I always knew I’d be headlining music festivals one day.

That’s not true at all. I never even imagined I’d be the headliner at a music festival.

After this year’s AmericanaFest in Nashville though, everything has changed.

Well, that’s actually still pretty misleading as I was not the headliner at AmericanaFest.

I did, however, get to be a speaker during AmericanaFest, as part of a panel along with Professor Tim Chinaris. Ours was neither the most high-profile and well-attended session of the conference, but we did talk for 90 minutes about a timely topic in the world of legal ethics.

Unlike loads of other parts of this post, the two-immediately preceding sentences are neither false nor misleading.

Other programming events at the CLE conference portion of AmericanaFest included a session (featuring the daughter of June Carter Cash as a panelist) focused on the upcoming PBS series from Ken Burns about the history of country music, a lunch session involving a conversation with Grammy award winner Brandi Carlile, and a session focused on combating internet monopolies featuring another Grammy award winner, T-Bone Burnett.

Professor Chinaris and I spoke about the new ABA Model Rules revisions addressing lawyer advertising and the current trend toward modernization of such rules across the country. Ours was definitely the best presentation during AmericanaFest on that subject.

Of course, to make that last sentence entirely truthful and not the least bit misleading, I should add that ours was the only presentation during AmericanaFest on that subject.

This post has been much more amusing for me to write than it probably has been for you to read. But, to the extent it can end up being a constructive effort at making any coherent point relevant to legal ethics, that point would be this: if a lawyer were seriously (rather than in jest) making any of the various kinds of false or misleading statements written above in order to advertise their services, the only ethics rule that would be necessary to have a way of imposing discipline for such conduct would be a rule such as ABA Model Rule 7.1.

Model Rule 7.1: Communications Concerning A Lawyer’s Services.

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

If this post can be allowed to make one other coherent point relevant to legal ethics, it would do so by quoting a piece of the report and recommendations from the Utah Work Group on Regulatory Reform that (as mentioned in this earlier post) the Utah Supreme Court approved explaining the need to rework Utah’s ethics rules related to lawyer advertising:

The main concern should be the protection of the public from false, misleading, or overreaching solicitations and advertising. Any other regulation of lawyer advertising seems to serve no legitimate purposes; indeed, it is blunt, ex ante, and — like so many current regulations — neither outcomes-based nor risk-appropriate.

One possible answer: Radical transparency in design for legal services?

So, this post isn’t exactly about legal ethics. Of course, it isn’t exactly not about legal ethics. I’ve written a bit here recently about various jurisdictions launching increasingly bolder initiatives to try to reform the regulatory landscape when it comes to the delivery of legal services.

Many critical voices of these initiatives demand evidence that any changes to the ethics rules will result in better access to justice; others wonder what it is that technology companies or others who aren’t lawyers might be able to bring to the legal services marketplace that lawyers can’t afford to or are not interested in.

I certainly can’t provide a great answer to the first question. And I’m not sure I’m the definitive authority for answers to the second question. But I do have a thought that hit me yesterday while listening to the latest episode of one of my favorite podcasts – 99% Invisible.

If you aren’t familiar with it (and you really should be), it is a design podcast. Its most recent episode is entirely about the condition of waiting and how, as technology has advanced, people have designed ways to deal with people’s expectations as to waiting and how to manipulate them to have people feel better about their experience.

The episode is entirely worth your time in its entirety, but without giving too much away it focuses on things like changes over time to how you interact with Internet websites and how where once there was just a spinning hourglass that did not tell you anything about how long you might expect to have to continue waiting to the way the travel deal website, Kayak.com, shows you in a fully transparent fashion what is being searched while you are waiting.

One of the examples of the steady change in the direction of transparency the episode discusses is one of my favorite things online — something where I never really had previously thought about the “why” of its existence – the Domino’s pizza tracker.

The episode of the podcast talked about research and other studies measuring the effect of transparency, even “radical transparency,” on customer satisfaction. Examples of situations where a customer is happier with an online experience that involves an extended wait – but with flowing information about work being done in the meantime made transparent – than with a non-transparent but “instant” result. And, not all examples involved online interactions. One example was a restaurant that changed its design so that diners could see what was going on in the kitchen to make their food and that resulted in survey responses about how much better the food tasted than before.

My mind quickly moved to the experience for clients of hiring and relying upon lawyers and ways it could be made more transparent that are somewhat similar to the pizza tracker and other situations detailed in the episode. Anthony Davis of Hinshaw once explained to an audience (which included me) about how important it was for lawyers to be more communicative as to their billing because hiring a lawyer was like riding in a taxicab but with the windows blacked out. All you could see was the meter continuing to increase but had no idea how much closer to your destination you were.

Now the analogy is still a great one, even though fewer people experience cab rides now and opt instead for shared rides with prepaid fares.

In fact, the analogy is an even better one now because we live in a world where shared ride companies are putting cab companies out of business. Not only do you know on the front end how much you are agreeing to pay for the ride, but you also, through the app, can monitor your progress toward your destination the whole time (and can even track where your driver is when they are on the way to you).

Now, lawyers could try to be as descriptive as possible in the bills they send their clients, but those still only go out once a month or so. And lawyers could try to communicate more frequently to clients about what they are, or are not, doing on their case, but in an hourly billing scenario each of those communications just drives up the price for the client.

Thus, it seems logical that someone could harness technology and understanding of the life cycle of legal matters to provide a web portal that a firm (or a lawyer) could make available to clients where they could log in at any time of day and “see” something that would tell them what is going on in the life cycle of their matter.

It could be as simple as something that would tell them what the last significant event in their matter was and what the next upcoming significant event is. Or it could be as robust as something that not only gives immediate access to the big picture but would also tell them exactly when the last time was that the lawyer had “touched” their file and what work had been done and when the lawyer has calendared to next do something on the matter. Legal ethics would play a role in restricting certain parts of what could be done because some of the “manipulation” that occurs in terms of managing expectations would be quite risky given ethical restrictions on deceptive or misleading conduct of all kinds.

After those thoughts hit me and I was done with the first level of wondering if an approach surrounding “radical transparency” would work when applied to practicing law to improve the experience for clients and perhaps make people more willing to spend their money on acquiring the assistance of legal professionals, I almost immediately, and instinctively, brushed it off as something that would require too much investment and infrastructure to ever even try it.

And, that’s the real point. Isn’t it?

Can Utahp Arizona?

I know. I’m either: (a) such a sucker for Utah-centric wordplay; (b) a lame, repetitive sort of humorist; or (c) both a and b.

But nevertheless today’s post is really important – at least the subject matter of it is – and so it is being designed to try to be short and sweet and get you, Dear Reader, to go read the source material.

I wrote about Arizona’s efforts in reshaping the legal regulatory landscape a couple of weeks ago. I emphasized how much faster it was moving than California. But Utah has gotten to something of the “finish line” on a very bold regulatory initiative even sooner.

This week it was announced that the Utah Supreme Court unanimously voted to approve the August 2019 Report and Recommendations from the Utah Work Group on Regulatory Reform.

So, for some light reading during this holiday weekend, I offer you the link below to download the Utah report itself – which was titled “Narrowing the Access-to-Justice Gap by Reimagining Regulation.”

To try to immediately pique your interest in reading it, here is the concluding paragraph:

Decade after decade our judicial system has struggled to provide meaningful access to justice to our citizens. And if we are to be truly honest about it, we have not only failed, but failed miserably. What this report proposes is game-changing and, as a consequence, it may gore an ox or two or upend some apple carts (pick your cliché). Our proposal will certainly be criticized by some and lauded by others. But we are convinced that it brings the kind of energy, investment, and innovation necessary to seriously narrow the access-to-justice gap. Therefore, we respectfully request that the Supreme Court adopt the recommendations outlined in this report and direct their prompt implementation.

For what it is worth, I also offer for you the four most important takeaways (in my opinion) about this development:

  1. The framing of the current legal landscape using the term “Age of Disruption,” is very good. It is not only quite accurate but a compelling choice of words.
  2. The Utah report manages to adroitly articulate a number of very important points about the fact that the need for regulatory reform and the problem of the lack of true access to justice in the U.S. are both intertwined with, and independent of, each other. The need for regulatory reform exists whether it will ultimately result in true access to justice or not. The need to strive toward true access to justice exists and must be addressed even if we don’t manage true regulatory reform. The report also says out loud what is often not said — that the lack of access to justice is not the fault of lawyers because it is not a problem that can be made to go away simply by volunteering more or donating more.
  3. I don’t know, however, that it helps to move any needles to be quoting Heraclitus exactly, given that he is most famously known for cosmology. While the point about “Life is flux” is well and good in terms of making the overall point that the only constant in life is change. I think the more appropriate reference for that point in the Age of Disruption is something better than an obscure 5th Century Greek. Probably would have been better to go with a more modern approach and use a variation of the message spoken by a well-known character in Grey’s Anatomy. (I’m largely kidding about this and it really doesn’t deserve to be treated as one of four takeaways. Having only “three” most important takeaways seemed cliché.)
  4. The Utah approach does the two things that, I believe, have to be done hand-in-hand to address this problem. Both freeing up lawyers to compete by paring down certain aspects of the ethics rules, AND establishing regulation to address those who are going to be out there doing the delivery of legal services but who are not lawyers. And, I happen to think that doing so through the “regulatory sandbox” approach Utah will pursue is the path that makes the most sense for that second piece.

Okay, enough about what I think about it. Put it in your reading pile, find a relaxing spot this weekend and read it for yourself and see what you think.

TN Supreme Court Vacates Formal Ethics Opinion.

I wrote a little bit about Formal Ethics Opinion 2017-F-163 a couple of years ago when it was first issued. I haven’t said anything here about it since then because I ended up being retained by the Tennessee District Attorneys General Conference to challenge the opinion.

Having obtained permission from my client to do so, I’m posting a copy for you of today’s Tennessee Supreme Court opinion vacating Formal Ethics Opinion 2017-F-163.

As the conclusion portion of the opinion sums up, the ruling not only vacates the FEO but weighs in on what RPC 3.8(d) means in Tennessee:

For the reasons stated above, we vacate the Board’s Formal Ethics Opinion 2017-F-163. We also hold that, except as provided otherwise in this opinion, the ethical obligations under Rule 3.8(d) of Tennessee’s Rules of Professional Conduct are coextensive in scope with the obligations of a prosecutor as provided by applicable statute, rules of criminal procedure, our state and federal constitutions, and case law.

You can download a copy of the opinion using the button below.

Don’t sleep on Arizona

We’ve (in that creepy royal “we” sort of way) now dedicated two posts to discussing the ATILS proposal coming out of California, but California is certainly not the only state working on reform. In fact, while it may be the biggest, it is not the state offering the boldest reforms, and it also isn’t the fastest in the race by far.

While I did not manage to make my travel work to stay in California for the public hearing on the ATILS proposals, one thing I did learn (along with others in an audience) about it is that before California actually does anything with respect to rule changes there would have to be a second task force put together that would actually craft rule proposals and other specifics.

The state that – at the moment at least – appears to be proposing the boldest reforms when it comes to the future of legal ethics and is doing so at a much quicker pace is Arizona. The Arizona Supreme Court has created its own Task Force on Delivery of Legal Services. You can review as much or as little of the happenings to date of this Task Force by spending some time perusing what is available at this link.

That task force meets again on August 14, 2019 but a review of the minutes of some of their prior meetings will tell you that the Task Force has already approved two revisions that it would be a bit of an understatement to simply call bold:

  • Included within a series of changes to the Arizona advertising rules spurred to some extent by the original APRL proposal for advertising reform and the recent ABA Model Rules revisions, the Arizona Task Force has approved the deletion of RPC 7.2 in its entirety.
  • The Task Force also appears to have approved the deletion of RPC 5.4 altogether (what the various minutes refer to as “Option 3”) so as to open wide the doors to partnerships between lawyers and nonlawyers and financial investment in law firms. In order to make certain that the requirements for lawyers to maintain professional independence are not lost, however, revisions are being made to other rules including comments to RPC 1.7 to highlight the issues.

The Task Force is also moving forward with a proposal to allow nonlawyers to provide certain limited legal services in a fashion that is similar to the concept of LLLTs adopted in a few other jurisdictions.

The Arizona Task Force is also working on evaluating what form of entity regulation may be required or desirable to address the fact that the regulators with jurisdiction to preside over complaints against lawyers and enforce the ethics rules against lawyers would not otherwise have authority over those not licensed to practice law.

So, at the pace Arizona is moving along, it is quite possible that, by as soon as early 2020, there could be a state out there in which there are no limitations on financial investment in law firms (or solo lawyer shops), no limits on what can be accomplished through lawyers partnering with people from other disciplines and backgrounds, and no restrictions on the ability of a lawyer to share compensation received from a client with someone who assisted in delivering that client to that lawyer so that the lawyer could serve the client’s legal needs.

California dreaming.

As promised, I’m not done writing about the ATILS initial recommendations that have been put out for public comment in California.

In fact, I’m here in San Francisco for the next few days at the APRL meeting where there will also be a public forum about the recommendations on August 10.

The public comment period continues until September 23, but if the sentiment that gets expressed at the hearing is anything like the feedback during the public comment period, there may be pitchforks and torches.

It should come as no surprise to those paying attention but California lawyers are scared and uninterested in embracing reform of the way legal services are delivered. While I cannot find anywhere online to actually read the comments that have been submitted so far, you can access something of a spreadsheet here that is a tally of favorable or opposed submissions. People so far even have overwhelmingly commented against doing the easy stuff I mentioned in my prior post.

Nevertheless, let’s talk about a piece of the ATILS recommendation because I still think reform has to happen … one way or another.

The piece I want to talk about today is the proposed recommendation about changing RPC 5.4 in terms of prohibiting partnerships between lawyers and non-lawyers. This is an issue that the APRL Future of Lawyering project is also tackling but California has more quickly made tangible proposals. They’ve done so in the alternative offering a proposed recommendation 3.1 and an alternative proposed recommendation 3.2.

3.1 – Adoption of a proposed amended rule 5.4 [Alternative 1] “Financial and Similar Arrangements with Nonlawyers” which imposes a general prohibition against forming a partnership with, or sharing a legal fee with, a nonlawyer. The Alternative 1 amendments would: (1) expand the existing exception for fee sharing with a nonlawyer that allows a lawyer to pay a court awarded legal fee to a nonprofit organization that employed, retained, recommended, or facilitated employment of the lawyer in the matter; and (2) add a new exception that a lawyer may share legal fees with a nonlawyer and may be a part of a firm in which a nonlawyer holds a financial interest, provided that the lawyer or law firm complies with certain requirements including among other requirements, that: the firm’s sole purpose is providing legal services to clients; the nonlawyers provide services that assist the lawyer or law firm in providing legal services to clients; and the nonlawyers have no power to direct or control the professional judgment of a lawyer.

3.2 – Adoption of an amended rule 5.4 [Alternative 2] “Financial and Similar Arrangements with Nonlawyers” which imposes a general prohibition against forming a partnership with, or sharing a legal fee with, a nonlawyer. Unlike Recommendation 3.1, the Alternative 2 approach would largely eliminate the longstanding general prohibition and substitute a permissive rule broadly permitting fee sharing with a nonlawyer provided that the lawyer or law firm complies with requirements intended to ensure that a client provides informed written consent to the lawyer’s fee sharing arrangement with a nonlawyer.

Now, my quibbles with either proposed amendment to RPC 5.4 would be at the margins. I think what is missing from the second alternative is that also there would need to be protection that the nonlawyer have no power to direct or control the professional judgment of a lawyer. As to the first alternative, my only real quibble is that I think the second alternative is better on substance.

I understand why a lot of lawyers would get queasy at the second alternative, but I’m at something of a loss to see how – other than based purely on either pure self-interest or “guild” protection – lawyers can wield torches in response to the first alternative. Very weirdly there has (so far) been more opposition to 3.1 than to 3.2.

To some extent recommendation 3.1 is not strikingly different than what D.C. already permits and it embraces the reality of what is (or at least with respect to Avvo “was”) already happening online when it comes to business providing marketplaces to pair willing attorneys with interested clients.

Shimkonicity (shim-ko-nis-a-tee)

When I first read some reporting about this decision from Ohio involving the indefinite suspension of a lawyer, I expected it to come across very much as an obvious case of a lawyer’s third strike leading to a steep punishment. But, the coming together of so many things with respect to this lawyer’s situation actually offers quite a story from which a lot of lawyers can learn a few things (or at least be reminded of some things they already knew). Thus, showing my age again, I’ve gone with The Police album rip-off title for this post.

So, yes, at the straightforward level, if you read this opinion, you will digest the story of a lawyer getting hit with his third strike. About nine years ago, Mr. Shimko engaged in some financial chicanery with some clients leading to a public censure in Ohio that was imposed as reciprocal discipline after Arizona had first done the same. Three years or so after that, he received a one-year suspension (but it was all stayed so he continued to practice) for disparaging a judge. Now, he’s received an indefinite suspension after he appealed a recommended two-year suspension for charging an excessive fee to a client and then unnecessarily disclosing confidential information about the client in connection with suing the client for the excessive fee amount (along with a bit of unsavory threatening to disclose the information in order to try to get the client to settle).

Most of his story is routine stuff that all lawyers know (or should know) they should not do. The last seven-or-so-pages of the opinion also offer a tangible example of why trying to throw every potential appellate argument into a mix — particularly in a disciplinary case — is not a very good strategy. But along the way, there are two real teachable nuggets here of things that a surprising number of lawyers sometimes don’t know, and there is also one big topic that the Court simply fails to mention which also is pretty important (and which it could have used to further skewer the lawyer’s scattershot allegations of error on appeal.)

Much the way my son tackles fast food; first we will tackle the nuggets:

Nugget #1: You just can’t bill your clients for time you spend drafting what amounts to your engagement letter. If it is a good engagement letter, you are substantially creating it for your own benefit and protection. At most, it is documentation that is partially being created for the client’s benefit. Don’t try to charge the client for that time.

Nugget #2: There is a second-level of consideration when a lawyer is proceeding under a self-defense exception to restrictions on the disclosure of confidential information. Not only do you have to be able to demonstrate that one of the specific exceptions under RPC 1.6(b) can be satisfied, which you can do if you are trying to pursue payment from the client as an example. But you also have to remember that the disclosures you make need to be no more than is reasonably necessary AND in a lot of circumstances you still have to make efforts to try to limit the number of people to whom the disclosure is made. The comments to RPC 1.6 lay out guidance about this in most jurisdictions in a very clear and helpful fashion. If you are litigating a fee dispute with a client, even though you can disclose confidential information to the Court in order to prevail on your claim or defeat the claim of your client/former client, you may very well have to also seek the entry of a protective order to try to prevent the information you are disclosing from becoming fully available to the public.

And the thing that was missing? Any discussion by the Court of why this Ohio lawyer’s arguments about how he was entitled to do what he did because the client was committing insurance fraud using his services are very hard to reconcile with one or two other ethics rules in Ohio (and elsewhere) – RPC 3.3 and RPC 4.1.

If the lawyer’s version of events regarding what the client had told him in advance of the examination under oath was to be believed, then under RPC 4.1 what the lawyer was required to do, at minimum, was to withdraw from the representation so as not to assist with the fraud. If representing someone in a pending insurance dispute during an examination under oath is somehow treated as a representation to a tribunal under Ohio law (which I would suspect is not the case), then RPC 3.3 in Ohio — patterned after the Model Rule — would have required the lawyer to speak up during the EUO about what was happening not after the fact.

The Court likely didn’t address those issues because it did not need to since the earlier rulings had found the lawyer’s assertions not to be credible, but even a footnote highlighting this issue for lawyers might have been a worthwhile piece of dicta.

Really big goings on in California.

And, no, in the title I’m not referring to the leak of information about the California Bar essay topics before the bar exam. Although that story is certainly bananas.

You’ve likely by now read at least something somewhere online about the most recent product coming out of the California State Bar Task Force on Access Through Innovation of Legal Services, consisting of tentative recommendations that has been formally put out for public comment. Most of the usual places where you can readily get good news about issues relevant to (or related to) the practice of law have done a piece of some sort about it.

It really is a significant step in the national discussion about what the regulation of the practice of law ought to look like moving forward and, if you have the time, the full 250-or-so-pages of report and related attachments is worth a read and available at this link. (To be clear, if you only have time to read one report spanning hundreds of pages, it should be The Mueller Report. The future of legal ethics in this country isn’t going to be of much importance if we can’t get a handle on just how badly the rule of law is currently being threatened by our institutions (Part 2) and just how little faith and confidence we can have in the integrity of our elections process (Part 1). So, if you are a lawyer and still have not read that report yet, then you need to do so.)

(If you have time to read two massively long reports, then the ATILS report should be the other one.)

There is so much about the ATILS proposal, and its variants, that is worth writing about that I’m pretty certain I’m going to end up dedicating a few posts to the subject matter – though spread out a bit so as not to only write about it and nothing else for too long a time period. Aspects of what is being discussed are really substantial changes to the way things work now and will most certainly be scrutinized and subjected to significant debate.

To start off though, I want to just talk about two aspects of the report that ought to be much less controversial both because it is an easy jumping off point and because, on their own, they give a glimpse into how fast things are moving these days.

Now you may recall that California only very recently (effective November 1, 2018 as a matter of fact) revised their ethics rules in an overhaul that more closely resembles aspects of the ABA Model Rules. In so doing, California became the very last U.S. state to do so. But getting there took more than 17 years. With those revisions, California adopted a version of ABA Model Rule 1.1 on competence and adopted ethics rules related to legal advertising that at least followed the numbering and overall framework – with some deviations – of ABA Model Rules 7.1 through 7.5.

Despite the fact that California’s versions of those rules still essentially have a “wet paint” sign on them, the task force report is proposing a revision to California’s RPC 1.1 and is proposing that another pass be taken at California RPCs 7.1 through 7.5 to either put them more in line with the most recent revisions to the ABA Model Rules or possibly more in line with the less modest proposal that the Association of Professional Responsibility Lawyers made that (as written about here a time or two) started the process moving that led to the ABA revisions.

Being willing to consider such things less than a year since adopting new rules is a bit unusual on its own, but when it comes to RPC 1.1, the task force is going a bit further and proposing that California revise the language a bit even from what the ABA Model Rule says. To a large degree the proposed deviation is a bit wonky because, at heart, it stems from the age-old debate about where exactly the right lines are in terms of what Comments can be used for and what they can do when compared to the text of the rule itself. (The discussion of the motivation and issue is found at p. 18-19 of the task force report documents.)

The ABA Model Rule comment language reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and in practice, including the benefits and risks associated with relevant technology….

The California proposal would instead be:

The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.

For what it is worth, I can manage to both think that the ABA Model Rule approach does not run afoul of the balance between comment and rule but also agree with the task force proposal that if California adopted the proposed variation, it would likely be a better approach.

Now the cynical amongst us may say that these topics wouldn’t be being addressed if there wasn’t a much larger set of reforms being put on the table. And those folks are probably right … about which more later.

A modest proposal (about NYC Bar Op. 2019-5)

I have made a living (well not actually a living since no one compensates me in any form of currency, whether crypto or otherwise, for my writings here) writing about problematic ethics opinions. July 11, 2019 brings what might be the most practically useless ethics opinion ever released. If it were only just practically useless, then it might not be worth writing about. But it adds into the mix the fact that it appears, without discussion, to significantly expand the scope of the rule being interpreted as well.

It comes from the New York City Bar, and it addresses cryptocurrency. Well, that’s not fair exactly. Nebraska opinion 17-03 which I wrote about almost two years ago can be described as an ethics opinion that addresses cryptocurrency. This opinion from the New York City Bar addresses a highly speculative question related to cryptocurrency. It asks “what if…a lawyer entered into an agreement with a client that would require the client to pay the lawyer in cryptocurrency?” Not kidding. That is literally the overriding premise. Now, admittedly, Memphis is a long way from New York City, but is this really a potential fee contract provision with relevance to more than a handful of lawyers?

If it is relevant to you, then you could go read the full opinion at this link. Before you decide whether that is how you wish to spend your time though, here is an excerpt from the opinion that literally identifies the three variations of possible fee agreements it considers:

  1. The lawyer agrees to provide legal services for a flat fee of X units of cryptocurrency, or for an hourly fee of Y units of cryptocurrency.
  2. The lawyer agrees to provide legal services at an hourly rate of $X dollars to be paid in cryptocurrency.
  3. The lawyer agrees to provide legal services at an hourly rate of $X dollars, which the client may, but need not, pay in cryptocurrency in an amount equivalent to U.S. Dollars at the time of payment.

If those questions cry out to you as needing answers, then by all means do go read the full opinion.

But, if those questions don’t sound like they are relevant to you and your practice (and the opinion itself even acknowledges that the first scenario is “perhaps-unrealistic” and the second scenario is only “perhaps more realistic”), then here’s my modest proposal.

Let’s pretend that NYC Bar Op. 2019-5 starts at roughly p. 12 and just includes the rest…. because (1) those four pages of analysis are a pretty good overview of how you work through RPC 1.8 in most jurisdictions in order to evaluate the business transaction with a client issue, and (2) it reminds the reader of the two significant ways that New York’s version of RPC 1.8(a) differs from the ABA Model Rule.

New York’s version differs from the ABA Model by making the scope of its RPC 1.8(a) less broad in two different ways. It mandates that the rule only applies to transactions where the lawyer and client have “differing interests” in the transaction and where the client expects the lawyer to be exercising professional judgment on behalf of the client.

Nevertheless, the last four pages of the opinion give sound guidance of what a lawyer has to be concerned about with respect to a business transaction with a client:

First, the lawyer must ensure that the transaction is “fair and reasonable to the client” and must disclose the terms of the transaction in writing and “in a manner that can be reasonably understood by the client.”

[snip]

Second, the lawyer must advise the client, in writing, about the desirability of seeking separate counsel and must then give the client a reasonable opportunity to consult separate counsel.

[snip]

Third, the client must understand and agree to “the essential terms of the transaction, and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.”

One added benefit of my modest proposal is that it will also avoid the Pandora’s Box this opinion appears to wish to open. As long as the full version of this opinion exists, then lawyers will need to pay very close attention to what happens on page 4. That is when the opinion blithely sticks the words “(or prospective client)” in without discussion. Given the text of the rule, this reference would appear to entirely transform RPC 1.8(a) from a rule that only applies to a business transaction with someone who has already become your client into a rule that now applies to contracts to form an attorney-client relationship.

While the NYC Bar Opinion does cite to Professor Simon’s annotated version of the New York Rules of Professional Conduct (not surprisingly in the four pages at the end which should stay), my admittedly quick review of what Professor Simon offers in the annotations to RPC 1.8(a) doesn’t appear to indicate that the rule is as expansive as this opinion seems to indicate. Many of those annotations certainly read like the transaction in question can’t be the one that creates the attorney-client relationship itself. That seems like a pretty big thing to parenthetically speak into existence in this ethics opinion.

Tales of typos and punctuation problems.

I’ve written once or twice in the past about how questions of punctuation and typographical error can be unimportant when the issue amounts only to pedantry. Of course, punctuation can be very important. The stage phenomenon Hamilton has a good line or two about this involving “My dearest Angelica. With a comma after dearest, you’ve written … My dearest, Angelica” with this particular Schuyler sister noting how it changed the meeting and inquiring whether Alexander intended it.

There are more mundane, less lyrical examples that can be encountered in situations every day. For example, just playing around with punctuation can change entirely the meaning of two paragraphs that only differ by their punctuation:

  • Somehow I managed not to write anything for almost two weeks. I’m sick it happened. I’ll try to do better starting now.
  • Somehow, I managed. Not to write anything. For almost two weeks I’m sick. It happened. Ill! Try to do better. Starting now.

Today’s post hits two topics with nearly nothing in common other than the role that punctuation (or asserted typographical errors) plays in each one.

The ABA Journal directs all of our collective attention to this story of a Florida lawyer who has now been disbarred for breaking into his former law firm and stealing items. The headline of the article reads: “Lawyer disbarred after breaking into former law firm; blamed punctuation problem.” Now, setting aside the fact that the ABA managed not to properly use that semicolon there in that headline, the headline is one that seems like it is designed just to make you click through to see how in the world a punctuation problem could be a defense to breaking and entering.

Go ahead and click if you want, but [SPOILER ALERT] it’s not even close to a viable defense. I’d call the role of punctuation in that case mere pedantry but I think that might be insulting even to pedants. You can read more of the details in the order disbarring the lawyer here, but the flimsy reed to support some of his conduct apparently was that because his former law firm had incorporated its professional name – Barak Law Group, PA – without putting periods after the “P” and the “A,” then he could incorporate his own entity by the same name but with “P.A.” That, apparently, would give him ownership and domain over the assets of his former law firm.

He proceeded to hold himself out in public as the owner of the firm and to file hundreds of notices of liens as well as some other public record or court documents to try to cause money to be diverted in his direction.

Of course, the lawyer in question also must have come to realize that his magical argument about the missing periods wasn’t as powerful as he hoped. One of the pieces of misconduct spelled out against him in the proceedings involved surveillance video driving home the point that his punctuation arguments weren’t opening doors for him as he had hoped:

The video allegedly showed Brady and his brother backing a truck up to the Barak firm, tying a rope from the truck to the front door and using the car to rip the door open. The video showed Brady and his brother removing a safe and the computer server, Barak testified.

In the end, he got what Florida characterizes as permanent disbarment, and the article explains that a big factor in that was a complete lack of remorse for the misconduct. Or, more lyrically as the article spells out, he “clings to his justification for his actions with a ferocity that is quite disturbing.”

Shifting gears from playing with punctuation to quickly admitting and fixing a mistake in the form of a typographical error, the Tennessee Supreme Court put out an order yesterday that adopted a new revision to what was already a pretty brand new rule approving the concept of collaborative law practice.

The rule is Tennessee Supreme Court Rule 53. The fix had to be made to Section 16 of that rule and it involves replacing the word “record” with the word “agreement.” Now, strictly speaking, that isn’t exactly what I think of when I think of a typographical error. Having the rule say “agerment” or “egreement” would be a typographical error. Going with “record” when you meant to use “agreement” seems much more like just an error. But quibbling about that would truly be pedantry.

Without poring over the entirety of Rule 53, it is difficult to see what sort of difference it makes to have referenced a “record” rather than an agreement in the provision, but, I’ll paste it below so you can guess for yourself if you’d like:

Section 16. Confidentiality of Collaborative Family Law Communication. A collaborative family law communication is confidential to the extent agreed to by the parties in a signed record agreement. Evidence of conduct or statements made in the course of a collaborative family law proceeding shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.

I’m really only including reference to it because I wrote a little bit about this rule when it was adopted back in April 2019, and I don’t believe i raised one thought that I had about it at that time.

The concept of collaborative lawyering – which at least under the Tennessee rule is now embraced exclusively in the context of domestic relations law – is in some ways antithetical to a number of recognized aspects of the practice of law and in other ways is just something of an expansion of the lawyer as intermediary rule that we still have in Tennessee (RPC 2.2).

Now, the ABA long ago jettisoned Model Rule 2.2 but Tennessee is one of two U.S. jurisdictions to still have it. If the reference isn’t striking any bells for you, it is the rule that applies:

when the lawyer provides impartial legal advice and assistance to two or more clients who are engaged in a candid and non adversarial effort to accomplish a common objective with respect to the formation, conduct, modification, or termination of a consensual legal relation between them.

Thus, aspects of the role that lawyers play in a collaborative lawyering arena can be thought of a bit like if two different lawyers were engaged in a joint venture for the purpose of serving two clients as intermediaries. But, admittedly, that analogy is imperfect at best.

[P.S. I’m fully invoking Muphry’s Law here in advance of any errors anyone spots in this post.]