One thing that lawyers and judges have in common.

People often think of lawyers and judges differently.  And, to a large extent, they should.  In almost every situation, someone cannot become a judge without having been a lawyer first.  But once a lawyer transforms into a judge, their role in the judicial system becomes radically different and they now have a new set of ethics rules to which they have to comply.

Yet, lawyers who become judges are still human beings and lawyers who become judges can be plagued by some of the same flawed aspects of being human as lawyers who never become judges.

This post for your Friday wants to offer up 4 very recent examples – 2 involving lawyers and 2 involving judges – of human beings all demonstrating the same variation of a common flaw:  Not knowing when to simply not say stupid things out loud (or in digital format).

On back-to-back days earlier this week, The ABA Journal online had stories about two different lawyers (who likely would have hit it off if they knew each other) getting in trouble for communications to or about clients that were roughly equally ill-advised although they involved the use of two different means of electronic communication.

The first was a New Jersey lawyer who has now been publicly censured over a text communication to a criminal defense client.  The client in question had ceased paying the lawyer and the lawyer had tried on two occasions to be granted leave to withdraw but was unsuccessful as the court denied the withdrawal motions.  Despite being stuck with having to pursue the representation (or perhaps because of it), the lawyer sent a text to his client that the ABA Journal described as follows:

In a text, Terry told the client he wouldn’t prepare in the weekend before the trial without getting paid first. Then he wrote, in all capital letters: “HAVE FUN IN PRISON.”

That text ultimately did manage to get the lawyer out of the case as the client showed it to the judge and the judge then removed the lawyer as counsel.  But it also resulted in the public censure.  At core, the ethics rule the lawyer was deemed to have violated was a conflict of interest rule by placing his own personal interest in getting paid ahead of his obligation to diligently represent the client.

The second was an Iowa lawyer who allowed himself to get too worked up on Facebook — enough to publicly disparage a client.  While, as things currently stand, the lawyer has only been the subject of negative publicity, it remains a real possibility that a disciplinary proceeding could be part of the lawyer’s future.  The ABA Journal treatment of the core of what happened is pretty succinct so I’ll just offer it up for your reading:

In the post, Frese told of a meeting to help prepare a client for trial on federal drug and gun charges. The client told Frese he would have a hard time connecting with blue-collar jurors because he hadn’t “had to work for anything in your life.”

Frese wrote that he was “flabbergasted” by the comment because anyone who knows him is aware of his modest background. Frese wrote that the man is an “idiot and a terrible criminal.”

“He needed to shut his mouth because he was the dumbest person in the conversation by 100 times,” Frese wrote. “You wonder why we need jails huh?”

The lawyer deleted the post in question after he was contacted by the Associated Press about it.  The article points out that the AP was able to piece together from what was written exactly who the lawyer was talking about even though the lawyer didn’t use the name of the client in the post.  The Iowa lawyer’s story highlights one of many reasons why lawyers shouldn’t be writing about their client’s matters without express and clear consent from their client.  Of course, technically, the lawyer made the situation even worse by what it is reported that he said to the AP when contacted:

Frese told AP that he told the client he was in jail because he was terrible at what he did, and they left the meeting on good terms. He didn’t immediately respond to a voicemail from the ABA Journal seeking comment.

On the judicial front, Law360 had two examples reported on the same day of judges demonstrating problems with communications as well.  One of the judges in question also hails from New Jersey.  That judge, as Law360 explained, was censured for inappropriately making certain when communicating to court staff about his own personal child support case to emphasize his status as a judge.  This came across as an obvious attempt to use his judicial office to achieve special treatment.  The other judge highlighted in Law360 this week ended up later engaging in actual conduct that was much worse than the original communications but still also managed to allow the ready access of text messaging to start him down the bad path.  As with most Law360 articles, you will need a subscription to read the full article, but you can get a strong sense of the Jeopardy category of wrongdoing from the opening blurb which explains the circumstances for which he was now offering an apology to a state ethics body in an attempt to avoid discipline:

An ex-Pennsylvania judge facing discipline for exchanging sexually explicit text messages and eventually sleeping with the girlfriend of a man participating in a court-mandated rehab program he oversaw ….

These are, unfortunately, not earth-shattering examples of “new” problems in the human condition.  They do though tend to highlight how much easier modern technology makes it for well-educated professionals to somehow make really poor judgment calls when technology makes it easy to do so and to do so rapidly.

 

The intersection of the ethics rules and the GDPR “right to be forgotten”

Although today is Halloween in my part of the world, I am not offering any spooky content.  I thought about trying to replace all mentions of Maryland in this post with Scaryland, but that just seemed like I was trying too hard.

In fact, I’m a bit torn about even writing about this particular topic because I’m really of two minds in all respects about what to say about Maryland becoming the first U.S. jurisdiction to issue an ethics opinion attempting to wrestle with any aspect of the EU’s General Data Protection Regulation (“GDPR”).

On the one hand, it seems like Maryland ought to be applauded for trying to be on the leading edge of issues of concern and many lawyers (and their firms) are struggling with exactly what GDPR might require of them.

On the other hand, the core premise of the inquiry being addressed involves an assumption about a legal question — not an ethics issue — and is the kind of thing ethics-opinion-writing bodies likely ought to stay away from.

Lots of commentators will give ethics-opinion-writing bodies grief for not, for example, striving to apply Constitutional issues when issuing opinions about the ethics rules.  I’ve probably done that myself in the past.  But, on the whole, more trouble for lawyers can likely come from ethics opinions straying outside the lines and getting a legal issue altogether wrong.

That might or might not have been how it would have shaken out if the Maryland State Bar Association Committee on Ethics had fully committed to trying to figure out whether the premise of the question posed to it in Opinion No. 2018-06 was even how the GDPR would work in the circumstances.

Instead, the committee flagged for the reader the possibility that the GDPR would not require the lawyer to respect the request to be forgotten at all but offered up what is, on the whole, pretty sound guidance that lawyers can bear in mind as to this and similar questions as other jurisdictions start adopting new privacy laws and regulations that may hit closer to home than the GDPR.

The question posed relied on the premise that a former client, if a citizen of the EU, could exercise the “right to be forgotten” by demanding the lawyer delete data about the person and, thereby, cause the lawyer to delete information that would otherwise protect the lawyer in terms of conflict checking in the future to avoid taking on a new client or matter that would involve an unethical conflict of interest as to the former client representation.

The core of the guidance ultimately given – again explicitly premised on assuming that it might ever be necessary – is this:

If a former client asks an attorney to delete the information needed to manage conflicts of interest, and the GDPR requires the attorney do so, we believe that the client’s request can act as a waiver of conflicts that could have been discovered had the data been retained if: (1) the firm provides written advice to the former client that fully informs the former client that deleting the information could result in a conflict and that by requiring such deletion the client consents to the firm’s potential future representation of other clients with conflicts that might have otherwise have been discovered, and (2) none of the attorneys who handle the matter for the firm have any retained knowledge of the former client’s information.

That’s pretty good guidance, actually.

It probably would have been better though if they hadn’t imposed quite so large a burden of communication and advice to the firm in response to the former client.  I think that simply saying that any such request from a former client can be treated by the firm as equivalent to a waiver on the basis that a former client cannot demand that s/he be forgotten and then try to later claim the “forgotten” relationship presents a conflict.

You can read the full Maryland opinion here.

And, if you are interested in more opportunities to hear me try to talk intelligently about what the GDPR does actually mean for U.S. lawyers, I’ll be participating in a panel discussion in Washington, D.C. on November 9 as part of a joint program presented by APRL and the Law Society of England and Wales.  If you’re interested, you can register at this link.

ABA Confirms that Model Rule 1.15 Should Solve What Model Rule 4.4 Doesn’t

So, I am certain you have heard by now that a little under a week ago the ABA issued a new Formal Ethics Opinion to address the ethical obligations of lawyers in the aftermath of a cyber-attack or an electronic data breach.  ABA Opinion 483 makes for a good read and provides good guidance about how the ethics rules work on the subject.

There are lots of decent summaries out there already of this ethics opinion if you want to try the tl:dr approach and just read secondary sources.  I am not going to repeat those summaries here.  Instead, I want to focus on what is, to me and perhaps only me, the most important development that ought to come from this opinion — the recognition by the ABA that “property” in Model Rule 1.15 has to also include digital property.

In the latest ABA Opinion, this issue is addressed with an eye toward thinking about electronic copies of client files, specifically as follows:

An open question exists whether Model Rule 1.15’s reference to “property” includes information stored in electronic form.  Comment [1] uses as examples “securities” and “property” that should be kept separate from the lawyer’s “business and personal property.”  That language suggests Rule 1.15 is limited to tangible property which can be physically segregated.  On the other hand, many courts have moved to electronic filing and law firms routinely use email and electronic document formats to image or transfer information.  Reading Rule 1.15’s safeguarding obligation to apply to hard copy client files but not electronic client files is not a reasonable reading of the Rule.

Now, why is this such an important takeaway to me?  Well, myopia often flows from the egocentric nature of people and I am no exception.  This is an important takeaway to me because I’ve been trying to make this point in an entirely different context – and to little avail — since 2010 when I co-authored an article entitled: “Model Rule 1.15: The Elegant Solution to the Problem of Purloined Documents” published in the ABA/BNA Lawyers’ Manual on Professional Conduct.  Now that article – which you can still find here — was itself an excerpt of part of a chapter of a book I was also fortunate enough to co-author with Doug Richmond that came out in 2011.  The “Elegant Solution” article explained that the lack of guidance offered by Model Rule 4.4(b) on what a lawyer must do if they receive stolen documents (whether on paper or electronically) should be resolved by application of Model Rule 1.15 and the obligations lawyers have under subsections (d) and (e) of that rule.

There are likely lots of reasons why that article has been largely ignored – and when not ignored treated as offering a controversial view to be shunned — but the primary one is that Model Rule 4.4(b) becomes a bit unnecessary as a rule if such questions could have been resolved under Model Rule 1.15.

Model Rule 4.4(b) reads:

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Model Rule 4.4(b) only addresses information that a lawyer receives that is known to have been inadvertently sent and only requires the receiving lawyer to give notice to the sending lawyer of what has happened.  It does not address information sent purposely but without authorization, and it punts on what comes next.

In the “Elegant Solution” article, we explained why Rule 1.15 provided answers to the questions Model Rule 4.4(b) won’t address and, particularly in light of this latest ethics opinion recognizing the need for Model Rule 1.15 to apply to digital information, I think our explanation is worth repeating to close out this post:

The Model Rules do, in fact, appear to offer an elegant answer for lawyers who question
their professional responsibilities when they receive documents that may have been purloined or otherwise improperly obtained from another. The answer lies in Model Rule 1.15 and its provisions establishing lawyers’ obligations with respect to ‘‘safekeeping property.’’ See Model Rules of Prof’l Conduct R. 1.15 (2010).  Although lawyers are generally familiar with Rule 1.15 in the trust account context, the scope of the rule is clearly not so limited, as amply evidenced by its repeated references not just to funds or fees or expenses, but also to ‘‘property.’’

Model Rule 1.15(a) declares that ‘‘[a] lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property.’’ Id. R. 1.15(a) (emphasis added). Model Rule 1.15(d) further requires that ‘‘[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.’’ Id. R. 1.15(d) (emphasis added). Finally, Model Rule 1.15(e) mandates that ‘‘[w]hen in the course of the representation
a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer)
claim interests, the property shall be kept separate by the lawyer until the dispute is resolved.’’ Id. R. 1.15(e) (emphasis added).

Analysis of over-the-transom deliveries through the lens of Rule 1.15 establishes that a lawyer, upon receiving purloined documents (or if not clearly purloined at least clearly reflecting privileged or confidential information belonging to someone other than the person who delivered the documents), is obligated to hold those documents separate from the rest of the lawyer’s documents, promptly notify the person from whom the documents were taken, and, if the lawyer is going to refuse to return the documents to that person (and thereby claim either that the lawyer or the lawyer’s client has an interest in them), continue to keep those documents segregated from the rest of the lawyer’s property until the dispute over the documents is resolved,
presumably through a ruling by a tribunal. This approach places no meaningful burden on the receiving lawyer and respects the rights of the party to whom the materials belong.

Friday Follow Up: Ohio Gets to the Right Outcome on UPL

Almost exactly three months ago, I wrote about what I considered to be a very disturbing ruling in a lawyer admissions case in Ohio.  If you missed that post, you can read it here.

I’m pleased to write, in follow-up today, that the Ohio Supreme Court has ultimately gotten to the correct outcome – it has rejected the findings below that the applicant was engaged in UPL while working on Kentucky matters for Kentucky clients in an Ohio office while awaiting action on her application for admission in Ohio.  As a result, it has finally cleared her to be admitted to practice in Ohio after multiple years of waiting after transferring from a Kentucky office of her law firm employer to an Ohio office of that same firm.

The majority opinion does a workperson-like job at justifying that outcome by stretching the meaning of the word “temporary” to its furthest defensible point — anything that is not permanent.  But, as the fascinating-and-much-more-important-to-the-future-of-our-profession concurring opinion explains: the majority opinion did so at the cost of mostly ignoring other text of the rules – particularly the text of the relevant rule that limits when a lawyer can provide services “through an office.”

The concurring opinion deserves your attention and a full read.  It is my strong hope that the rationale and logic expressed in the concurring opinion is the rationale and logic which will be embraced moving forward by all courts and other bodies dealing with this issue.  If RPC 5.5 could be used to determine that a lawyer “working remotely” is engaged in UPL, then RPC 5.5 applied in that fashion is simply, but plainly, unconstitutional.

The core of the concurring opinion’s analysis is a strong and smart understanding of what such a rule is truly saying:

But when applied to a lawyer who is not practicing Ohio law or appearing in Ohio courts, [RPC] 5.5(b) serves no state interest. Plainly, as applied to such a lawyer, the rule does not further the state’s interest in protecting the integrity of our court system. Jones, and others like her, are not practicing in Ohio courts.

Nor does application of the rule to such lawyers serve the state’s interest in protecting the Ohio public. Jones and others in her situation are not providing services to or holding themselves out as lawyers to the Ohio public.  Jones’s conduct as a lawyer is regulated by the state of Kentucky—the state in
whose forums she appears.

The problem is that unless a specific exception applies, [RPC] 5.5(b)(1) holds one to be engaged in the “unauthorized practice of law” and subject to legal sanction therefor simply because one has established an office or a systematic and continuous presence in the state. The rule deems such a
lawyer to have engaged in the unauthorized practice of law regardless of whether her practice touches on the Ohio public or Ohio courts. In an earlier age, perhaps such a rule made sense. Before the advent of the Internet, electronic communication, and the like, a lawyer who worked in Ohio was almost always
practicing Ohio law. But today that is hardly the case. Any number of lawyers, for any number of reasons, may choose to do their work from Ohio. Yet that does not give Ohio a right to prohibit their conduct.

Indeed, imagine what would happen if the rule were strictly enforced. Are we to ban lawyers from setting up a secondary office inside their homes so that they can access their files remotely simply because their homes happen to be in Ohio and their practices in another state? What about a New York attorney who maintains an Ohio vacation home on Lake Erie and is there for several months of the year? Certainly such an attorney has a continuous and systematic
presence in Ohio, but are we really going to say that she has engaged in the unauthorized practice of law because she does New York legal work at her vacation home?

I would conclude that as applied to an out-of-state attorney who is not practicing in Ohio courts or providing Ohio legal services, [RPC] 5.5(b)(1) violates Article I, Section 1 of the Ohio Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Utahlking Ethics Opinions to Me? (Also Texas)

I’m interested in writing today about two recent ethics opinions that manage to go together quite nicely.  Utah Ethics Adv. Op. 18-04 and Texas Professional Ethics Committee Op. 679.  Both involve RPC 1.8 (or at least both should).  And, not only does neither opinion do a very good job with the subject matter it tackles but both tackle subjects where lawyers need to tread very carefully and could use really good advice.

But, as just a quick aside before doing so, I wanted to express some gratitude from last week and point you to a very important story worth reading.  As the culmination of a many-months-long project, I had the chance to share the stage last week at the ABA Forum on Franchising with two excellent lawyers – Shannon McCarthy Associate General Counsel for Chihuly, Inc. and Kevin Kennedy, General Counsel of Wiggin and Dana in Connecticut — and talk about a tricky and delicate topic – lawyers and obligations to report other lawyers with a particular emphasis on issues involving harassment and other toxic behavior.  I was really fortunate to get to work with them both.  For a story that offers something of a how-not-to manual offered by the experience of one of the world’s largest law firms, you can go read up here.

Now, back to regularly-scheduled programming…

While I missed it around the time it came out, the Utah State Bar put out an interesting ethics opinion explaining to lawyers a way they might be able ethically to mitigate their risk exposure in the event of third-party claims against the lawyer based on the client’s conduct.

The opinion declares that “[a]n attorney may include an indemnification provision in a retainer agreement at the commencement of representation that requires the client to indemnify the attorney and related entities against claims that arise from the client’s behavior or negligence.”

In explaining this outcome, the Utah opinion points out that nothing about RPC 1.8(h) directly prohibits it.  However, it doesn’t just stop there, it goes on to explain … just kidding actually.  It stops there on that issue.

As a practical matter, that is sort of a shame because lawyers ought to be cautioned a bit about the problems associated with starting the relationship with a client off with that sort of provision — particularly because if you are that concerned about that risk of liability from the client’s conduct, then maybe a rethink about whether to take them on is in order.  But, if one is going to do it, the beginning of the relationship is certainly more viable than mid-stream.

Speaking of which, that brings me to the Texas opinion, which tasked itself with answering this question:

May a lawyer renegotiate his fixed, flat fee for representing a client in litigation after the litigation is underway if the matter turns out to be greater in scope and complexity than the lawyer and client contemplated?

If Texas was interested in doing this right, it would recognize that the answer lies in application of its version of Model Rule 1.8(a) because that situation is a business transaction between lawyer and client.  Instead, Texas actually announced that its version of that rule does not apply to a mid-stream renegotiation of a fee.

Instead, the opinion points out that Texas courts have considered the issue and have said that it can occur but that there is a “presumption of unfairness.”  Rejecting the opportunity to apply Rule 1.8 to these circumstances is all the more baffling because — providing guidance to interpret ethics rules is the kind of thing ethics opinion writing bodies are supposed to do, rather than providing guidance about what court decisions mean.

In the end though, I’m likely being too harsh on the Texas opinion because it, at least, summarizes pretty nicely the analysis of the dynamic from the lawyer side of things and why, in most situations, effectuating an enforceable renegotiation will be unlikely:

The fundamental nature of a flat or fixed fee is that there is risk to the lawyer that the legal work and time required may exceed what the lawyer might have earned if the lawyer instead billed by the hour.  The client knows with certain that the total fee charged, no matter how much lawyer time or effort is involved, will not exceed the fixed amount.  The client’s risk in a flat or fixed fee agreement is the possibility of paying more than the client would have paid under an hourly billing agreement if the lawyer is able to complete the representation is [sic] less time than originally expected.  Because the lawyer is better able to anticipate the time and legal work required, the lawyer should be mindful that he knowingly assumed the risk — and should not unreasonably seek to change the fee agreement simply because the lawyer agreed to a fixed fee that, in hindsight, is no longer adequate.

(emphasis added).  And, also, amen to that.

 

 

Yet another reason for change. Pretty much the most serious reason.

So there are things that can really make you feel small.  And there are things that can really lead to despair and a feeling of helplessness.  Fortunately, there are few things that do both at once.  The report from the Intergovernmental Panel on Climate Change can do both of those things pretty simply.  If you haven’t read it, or at least parts of it, you can do so at this link.  If you don’t want to read the report itself (or parts of it), then you can go read one of the many articles discussing at length its sobering warnings of what the future (the close-enough-future that we can imagine ourselves in it pretty easily) here or here or here for example.

You really ought to read as much about it as you can because, to a pretty significant extent, whether we have a habitable planet is just about all that really matters.  And, though the more you digest the news about the situation the easier it is to feel small and helpless, the reaction needs to be significantly different from that.

Why am I writing about this at a legal ethics blog?  (Beyond the cop-out sort of reason in which I would tell you it feels a bit petty to write about anything else given the stakes, of course.)  Well, it isn’t because lawyers are somehow going to save us from this outcome.  For every lawyer out there who lobbies a state legislature to impose some new regulation to try to reduce carbon emissions, there will be another lawyer who ends up representing the industry that seeks to challenge that legislation in court.  That’s the nature of our profession.

But, our profession can try to do a few things to not be part of making the problem worse.

A lot of the discussion about what the future of the practice of law is going to look like involves embracing technology and regulatory questions about ways in which the traditional approach to lawyer regulation may be stifling innovation that would ultimately benefit consumers of legal services.  In my opinion, all of that should continue as quickly as we can move the conversation forward.  But, as we try to talk about what the future of the profession should look like, we ought to be bearing in mind many of these much larger issues.

What can we do to make sure that technological solutions are used so that people in the court system do not have to make multiple, ultimately unnecessary, trips across town for court when nothing happens that couldn’t be handled over the telephone or by video conference or web stream if courts would permit that to occur?

What options should we be considering empowering so that fewer disputes go into the traditional court system at all if they could be resolved through online dispute resolution?  What can we do to try to better fashion courts into places that can themselves be resolving disputes online?

What can we do to persuade those remaining jurisdictions that have been unwilling to move to electronic filing to give up the fight and swiftly enact electronic filing?

Pursuit of these sorts of initiatives can save an incremental number of natural resources.

And, why can our profession readily get comfortable with relaxing the artificial barriers we impose on the ability of a lawyer licensed in one state to actively practice law in another state only in the aftermath of disasters?  Many states have issued ethics opinions in the wake of various weather disasters or passed court rules to permit flexibility for out-of-state lawyers to go to the disaster area and render legal assistance without fear of being accused of unauthorized practice of law.  My own state did so a few years back.

The ABA very recently just issued Formal Ethics Opinion 482 encouraging lawyers to be ready for disasters and to plan ahead to protect their own practice and protect their clients’ cases and matters from adverse impact in the wake of disasters.  The ethics opinion gives very good guidance and, perhaps, it gave that guidance far enough in advance of the devastating impact that Hurricane Michael is currently inflicting on a part of the world where my family has vacationed every summer for the last almost 20 years, Apalachicola and St. George Island, Florida, so that lawyers in that part of the world knew enough to have been prepared in advance.

The IPCC report presents a pretty clear indication of the coming disaster if radical change is not undertaken.  Overhauling the regulation of the legal system to remove artificial barriers to cross-border practice and barriers that prevent technology from making it easier for clients to find lawyers and for lawyers to practice law without unnecessarily wasting resources seem like some things that amount to the least our profession can do to not be part of making worst-case scenarios even more likely to come to pass.

 

 

“Let’s put our heads together and start a new country up.”

Serial, perhaps the best known podcast of all podcasts, has recently launched its third season and like one of the REM songs off of Life’s Rich Pageant it focuses on Cuyahoga – but not the river but the County in Ohio – more particularly, it focuses on what goes on inside the Justice Center in Cuyahoga County.  Yet, much like the song was according to Peter Buck, the podcast also may just really be about America and its lost promises too.

So far the first three episodes have dropped, and they are particularly good.  Good, of course, in a troubling way for what they show with respect to the inner workings of the justice system.  Admittedly, all this season of Serial can truly do is show problems in just one particular courthouse in one particular location, but we all know there are universal themes that recur in many other similar venues in the nation.

The first three episodes alone have also given fodder for discussions of legal ethics for those so inclined.  The first episode follows an unfortunate and unfair bar fight through the court system.  The host, Sara Koenig, is given extensive access to the criminal defense lawyer involved.  (The series so far reveals that she was given nearly free rein in the building altogether.)  Even though there is one spot in which Koenig explains that had to be excluded from a meeting between the lawyer and his client in order to protect the attorney-client relationship while they talked, those familiar with the duty of client confidentiality still know that given how incredibly much is actually revealed by the lawyer about the case he is handling, how he is handling it, what he and his client have discussed, that surely there must have been a thorough and clear consent provided by the client for there to be no breach of the lawyer’s duty under Ohio’s version of RPC 1.6.

The second of the first three episodes introduces you to a judge who almost certainly needs to be made the subject of multiple judicial ethics complaints and who seems to have no business sitting in judgment of other people.  But the judge it introduces you to is likely a character-type that will sound very familiar to you in many respects no matter whether you’ve ever been in Cuyahoga County, Ohio or not.

The third episode tackles the very relevant topic of police brutality, the intricacies that can arise when one situation results in intertwining civil and criminal matters, and, for true ethics nerds, raises (at least indirectly) issues associated with a lawyer who swaps places in the system later in their career as well as problematic issues regarding where the line is in court proceedings between advocacy and assisting someone with manipulating evidence and testimony to assure an end result that may be believed to be just.

Anyway, your mileage may vary, but I find myself hooked.  I also find myself really wishing that Karen Rubin over at The Law For Lawyers Today might be able to weigh in at some point on her take on how the show portrays things, but, because she practices in Cleveland, I’m guessing that she is likely too close to the courts and the lawyers involved to be able to comfortably weigh in.

The fourth episode should be out tomorrow.  You should check it out.  (And, yes, I’m a guy with a pretty decent sense of humor and I see the hilarity in me encouraging the few hundred or so people who read this blog to go check out something that has millions upon millions of downloads.)

Proposed revisions to the Code of Conduct for U.S. Judges

So last week I was quoted a bit in a Law360 story related to Judge Kavanaugh’s continued effort to ascend to the highest judicial position in our nation.  If you are a subscriber, you can read the article here.  It had to do with the news of the lawyer who was going to be representing Dr. Blasey-Ford and whether his departure from his firm was really sudden or not and the reasons why a firm with a significant appellate court practice might not want to let themselves have to treat Judge Kavanaugh as an adverse party.  If you are not a subscriber, I’ll offer you the two snippets involving what I had to say:

If Bromwich had stayed at Robbins Russell, Judge Kavanaugh would consequently have become an adverse party for conflicts purposes, potentially complicating the firm’s appellate efforts on behalf of clients, said Brian S. Faughnan, a legal ethics attorney at Lewis Thomason.

“That could have led to Judge Kavanaugh recusing himself from any appellate cases in which Robbins Russell was counsel of record or likely required the firm to seek Judge Kavanaugh’s recusal in all such cases. If he were confirmed, that would mean placing firm clients in a position where potentially only eight justices could hear their cases,” Faughnan said.

Even if Kavanaugh is not confirmed to the Supreme Court, the representation of Blasey Ford could still hurt the law firm as long as Judge Kavanaugh continues to hold a spot on the D.C. Circuit, Faughnan said.

Although that article came out just a week ago, it feels more like a year ago.

Based on the highly partisan nature of what Judge Kavanaugh had to say in his prepared testimony, it seems likely that, for as long as he has a position as a federal judge in any capacity, there will be lots of litigants and counsel that will have to seriously weigh whether to pursue motions for him to recuse from their cases.  “What goes around comes around,” could be a recurring quote referenced in motions seeking recusal for many years to come.

There are lots of other things I might write today about the troubling nature of things, but I will instead send anyone with an interest in where my perspective is at the moment to this piece published elsewhere.

While we are on the subject of federal judicial ethics though, I’d like to point out that there are proposed revisions to the Code of Conduct for United State Judges pending and for which there is a November 13, 2018 deadline for public comment.  The proposed changes do not impact in any fashion the existing rules for disqualification of federal judges — Canon 3(C) —  nor the rule that would be most difficult for a federal judge to claim would permit the making of any false statement under oath — Canon 2(A).

What the proposed changes do address are the conclusions of the June 1, 2018 Report of the Federal Judiciary Workplace Conduct Working Group and the perceived need for additional ethical guidance regarding workplace harassment in the world of federal judges — an area to which none of the accusations against Judge Kavanaugh extend.

The most extensive proposed changes are set out in Canon 3(B) addressing the performance of administrative responsibilities and in new explanatory Commentary.  The rules would include a new provision:

(4) A judge should practice civility, by being patient, dignified,
respectful, and courteous, in dealings with court personnel,
including chambers staff. A judge should not engage in any form
of harassment of court personnel. A judge should not engage in
retaliation for reporting of allegations of such misconduct. A
judge should seek to hold court personnel who are subject to the
judge’s control to similar standards in their own dealings with
other court personnel.

A new paragraph in the Commentary would further explain:

Canon 3B(4). A judge should neither engage in, nor tolerate, workplace
conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation
for reporting such conduct. The duty to refrain from retaliation reaches retaliation
against former as well as current judiciary personnel.  Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others. See also Rules for Judicial-Conduct and Judicial-Disability Proceedings, Rule 4(a)(2) (providing that “cognizable misconduct includes: (A) engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault; (B) treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner; or (C) creating a hostile work environment for judicial employees”) and Rule 4(a)(3) (providing that “cognizable misconduct includes discrimination on the basis of race, sex, gender, gender identity, pregnancy, sexual orientation, religion, national origin, age, or disability”).

You can read all of the proposed revisions here.

Supreme problems

A lot of attention is focused on goings-on related to the U.S. Supreme Court – and rightly so given the stakes and given the nature of the saga that continues to unfold.

But, lost in the shuffle is the fact that 2 state Supreme Courts in our nation are, at present, entirely in a state of disarray.  One of them – West Virginia – has descended into chaos as a result of something that appears, to some extent, to simply be a naked political power play.  The West Virginia legislature has impeached all 4 0f the justices remaining on its state supreme court.  That court has only 4 justices because one resigned shortly before the impeachment proceedings were set to begin.  Some media reports focus on the fact that this effort could permit the current Governor of West Virginia to appoint an entirely new state supreme court.  But the effort seems to go beyond party-line politics as elections for the West Virginia Supreme Court became non-partisan in 2015 and two of the justices impeached previously ran as Republicans while two had run as democrats.  And to make matters a bit less clear, one of the four justices also is the subject of a 20+ count federal indictment, and the one who resigned before impeachment proceedings began has also agreed to plead guilty to a criminal charge.  The impeachment charges vary a bit as the only thing that all four justices alike were charged with was failing in their administrative duties, three of them were impeached for paying senior status judges more than the law allows, and two of them were also impeached in connection with monies they spent refurnishing their offices.

The other situation also has the portent of removal from office of a majority of members of a state’s highest court but involves the prosecution of a judicial ethics complaint instead of something that is complicated by issues involving separation of powers and what sort of role politics is playing in the process.

In Arkansas, the Judicial Discipline and Disability Commission filed formal disciplinary charges against six of the seven sitting justices in that state over the Court’s treatment of a trial court judge.  The trial court judge filed a disciplinary complaint against all seven of the justices, and, just this past week, a special disciplinary counsel has filed a formal complaint for discipline against 6 justices for their actions in ordering that all of the trial court’s cases involving the death penalty be reassigned after giving the trial judge next to no notice of what was happening.

Now there is certainly a political undercurrent to the Arkansas situation – given that the underlying issues revolve around the death penalty – but, unlike what appears to be going on in West Virginia, the Arkansas process at least feels less like anything that could be described as a political power grab.

You can read the 10-page disciplinary complaints against each of the six justices here [each complaint is essential identical), but let me offer a very short synopsis of the events.

Arkansas, like my own state, has watched its judicial process struggle with questions about the mechanics involved in carrying out death penalty sentences, specifically questions about whether the use of a particular three-drug compound to accomplish lethal injection is constitutional or amounts to cruel and unusual punishment.

In Arkansas, a lawsuit was filed on April 14, 2017 by one of the manufacturers of one of the drugs proposed to be used in Arkansas’s three-drug protocol seeking an order that the State of Arkansas not be permitted to use its drug for that purpose.

That case was assigned to Judge Wendell Griffen, and Judge Griffen swiftly entered a requested TRO prohibiting such use by 4:25 pm on April 14.  Judge Griffen is outspoken in his personal opposition to the death penalty and even reportedly participated in an anti-death penalty march around the time of the entry of this injunction.  The Arkansas Attorney General immediately filed an emergency petition for mandamus and prohibition on the next day April 15, which was a Saturday.  The Attorney General was seeking to have the TRO vacated and Judge Griffen removed from the case.  By a little before noon on April 15, the Court sent out a notice providing the parties with a deadline for responding to the petition by 3:00 pm on that Saturday.  Because of the nature of the proceeding – one seeking mandamus and prohibition – Judge Griffen should have been copied on all of the filings to this point but had not been.  The Clerk of the Court realized later in the day that Judge Griffen had not been given any notice and sent an email with copies of the filings to Judge Griffen’s chambers email address just before 4:30 pm on that Saturday providing a deadline for responding by 9:00 a.m. on Monday April 17, 2017.

When that deadline came and went without a response from Judge Griffen, the Arkansas Supreme Court entered an order that not only vacated the TRO but made a ruling regarding Judge Griffen that no party had requested – that all the cases assigned to him involving the death penalty were to be reassigned and that any future cases also be reassigned and that he be referred to the Committee for potential discipline.

Ten days later, Judge Griffen filed a judicial disciplinary complaint against all seven members of the Arkansas Supreme Court.  In what seems like a remarkably bad judgment call, one of the justices responded – apparently on behalf of all of them – with an argument that the Commission did not have jurisdiction to take any action.

The fundamental takeaway from the decision of the Judicial Discipline and Disability Commission to move forward with formal charges is difficult to pinpoint as the order finding probable cause does not directly engage in much analysis of any particular judicial ethics rule.  Rather, the order sets out a number of rules stated as being implicated in evaluating all the parties but does not do more than that.  The only one in the mix that seems to apply directly to the question of the justices conduct in taking action against Judge Griffen with the barest of notice though is Arkansas Code of Judicial Conduct Rule 2.6(a): “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

The other rules flagged largely would appear to be more pertinent to questions about whether it is appropriate for Judge Griffen to hear cases involving the death penalty or not.  Along those lines, the order manages with one noteworthy paragraph to put in stark relief the Commission’s willingness to conclude that the justice may have acted arbitrarily and capriciously and explain why those who would jump to a conclusion about whether Judge Griffen’s conduct was wrongful should not move so hastily:

In acting on such matters involving judges, it is important to consider the well established case law that judges are presumed to be impartial and unbiased and presumptively will act with honesty and integrity in adjudicating cases.  [citations omitted] A personal belief of a judge, even if expressed publicly by word or conduct, is insufficient to overcome this strong presumption of a judge’s impartiality in ruling on matters of law before the court.

Any outcome in this matter will certainly bear watching.  Not only is a special prosecutor involved in the bringing of the charges, but any ultimate resolution of the case would likely eventually have to be heard by a specially-appointed set of replacements for the sitting justices.

Withdrawing a guilty plea is notary-ly easy thing to do.

The pun was, of course, inevitable.  It was also fully intended.  In fact, it is, at least for me, repetitive as back in 2013 I was asked to do a seminar on the ethics of being a notary public — they have their own ethics code — and I called it “Notary-ly Common Topic: The Intersection of Lawyer and Notary Public Ethics.”

I’m writing today about a relatively straightforward criminal case arising out of federal court in the Northern Mariana Islands but that has at least four interesting lawyer ethics percolating under the surface of it.  The decision also has one of the most elegant and timeless statements penned by the district judge authoring the opinion that I’ve read in a federal court opinion.  It is either one of the most useful statements of insight into the human condition or one of the best pieces of universal (but indirect) advice to offer to anyone – including lawyers — or possibly both.

In case you want to stop reading at this point, I’ll just share with you the district judge’s statement which, for many reasons (no matter when you manage to read this) will be timely:

Probably every adult feels that there is some important decision she has made that she wishes she could do over.  But that does not mean she did not make that decision voluntarily and did not know what she was doing at the time.

To be exceedingly candid, I’m also writing this post about this case because an incredible lawyer, and a giant in the field of legal ethics issues, Bill Freivogel, brought the case to my attention and encouraged to me to think I might have something to say about it that would be worth reading.

The case is U.S. v. Li and you can grab the PDF of it here: United States v. Li (D. N.Mariana Is., 2018).  In sum, Li was a notary public.  He managed to mess up a document he was notarizing for a passport application for a minor child, and the application was rejected for that discrepancy.  When folks reassembled to try to fix it and reapply, the father had already flown back home to China.  Despite the fact that it was contrary to the ethics code for a notary public, and despite the fact that the form was requiring him to speak under oath, Li signed the form misrepresenting under oath that the father was physically present the second time when he was not.

It seems clear that Li did this thinking that it was his own mistake that created the problem and that this would fix the error.  How the falsehood came to light is much less clear, but it did and Li was charged with two federal criminal counts related to false statements on a passport application.

A week before the case was set for trial, the parties submitted a plea agreement and proceeded to a change of plea hearing.  At that hearing, Li’s attorney – Holmes – was present as was a more senior attorney from Holmes’ law firm.  The opinion walks through the fairly detailed line of questioning the federal judge presented to Li designed to ensure that the record was crystal clear about the voluntariness of the guilty plea.  These questions solicited many clear answers demonstrating voluntary and knowing decision-making, including Li’s statements that he was fully satisfied with his attorney’s advice and legal representation.

Two months after the guilty plea was entered and about two months before the date set for sentencing, a new lawyer for Li filed a notice of appearance.  About 45 days later, Holmes moved to withdraw from representing Li citing “professional reasons.”  That motion was denied without prejudice based on failure to demonstrate good cause.

Two things then occurred right about a week before sentencing: Li, through the new counsel, filed a motion to withdraw the guilty plea and Holmes renewed the motion to withdraw now pointing to statements in a pre-sentence report that were alleged to create a conflict between her firm and Li.  This renewed motion to withdraw was granted.  (The opinion does not provide a ready explanation or insight into what the nugget was in that pre-sentence report that Holmes was forced to surface in order to be let out of the case.)

The order then details what Li argued as his grounds for seeking now to withdraw his guilty plea – it largely involved accusations that his attorneys would not listen to him and coerced him – through time pressures, denigrating his chances at trial, and hammering the potential of a prison sentence of more than a year, even allegedly going so far as to tell Li that he would be sexually assaulted if he had to do prison time.

The district court, however, was entirely unconvinced by Li’s allegations and walked through an objective view of what the attorney time records, and other underlying documents, showed about the events that occurred surrounding the plea negotiations.

Three of ethics issues here are, I think, readily recognizable.

The case is at least an indirect reminder for attorneys that RPC 1.2 doesn’t provide crystal clear guidance on all decision-making as between clients and attorneys but leaves no room for doubt that the decision whether to plead guilty in a criminal matter is always the client’s to make.

The case also is a good, indirect reminder to attorneys who have support staff who are notaries that your obligations under RPC 5.3 can be considered to include having some measures in place to provide reasonable assurance that they know how important complying with the law and their own code of ethics as to notarizing documents can be.  (For the record, there was no indication in the opinion itself that Li had any employment situation where he was working for an attorney.)

Also, the case reveals how sometimes – despite the best efforts of the drafters of the rules – the guidance given to attorneys seeking to withdraw from representation doesn’t always work as designed.  ABA Model Rule 1.16 cmt. [3] tries to provide guidance to attorneys about situations when they should begin by stating only that “professional considerations” require withdrawal and indicating the hope that courts will accept that “statement as sufficient,” but courts do not always go along and end up putting attorneys into a situation where they have to disclose information the client might rather not have aired.

The fourth ethics issue, however, is not as obvious but is, I think, the most interesting and compelling.  The district judge, without explicitly saying so, made clear that if the lawyers had scared Li into pleading guilty “by conjuring the nightmare of sexual assault in prison,” that would have been the kind of thing that could have “put their bar license on the line.”  I’m torn on that front.  Obviously, if the lawyers had actually threatened to cause that to happen or otherwise crossed lines into coercing someone against their will to plead guilty, then I’d agree wholeheartedly.  But, if a lawyer representing someone facing potential jail time, and knowing their client had the chance to take a plea that was likely to result in no jail time at all, engaged their client in discussions about the possibility of going to prison and the realities of the problems in the U.S. prison system including the statistics on violence and sexual assault that happens there on a daily basis, would that really be unethical conduct?

I tend to think the exact opposite.  I think that a lawyer would certainly be entitled under Model Rule 2.1 to discuss as “other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”  In fact, depending on the client and the likely prison in play, a lawyer might well be ethically obligated to discuss such issues under Model Rule 1.4(b)’s obligation “to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”