An ode (of sorts) to RPC 1.18 (but only as an example)

Today’s entry is something of a dodge in a way (I sort of wanted to pile on about this and make the point that it is a much sounder development than this was) and something of knocking down a hastily-created strawman in another respect. But what it mostly amounts to is pursuing a not-yet-fully-formed thesis that has been kicking around my brain for a bit.

The quick and dirty description of the thesis is: Ethics rules are tools; having the right one for the right situation saves a lot of time and effort, but it also protects lawyers and clients alike by providing certainty.

I keep coming back to this thesis of late because of a few instances of things arising in my practice (about which I can’t elaborate of course) as well as discussions I’ve been privy to at ethics conferences and presentations that have particularly focused on issues of civility in the practice of law and whether more should be done to establish rules to punish lawyers for conduct many (perhaps most) but certainly not all lawyers would view as uncivil.

In the discussions of civility, I keep returning to the notion that we already have certain specific rules that prohibit conduct of an uncivil nature and ought to focus on enforcing those rather than layering on other proposed solutions outside of the rules. Those rules are Model Rule 4.4(a) and Model Rule 8.4(d). Admittedly, 4.4(a) is much more supportive of my thesis as it is very clear about what it prohibits: a lawyer, who is representing a client, cannot “use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” I am usually hard-pressed to hear of a situation that a lawyer is complaining of under the category of “incivility” that is both clearly deserving of punishment and not already prohibited by 4.4(a).

Offering even stronger support for exploring my thesis though is this recent ethics opinion from the Texas Center for Legal Ethics. Opinion 691 addresses this question: “Under the Texas Disciplinary Rules of Professional Conduct, when may a lawyer represent a client adverse to a former prospective client of the lawyer or another lawyer in the lawyer’s firm.” Examining that question, the opinion spends almost 5 pages to get to its four-paragraph conclusion.

Many of you reading this, likely are asking yourselves the same question I did when I saw news about the issuance of the opinion: Why is this a live question in Texas and why does it take so many pages to answer?

Because Texas has not adopted Model Rule 1.18, or any other specific rule, addressing a lawyer’s duties owed to prospective clients.

Fascinatingly, this Texas opinion ultimately offers an analysis that can still be distilled down to look a good bit like Model Rule 1.18 with really only one important difference: no non-consensual screening to avoid imputed disqualification. If this opinion is correct about how things should work in Texas, then Texas could just have adopted (and now could adopt) a rule that if I understand their fun numbering would be 1.17:

Duties to Prospective Client.

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information except as Rule 1.05 would permit.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter.

And if Texas had just done that, then lawyers and prospective clients would be able to know clearly what is to be expected. Instead, lawyers and prospective clients (and others) will be left to wonder whether this opinion accurately describes what the other rules mean.

Honestly, transparency is all that we need.

This week I was fortunate enough to be included as part of a presentation on debating issues of regulatory reform in a Plenary at the ABA National Conference on Professional Responsibility

I recorded my 3-minute presentation a couple of months ago and spent a lot of time looking forward to how it would be received. Unfortunately, it went down in a way that “felt” less than ideal. There were some communications problems with a shift in online platforms from the prior day to the day of this content and I was lucky enough to both have mine get teed up first when people were still trying to figure out how to make things work and was one of two presenters that never managed to actually get introduced so, unless you recognized my face (if so, I’m so sorry for that) you didn’t know it was me.

So, in the interest of self-care and to possibly double the number of people who ever hear what I had to say on my subject matter, I’m taking the liberty of repackaging it here into a blogpost.

Without further dwelling in this quagmire of self-pity, here were my remarks in their entirety:

I’ve been given the opportunity to be the “pro” side of the argument on why many of the current ethics rules restricting business development should be jettisoned.

I think I can do it in 5-10 seconds, “Honestly, transparency is all that we need.”  But since I get 3 minutes, let me elaborate.

Our rules, in Rule 2.1, already require us to “exercise independent professional judgement” in representing a client.  Our rules, in Rule 7.1 already require us not to make any false statements about ourselves or our services.  Our rules, in Rule 7.3, already prohibit any solicitation that “involves coercion, duress, or harassment.”  Our rules in Rule 8.4(a) already prohibit lawyers from doing any of those things through the acts of another. 

So, given that we have consumers who aren’t finding lawyers for assistance at a price point they are willing to pay, and we have lots of lawyers without enough to do … why do we need rules – under the guise of prohibiting fee sharing or prohibiting paying people for referrals to protect consumers?

Honestly, transparency is all that we need.

Consumers care about what the total cost of a lawyer is to them.  They don’t care who the lawyer shares that money with.  If they do, transparency about the situation will let them say “no”

Honestly, transparency is all that we need.

Consumers care about whether they can find a lawyer who is willing to handle their matter.  They don’t care about the fact that a particular matching service might only be offering 3 lawyers out of 20 that might be out there and willing.  They’re happy to know about the 3.  And if they do care, then transparency about the situation and the business arrangements will let them say “no.”

If you’re with me, say it with me … Honestly, transparency is all that we need.

And, if you disagree because you are convinced that no matter what the other rules say, you believe that if we let third-parties with financial interests direct clients to particular lawyers based on a relationship rather than their qualification, then the lawyer’s exercise of independent professional judgment will be impacted … wait until you learn about insurance companies and panel counsel arrangements and billing and reporting guidelines.

Third Time’s a Charm?

Do you have a lawyer in your life who has everything, and you don’t know what to get them for a Memorial Day present? (What, you say this isn’t a gift giving holiday weekend? Instead, it’s a solemn occasion and not really something to be celebrated in the sense of gift giving? Fair point.)

I’ll start over.

Do you have a long holiday weekend in front of you and aren’t quite ready to get out and socialize but also have nothing to occupy your time and because you are here reading this you very likely are a lawyer who has at least a passing interest in legal ethics and enjoy reading?

Have I got the solution for you.

The Third Edition of Professional Responsibility in Litigation is now available on the ABA website for purchase. You can get to at this link:

Professional Responsibility in Litigation, Third Edition (americanbar.org)

I am, once again, proud to have had the opportunity to co-author this book with Doug Richmond and Mike Matula. I’m also very proud of the way that we have revised and improved the Third Edition. (Due to a bit of a shipping glitch, I haven’t received my author copies just yet so instead of quoting for you a bit from our new introduction to explain what we have done, I will crib a bit from what the ABA explains at the link above.)

This completely revised edition now includes new chapters on conflicts of interest and accidental and impromptu clients, and also provides a wider discussion of social media ethics in a focused chapter on this evolving topic. All other chapters have been substantially updated and, in some cases, prudently condensed for ease of use and provide ample citations to authority to guide readers in their own research.

Even if you don’t see your way to picking up a copy, please make sure to have a safe and enjoyable long weekend.

The world needs a “healthy dose” of lots of things.

Frankly, civil behavior by lawyers toward other lawyers certainly is on the list of things the world needs a healthy dose of, but, well, let’s just say maybe it’s not a top-10 item on the list.

So, the point of today’s post is not to be the guy who claims that lawyers shouldn’t have to be civil to each other. I am not that guy. Civility is a net positive in the profession.

What I do want to write a bit about though, because discussions about the need for increased civility in the legal profession are all the rage right now (and, in fact, I’m going to be part of a panel discussion later this month on the topic, the difference between reminding lawyers of the need to treat human beings with respect and “weaponizing” the idea of civility to hamstring the ability of a lawyer to pursue a client’s claims and rights, particularly when that can tend to unfairly prejudice the “Davids” of the world in favor of the already-favored “Goliaths.”

I also want to stress the fact that there is already a rule of professional conduct that is sufficient to address those aspects of incivility that should be treated as unethical.

Let’s talk in varying degrees of detail about three of the most recent news items driving the civility discussion and identify which one of them I have some real problems with.

The quote in the title of today’s post comes from this ABA Journal article about remarks made by the Chief Justice of the West Virginia Supreme Court in connection with that court’s proposal to amend the attorney oath of office to better mandate civility.

Much more media attention rightly has been focused upon this ruling from the D.C. District Court admonishing a high-profile Big Law attorney (who actually had to step away from a Presidential appointment in the new administration because of this matter) for her characterizations of the conduct and demeanor of opposing counsel during a deposition, a videotaped deposition. Whether this ruling is correct in terms of the application of Rule 11 is not something I want to spend any time discussing. Whether this ruling properly points out the kind of things a lawyer shouldn’t do is.

The core description of the situation can be understood from the court’s opinion itself which indicated that each of the following were statements made by lawyers in the record about the conduct of their opposing counsel during the deposition but for which the Court could find no support in viewing the videotape of the deposition: opposing counsel was “agitated and combative,” opposing counsel “lashed out at the witness,” opposing counsel “became unhinged … and repeatedly attacked and baselessly threatened to seek sanctions against the witness and counsel,” opposing counsel engaged in “browbeating and disrespectful behavior,” opposing counsel was “indignant and adversarial,” “agitated and aggressive,” and opposing counsel “demonstrated a general lack of respect towards a professional adversary.”

Mischaracterizing the way another lawyer has behaved is certainly troubling conduct. While perhaps some of the descriptors are entirely subjective, not all of them are. The fact that, as the court points out, the deposition in question was videotaped also makes it pretty hard to feel any sympathy for the lawyer who ended up sanctioned after they persisted in trying to say that the descriptions of the other lawyer, which everyone else seems to agree were not reflected on the videotape, were somehow justified.

But I also want to be clear about what the case did not involve which is an even more toxic approach to mischaracterizing the behavior of another lawyer but which only “works” if the deposition isn’t being videotaped. We likely all have encountered a lawyer who, back in the days when videotaping depositions was a much less frequent experience, would make statements and assertions about events to make a “record” on paper of something happening that was not actually going on. Statements such as “please stop raising your voice at the witness,” or “you need to calm down, you’re way too worked up,” “I’d ask you to stop rolling your eyes at the witness’s answers,” or “what was that gesture? No one appreciates that” and the like can be a “go to” approach for trying to gaslight later readers of an otherwise dry deposition transcript.

Now, contrast the D.C. case with this ruling from a district court judge in Florida demanding that attorneys representing both sides in a lawsuit against a cruise line refile past filings after removing all of the language that the judge found inappropriate. (Former APRL President Jan Jacobowitz has written a bit about this ruling here.)

In the Florida case, the court explained its concerns as follows:

The Florida Bar Oath of Admission, which every attorney
licensed in the state of Florida swears to obey, states in part,

To opposing parties and their counsel, I pledge
fairness, integrity, and civility, not only in court,
but also in all written and oral communications. I will
abstain from all offensive personality and advance no
fact prejudicial to the honor or reputation of a party
or witness, unless required by the justice of the cause
with which I am charged.

The Florida Bar’s Creed of Professionalism provides further
clarity on the manner in which attorneys should conduct themselves
in the practice of law. It states, in part, “I will abstain from
all rude, disruptive, disrespectful, and abusive behavior and will
at all times act with dignity, decency, and courtesy.”


Upon review of the record and the parties’ filings, this Court
notes that the conduct displayed by counsel for both Plaintiffs
and Defendant runs afoul of the tenets of professionalism set forth
by the Florida Bar.

The problem, of course, comes in reading further the examples that the court cites which almost exclusively do not involve the lawyers denigrating or being uncivil to each other, but rather involve characterizations by lawyers of the conduct of the opposing party itself. For example, the Florida judge took umbrage at:

First, Plaintiffs dedicate an entire section of their Motion
for Partial Summary Judgment to what they entitled “ROYAL
CARIBBEAN’S EGREGIOUS POST-INCIDENT CONDUCT.” They accuse the
Defendant of “lying to authorities,” “attempting to deceive this
Honorable Court,” and engaging in, “corporate misconduct [which]…
appears to know no bounds” [D.E. 128]. Plaintiffs further accuses
Defendant’s Captain of lying to the U.S. Coast Guard, and state
that the Defendant “doubled down on the Captain’s lie to the Coast
Guard by again lying to a United States Federal District Court.”
Plaintiffs further claim that Defendant’s ‘lies’ were “the genesis
of the Puerto Rican authorities ultimately pressing (baseless)
criminal charges against Mr. Anello,” and ultimately accuse the
Defendant of making “merciless efforts to frame an innocent man,
intentionally destroy evidence, and mislead this Honorable Court
(and the U.S. Coast Guard and the Puerto Rican authorities).”

The problem with most of the language that this court found problematic is that the court seems unwilling to acknowledge that there is fundamentally a difference between saying that lawyers should generally treat other lawyers, as well as other people involved in proceedings, with civility and essentially hamstringing a lawyer from being able to pursue a client’s case. Now, admittedly, I have no insight into any of the players in the case nor any reason to know if anyone was not telling the truth, but, fundamentally, the notion of civility must not be used to prevent lawyers from being able to point out when an adverse party is actually lying.

There are, in short, very few ways to inform a court that you believe that your client’s litigation adversary is lying in a way that is guaranteed to be viewed as “civil.” There is no doubt that accusations of lying are made far too casually by members of our profession, but that does not mean that there are not instances when litigants are, in fact, lying and lawyers must be free to plainly and directly say so when their client needs them to do so.

And it is for that reason that I tend to be wary of efforts to expand existing ethical prohibitions, or adopt new rules, in the name of encouraging civility. I tend to think that the rules already address what needs to be prohibited through Model Rule 4.4(a)’s prohibition that in representing a client “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….”

Any jurisdiction that has that version of RPC 4.4(a) has what it needs to get at the kind of uncivil behavior that should be curtailed.

NFT = No From Tennessee

I am about to write a series of statements that are each fairly described as, if you will allow me to use the technical, legal term, “bananas.”

  1. People with way too much money on their hands are spending actual money on things called Non-Fungible Tokens (“NFTs”). NFTs are – in laymen’s terms – unique electronic-only items ranging from the category of – at least somewhat understandable though overpriced – fan paraphernalia like the NBA’s Top Shot product to digital-only recreations of works of art that people are paying literally millions of dollars for.

2. The Tennessee Judicial Ethics Committee has issued an ethics opinion (Advisory Opinion 21-01) for Tennessee judges to advise that a judge cannot ethically agree to have their likeness used in an NFT that would be sold to raise money for a for-profit organization even if part of the funds raised would then be contributed to not-for-profit entities engaged in efforts to help provide better access to justice.

3. An actual company was proposing to create an NFT of the image of one or more Tennessee judges to auction off to the highest bidder under the premise that this would raise money and that some of the proceeds would then be able to be donated to Legal Aid entities and other charitable entities.

4. One of the reasons that the judicial ethics committee pointed to in explaining that it would be unethical for a judge in Tennessee to participate in the arrangement was the concern that members of the general public might perceive that the person who purchased the NFT of the judge’s image might have a position of influence over the judge.

Now, for the non “bananas” content, other than that last little bit that almost is more grounded in voodoo orthodoxy than the judicial ethics rules, the opinion reaches the correct result and gives the correct guidance that a judge cannot participate because they cannot lend their image to such a fundraising endeavor because of ethical prohibitions on abusing the prestige of judicial office to advance the economic interests of others.

So, in the end, this is good advice to Tennessee judges but, sakes alive, I can’t believe the question even came up.

I guess now the only thing left to know is how for how exactly much can I sell this NFT of Opinion 21-01 I’m about to create?

Main(e)ly an excuse for book promotion.

So, before offering up the actual ethics content, if like me you know you’re not quite hitting on all cylinders but you are functional and you haven’t already read that New York Times article that made the rounds about “languishing.” I’d recommend it. You can still get to the article at this link. You might read through it and walk away very much saying “It Me.” If so, samesies. Unfortunately, I haven’t yet figured out yet what the recipe is for moving on from languishing to something more like – if not thriving then … well something.

Now, on to something with an actual clear solution, the answer to an ethics question. More specifically, I wanted to give a nod to a recent ethics opinion put out into the world that actually is a really good one. Really good in that it does the kind of thing that an ethics opinion can do to be really valuable — gives the correct answer to a practical question that can really matter to a lawyer and involving a situation that (while it doesn’t arise with abundant frequency) can still arise more frequently than once in a blue moon.

What we are discussing is Opinion #224 issued by the Professional Ethics Commission of the Board of Overseers of the Bar, State of Maine. But henceforth we’re just going to call it Maine Op. 224. Maine Op. 224 answers the question:

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?

Now, I know from experience dealing with lawyers that, when posed this sort of issue in real life, many lawyers immediate, visceral reaction is that surely this must be verboten. If they are able to draw a rule to mind to give shape to their reaction, they will point to RPC 3.4 and its prohibition on a lawyer offering inducements to witnesses that are prohibited by law.

In Tennessee, we’ve written our rules to be exceedingly clear about how this can be done rather than rely only on the ABA Model Rule language. Our RPC 3.4(h) has this additional language:

A lawyer may advance, guarantee, or acquiesce in the payment of

(1) expenses reasonably incurred by a witness in attending or testifying;

(2) reasonable compensation to a witness for that witness’s loss of time in attending or testifying; or

(3) a reasonable fee for the professional services of an expert witness.

But such compensation is not verboten even in jurisdictions that just have Model Rule language. As long as the amounts provided as compensation are reasonable with respect to the value of the witness’s time and the compensation is not at all dependent on the content of the testimony, then the answer is that a lawyer may do this.

And Maine Op. 224 gets that right.

A lawyer may advance court costs and litigation expenses without running afoul of the Maine Rules of Professional Conduct, including paying a non–expert witness’s lost wages, expenses, and other costs related to preparing and providing testimony or otherwise assisting counsel, so long as the payment is reasonable and not conditioned on the content of the witness’s testimony.

Moreover, Maine Op. 224 provides a number of helpful points of elaboration. It manages to stress that the fundamental reason that the lawyer can do so is because the client has the right to do so and, thus, a lawyer can, acting on behalf of the client, advance those litigation expenses similar to other litigation expenses. It also, albeit in a footnote, gives practical guidance that the lawyer also has to be very careful about the likely need for the arrangement to be fully disclosed during discovery in the litigation itself. It also, again in a footnote, acknowledges that there could well be disputes over whether a particular amount of compensation is, in fact, reasonable and opines that the place for litigating such a question should be in the litigation itself.

Now, we are heaping a bit of praise on Maine for getting it right, but reaching the right conclusion on this question is not a Herculean task as the ABA, almost a full 25 years ago now, already gave this similar correct guidance in ABA Formal Op. 96-402 and Maine Op. 224 cribs from that opinion liberally.

What Maine Op. 224 does not do is go beyond the guidance the ABA Opinion offered about how to figure out whether requested compensation for a fact witness is reasonable. One good place to look for such guidance is in Chapter 5 of the Second Edition of Professional Responsibility in Litigation where Doug Richmond, Mike Matula, and I offer eight practical tips to litigators when addressing this issue. Respecting the adages of cows and free milk, I’ll offer you only three of those practical tips here: (a) lawyers ought to wait for a witness to ask for compensation rather than offering it; (b) the closer the lawyer can come to providing an amount that approximates the witness’s direct loss of income the safe the arrangement; and (c) lawyers should refrain from ever providing such compensation to someone who is a former employee of the litigation adversary.

Oh, and by the way, speaking of Professional Responsibility in Litigation, the Third Edition is going to be coming out very, very soon. So, stay tuned.

Update on racial insensitivity within the practice of law.

It still exists, of course. No real surprises there.

In just the last two weeks, there have been multiple stories that drive that point home. One such story, while admittedly actually involving a sitting judge rather than a practicing lawyer, is this one out of Colorado. Another such story involves a New York lawyer who was serving both as General Counsel to her employer and as an adjunct law school professor and has now lost her GC position over multiple uses of the same racial epithet the Colorado judge explored during a lecture in her professor position. There are other examples just occurring over the last few months that are readily found through searching online.

While both the Colorado judge, and the New York lawyer, have found themselves on the outs with respect to their employment status, the resolution of the individual judge’s situation and how it came about through judicial ethics proceedings including a public censure and agreement to resign, is also a reminder that the judicial ethics rules already have broad enough language to address and resolve certain kinds of conduct involving sustained racial insensitivity in a way that the current lawyer ethics rules in many locales do not.

As readers of this space are well aware, there have been a variety of efforts in a variety of places over the last 5 years or so to try to remedy that. A few very recent noteworthy developments in the now long-running saga of the effort to enact better language into the ethics rules of various jurisdictions to tackle the problem of lawyers engaging in harassment and discriminatory conduct are worth mention.

My guess is the one that has the most potential for significant impact is a proposal out of New York. But, given the rapid state of overall developments, I need to be clear about which proposal out of New York. Not this proposal put out for public comment in March 2021 that would suggest replacing New York’s existing RPC 8.4(g) with the ABA Model Rule version. No, I’m talking about this one:

That proposal for a revised RPC 8.4(g) in New York was put out late last week for public comment by the New York State Bar Committee on Standards of Attorney Conduct. It has a comment deadline of May 28, 2021. The Chair of that Committee, Roy Simon, was kind enough to send me a copy of the proposal last weekend.

This one appears – from the backstory of which I have been made aware and despite the fact that it does not show all of its work as certain kinds of reports often do — to have been the product of a significant amount of time and effort, including efforts at trying to consensus-build. Early reactions I have seen involve some long-time vocal opponents of both the ABA Model Rule and some other states attempts at implementation seeming to take something of a shine to this proposal. Now, admittedly some of the reactions I’ve seen also involve the vocal opponents to other versions trying to argue that this version won’t actually mean what it purports to mean as to the scope of “conduct in the practice of law.” Specifically, it has already been argued that teaching of a CLE could not be conduct in the practice of law despite the fact that the rule itself would define “conduct in the practice of law” to include “participating in bar association, business, or professional activities or events in connection with the practice of law.”

For whatever reason, almost always the various “parade of horribles” hypotheticals offered about how these rules will curtail free speech by lawyers always involve the teaching of a CLE somewhere. It would seem to me that if you cannot manage to speak at a CLE without managing to violate at least this version of the rule (given the further bells and whistles described below), you should probably stick to being an audience member and not a presenter. But, whatever on that, I guess.

It appears that the most significant ways this proposed anti-discrimination and anti-harassment rule deviates from the ABA Model Rule are: (1) in using that turn of phrase regulating “conduct in the practice of law” rather than “conduct related to the practice of law;” (2) defining “harassment” for purposes of the rule to require something that is both “severe” or “pervasive” and that is directed at an “individual or specific individuals;” and (3) trying to go even further with respect to clarifying that definition of harassment in a comment that would explain:

[5C] Petty slights, minor indignities and discourteous conduct without more do not constitute harassment. Severe or pervasive derogatory or demeaning conduct refers to degrading, repulsive, abusive, and disdainful conduct. Verbal conduct includes written as well as oral communication.

I have long believed that we need to bolster the rules on this subject matter and if the NY proposal becomes something that can gain traction, then consider me to be all for it. (I would suggest, however, that the second sentence of proposed Comment [5C] would be better off with a disjunctive connector rather than a conjunctive connector so that it would say “degrading, repulsive, abusive, or disdainful conduct.” Surely something would not have to check all of those boxes to be prohibited.)

There also is another very recent proposal that appears to head down a path that is somewhat similar to the New York proposal, at least in terms of trying to address arguments made time and again by those who have voiced steadfast opposition to ABA Model Rule 8.4(g), by making clear that prohibited discrimination or harassment has to actually target some other specific person. The D.C. Bar Rules of Professional Conduct Review Committee has put out this lengthy report proposing that D.C. adopt a new RPC 8.4(h) that would also differ from Model Rule 8.4(g) in that it would specifically state that conduct to be prohibited must be directed at another person and that also attempts to offer more clarity about what is or is not within the scope of covered circumstances. harassment. The DC proposal rather than using either the “related to” language of the ABA Model Rule or an “conduct in the practice of law” language now proposed in New York, uses the language “with respect to the practice of law.” Unlike New York’s latest proposal, however, the D.C. report does not propose requiring something be “severe” or “pervasive” in order to amount to harassment. You can access the full D.C. report at the link below:

California proposes an ethics opinion that needs further workshopping.

Let’s talk for a bit today about a proposed California ethics opinion for which public comment is being accepted until June 8, 2021.

The general topic when you hear about the proposed opinion is immediately of interest — can a lawyer help a client obtain a contractual agreement including a provision that is against the law? It is a topic that I did a seminar on – unrelated to California law — back in the before times. (I think it is still available for listening if anyone is of interest here.)

In jurisdictions that have a version of RPC 1.2 that tracks the Model Rules, it can be a bit easier of a question to parse through because what ABA Model Rule 1.2(d) prohibits is limited to not counseling “a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. . . .” Thus, tricky questions about whether a contract provision might be unenforceable under current law become a bit easier to deal with in terms of a bright-line at least because it is only problematic for the lawyer to be involved if the client’s path involves criminal conduct or the commission of a fraud on the other contracting party.

Although California has relatively recently (and finally) adopted a version of ethics rules that are patterned on the Model Rules, their version of RPC 1.2(d) deviates significantly from the Model Rule approach by expanding the lawyer’s obligation to include not just something that is criminal or fraudulent but anything that the lawyer knows is “a violation of any law, rule, or ruling of a tribunal.”

Thus, this proposed formal opinion (Interim No. 19-00003) addresses a much broader question than might be evaluated in most jurisdictions. Now, perhaps as a way of making the outcome more palatable, the opinion tees up the following as the fact pattern it decides to evaluate:

Lawyer works for a large California corporation providing employment law advice to the Human Resources department (“HR”) responsible for all non-executive hiring. Employees hired through HR are presented with a standard form written employment agreement (“Agreement”). This Agreement is presented by HR to new hires as a non-negotiable agreement that must be signed as a condition of employment. Lawyer is tasked with reviewing and updating the Agreement, which contains a provision that has been found to be illegal under California law.

Factual Scenarios

1. Lawyer knows that the provision has been found to be illegal, but advises HR to use the Agreement anyway, without further advice or analysis.

2. Same facts, except that Lawyer does not know that the provision is illegal.

3. Same facts, except that Lawyer advises that the contract provision has been found to be illegal under California law, but does not recommend against including the provision.

4. Same facts, except that Lawyer advises that the contract provision has been found to be illegal under California law and recommends against including the provision. HR advises Lawyer that it understands the provision is illegal but would still like to include it in the Agreement for its chilling effect. HR has asked the Lawyer to assist in enforcing the provision.

Offering up that scenario makes it a lot easier to offer conclusions such as:

A California lawyer has a duty not to counsel or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal. That conduct includes the use of a contract provision in a transaction with a third party that has been found to be illegal under the law of the jurisdiction applicable to the transaction. If the lawyer knows that the provision is illegal, the lawyer: (1) should advise the client accordingly; (2) may not recommend the use of the provision; and (3) must counsel the client not to use it.

If the client insists on the use of the illegal provision against the lawyer’s advice, the lawyer may not participate in presenting the illegal provision to the third party and may not assist the client in enforcing the provision. In that event, the lawyer may withdraw from the representation but is not required to do so.

If the lawyer concludes that the conduct is a violation of law reasonably imputable to the organization and likely to result in substantial injury to the organization, the lawyer for an organization must report the actions of the client constituent to a higher authority, unless the lawyer reasonably concludes that it is not in the best lawful interest of the organization to do so

Confined to the facts evaluated in the opinion, it would feel hard to get worked up about the conclusions because who wants to openly advocate for a corporation being able to knowingly put an unenforceable noncompete or nondisparagement provision in an employee contract merely for “its chilling effect”? Right?

But, work with me here for a minute. RPC 3.1 in most places, including California, expressly permits lawyer to advocate in court proceedings for extensions, modifications, or reversals of existing law. Court matters don’t happen without cases or controversies and, thus, cases arguing that aspects of existing state law, whether contract law or otherwise, should be modified or reversed unless people take actions that are “illegal” until litigated and the existing law reversed.

So, how in the world does that ever get to happen in California, if this ethics opinion moves forward? How does a lawyer help someone who is willing to seek to change a bad law to do so? Is California really going to say that the only way to do that is through lobbying legislative bodies? What if California had a law on the books that made it “illegal” to rent any house greater than 2,000 square feet in size to anyone other than Caucasians? And I’m not talking about something where the law in question makes it a crime, but just a statute that prohibits it without imposing any criminal penalties. Are California’s ethics rules going to prevent a lawyer from assisting a willing landlord in crafting a lease agreement that violates that law?

And, look, I get that the opinion is constrained in that it has to interpret California’s rule, and that it might well be that the problem is the rule itself, but, sometimes the process of putting together an ethics opinion reveals a bad rule and instead of issuing the opinion, someone should spend their time fixing the rule.

If you agree, and you have any sway in California, you can send a comment in on the proposal in the next 45 days or so.

Brooding about ethics.

So, it’s been a minute or so since my last content. You’ve probably moved on and found a new favorite ethics blog. It’s probably Michael Kennedy’s actually, he’s been relentless with content in March 2021.

You might be wondering what has happened to keep me from writing over these last 20 or so days. First, it’s definitely not workload or client issues. Second, it’s definitely not a lack of things out there worth commenting on these last three weeks. Third, it’s definitely not the guy who’s been attacking my site trying to hack it. That just results in mildly annoying little emails telling me the person is hopelessly trying. (I know with about 99% certainty exactly who it is, but he’ll have to keep trying a bit more so that I can have exactly what I need to help his friendly local law enforcement officers confirm it’s him.)

No, it’s because of the cicadas. You might have read something about how, over the next few weeks, billions of Brood X cicadas will emerge after 17 years of hiding away. It’s always weird to see yourself talked about in the media – that’s been going on over the last few weeks as well in some other settings – but it’s really weird when an article refuses to acknowledge you by name. The Vox article linked above, and a few others, speak in terms of these billions of cicadas hearing “the call of Spring” and deciding to wake up.

I think this is the first time I’ve ever been called “the call of Spring.” If you think that billions of cicadas just all decide to wake up at roughly the same time on their own, you are pretty gullible. Somebody has to travel around and wake them up. And, let me tell you, it’s exhausting.

But anyway… it’s done now. So, for the sounds you are about to experience and cherish, you are welcome. Along the way, I’ve also managed to get two doses of Pfizer vaccine in me, so we should be well on our way to resuming normal, intermittent posting.

For today, let’s ease our way into it and offer some content about a topic that (of course) that Kennedy fellow has already managed to write about. A new proposed ethics opinion in Florida (a place I fortunately did not have to go to for any Brood X cicada wake-up calls) addressing the ethics of accepting client payments through various popular digital platforms like Venmo and others.

The proposed opinion issued by the Florida State Bar’s Professional Ethics Committee appears to be a largely commonsense approach to an inevitable development as such apps have arisen and that focuses, for the most part, on the same kinds of ethical issues that were looked at and resolved in the days when lawyers were “struggling” to figure out whether they could ethically accept payment of fees using credit cards — confidentiality issues and Rule 1.15 safeguarding of funds/trust accounting/commingling issues.

The confidentiality issues are certainly more complex than was true about credit cards because of some of the more social media style angles of certain payment apps, which is another point that Kennedy makes well in his post today that focused on the confidentiality issues in the opinion.

The opinion also addresses in detail what lawyers will have to do to ensure that payments received through such an app that are earned when received go to one type of account and payments to be held in trust go to another kind of account. Likewise, the opinion addresses the need to make sure that any “costs” of using the service – like transaction fees – do not get paid out of any trust funds being held by the lawyer.

You can get the full Proposed Advisory Opinion 21-2 here. Among the most valuable pieces of advice offered in the opinion though comes at the end in the form of something of a disclaimer:

Note: The discussion about specific applications in this opinion is based on the technology as it exists when this opinion is authored and does not purport to address all such available technology. Web-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.

Truer words and all of that, right? For example, the UI I had to deal with on the Cicada app? Don’t get me started.

More seriously, the forthcoming nature of this opinion was already on my radar screen, and the radar screen of all who attended the APRL mid-year meeting because we were fortunate enough to hear a “Fred” talk” from the Chair of the Florida Bar Professional Ethics Committee, Culver “Skip” Smith.

Interspersing our meeting with these “focused, rapid, ethics discussions” was something new APRL is trying. Skip’s “Fred” talk has been eclipsed by the release of the actual proposed opinion but let me end my return from a long slumber by offering you a link to another “Fred” talk that was given at our APRL mid-year meeting that I thought was excellent and that demonstrated some of the possible cool approaches these kinds of short talks can offer.

Give yourself 10 minutes or so this weekend and watch Joanna Storey of Hinshaw talk to you about whether miscommunication is inevitable.

Is Miscommunication Inevitable? Lessons Learned from Misunderstandings in Literature and Sitcoms – YouTube

What decade is it again?

So, the experience of the last year of pandemic life has messed with a lot of people’s ability to remember when certain things happened. For some people, remembering events of the last year are not the problem as much as remembering when certain things happened in the before times. For others, short term memory of events has been impacted a bit in a way that is more akin to briefly failing to grasp what day of the week it is when everything seems like the same day.

The nostalgia-based wave of reboots/updates/re-releases of older content isn’t exactly helping with the feeling of temporal displacement. A Frasier reboot is apparently now in the works. Saved by the Bell has been relaunched and out there on streaming services for months now. A new version of Walker Texas Ranger has given one of the actors from Supernatural something to do. Punky Brewster is apparently back but now my age, and indications are that Dexter and even The Fresh Prince of Bel Air are going to be freshened up and back on our television screens.

So, for someone who already refuses to believe that the 90s were 30 years ago, bringing back all of the 90s entertainment can make for further confusion.

A quick look this week at legal news didn’t exactly help with temporal awareness:

Florida lawyer faces ethics complaint over pit bull ads.

Seriously, are we doing this again too? My immediate recollection was that Florida went after a lawyer for a similar ad in the 90s, but the article confirms that the decision that came down and was subject to discussion was actually in 2005.

Florida’s prior effort to punish a lawyer for colorful advertising was wrong then, and, if it actually leads to some form of discipline in 2021, it would be even more wrong now.

The Florida opinion referenced in the article which imposed discipline on an attorney named (of all the 90s things) Chandler didn’t turn on the idea that using an image of a pit bull in an advertisement or trying to self-proclaim a pit bull as a moniker was misleading, but instead scolded on the basis of the idea that the pit bull references in marketing was not the kind of speech that would help consumers make an informed decision about how to choose a lawyer.

One would have hoped in the intervening 15 or so years that regulators in our profession have had plenty of time to recognize that the commercial speech of lawyers in marketing their services shouldn’t be regulated on the basis of taste or regulators’ subjective views on what is or isn’t appropriate but instead should only be pursued if the communications are actually false and misleading to the consumer.

Kudos to my APRL colleague Brian Tannebaum for trying to be the voice of reason in the above-referenced ABA Journal online article.

Also though, given the passage of time and the fact that there is much more to the story of pit bulls in the nature versus nurture realm and whether they have been unfairly given a reputation for being a certain type of animal, how about lawyers do a bit better in also recognizing what decade this is? I too wouldn’t ever choose that approach to advertising, but, at this point, why not explore the Cerberus instead of a pit bull?