Lawyers and publicity. Two related but unrelated stories.

This space has focused on a number of occasions on the difficulties for lawyers in dealing with certain forms of negative publicity. I won’t link to all of those past stories for a variety of reasons. (If you are stuck at home both because of the pandemic and winter weather and are looking for things to read, you can find them by searching for the “public relations” tag on this blog.) I will, however and for obvious reasons, offer a link to an article I had the opportunity to provide a number of quotes for that discusses the most recent ABA Ethics Opinion about the difficulties for lawyers in responding to a negative online review posted by a client. You can go read that piece here.

But lawyers can also be the harbingers of their own negative publicity online. The simplest way they can do that can also involve violating their obligations of confidentiality to their clients or former clients.

The opportunity to segue from the little bit of shameless self-publicity above to what I’m about to write below falls short of true hubris, I think, but also feels salient because one of the distinct memories I have of my interview with the reporter for the story linked above was demurring on her inquiries for me to offer an anecdote of a story where I actually helped a lawyer try to deal with negative online publicity because I couldn’t do so without violating my obligations of confidentiality.

An extremely high-profile version of one or more lawyers dunking on themselves occurred this week when the lawyers that made up the “team” that represented Donald Trump in his impeachment trial before the United States Senate appear to have cooperated with prominent peddlers of village gossip at The New York Times by speaking at length about the dysfunction among the attorneys for the former President.

The story certainly makes for a fascinating read and you can digest it here, but is a story that should never have been available because the lawyer who is repeatedly quoted in the piece, Schoen, had no business talking to the media about his representation of his client. (Lest it be unclear, he also would have had no business speaking to the media about any of his co-counsel’s representation of the client if he had left it at that because that still would have been information protected from disclosure by RPC 1.6.)

Now, I’m assuming that Schoen didn’t have permission from the client to have done so, but I feel I’m on pretty safe ground about that assumption.

Ironically, the only lawyer involved in the Senate representation that actually appears to respect his obligations of confidentiality is the lawyer who provided the worst substantive representation during the actual proceedings, Castor.

There are, of course, lots of side lessons that could be learned from all of the machinations involved and described in the article. But let’s just stick with a lesson that can have universal applicability.

RPC 1.6 – nearly everywhere – imposes an obligation of confidentiality on a lawyer as to any information related to the representation of a client. A lawyer can disclose such information if the client gives consent or if doing so is impliedly authorized in order to carry out the representation. The rule does not have any clear provision in it that would waive its requirements for publicly disclosed information. Rather, its commentary guidance indicates that it still applies even to matters of public record. Discussing internal quarrels after a representation is over will never fit the implied authorization requirement. Also, the same analysis that explains why none of the discretionary exceptions work to allow a lawyer to respond to a negative client review online applies pretty squarely to explain why “unhappy with public perception of my competence” isn’t a sufficient justification to speak publicly about work done for a client.

It’s always easy to get distracted by the cat.

So, if you’re involved in the legal profession, one thing was guaranteed to make it into your email inbox or social media feed or both. And, no, it wasn’t even the atrocious lawyering that was on display in the defense in Washington, D.C. of a former social media influencer. It was undoubtedly the 34 second video from a Zoom hearing of a lawyer who was stuck using a cat filter and didn’t know how to disable it.

I am extremely confident that you’ve seen the video. I probably watched it at least 5 times yesterday and laughed pretty raucously each time. Everything about it is pretty seriously funny. Except for one part. That’s the part that I think needs to be discussed seriously and, so far, hasn’t been.

Now I’m not going to weigh in on the “tech competence for lawyers and ethics” piece, others have already rapidly covered that ground. You can read three of the better quick pieces here, here, and here.

No, I want to focus on a slightly larger issue for lawyering and a much larger issue for the public at large.

While all the humor was occurring in the bottom right square of the video, the upper left square had text of warning. (Now, admittedly, the warning may have been disregarded in order for all of us to have seen the video, but it was still there and presumably appears ubiquitously in proceedings in that particular court.)

The language of warning read:

394th Judicial District Court

Recording of this hearing or live stream is prohibited.

Violation may constitute contempt of court and result in a fine of up to $500 and a jail term of up to 180 days.

Excuse me?

Earlier in my career, along with normal litigation and legal ethics work, I represented a few media entities from time-to-time including work on access to courts issues so I can still remember many of the better quotations by heart, including this one:

What transpires in the courtroom is public property.

Now I remember the quote off the top of the dome, but have to look it up to be able to tell you the name of the U.S. Supreme Court case it comes from, which is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and, actually, is quoting an even older U.S. Supreme Court case, Craig v. Harney, 331 U.S. 367 (1947).

The pandemic has sown much chaos and disruption into our judicial system. This has been particularly difficult for people facing criminal charges as many have had to languish in prison for inability to take their case to trial in states where in-person judicial proceedings have continued to be prohibited because of the risk of transmission of the virus.

The ability to allow the business of the courts to continue through remote virtual proceedings has been a positive, but the cavalier nature in which courts are disregarding the issues associated with finding ways for the public to still have access to proceedings is not at all a positive for our system of justice.

While the restrictions on physical access to court proceedings where such in-person proceedings still take place can be justified on emergency grounds of being necessary for the protection of the actual, physical health of the public, presumptive restrictions on members of the public being able to monitor and watch judicial proceedings that are able to happen online are very unlikely to be justifiable as necessary at all. Such restrictions also are harmful to the health of our judicial system.

As another of the most important cases serving as the foundations of public access to judicial proceedings fleshes out, allowing for people to see and scrutinize trials and court proceedings “enhances the quality and safeguards the integrity of the fact finding process” and “fosters an appearance of fairness, thereby heightening public respect for the judicial process.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982).

The fact that our profession, 11 months into a pandemic, is being pretty blithe about the idea that the contents of public court hearings in February 2021 come with a broadcast threat that you could go to jail for recording them or sharing the contents of a live stream of them is not at all a good look for attorneys, judges, and the system.

The ethics rules in most jurisdictions (patterned after ABA Model Rule 6.4) make clear that lawyers are allowed to participate in judicial and legal reform efforts even if doing so might get you crosswise with the interests of clients you represent, I’d like to encourage lawyers out there to be more willing to do so to make certain that the increasing trend toward making what happens in court proceedings essentially private comes to an end.

Everything is arbitrable in New Jersey. (Sort of)

Lawyers and law firms have long struggled – at least during the length of my career – with whether they can, or should, include a provision in their contracts with clients that would require arbitration of some, or all, kinds of disputes.

In situations where a local or state bar association offers a free, voluntary fee dispute arbitration forum, the decision to put something into an engagement letter requiring participation in such a tribunal upon demand tends to be an easier call.

Seeking to have clients agree to arbitrate fee disputes and only fee disputes also tends to be an easier call even in the absence of bar association provided venues.

Whether a lawyer can, or should, seek to have a client agree to arbitrate all claims or disputes, is much trickier stuff. Many jurisdictions do not offer much in the way of formal ethics guidance beyond making clear that you cannot avoid having to take a trip through your state’s disciplinary process by trying to claim that an agreement to arbitrate disputes would include preventing a client from pursuing a grievance against the lawyer’s license. (In fact, in some places, simply trying to do that could get you into disciplinary trouble.) Another issue that exists in this realm but is often not fully focused upon is any impact that federal law, and specifically the Federal Arbitration Act, would have on enforceability in that it can be difficult for a client to try to argue that the nature of a legal matter does not affect interstate commerce. If the FAA is recognized as applying, then obstacles to enforcing an arbitration agreement with a client should be significantly reduced.

In advising lawyers on the topic, I have tried to be practical about the risk associated with such provisions and the need to be exceedingly clear and transparent about how any such provision is explained to a client. (I also make an effort to strongly suggest that the lawyer communicate with their professional liability insurance carrier as those folks tend to have strong opinions about whether arbitration is a good forum for resolving a legal malpractice claim or whether it is more likely to result in a “split-the-baby” outcome.) I have not actually written anything about this topic here in more than five years though.

Recently, the New Jersey Supreme Court has issued a thorough, and pretty good, opinion navigating the waters of how an attorney may balance their ethical duties of communication with obtaining an enforceable arbitration agreement from a client. Unfortunately, for the law firm in question that was involved in the litigation, the decision is only applicable on a going-forward basis. In that regard, it is helpful to know that the nature of the dispute in question was an engagement agreement between a lawyer and a sophisticated business client, a fee dispute was being arbitrated and the client then brought a lawsuit for legal malpractice. The engagement agreement established arbitration through JAMS and included a hyperlink in the engagement agreement where the 33-pages of JAMS rules were available, but the lawyer did not provide the actual JAMS rules to the client at that time.

One can certainly quibble with the New Jersey court’s analysis of application of the FAA given that it still clearly treats a contract between a lawyer and a client differently from other commercial contracts. The New Jersey court doesn’t actually confront the fact that it is treating an arbitration provision in an attorney-client contract differently from one in another type of contract. Instead, it compares arbitration provisions in an attorney-client contract with all other provisions in an attorney-client contract and says:

“When viewed through the lens of the RPCs, arbitration provisions are not treated differently from other provisions in a retainer agreement. Requiring attorneys to explain to a client the advantages and disadvantages of arbitration so that the client can make an informed decision whether to arbitrate a future fee dispute or legal malpractice claim against the firm does not single out a retainer agreement’s arbitration provision for disparate treatment and therefore does not run afoul of the FAA or NJAA. See Snow, 176 A.3d at 739; see also Hodges, 103 So. 3d at 1077.”

One can also argue about the fact that the opinion makes no effort to address the notion that a person who hasn’t yet signed an engagement agreement isn’t a client of the lawyer and so all of the arguments about fiduciary duties attorneys owe to clients and ethical obligations to clients are not actually on point unless you assume and agree that the law should treat a potential client as a client during the process of negotiating a fee agreement.

For lawyers generally though, even if you are not in New Jersey, the opinion provides pretty safe guidance to look to follow if you want to head down the path of pursuing such a provision.

You can access and read the full opinion here, but I’ll close by offering what I think are the two best excerpts:

We now hold that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c).
An arbitration provision in a retainer agreement is an acknowledgement that the lawyer and client may be future adversaries. That the retainer agreement envisions a potential future adverse relationship between the attorney and client — and seeks to control the dispute-resolution forum and its procedures — raises the specter of conflicting interests. An arbitral forum and judicial forum, and their accompanying procedures, are significantly different.
We do not make any value judgment about whether an arbitral or a
judicial forum would be more beneficial to a client if the client and attorney part as adversaries. We conclude, however, that an attorney’s fiduciary obligation mandates the disclosure of the essential pros and cons of the arbitration provision so that the client can make an informed decision whether arbitration is to the client’s advantage. See RPC 1.4(c). That obligation is in keeping with an attorney’s basic responsibility to explain provisions of a retainer agreement that may not be clear on their face. Accordingly, the disclosures required of an attorney in explaining an arbitration provision in a retainer agreement stand on an equal footing with the disclosures required in explaining other material provisions in the agreement. Such comparable treatment does not offend the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, or the New Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -36.

and

Consistent with ABA Formal Opinion 02-425, the weight of authority as
expressed in professional advisory opinions and judicial case law in other jurisdictions, and this Court’s interpretation of its own RPCs, we hold that attorneys who insert provisions in their retainer agreements to arbitrate future fee disputes or legal malpractice claims must explain the advantages and disadvantages of the arbitral and judicial forums. Attorneys can fulfill that requirement in writing or orally — or by both means.
Attorneys may explain, for example, that in arbitration the client will not have a trial before a jury in a courtroom open to the public; the outcome of the arbitration will not be appealable and will remain confidential; the client may be responsible, in part, for the costs of the arbitration proceedings, including payments to the arbitrator; and the discovery available in arbitration may be
more limited than in a judicial forum.
Additionally, a lawyer who drafts a retainer agreement that channels any future legal malpractice action into an arbitral forum must say so directly in the written agreement. The client should not be left to discern the meaning of language that is clothed in ambiguity.

The New Jersey Supreme Court also referred the topic to the state bar’s Advisory Committee on Ethics for the issuance of any further ethical guidance deemed appropriate about the obligations of disclosure for New Jersey attorneys.

Bad judgment leads to bad judgment.

A Tennessee disciplinary matter has made some national news this past week, so what I am writing about might be something you’ve heard about already.

It involves a Tennessee lawyer who has been given a 4-year suspension from practice, with one-year of active suspension for providing advice over Facebook to a woman about how she could potentially kill someone but make it appear to be self-defense and who advised that woman to delete the evidence from Facebook if she was serious.

Incredibly bad decision-making, obviously unethical conduct, and something that certainly is very deserving of punishment. I want to make all of that clear up front because I’m here otherwise to offer a pretty contrarian take on the opinion that the Tennessee Supreme Court put out explaining the outcome.

Before I do that though, and in case you hadn’t read anything at all about the case elsewhere, here is the gist of the relevant facts of the conduct itself taken from the Court’s very good summary, starting with its second sentence:

The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she
should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.”

I started with the second sentence and not the first because the first sentence says: “This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

Well, it is now because the Tennessee Supreme Court decided to make it into one and to make that the most important thing that they have decided to emphasize. Why that was how the Court decided to frame this eludes me a bit.

This lawyer’s situation wasn’t one where he was merely interacting with people on social media without touting himself as a lawyer and without wading into the explicit giving of legal advice. That’s important to note at this moment in our nation’s history in particular as lots of robust debates are being had about where one might draw the line on the intersection of attorney ethics rules and First Amendment rights of lawyers. The Court’s opinion — as a result of its overall focus — offers some words that likely will only be capable of being read as having a very chilling effect on online speech. (More about that in a minute.)

The Court could have focused on what this situation fundamentally was – an instance of a lawyer doing at least two things that are absolutely antithetical to what it means to be a lawyer: (1) giving legal advice to people designed to help them commit crimes and get away with it; and (2) giving legal advice to people about how to destroy evidence.

Instead, the Court puts an exceedingly high amount of emphasis on the fact that this interaction occurred on social media because these posts, made publicly, “fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process.” The Court even almost exclusively justifies its decision to change the original outcome of the disciplinary proceedings from a 60-day suspension to a 4-year suspension on treating the lawyer’s having done this on public social media as an aggravating factor. In so doing though, the Court drops a footnote to say that it didn’t know, and it didn’t matter, whether the person being given the advice had made their Facebook page public or private. (If it was going to go down this path, it should have gotten an answer to that question because it does in fact matter.) In so doing, the Court also avoids acknowledging that, on some level, if the lawyer had sent the legal advice to the person via a private Facebook direct message then that conduct actually might have been worse on the whole.

Admittedly, the lawyer’s self-representation before the Court in these proceedings did not help much. He continued to struggle with admitting the gravity of his errors, persisted in trying to say he was fundamentally joking in his statements, and only made the point about the distinction between a private message and a public “wall” post in trying to claim that he couldn’t have really been serious or he wouldn’t have made the statements so publicly. But still, in the end, there is something deserving of real thought about whether a lawyer who does something like this in daylight where others can see is actually doing something worse — in the way that the Court views it — then a lawyer who does something like this but better covers their tracks.

And, in having this laser-like focus on the social media component of this galling conduct, the Court also ends up – at least in the opinion of one Justice — issuing an opinion that is more dicta than opinion. Justice Lee filed a separate opinion, concurring in the judgment and concurring in the section that evaluated why the 60-day punishment was insufficient – but not joining the rest of the opinion. In it, Justice Lee explains that in the posture the case arrived — not appealed by the lawyer or by the Board of Professional Responsibility — the Court could only evaluate the appropriateness of the level of discipline. Thus, all of the Court’s discussion about other matters, including all the reasons why the lawyer’s communications did violate RPC 8.4(d) was, in Justice Lee’s view, just dicta.

If all of those sections are dicta, that does help tamp down concerns that the Court analyzed this situation so thoroughly and never referenced the need for lawyers to understand that this likely was not just a violation of RPC 8.4(d), but truly likely was a violation of RPC 1.2(d) [“A lawyer shall not counsel a client to engage … in conduct that the lawyer knows or reasonably should know is criminal…] as well as a violation of RPC 1.6 because the lawyer essentially disregarded all notions of concern for confidentiality by having the entire interaction with this client on a Facebook wall. Not to mention, of course, a violation of RPC 3.4(a) for counseling someone to destroy or conceal potential evidence. (The lawyer was not charged in the disciplinary proceedings themselves with any violation of anything other than RPC 8.4(d) and the ubiquitous bootstrap charge of RPC 8.4(a)).

Whether or not Justice Lee is correct about the dicta issue does not help me any as to the piece of the opinion that I believe could have the most chilling effect on speech of any sort because it appears in the portion of the opinion addressing the appropriate disciplinary sanction which Justice Lee joined. Again, before quoting the problematic passage a reminder of the context, this was a situation in which the lawyer in question expressly touted the fact that they were a lawyer in their online postings and were clearly engaged in giving direct legal advice to a person, including advice to attempt to conceal or destroy evidence.

It was in that context that the Court chose to say this:

“[A]ttorneys in any setting — including on social media platforms — remain bound by our Rules of Professional Conduct. See In re Vogel, 482 S.W.3d at 545 (All attorneys licensed to practice law in this state have a duty to “act at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.”). Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment. Social media posts are widely disseminated, and the damage from a single ill-advised comment is compounded and magnified.

That is not say that the passage is not good, practical advice. The problem is that coming out of the mouth of the Tennessee Supreme Court it must be given greater weight than being just good, practical advice. Attorneys in Tennessee now have to be greatly concerned that the Court does not believe that there can be any separation in terms of online speech between the personal lives of lawyers and their professional lives.

For reference, the Vogel case cited by the Court was not a disciplinary proceeding involving anything that a lawyer was doing personally rather than in their role as a lawyer. Vogel involved a lawyer who improperly disclosed confidential information of a former client and engaged in a sexual relationship with a client during the representation.

To use what was – with all appropriate respect — a throwaway line at the end of the Vogel opinion to appear to signal now that simply being a lawyer means that there can be no “purely personal” interactions online, nor any ability to comment on politics in a capacity outside of one’s law license, is an exceedingly troubling development.

ABA SCEPR Increases Lifetime Batting Average.

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

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

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

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

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

Seriously, go read it.

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

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

You can access the full opinion here.

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

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

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

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

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

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

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

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

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

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

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

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

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

Sigh.

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

Terror in Tennessee.

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

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

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

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

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

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

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

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

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

Protecting lawyers and law firms from themselves.

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

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

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

Outside counsel guidelines. Don’t agree to them.

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

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

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

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

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

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

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

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

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

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

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

An open letter to State Bar of Texas

Dear Sir or Ma’am:

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

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

PART XIV. INTERIM SUSPENSION

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


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

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

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

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

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

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

Why?

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

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

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

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

Yeah, kind of staggering, right?

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

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

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

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

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

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

Following up after shouting into a void.

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

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

(Prepare to watch the magic and behold.)

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

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

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

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