2020 too?

This past year has certainly been … something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice versa, and being bolstered along the way by a surprisingly large number of attorneys willing to file politically-motivated lawsuits that in normal circumstances I’d like to think wouldn’t pass muster under Rule 11 or RPC 3.1.

These anti-democracy lawsuits continue relentlessly with a parade of lawyers who don’t seem at all deterred by sanctions imposed against other lawyers.

So what will 2022 bring? Other than hopefully the end of the pandemic. Surely we will get that. Surely.

Here is where I go out on a limb and make a prediction or too about the world of legal ethics over the next year.

First, given the focus of media attention on lawyers who continue to help high-profile clients pursue questionable legal objectives — not all of which involve subverting democracy of course — I think there will be significant attention and action taken on further defining prohibitions on lawyers assisting unworthy clients in illegal endeavors.

Along those lines, with a particular focus on combatting lawyer-involvement in money-laundering activities, the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Regulation circulated thoughts on potential ways to address that issue better in the ethics rules in a memo put out seeking public input on December 15, 2021. The memo previews a number of possible ways that the comments to the rules could be amended to better define obligations of lawyers in doing due diligence on clients and toward having lawyers have obligations to report suspicious activity.

Interestingly, the memo floats no proposed changes to any rules but only in the guidance offered in comments to rules. Thus, for example, there would be no effort under such a proposal to remove any ethical barriers that currently exist to forcing attorneys to support suspicious transactions beyond what already would be required by law. The potential revisions include:

  • Addition of a new Comment [11] to RPC 1.0 indicating that, as to a lawyer’s knowledge, that it “may be derived from the lawyer’s direct observation, credible information provided by others, reasonable factual inferences, or other circumstances.” And that a lawyer “who ignores or consciously avoids obvious relevant facts may be found to have knowledge of those facts.”
  • Adding several new sentences of guidance to Comment [5] to RPC 1.1 including: “In some circumstances, competent representation may require verifying, or inquiring into, facts provided by the client. Ignoring or consciously avoiding obvious relevant facts, or failure to inquire when warranted, may violate the duty of competence.”
  • Adding significant new language to the Comment to RPC 1.2 including: “To determine whether further inquiry is warranted regarding whether a client is seeking the lawyer’s assistance in criminal or fraudulent activity, including money-laundering or terrorist financing, relevant considerations include: (i) the identity of the client; (ii) the lawyer’s familiarity with the client; (iii) the nature of the requested legal services; and (iv) the relevant jurisdictions involved in the representation (when a jurisdiction is classified by credible sources as high risk for criminal or fraudulent activity).”

You can read the entire memo here and, if you happen to be planning to be in Seattle in February, you can plan to participate in a public roundtable discussion about the potential proposals.

Another area that I predict will be the subject of significant attention in 2022 is whether changes to RPC 5.5 are needed to better address modern legal practice. The restrictions imposed on the ability of a lawyer duly licensed in one state to represent clients in other states or to handle matters because they involve laws of a different state have been questioned, off-and-on, over the years, but the last almost two years of practice in a pandemic has helped push things to a potential boiling point. Perhaps never before has it been easier to make people see the relative-absurdity that RPC 5.5 can prohibit a lawyer with 20 years of business law experience licensed in South Dakota from representing a client in North Dakota who needs a contract drafted but would not prohibit a lawyer licensed in South Dakota who has never handled a tax matter in 20 years of litigation experience from representing a South Dakota client in a tax dispute. I anticipate that 2022 will bring efforts from a number of different groups to seek to modify RPC 5.5 to better offer “full faith and credit” to a lawyer’s law license.

In the meantime, thank you ever so much for your readership, stay safe, and I will see you again in January 2022.

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