body a bit more removed from politics would seem like a more reliable regulator in terms of predicting whether it would see certain conduct as indefensible and worthy of rebuke.

There are people out there generating ideas for ways to bring about ethics reform with respect to the United States Supreme Court. The Brennan Center has put out a white paper with three ideas for reform you can read here. The U.S. House of Representatives passed a bill (not acted upon in the U.S. Senate of course) that would require the Court to adopt a code to govern the conduct of its justices. It has recently (earlier this year at least) been in the news that Justice Roberts is exploring creating such a code.

I don’t purport to know what the correct answer is exactly, but I know that while the risk of something like what happened in Indiana happening to members of the highest Court in the land is likely pretty slim, there are real, substantial ethics questions in play about the members of the Court conduct themselves and our system would be greatly benefited if there was clear, and clearly articulated, rules governing their conduct just like exist for all other judges in our country.

Really good guidance, but not good enough for some.

While I’m catching up on things I should have managed to write about sooner, ABA Formal Ethics Op. 488 is deserving of a few words. That opinion was issued back in early September of this year. What particularly brought it to mind now was that it covers one of multiple topics I was lucky enough to get to talk about last weekend at that PilotLegis member meeting I mentioned in a post last week.

Opinion 488 is a very well written opinion covering the landscape of what the consequences for judges should be in situations where they have some sort of relationship with lawyers or parties appearing before them. The opinion addresses this question with an eye toward what folks online refer to as IRL situations.

It divides the world for judges into three categories of relationships: (1) acquaintances; (2) friendships; and (3) close personal relationships. Having done so, it proceeds on a pretty straightforward basis to explain that if a judge and a lawyer, or a judge and a litigant, are just acquaintances, then the judge has no obligation to even make disclosure of that fact and certainly no obligation to decide to recuse themselves because they are disqualified from presiding. The opinion offers a fairly succinct proffered definition of what it means by the term “acquaintances” — “A judge and lawyer should be considered acquaintances when their interactions outside of court are coincidental or relatively superficial, such as being members of the same place of worship, professional or civic organization, or the like.” The opinion also makes clear that a judge and a litigant should be considered acquaintances under the same kinds of circumstances as judges and lawyers. As to the third category, “close personal relationships” the opinion explains that those require disqualification outright only if the relationship is a romantic one or what I’m going to call “unilaterally, aspirationally romantic.” Where the judge wants to have a romantic relationship with the person. As for the rest of the world of friendships and other close personal but non-amorous relationships, the opinion candidly admits that they are all pretty much fact specific as to whether disqualification is required or merely a disclosure on the record is what is required accompanied by an explanation of the grounds for why the judge believes they can still preside is appropriate instead.

I can manage to have some real fun criticizing ethics opinions from time-to-time so I can’t really begrudge others when they do. But this is one that I think gets things correct.

Two other prominent legal ethics experts, Karen Rubin and Alberto Bernabe, criticized this opinion in slightly different ways. Karen expresses disappointment that is does not do enough to provide what she called “needed” guidance about the impact of judges’ use of social media and connections with lawyers and litigants on questions of disqualification. Professor Bernabe mentioned that omission but was a bit more critical of the nature of the opinion as being an “it depends” and is largely “up to the judge” in the first instance.

I disagree on Professor Bernabe’s point because I think that is the very nature of the beast. And, I appreciate the opinion being candid about the exercise. I disagree with Karen Rubin for what might be two reasons, but might really just be one overall reason.

First, treating social media as something so important or different as to be deserving of its own space and separate treatment (I think) misses the larger point. A social media connection simply is just one piece of the overall puzzle of determining whether or not the judge and the person have an actual relationship that is a friendship or something less. Second, the opinion does address the topic – and does so in a way that is entirely consistent with my first point. It does this in footnote 11:

Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.

By simply acknowledging that it matters, but that it is no more dispositive of the relevant question than any other piece of the puzzle, I think that Opinion 488 handles it exactly the correct way. Stated another way, given the widely varying state opinions that Karen addressed in her much more timely post about this, I think the guidance needed from the ABA on the social media front was pretty much exactly what was in the footnote and nothing more. If that guidance is heeded, then perhaps state entities can start to “chill out” a bit about the trees and focus on the forest.

Rule revision roundup.

That title is probably a thing somewhere else on the interwebs already, but I’m just lazy enough to not look it up at the moment.

So, it’s been a minute since I have written anything about the progress (or lack thereof) of jurisdictions adopting ABA Model Rule 8.4(g) and since I have written anything (other than indirectly) about whether any progress has been made on adopting the revised, modernized approach to lawyer advertising rules seen in the APRL-inspired, ABA Model Rules revision from last year.

In overlooking those stories in favor of writing about more radical proposed changes to the ethics landscape (some of which have thrown modernized advertising proposals into the stew), I’ve been highlighting a lot of activity in the western United States. But spending a bit of time on these other two topics, gives me a chance to write about happenings in the New England region of the United States.

Specifically, earlier this year (more than five months ago in fact), Maine became the second U.S. jurisdiction to adopt a version of ABA Model Rule 8.4(g) to seek to address harassment and discrimination related to the practice of law. A neighboring state, Vermont, is the only other state to have done so. Unlike Vermont, however, Maine did not adopt an exact version of the ABA Model Rule. Instead, Maine tweaked it in a few significant ways: (1) the Maine version does not include “marital” or “socioeconomic” status among the grounds for which discrimination is off-limits; (2) the Maine version does not include bar activities or professional social functions within what counts as “related to the practice of law,” and (3) it provides more detailed examples of what amounts to “harassment” and what amounts to “discrimination” under the rule. You may recall that an effort to adopt a modified version of Rule 8.4(g) here in my state of Tennessee failed miserably in 2018.

A bit more recently (only just three months ago), Connecticut became the first state to adopt the ABA revisions to the Model Rules related to lawyer advertising. You may recall that Virginia actually overhauled its rules even before the ABA took action by adopting the original APRL proposal back in 2017. In so doing, Connecticut (for the most part) has stripped its advertising regulations down to just three rules — patterned on ABA Model Rules 7.1, 7.2, and 7.3. Connecticut does still keep a couple of its additional bells and whistles (though it can be hard at first blush to know for certain because they used [brackets] to indicate deletions rather than strike-through text). One deviation that it kept was its 40-day off limits provision for people involved in accidents. Another deviation is that they have a three-year record retention requirement in their version of these rules. A few other deviations made it through as well.

If I could take issue with one choice Connecticut has made (well, technically two — seriously, don’t do the brackets thing ever again), it would be the level of unnecessary detail in the following provision about record retention:

An electronic communication regarding the lawyer’s services shall be copied once every three months on a compact disc or similar technology and kept for three years after its last dissemination.

The problem with this is … well there are several. In 2019, a whole lot of computers don’t even have CD-ROM drives any longer, but also the level of specificity and detail is both micromanagement of an unneeded degree and entirely unlikely to actually accomplish anything. As to micromanagement, just require that an electronic record be retained for the three year period – if they want to store it in a server or in the cloud or wherever, it won’t matter as long as they retain it so that if you ever need to examine it you get it from them.

And also, every three months? Both micromanagement and ineffectual, a lawyer who wants to game that system just changes an electronic communication to be shady in the middle of the three month window and changes it back in time to make the every three-month copy.

Except, of course not really, because the stories about Connecticut’s adoption of the ABA Model Rules on advertising, including this story, all buried the lede — Connecticut still requires lawyers who advertise in public media to file a copy of the advertisement in the form it is distributed with the Statewide Grievance Committee. Sigh. While this is not a “prior restraint,” it is a “prior pain-in-the-ass” (TM, TM, TM, TM) that serves little to no purpose other than imposing additional expenses and red tape on lawyer advertising.

To have both such a filing requirement and a three-year record retention requirement is among the worst sort of “belt and suspenders” arrangements.

In the end, I guess that’s part of why it took so long to actually write this post. Between reading the headlines and being a bit excited and actually studying what Connecticut did, I ended up feeling like I just got nutmegged.

Then I went and slept on Arizona

So … as far as 400th posts go … this should be my best 400th post at this blog.

A while back I warned everyone not to sleep on Arizona when it comes to movement toward radically reshaping the regulatory landscape for lawyers. Apparently, I should practice what I preach because Arizona’s Task Force on the Delivery of Legal Services put out its most recent report a month ago, and I haven’t gotten around to reading it or writing about it until now.

You can read the full report and its appendices here, but the headline that matters for today is that the Arizona task force — like Utah before it — has also proposed eliminating altogether Arizona’s Rule 5.4. The report includes a large number of other proposals aimed at improving the delivery of legal services in Arizona but because of the dynamics involved, any serious proposal in any state to throw open the doors to lawyers being able to practice in firms owned by people who are not lawyers will consume all of the oxygen in any given room.

As with all of the reports that are being churned out by various work groups, the Arizona task force report spends a lot of time discussing issues associated with the “justice gap.” The Arizona report does a pretty good, very pithy, job of making the point that many hear but don’t allow to fully marinate when thinking about these issues — on average, real people (as opposed to corporate people) don’t hire lawyers for much of what they need to be hiring lawyers for and, on average, lawyers who work in small firms don’t have enough work to do to make ends meet.

While admittedly blending together data involving disparate time periods, the Arizona report nicely blends together information written about by Professor Henderson and data made available by Clio:

One reason for the current “justice gap” is that the costs of hiring lawyers has increased since the 1970s, and many individual litigants have been forced to forego using professional legal services and either represent themselves or ignore their legal problems. Professor William D. Henderson, Indiana University Maurer School of Law, has noted the alarming decline in legal representation for what he calls the “PeopleLaw sector,” observing that law firms have gradually shifted the core of their client base from individuals to entities. Indeed, while total receipts of United States law firms from 2007 to 2012 rose by $21 billion, receipts from representing individuals declined by almost $7 billion.

[snip]

According to the 2017 Clio Legal Trends Report, the average small firm lawyer bills $260 per hour, performs 2.3 hours billable work a day, bills 1.9 hours of that work, and collects 86% of invoiced fees.11 As a result, the average small firm lawyer earns $422 per day before paying overhead costs. These lawyers are spending roughly the same amount of time looking for legal work and running their business as they are performing legal work for clients.

In reaching the conclusion that Rule 5.4 should simply be scrapped, the report explains that the task force considered and rejected options to just amend Arizona’s Rule 5.4 to do something closer to what the D.C. Rules have long permitted at the entity level and also rejected a small “sandbox” sort of arrangement that would have allowed just applicants who could get approval to run “pilot” project style efforts.

The Arizona report, like Utah’s before it, also has an eye toward creating a mechanism for “entity” regulation. Interestingly, the Arizona report also recommends scrapping Rule 5.7 regarding law-related services in light of the deletion of Rule 5.4’s prohibitions and in favor of amendments to other rules to make clear that the kinds of protections that a rule like Rule 5.7 gave a lawyer a mechanism for not having to afford to customers who were not clients should always be afforded to customers in a post-5.4 world whether clients or not. Also, as indicated would be the case in my earlier post about the goings-on in Arizona, the report does propose dropping altogether the restriction on paying for referrals housed in Rule 7.2(b).

The Arizona report also contains an Opposition Statement, written by a member of the Arizona task force who also happens to sit on the Arizona Court of Appeals. In short, Judge Swann’s Opposition Statement can be summed up as seeing the proposal to scrap Rule 5.4 as a cash grab by the legal profession wearing the cloak of concern with access to justice. Perhaps the strongest point Judge Swann makes is how badly the judicial system itself is in need of reform:

Though the current rules do an excellent job of implementing the “Cadillac” system of trial by jury and cutting-edge discovery techniques, they are completely ineffective at offering a simple path to dispute resolution for self-represented litigants, and they offer no streamlined procedures for small cases. The complexity of the system – indeed the very need for legal services in many cases – is a problem of our own making. I respectfully submit that the Task Force should have directed its attention to systemic reforms, and not to finding ways to direct even more resources to an already-too-resource hungry system. If the court system is too complex for the average citizen, then we must create a simpler and more efficient system – not new industries that will continue to consume the public’s money.

With its built-in “dissent,” the Arizona report really does frame the issues quite appropriately in terms of the nature of the choices that are out there for what must or should or will happen next both in Arizona and elsewhere.

This coming weekend, this general topic will be one of several that Merri Baldwin and I will be speaking on at an event for the PilotLegis Annual Member Conference in Washington, D.C.

Later this year, what has been going on and what comes next will be the focus of the 2019 Ethics Roadshow. We’re calling it “What to Expect When You’re Expecting (Fundamental Changes in the Legal Profession).” I’ll be doing it live in Memphis, Nashville, Chattanooga, and Knoxville over the course of two weeks in December 2019.