Ridiculous from up close and far away.

I have some real-world experience in trying to help lawyers already admitted in at least one jurisdiction obtain admission to practice here in Tennessee.  My state’s system now is still less than ideal but not necessarily in a way that makes it strikingly more problematic than is the case in many other states.  (In the long, long ago I wrote a bit about how it was strikingly more problematic but we obtained some important rule revisions that made things better, if not perfect.)

Part of the overall problem with this aspect of lawyer regulation is the antiquated nature of the overall process plus the increasingly-difficult-to-intellectually-justify approach that we have to the regulation of the practice of law in this nation that clings to the notion that each of the 50 states plus D.C. is entitled to make its own determinations about whether someone who is perfectly competent at practicing law in one state can manage to grasp how to practice law in their state.

The underlying premise and approach is one that institutionally leads itself easily into a protectionist and parochial approach to making admissions decisions.  There are lots of ways in which the patchwork approach that exists to these issues has been very difficult to reconcile with advancements in technology and how easy it is for a lawyer sitting on a chair, in let’s say Oregon, with an internet connection can effectively practice law in, and service clients in, California or Texas or Maine or . . . well, you get the point.

This recent Law.com story tells the tale of an associate in a Kentucky office of Dinsmore Shohl who relocated to Ohio to work in the Cincinnati office and who is now at risk of being denied admission to the Ohio Bar based on “character and fitness” issues.  The problem with her character and fitness to practice is that Ohio has concluded that she’s been engaged in the unauthorized practice of law in Cincinnati by continuing to represent Kentucky clients where she is licensed while waiting for a decision on her application to be admitted to practice law in Ohio.

As far as fact patterns go, this one is among the more innocuous and is one that – if you happen to practice in a firm that has offices in multiple states — you’ve probably seen happen without incident and perhaps never even contemplated could go awry for the lawyer involved:

The questions about Jones’ potential admission to the Ohio bar trace back to 2015, when the associate requested a transfer to Dinsmore’s Cincinnati office so she could start and raise a family in Ohio, according to court documents. The firm granted her request but asked Jones to first apply for admission to the Ohio bar. It also required her to continue working only on matters arising under Kentucky law while her application for admission to the Ohio bar was pending.

Following the firm’s suggestions, Jones applied in October 2015 for reciprocal admission to the Ohio state bar—a process that would allow her to avoid retaking the bar exam in Ohio. She then moved to Cincinnati and worked only on Kentucky matters. She took a maternity leave and returned to practicing Kentucky law while based in Cincinnati, according to court documents in the case.

The article also indicates that those advocating for her admission in Ohio have raised constitutional arguments that also address one of the core problems with the way admissions authorities will often take a “cake and eat it too” approach to these issues:

Jones also invoked the U.S. Constitution’s due process provisions under the 14th Amendment. In a May brief, Jones’ lawyer noted that Ohio’s bar rules would allow an Ohio lawyer to practice Ohio law even if that lawyer was physically doing the work in another place. But, Jones argued, the board’s view would prohibit an out-of-state lawyer who wanted to do some work while in Ohio.

Even merely reading about this situation is a frustrating endeavor but important to highlight because, even if the Court ultimately gets the answer right, it shows how archaic some aspects of this whole approach to these issues are.  (Not the least of which being that we are talking about a situation in which this associate has now been under this cloud and in this situation for nearly three years.)  And heaven help all the multi-state firms with Ohio offices if the Court gets the outcome wrong.

The end of Avvo Legal Services should not be the end of the discussion.

A lot of the time, saying something seemed “inevitable,” only makes sense to say when you’ve had the benefit of hindsight.  At some level, every outcome can be justified as having been inevitable when you are doing the justifying after the event has already happened.

I say that to make clear that I understand the problem with making the following assertion:  As soon as the news came out that the same company that owned Martindale Hubbell was buying Avvo, it seemed inevitable that Avvo Legal Services was on the road to being scrapped/shut down.

Further, if the mere news that a much larger, much more “conservative” company was taking over didn’t signal for you how things would shake out ( a company that also owned other significant legal marketing products that might “compete” with or be intended to compete with Avvo), the news that quickly followed — all the key people at Avvo (the founder and CEO, the General Counsel, the marketing person who was to some extent the “face” of Avvo) were cashing out and moving on — should have left no doubt that large change was coming.

This week Internet Brands, that new owner of Avvo, let the cat out of the bag in perhaps the weirdest way possible that Avvo Legal Services would be shut down.  As this ABA Journal article reports, an unauthorized practice of law committee of the North Carolina Bar had sent an inquiry letter, apparently, to continue or begin an evaluation of whether Avvo Legal Services somehow involved the unauthorized practice of law.

In response, the General Counsel of Internet Brands sent the North Carolina committee a letter advising that Avvo Legal Services was going to be shut down imminently.  That’s a weird way for the news to come out because, of all the problems that Avvo Legal Services’s business model had, unauthorized practice of law simply wasn’t one.

If you follow this space, then you are likely well-versed on what those problems were: the business-model required participating lawyers to take on all of the risk that participation would involve them in one or more violations of their state’s ethics rules, including rules against sharing fees with people who aren’t lawyers or paying someone something of a value for a referral of legal work.

The end of Avvo Legal Services, however, should not mean that the legal profession should stop efforts to determine how the ethics rules need to be revised in order to facilitate the existence of things similar to Avvo Legal Services.  Consumers who have grown accustomed to using that kind of platform to get assistance with their legal needs are just going to look around the Internet for a new option.

One of the folks behind Avvo has been promoting the existence of one such new option pretty vigorously of late.  But there are all kinds of others out there and likely new ones waiting in the wings.  Very few, if any, of them can truly be described as providing any sort of service that is likely to hurt consumers seeking legal services.  Real-world transactions have demonstrated that the kind of approach to pairing consumers in need of help with lawyers with time on their hands and a willingness to assist at a desirable price point can take place without hurting the consumers of legal services.  The fact that those business models are currently prohibited by the ethics rules simply means that slavish devotion to those prohibitions based on theoretical concerns rather than how things truly are is an untenable position for the profession to try to maintain.

I still think a big choice has to be made in our profession, and I continue to think that choice is clear.

When the job requires you to do the impossible.

I’d long thought that the ethical issues associated with representing clients held in Guantanamo would be the most flagrant example in my lifetime of our government purposefully making it impossible for lawyers to fulfill obligations to their clients.  Sad to say that I may just have been wrong about that.  (P.S.  I only started this blog in 2015 and have never really written about the dilemma created for lawyers trying to represent detainees in Guantanamo because it felt like most everything worth saying about it had already been said by others.  You can still read one the best legal journal articles providing an overview of the dilemma here.  But, it is worth noting that the absurdities of the overall situation have not dissipated and it can be argued that the situation for defense lawyers in those proceedings is now worse than it has ever been.)

The situation created by our government’s forcible separation of families seeking asylum at our border has created a dynamic that might be just as bad or, perhaps, worse.

This weekend I had the chance to read some about the bizarre scenes playing out now in Immigration Court in our country.  Perhaps the two most poignant accounts are this piece on a 1-year old who had to appear, albeit with a lawyer, and this video recreation using actual immigration court transcripts of how surreal this whole thing is.

Because this is a blog about legal ethics, I will limit what I have to say to the perniciousness of the impact this policy has on lawyers who are attempting to represent an immigration client — which while a horrible situation is about seventh on the list of importance in terms of the overall horribleness (which includes but is not limited to all of the children who have to deal with immigration court without a lawyer at all.

A lawyer has an ethical obligation to provide competent representation to a client (see RPC 1.1), a lawyer has an ethical duty to communicate with the client as to information that is important for the client to make informed decisions about the representation (see RPC 1.4), a lawyer has an ethical duty – even when dealing with a client with diminished capacity — to try to treat the client as much as is possible like a client with normal capacity (see RPC 1.14).  Almost all of those ethical duties become close to impossible to accomplish when the lawyer’s client is one to five years of age, not allowed to see their parents, not sure why they aren’t allowed to see their parents any longer, unable to effectively communicate about complicated legal questions even in their own language much less in the language the lawyer speaks, and, for the most part, simply altogether unable to appreciate what is going on at the moment.  And, none of what I just said even takes into account the possibility that the client is also being forcibly drugged to a point of sedation in order to try to address crippling anxiety brought about by the forced separation from their parent or parents.

Opportunities to discuss RPC 1.14 in a meaningful way are not all that frequent, but one of the big things that rule seeks to do is to insure that the lawyer try to empower the client as much as possible despite the client’s diminished capacity as much as possible.  It does this front-and-center in the black letter of the rule stating:

(a)  When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority . . . or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Thus, for example, it does not trumpet pursuing the appointment of a conservator or guardian for a client as a primary course of action.  Instead, it establishes in the rule that such efforts are appropriate only when there is something more going on than just the fact of diminished capacity:

(b)  When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

Yet, in the situation these immigration counsel are grappling with, it seems impossible to figure out how a lawyer could do anything other than want to seek the appointment of a guardian or guardian ad litem to assist the client with the decision-making that has to occur.  Of course, immigration courts – unlike other courts in our judicial branch — are creatures of the executive branch.  When the head of the executive branch is publicly railing against due process at all in the immigration courts, one fears that an already nearly impossible task for the lawyer will be made all the worse by a system that will be less-than-friendly toward any efforts to have such a person appointed at all.

In Tennessee, we have a version of RPC 1.14 that goes a further step in Comment [9] – and would likely describe much of what lawyers in this situation will have to do by necessity — act on an emergency basis on behalf of a client with seriously diminished capacity without meaningful input:

[9]  If the health, safety, or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.  Even in such a situation, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available.  The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm….

The only other hope for the situation is that the lawyer representing the child may be able to count on the immigration judge to try to make every effort to accommodate and account for this inherent failure in the process.  Again, given the dynamic going on in the system itself right now, this does not seem like a very realistic hope.  Certainly not one on which the lawyers involved can count.

 

 

RPC 5.6 and settlement agreements: The TN BPR messes up another ethics opinion.

This is not truly a development that merits the “Bad Ethics Opinion or the Worst Ethics Opinion” treatment, but it is a development that deserves commentary.

Last week while my wife and I were getting some short R&R, the Tennessee Board of Professional Responsibility issued Formal Ethics Opinion 2018-F-166.  If all you read of it were the first two paragraphs, it would sound like a reasonable (albeit somewhat circular) ethics opinion to have issued:

The Board of Professional Responsibility has been requested to issue a Formal Ethics Opinion on the ethical propriety of a settlement agreement which contains a confidentiality provision that prohibits any discussion of any facet of the settlement agreement with any other person or entity, regardless of the circumstances, and which prohibits the requesting attorney from referencing the incident central to the plaintiff’s case, the year, make, and model of the subject vehicle or the identity of the Defendants.

OPINION

It is improper for an attorney to propose or accept a provision in a settlement agreement that requires the attorney to be bound by a confidentiality clause that prohibits a lawyer from future use of information learned during the representation or disclosure of information that is publicly available or that would be available through discovery in other cases as part of the settlement, if that action will restrict the attorney’s representation of other clients.

So, again, that sounds reasonable in a vacuum (and it’s that last clause that makes it relatively circular as an application of RPC 5.6.  As the opinion makes clear that the rule on which it is premised and hinges is RPC 5.6(b), which provides:  “A lawyer shall not participate in offering or making: (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

But, this opinion isn’t issued in a vacuum.  It manages over the course of 4 pages to barely acknowledge the existence of an earlier-issued ethics opinion — Formal Ethics Opinion 98-F-141.  It also doesn’t even mention the existence of a more recent Formal Ethics Opinion 2010-F-154.  Those oversights are extremely unfortunate because the existence of those two FEOs should have made the issuance of this new FEO entirely unnecessary.

FEO 98-F-141 explained that a plaintiff’s attorney should not be required to, and should not agree to, be a party to a release and settlement agreement of their client unless the attorney is specifically releasing a claim for attorney fees.  Otherwise, being a party to the release creates conflict of interest issues between the client and the lawyer.  FEO 2010-F-154 repeated this guidance as part of explaining why – despite the problems associated with Medicare super liens — settlement agreements could not require the lawyer for the plaintiff to agree to indemnify the defendants for such liens.  Thus, the second paragraph of FEO 2018-F-166 (if it was ever issued at all) could have read:

We have already opined in FEO 98-F-141 and FEO 2010-F-154 that it is unethical for a plaintiff’s attorney to be required to, or to agree to, be a party to a client’s release and settlement agreement.  For any such provisions to be enforceable against plaintiff’s counsel, (s)he would have to be a party to the settlement agreement, which we’ve already explained is a no-no.  As long as the lawyer is not an actual party to the agreement, then any such provisions are only binding upon the client – not the lawyer — and whether or not the client wishes to agree to them is up to the client given that RPC 1.2(a) declares that the client’s decision to settle a case is something that a lawyer has to abide.  Thus, if a client wants to agree to terms of settlement that are lawful and the lawyer cannot be held to those terms as a party, then the client gets to do as the client wishes in that respect.

And then, FEO 2018-F-166 could have stopped right there.

Since it didn’t go down that way, this new opinion is, at best, unhelpful to the extent that it implies that a client doesn’t have the right to agree to things that they obviously would have the right to agree to or that it implies that if a client does it is somehow binding on the client’s lawyer going forward in future situations even if the lawyer is not a party to the release and settlement agreement and not bound thereby.

Far too often anger begets violence both by, and against, lawyers.

I failed again as a blogger last week and do not have anything resembling a good excuse.  There is a lot going on in the world that is troubling and last week was simply a week where it felt like writing anything that was not about how our country has become okay with putting children in cages seemed frivolous.  That topic was not one that had any legal ethics component, however, so …

I’m still very angry about what my government is doing, but beyond the 50 or so words that precede this one, I’m not writing about that today.

There are two short stories sitting in my idea pile that have anger as their common thread so I’m threading them together today to simply talk about how easily anger can get the better of people if not channeled to something productive.  One story involves a lawyer being properly disciplined for failing to manage his own anger.  The other involves a tragic end of life for a lawyer who was slain by someone else who let anger take over.

A lawyer in Maryland, who already had a track record of disciplinary problems, now finds himself suspended from the practice of law for 30 days as a result of engaging in “road rage.”  Dana Paul’s suspension, premised upon violations of RPC 8.4(a), (b) and (d) is not only yet another in a long list of incidents where angry lawyers do inexcusable things but also a reminder that RPC 8.4 is the kind of disciplinary rule that applies to lawyers even when they aren’t engaged in the practice of law.

The Maryland opinion describes the three different versions (Paul’s, the other driver’s, and a third-party witness to some of the incidents) of the events presented in evidence in the case which involved sustained interactions between Paul and another driver spanning over two counties in Maryland.  Paul’s own testimony minimized his conduct but he ultimately did plead guilty to two counts – negligent driving and failure to return to/remain at the scene of an accident.  Paul claimed that things started when the other car slowed down in front of him and he observed the driver of the other car on her cell phone.  Paul says he passed her and beeped at her – claiming that he always beeps at people on their phones “as a way of telling drivers to not use their phones while operating a vehicle.”  Paul then claimed that the vehicle passed him and cut him off and then would intentionally slam on her brakes.  Then at a red light, Paul left his vehicle to question the driver.

The other driver testified to a different version of events at Paul’s criminal trial.  A third-party witness who saw both the altercation at the traffic light and the moment when Paul’s car and the other car impacted each other offered testimony that the court found persuasive:

At the traffic light, [witness] asserted that Paul exited his vehicle, displayed both of his middle fingers towards [other driver,] and reentered his vehicle and drove of.  Approximately eight miles later, [witness] was driving in the right lane while [other drive] drove next to [witness] in the left lane.  [Witness] witnessed Paul’s car drive in between [witness] and [other driver’s] cars, causing [witness] to move to the right shoulder.  [Witness] attempted to alert Paul that he could drive in front of her in order to avoid injury to any party  Thereafter, [witness] observed Paul’s vehicle make contact with [other driver’s] vehicle.  After the cars hit, [witness] stated that Paul moved behind [other driver] and took a picture of [other driver’s] license plate.  Once [other driver] then pulled off onto the shoulder, [witness] did the same and gave [other driver] her name and address.  [Witness] later drove to Easton at the request of the police to identify Paul as the person who struck [other driver’s] vehicle.

Paul’s conduct on the road did himself no favors, but Paul’s own statements to law enforcement were damaging as well as he was confronted by a state trooper after he had stopped at a restaurant to use the restroom and asked what had happened to his vehicle.  After Paul said nothing happened, and after the state trooper pointed to paint on the side of Paul’s car, Paul then denied the allegation that he had hit the other driver’s car.

Ultimately, the Maryland court concluded that it had been proven by clear and convincing evidence that Paul’s “road rage” conduct was both criminal and of a nature that reflected adversely on his “fitness as an attorney” to be a violation of RPC 8.4(b) and also that because his conduct “involved dangerous, harmful, and threatening behavior stretching across two counties,” it was sufficiently prejudicial to the administration of justice to be a violation of RPC 8.4(d).

Of course, lawyers can be victims of unhealthy anger as well.  Last week the ABA Journal online posted a story of a Georgia lawyer (just three years younger than I am) who was found dead in his law office after having apparently been gunned down by the husband of one of the Georgia lawyer’s divorce clients.  The husband was also found dead in his former wife’s bed from an apparently self-inflicted gun shot.  The police knew to go to the law office only after the husband had called his former wife and confessed to killing her lawyer.  Although I was just a baby lawyer when it happened, I remember well when something not too different than this happened in Memphis back in 2002 when Robert Friedman was ambushed in his parking garage by the husband of one of Friedman’s divorce clients.

It is a difficult time to begrudge anyone the right to be angry, and you can count me on the side of those who don’t take kindly in the political arena to slavish calls for “civility” that really only amount to trying to prevent relatively powerless people from sending a message to powerful people, but if you are reading this and you get violent when you get angry, seek out ways to learn how to manage your anger.

Time to choose: are you Illinois or New Jersey?

Blackhawks or Devils?

Bulls or Nets?

Barack Obama or Chris Christie?

Northwestern or Rutgers?

Kanye or Wu-Tang Clan?

Wilco or Bruce Springsteen?

Some of those are easy calls; some are harder decisions to make.  What they all have in common though is that one comes out of Illinois and the other comes out of New Jersey.

As to the future of legal ethics, we now face a similar decision that has to be made.  Are you down with what is coming out of Illinois or will you choose what New Jersey has to offer?

I’ll explain further.  Avid readers of this space will be well aware that I have devoted quite a few bits and bytes to discussions of the evolving market for legal services and the push/pull in place between companies that push the envelope of what lawyers can do under existing ethics rules and various ethics opinions that have been released explaining how lawyers can or cannot do business with such companies.  In order to avoid spamming this post with about 10-15 links to previous posts of mine, I’ll just say that if you are just getting here for the first time (welcome!), then look through the older posts for ones with the tag “Future of Legal Ethics” and you are sure to find one pretty quickly that discusses these topics.

Within the last couple of weeks, these have been the two developments that pretty nicely identify the choice that lawyers (and the legal profession) face.

First there is the Illinois development.  The Illinois ARDC — which is Illinois’s regulatory and disciplinary agency [Attorney Registration and Disciplinary Committee] — issued a more than 100-page report making the case for why the ethics rules need to be overhauled to permit lawyers to ethically participate in “lawyer-matching services” such as Avvo and other platforms but that, along with such changes, there need to be regulations adopted to impose certain requirements on such companies and platforms for lawyers to be able to participate.

In large part, much of what Illinois describes sounds a bit like a subtle variation on RPC 7.6 in Tennessee that I have written about in the past.  But it still also requires fundamental changes to other pieces of the ethics rules addressing financial arrangements between lawyers and those not licensed to practice law.

By way of juxtaposition, the New Jersey Supreme Court, asked to review a joint opinion issued by its legal ethics regulatory body, its advertising regulatory body, and its body focused on UPL aligned with other jurisdictions that have issued ethics opinions prohibiting lawyers from participating in programs like Avvo Legal Services, declined to review the opinion or otherwise disagree with its conclusions.

For my part, I think the choice is an easy one to make.

But, the most important thing for today (IMO) is for people to understand that there really is not a middle ground position here — you are going to have to make a choice and you are going to have to decide that you are either on board with the Illinois approach or the New Jersey approach to this topic.

Choose wisely.

Lawyers (but really judges) in a #meToo world.

I was fortunate enough to be invited to speak last week at a half-day seminar that was called a “#meToo CLE” and was focused on legal and ethical issues for lawyers in the environment that now exists after #meToo went viral.

I was the only male speaker at the seminar and fully recognize that still might have been one too many male voices for the topic.  Nevertheless, it was an honor to participate all the same.  Sitting through the two hours of presentations before mine was a thought-provoking time as it helped to drive home many systemic problems still prevalent that become overwhelming to think about.

Some of my time spent talking through ethics issues for lawyers in a #meToo world focused on Tennessee’s rejection of a proposed RPC 8.4(g) and how that leaves us in a position where there is little, if anything, in our ethics rules to address toxic conduct by lawyers when representation of a client is not involved.

I spent some of the time talking about the fact that there is more, significantly more, built into our judicial ethics rules not only to stop judges from engaging in this kind of behavior but that also requires at least some form of what would, strictly speaking, be classifiable as judicial activism — doing what must be done to stop others from behaving in this fashion.

Specifically, we have adopted RJC 2.3 Bias, Prejudice, and Harassment – patterned after the ABA Model —  and it requires the following of judges in Tennessee:

(A)  A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C)  A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Tenn. Sup. Ct. R. 10, RJC 2.3 (all emphasis added by me)

This obligation of judges not only to personally avoid engaging in harassment both on and off the bench but also to stop others within their control, including lawyers, from doing so has stayed on my mind after the seminar for two reasons.

The first is the recent news of the release of this working group report that was submitted to the Judicial Conference of the United States declaring, among other things, that federal judges “have a special responsibility to promote appropriate behavior and report instances of misconduct by others, including other judges.”  The working group report also recommended that existing codes of conduct need to be revised to make clear that retaliating against someone who reports misconduct should itself be treated as judicial misconduct and that the obligations of confidentiality that court employees have do not extend so far as to prevent them from reporting misconduct.

The second is that we’ve got some contested judicial elections going on in Tennessee and I’m very curious whether any candidates will make this topic into a campaign issue.  Candidates for elected judicial positions are often very constrained in what they can say about how they will go about their jobs because of the problems associated with staking out public positions on matters they will have to later adjudicate.  Judicial ethics rules are rife with restrictions on campaign speech,  such as rules prohibiting promises or pledges about how they would rule on a particular case or on a particular legal question that may come before them.

But, this issue, and particularly, what a candidate might plan to do in keeping with his or her ethical obligations once on the bench to police bad behavior and not permit court officers to engage in harassment would be something that might well move the needle with some voters and would not be the kind of statement about issues relating to cases that judges should shy away from in order to avoid having to recuse in the future.

Things former judges can and can’t do.

(Edited on June 4 to fix very embarrassing mistaken reference to the wrong RPC.  Twice.  Thanks to Roy Simon for pointing out the mistake.)

There are some pieces of the attorney ethics rules that it almost seems like there is never an organic opportunity to write about them.  RPC 1.12(a) regarding restrictions imposed on someone who previously was a judge but then returns to the practice of law is one of those rules.

But, lo and behold, there now is a development that is both local to my state and in the national news that provides an organic opportunity to discuss.  The ethics nerd in me rejoices.

Of course, often times the reason there aren’t many organic opportunities to discuss a particular rule or its application can be because there is not much that can be said about the rule beyond what it says.  RPC 1.12(a) happens to be one of those rules.

Here’s what it sets out in Tennessee:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge …, unless all parties to the proceeding give informed consent, confirmed in writing.

What it indicates it restricts is quite plain and relatively straightforward.  For example, if someone had served as a federal judge and been involved in sentencing a defendant, then left the bench to resume private practice with an explanation that he no longer wanted to have to impose the kind of sentences required as mandatory minimums, and then an appellate court reversed the judge’s sentencing determination, that former judge could not turn around and take that defendant on as a client with respect to further proceedings.

So, for example, if in a very weird set of circumstances, the defendant had actually been released from prison, returned to society, and appeared to have turned his life around, but, as a result of the appellate ruling, now looks like he has to be pulled from his life and returned to prison, the former judge could not become the attorney for the defendant and undertake representation in the continuing proceedings unless all involved, not just the defendant but the prosecutors gave written consent to the participation.  The mere fact that the situation is treated as one that should be consentable is, itself, pretty interesting from a public policy perspective.

What the rule does not prohibit, however, is really anything else not involving representation of a client in the matter.  So, it would not prohibit that former judge from going on television and advocating as to how that defendant should now be treated.

Pretty fascinating sometimes to actually mull over where some lines are drawn in the ethics rules.  If the concern is the appearance of the situation, then it would be a curious place to split the hairs, but if the concern is the idea that the former judge in such a situation might use their access to information learned in a judicial capacity in a later capacity as an attorney of record in a matter, then where the lines are drawn (and the fact that the parties to the proceeding can bless the involvement) makes sense.

 

The good and bad of social media on display

Today’s title refers to two developments worth writing about that caught my attention in the last little bit that only have the issue of social media in common.  I will try to let the reader decided which is which (or if both are both) in due course.

The first development is an example of a lawyer behaving badly who managed to get caught in a lie because of his own social media posts proving that he had not been truthful with a federal judge.  Now lying to a federal judge is never a good choice to make, but doing so and then providing the seeds through social media for someone to prove that you did is just… well… “sloppy” seems like the wrong sort of word given that it appears to imply a value judgment that the “wrong” here is not the falsehood, but the careless unwillingness to try to maintain the facade.  Nevertheless, that is the one of the takeaways of the short version of the story of how this New Jersey lawyer ended up in this situation.  In summary form, lawyer blew some important deadlines, told the court it was because of a family medical emergency, but posted on several occasions during the time period in question on Instagram pictures showing she was on vacation in Miami, traveling and sightseeing in New York City, and other places.  You can read the much longer version at the link.  In the end, it was the freedom (and accompanying folly) that robust use of social media can bring that brought the lawyer down but that also brought the truth to light.  As the story reveals, the lawyer now no longer represents the clients in question and, instead of learning the art of the Latergram has, at least, now managed to set her Instagram account to private.

The second is a new judicial ethics opinion issued out of Massachusetts that continues the process of taking Massachusetts down a path in which judges cannot have lawyers as “friends” on Facebook at all if those lawyers are likely to appear before the judge.  I learned about CJE Opinion No. 2018-03, and the earlier opinion on which it builds (Letter Opinion 2016-01), because it was circulated on a very robust (and very valued) listserv/forum that is available to members of the Association of Professional Responsibility Lawyers.  (If you aren’t an APRL member, it is always a good time to explore the benefits of membership.)  This opinion talks about the obligation of judges to disclose to litigants whether they used to be Facebook friends with any of the lawyers appearing before them since the earlier opinion mandated that they delete lawyers as friends.  I normally like to proffer original content here, but, in this instance, I’ll simply restate the opinion I offered on that forum a few days ago.  (Repasting it seems particularly appropriate where loyal readers will recognize that the sentiment is pretty much repetitious of earlier content here anyway.]

Well, that’s a pretty silly add-on to an inherently silly underlying opinion.  The judicial ethics rules don’t prohibit judges from having friends who are attorneys.  If someone can be a friend IRL, then there is no reason they cannot appear as a friend on social media.  The fact that this entity had to issue this opinion about how long you have to disclose that you essentially tried to cover your tracks by deleting attorneys from your connections belies the point that allowing/encouraging judges to go about their normal friendships on social media is actually a good thing since it permits a way to “search up” information they might not disclose about relationships they have with the attorneys appearing before them.

In fact, the only thing that judicial ethics opinion writing bodies ought to be mandating is that judges make certain that they have their settings established in a way that lets the public have access to their list of friends/connections even if they put all of the rest of it into a “private” setting.

A tale of two ethics opinions.

So, I’ve made something of a habit of writing about ethics opinions.  Bad ones and good ones.  Mostly bad ones though.

As the trite – almost hackish – title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from a well done ethics opinion on the kind of issue that cries out for guidance in the form of an ethics opinion and the harm that can come from the kind of ethics opinion that likely should not be issued at all.

First, the good – an opinion issued out of Texas (which Karen Rubin has already written some about) that tackles a thorny problem that can confront a lawyer who has been retained by an insurance company to represent one of the company’s insureds in a piece of litigation.

The particular question addressed in Texas Opinion 669 is this:

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer retained by an insurance company notify the insurance company that the insured client he was assigned to represent is not cooperating in the defense of the client’s lawsuit?

The answer the Texas opinion provides, as difficult as it might be for insurance defense lawyers to hear, is “no.”  And, that answer is the correct one in any jurisdiction where the way the “tripartite” relationship is structured is that the lawyer’s only client is the insured and the insurance company is merely someone who is permitted to pay the lawyer’s bills as long as the lawyer complies with the state’s version of Model Rules 1.8(f) and 5.4(c).

In Tennessee, for example, RPC 1.8(f) specifically states one of the requirements for permitting the lawyer to accept compensation or direction from someone other than the client as being that “information relating to representation of a client is protected as required by RPC 1.6.” (Interestingly, the Texas opinion makes no mention of, or reference to, any of those kinds of rules but simply uses only its confidentiality rule to justify its analysis.)

The unfortunate opinion comes out of Virginia.  Virginia, you might recall, recently made a great leap forward in streamlining its rules on attorney advertising by revising its rules to look very much like the proposal circulated by APRL.  After adoption of those revisions, which became effective on July 1, 2017, Virginia’s ethical restrictions on advertising were largely capable of being described as simply prohibiting false or misleading communications.

Unfortunately, with the issuance of Legal Ethics Opinion 1750, Virginia manages less than a year later to undermine much of its progress by simply re-issuing and updating a lengthy opinion it has released on multiple past occasions that attempts, in advance and not in response to evaluating any particular real advertisement, to provide “guidance” about what kinds of advertising practices should still be avoided because of the potential to be considered to be misleading.

Unlike the Texas opinion, which answered a real dilemma that lawyers can face and for which definitive guidance can be provided, the Virginia opinion is the kind of ethics opinion designed almost exclusively to chill commercial speech.  Even if the guidance it gave on all of the topics it unilaterally decided to address were correct, it would still be the type of opinion that ought not be issued.

Certainly, it says some things that are undoubtedly true and fun to read about ways that a lawyer could engage in truthful advertising that would still be a problem because it would be misleading by omission.  I’ve spoken at seminars before where I’ve tried to make this point by saying that a lawyer whose ad truthfully proclaimed “I’ve never lost a jury trial,” but fails to also mention, for context, that they’ve never actually been involved in a jury trial is going to be at risk under any fair set of ethics rules.  The Virginia opinion grabs a slightly different version of this rich vein by explaining that a lawyer truthfully crowing that “They secured a $1 million jury verdict in case,” but not mentioning that it came only after turning down a $2 million settlement offer before trial would have disseminated a misleading advertisement.

But, even that guidance is something that really ought not be opined about unless there were an actual lawyer seeking actual guidance about just that sort of advertisement.

So many other pieces of the opinion are even worse, however.   Cautions about using actors in ads, hand-wringing over “no recovery, no fee” statements, and subtle digs at the use of testimonials by actual clients in the opinion appear to be rolled back out for no real reason other than to undermine the progress on lawyer regulation of advertising that had appeared to be achieved by streamlining the rules themselves.