Blasts from the past.

First, just a heads up that there will be some design changes taking place here at Faughnan on Ethics around the beginning of October 2022 so keep an eye out for that.

Second, I know I haven’t written about anything recently but today is a day to knock out bunch of updates on things that are topical again even though it’s really been a long, long time since I last wrote about them.

Third, I do aim to do better in terms of more frequent content on here after the design changes kick in.

Okay … with that out of the way. What are these topics to knock out? Glad you asked.

I have not written a word about the first season of Serial or shared my thoughts on the Adnan Syed situation in forever. Earlier this month though, Syed is back in the news and in a big way. (Editor’s note — memory is a really fickle thing. Although I did write a good bit about ethics issues involved in Making a Murderer show, the only time I’ve ever mentioned Serial had nothing to do with the subject matter of its first season. Oops.

More than 20 years after his conviction, prosecutors handling his case have now communicated to a court in Maryland that they no longer feel confident in the reliability of his conviction because of items they have now identified that were not turned over to the defense during the original trial. Now up until this point the saga the focus of the issues with the lawyering in the case all fell upon whether Syed had been represented by competent defense counsel.

You can read one of the more comprehensive articles about the latest developments here. But the ethics issues at play now focus on whether the prosecution team complied with its obligations under Maryland’s version of RPC 3.8(d). The current prosecutors charged with responsibility for the case certainly do not appear to think so and, as a result, we have this very high-profile example of prosecutors complying with ethical obligations that would be imposed on them under ABA Model Rule 3.8(g), even though curiously Maryland has not adopted those provisions.

And, today, the court has vacated his conviction altogether.

I’m guessing we might just get a bonus episode or two of the Serial podcast revisiting its story from season one as well.

Another topic I have not written about in years (Editor’s note: I actually did write about this one though, honest.) involves the use of the Swiss Verein as a structure for very large law firms and whether there is any reason for firms to make themselves think that conflicts of interest shouldn’t apply to that structure as it would for other situations. Denton’s is the most prominent law firm employing the structure and they were the focus of my writing in the past on the subject.

Their travails with the conflicts problem have continued and now, the Ohio Supreme Court has refused to weigh in to overturn a malpractice verdict against Dentons. You can read a Law360 article about the end of the appeals process here. The end of the road on this litigation appears to again confirm what has always seemed to make sense to me — the way that a firm holds itself out as one law firm will override any efforts to claim that intricacies of corporate law can avoid imputation of conflicts within the firm as a whole. Fundamentally, if that analysis can be used to force three lawyers who only intended to share office space to have to share conflicts if they don’t make clear to the world that they are not one law firm but just three solo practitioners sharing an office, then there is no good reason that the same imputation shouldn’t happen to a firm with thousands of lawyers that brands itself as one firm.

For Denton’s, the outcome is a more than $30 million verdict against it for malpractice stemming from a conflict in the patent case I wrote about many years ago. You can read the April 28, 2022 opinion in Revolaze v. Dentons from the Ohio Court of Appeals here.

In another matter of much less significant importance (beyond being important to the people involved), a judge in Indiana who got into a bad scrape leading to a shooting that I wrote about a few years ago has continued to have some serious issues and at the end of July 2022 was back in the news for resigning and agreeing never to seek or hold judicial office for the rest of her life. This agreement was reached as a way for resolving new ethics charges that flowed from a separate incident involving a charge of domestic battery — worse yet, in the presence of a small child. When I wrote about this now-former judge’s situation originally, I tried to keep the focus on the situation as an example of the problems that plague our profession when it comes to substance abuse. Unfortunately, but unsurprisingly after living through a two-to-three-year-long pandemic, those problems continue in our profession at full pace. You can read the more recent article about the end of the Indiana judge’s judicial career here.

Louisiana remains a legal embarrassment.

There are a lot of dumpster fire situations going on these days that have direct or indirect relationships to legal ethics. Frankly, there are too many to make it easy to decide which ones to think it makes sense to spend time writing about here. There is the seemingly evergreen issue of Donald Trump continually finding lawyers to file frivolous lawsuits, but talking about those folks feels a bit like kicking puppies at this point. Particularly since they likely will end up at some point getting stiffed by their client on their fees. There are the back-to-back disappointing developments for efforts to re-regulate the delivery of legal services evidenced by this ABA Resolution and this California legislation but those (at least right now) “feel” like the futile efforts of folks just raging and raging against the dying of light.

So, instead, what I’m inspired to write about today is a frequent topic of conversation here — the absurdity of continued efforts at trying to impose clearly unconstitutional restrictions upon lawyer advertising by certain U.S. jurisdictions. As a result, we now allow the State of Louisiana to take the stage as an absolute dumpster fire embarrassment in the year of our lord two thousand and twenty-two. Many years ago, I was a member of a firm that had offices in Louisiana and so I have some memory of the antiquated nature of its approach to the commercial speech of lawyers, but I was surprised this week to learn that it absolutely hasn’t gotten one whit better.

So, the good news for Louisiana attorney Michael Palmintier is that he ultimately was successful in avoiding the imposition of discipline for violations of Louisiana’s rules governing lawyer advertising (at least in terms of winning at the level of the Louisiana Attorney Disciplinary Board) earlier this week. The bad news is that he only obtained a victory after losing before a Hearing Panel who wanted to hit him with a public reprimand and after enduring almost two years of prosecution. The atrocious news is that the entirety of the prosecution was about the fact that he and his law firm purchased a paid advertisement that ran in the Louisiana edition of Super Lawyers magazine.

Yes, you read that correctly. And, no, the disciplinary prosecution wasn’t because that the content of the advertisement was false or misleading in any fashion. The content of the disciplinary prosecution revolved around (a) that the advertisement went beyond what a Louisiana lawyer is allowed to say without having to file a copy of the advertisement with the disciplinary authority in advance and pay a $175 fee; and (b) that the photo in the advertisement was not “against a plain background.”

Yes, Louisiana continues to have, and apparently try to enforce, a rule that says that if an attorney’s advertisement has a photo of the lawyer but the background of the photo is not “a plain background” then it goes beyond what can be advertised without having to pay a fee and send a copy to regulatory authorities in advance.

Now because of the gobsmackingly ludicrous provisions in the Louisiana rules, in addition to making First Amendment arguments that were not addressed in the final decision, the lawyer also had to engage in efforts to argue that an advertisement in Super Lawyers is not actually an advertisement but just a “profile.”

The advertisement contained language such as “JUSTICE FOR GENERATIONS” and “advocating for people who need thoughtful and effective representation” and “they always prioritize each client’s needs and concerns. When colleagues and opponents need to refer cases to a skilled legal team, they recommended [name of his firm].” Such statements (like non-plain-background photos) go beyond what Louisiana RPC 7.2(b)(1) says can be in an advertisement without the need for complying with the filing requirements. Now the pre-filing/filing contemporaneous with running the advertisement requirement is simply nothing more and nothing less than a contrivance designed to impose a barrier to advertising. It is a vestige of rules that tried to require a pre-publication review that even jurisdictions like Louisiana have been required to acknowledge are an unconstitutional prior restraint on speech. That provision also has been significantly hamstrung in its application because of a 2009 Louisiana Supreme Court order suspending any effort to enforce RPC 7.7(c) as to advertising on the Internet. But it still remains a rule that applies to advertisements in print, or on television, or on radio, or by mail.

In the end, Palmintier really only prevailed because he was able to convince the LADB that he thought Super Lawyers magazine was only distributed to lawyers (which would have meant it was within the safe-harbor and not required to be filed before or at the time of publication) and because the disciplinary authority did not properly include any claim regarding the same ad being published in a magazine called Louisiana Life.

You can read the ruling of the LADB here. It also includes as attachments the Cambrian Era versions of the advertising rules that Louisiana continues to enforce without regard to their unconstitutionality and lack of justification from any sensible public policy standpoint.

Given the ridiculous nature of the rules and regime in Louisiana, I guess Palmintier should also be grateful that he didn’t face charges for his name alone … given that it implies that he is mintier than other lawyers named Pal.

Ohio offers advice for lawyers representing Matt Damon

And other crypto bros too, I guess.

You may recall in the halcyon days before any of us ever spent any time thinking about pandemics and public health on a daily basis that I wrote about how Nebraska became the first U.S. jurisdiction to issue ethics guidance on whether lawyers could accept payment of fees in Bitcoin. If you missed that moment, you can read that post here.

Fast forward five years and there really haven’t been many other jurisdictions addressing lawyers and cryptocurrency. There have been pretty good reasons for that. One of them, despite the fact that people keep seeming to flood the CLE market with various “what lawyers need to know about Bitcoin” or “what lawyers need to know about NFTs to survive” programs is that . . . very few people need to really interact with or know anything about cryptocurrency.

Well, that’s not quite right. People certainly ought to know that we already have a monetary system in which people agree that something with little actual value (small pieces of metal and larger pieces of paper) has imaginary value (this piece of paper is worth $5 while this piece of paper is worth $20) and that system – while it has its flaws – is not an environmental nightmare.

Earlier this month, the Ohio Board of Professional Conduct issued an ethics opinion about whether lawyers can accept and hold forms of cryptocurrency in escrow. For anyone who still wants to know what cryptocurrency is exactly, Opinion 2022-07 does a very good job of succinctly explaining it.

Cryptocurrency is a digital, encrypted, and decentralized medium of exchange
with an equivalent value in fiat currency. Cryptocurrency relies on blockchain
technology, a type of shared peer-to-peer network that stores data in blocks and tracks of
all transactions. Cryptocurrency is stored in an electronic format commonly known as a
“wallet.” A person receiving cryptocurrency from another person uses a “public key”
that identifies where the currency is to be sent. The sender uses a “private key” that
authorizes changes in debits and credits to each party’s wallet. Cryptocurrency
transactions are largely unregulated, relatively anonymous, and irreversible. The price of
cryptocurrency is extremely volatile and subject to market fluctuation. See generally, Neb.
Ethics Adv. Op. 17-03 (2017), D.C. Bar Ethics Op. 378 (2020).

The opinion also gives the correct answer to the question it addresses. Recognizing that this stuff is regulated by the IRS as property, a lawyer can hold such items in escrow as long as they keep it separate from their own property. This outcome is governed by RPC 1.15. In this respect, cryptocurrency is little different than an AR-15 — another item of property that theoretically could serve a useful purpose but that actually does way more harm than good to society and really shouldn’t be possessed by anyone. Further, like an AR-15, cryptocurrency may well be used as part of a criminal venture and the opinion warns lawyers to try to be vigilant about making sure they are not being asked by a client to hold cryptocurrency as part of a money laundering endeavor. (That advice, of course, also can apply to a lawyer receiving real money as well.)

Unlike real money, however, financial institutions will not accept crypto for deposit so the opinion notes that a lawyer will have to come up with some other way to hold the cryptocurrency in a fashion that keeps it separate from the lawyer’s own property. Presumably this means that the lawyer will have to create a separate “wallet” (or, if you prefer, “bag of holding”).

Finally, the opinion also reminds lawyers that, because of their duty of technological competence, they will also have to make sure they know how this stuff works (see above) and that they take reasonable measures to protect against property loss while maintaining possession. Presumably, the Ohio Board means safeguarding against hacking schemes (such as this one) rather than expecting lawyers to do anything about the fact that, for example, Bitcoin has lost roughly 50% of its value during the past year for no apparent reason (other than perhaps the fact that all of its value exists for no apparent reason).

Speaking of public censures …

Today we get the chance to write about something that truly is a rare event — the imposition of public discipline against a sitting federal judge. And it is a story that when you reach the end of it leaves you feeling like the punishment was not really harsh enough but also very aware of how much work still needs to be done to try to create a world in which members of the United States Supreme Court can also be subjected to disciplinary oversight.

Before being appointed to the federal district court in South Carolina by the former host of The Apprentice, Joseph Dawson III was a practicing lawyer in South Carolina, working as a county attorney in Charleston, South Carolina. The arrangement was not one where Dawson was an employee but an independent contractor working on a fixed fee contract basis for almost 20 years. Not satisfied with the prospect of a lifetime appointment paying more than $210,000 a year (the 4th Circuit opinion indicates that Dawson’s contract with the county involved “a fixed fee of not less than $250,000” per year), Dawson entered into a severance agreement with Charleston County that was to pay him $216,000 for a twelve-month period going forward for his “institutional and historical knowledge and insight” and “non-legal advice.” The agreement also established that Dawson would receive a 1.5% contingency fee for work he had done on a pending opioids case for the county.

Now, the problems with that deal are multitudinous and relatively obvious — or should have been to a soon-to-be-federal-judge. The Code of Conduct for U.S. Judges prohibits federal judges from practicing law; the Ethics Reform Act of 1989 bans federal judges from being compensated for any work that involves them serving as a fiduciary of any sort. Those problems would be significant enough on their own, of course, but the agreement itself was not entered into until after the November 2020 confirmation hearing that Dawson went through before the United States Senate. Instead, it was entered into a week before his confirmation; thus, it was not disclosed in any fashion to the Senate.

Along with being apologetic and cooperative throughout the disciplinary investigation against him (which was brought about by an ethics complaint filed in February 2021 by “Fix the Court), Dawson also maintained that he always intended on disclosing the compensation received on his annual financial disclosure reports. Despite the fact that everything about that sounds like someone being committed to doing the absolute least they could do, the special committee that undertook the investigation actually made a recommendation that Dawson receive only a private reprimand for all of this.

Right before July 2022 closed out, the 4th Circuit issued an opinion imposing a public reprimand instead. Public discipline, in the eyes of the 4th Circuit, was necessary because, in part, the misconduct had a deleterious effect on the judicial system because the agreement and payment became fodder for discussion in local newspapers and on social media.

One other fun fact in the mix, after the ethics complaint was filed, Dawson and the county entered into an addendum to the agreement that dropped the planned contingency fee and changed what the $216,000 was described as being paid for. Instead of being for future services, the addendum now said that the $216,000 was compensation for unspecified past work.

Maybe I’m just catching myself on a day of being more jaded than usual, but the 4th Circuit’s conclusion that there was “no wrongful intent or pattern of improper activity on the part of Judge Dawson” seems an overly favorable interpretation of the facts as laid out.

Yet, as hinted at earlier in this post, at least we have enforceable laws and rules to which federal district judges (and even appellate judges at the Circuit level) can be held when they go astray.

Unfortunately, the fact that we have no such enforceable rules as against members of the United States Supreme Court is newsworthy yet again.

You may have caught some reporting about an initially secret speech that Justice Alito decided to give in Rome at a religious liberty conference sponsored by the University of Notre Dame. We only ever heard about it because someone with the Notre Dame Law School posted a video of the presentation, which otherwise wasn’t included on the agenda.

I have no interest in linking to the video, but it has lots of troubling bits including ridiculous, but incredibly revealing, statements about religion being under attack somehow and otherwise lashing out at world leaders who took umbrage at the Dobbs decision taking away the previously established constitutional right to an abortion.

Among the portions of the remarks that can be viewed as very problematic for a sitting justice to make really anywhere, much less at a religious liberty conference in Rome at an event sponsored by an entity that frequently appears before him:

There’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors. The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection. And that will not be easy to do.

This public reprimand is also a stark reminder that we currently have absolutely nothing that can be done about how members of the Supreme Court decide to govern themselves. There are no rules by which to regulate Justice Alito’s decision-making in agreeing to give a speech at a religious liberty conference in Rome, nor any rules to enforce when Justice Alito must next look inward to consider whether his predetermined views of the world should require him to recuse from considering any particular future case. We might find out in June 2023 whether the trip was funded by Notre Dame Law School’s Religious Liberty Initiative (which frequently files amicus briefs with the Court, included one in Dobbs itself) because Justice Alito should have to make a financial disclosure about it by then (under a relatively newly enacted law signed by President Biden on May 13, 2022), but, of course, if Justice Alito were to decide that enforcement of that disclosure law against him violates his religious liberty. . .

You get a censure, you get a censure, everybody gets a censure!?

This is a post that will largely only speak to other lawyers who handled the defense of disciplinary matters. It is also a post that admittedly will — based on limited available information both broadly and narrowly — lack appropriate insight at a granular level. What it is intended to do, however, is point out how difficult one aspect of disciplinary defense can be … advising clients about what is both the likeliest outcome of their matter if they are going to have to admit to violating an ethics rule (or two).

Now in any jurisdiction that uses the ABA Standards, you’ve got the ability to evaluate what the ABA Standards forecasts. In addition, you can do what you can to evaluate past cases in your state with similar facts and attempt to see how closely they may indicate the likeliest form of discipline.

In doing that, however, unless you have cases that give you the benefit of a full court opinion, you might be working in your jurisdiction from press releases and orders with limited information. Those materials often will be quite limited in telling you the dynamics of what was going on, such as whether the lawyer had previously ever received any discipline in the past or whether they were self-represented in the proceedings. That second detail, of course, shouldn’t in an ideal world make a difference on the outcome but we all can agree at this point that we are living in a place that is far from an ideal world. The first detail though can be vital and certainly must be factored in under the ABA Standards if applied.

Thus, the dynamics can be quite frustrating.

The core of today’s post is to offer as an analytical exercise the briefest of overviews of what that experience might look like operating in Tennessee using Tennessee discipline matters over just the last 60 days. Prior to that, though, one last piece of information that those who do disciplinary defense but not in Tennessee would probably find helpful: We do have a fairly standard variation of the tiered levels of discipline known throughout the country. Going from lowest to highest we have: (1) private information admonition; (2) private reprimand; (3) public censure; (4) 30 days of suspension; (5) suspensions longer than 30 days that can be as long as 10 years and portions of which (beyond the 30 days) can be probated rather than served actively; and (6) permanent disbarment.

Now disciplinary counsel, and disciplinary defense counsel alike, will tell you (or at least acknowledge) that there is a tension between the idea that each disciplinary case should turn on its own facts and be treated uniquely and the goal is to strive for like treatment of like offenses overall. The world of the public censure is perhaps the most striking example of how difficult it is to evaluate the balance of those two concepts.

In the last 60 days, seven different Tennessee lawyers have received public censures. The initially available information about the offenses resolved with that exact same form of punishment? Here you go:

  • (May 13, 2022) Got court appointed to handle a dependency and neglect juvenile matter 22 days before an adjudicatory hearing, did not return client messages and failed to speak to client until the day before the hearing, waited to seek a continuance until the day of the adjudicatory hearing and then when the other parties objected withdrew the continuance request.
  • (May 17, 2022) Filed a pleading in a court where they were not licensed, failed to properly supervise an associate who assisted with the pleading and a pro hac motion for the disciplined lawyer, and did not learn that the pro hac motion was denied and did not inform the client of the development.
  • (June 16, 2022) Neglected three of the client matters that the lawyer took with them when departing their prior law firm causing those clients to have to spend money to hire new counsel and the disciplined lawyer communicated falsely to disciplinary counsel during the investigation about the status of the matters.
  • (July 5, 2022) Committed a crime. Specifically, pled guilty to violating an Order of Protection and violated their conditions for bond.
  • (July 13, 2022) Represented two clients with a pretty significant potential conflict of interest in connection with the same murder case without getting a written agreement from either and without even discussing the conflict, had his daughter set up as having a power of attorney for the two clients without telling the clients, and accepted at least one payment for his legal services from his daughter as power of attorney.
  • (July 13, 2022) Took on a potential plaintiff in a car wreck case, informed defendant’s insurance company of representation and responded to one request for information from the insurance company, but then failed to respond to multiple other letters from the insurance company, failed to respond to communications from the client, did not tell the client about the letters, and failed to take any other action on the client’s case.
  • (July 14, 2022) Worked as an in-house counsel in a different state, Georgia, for seven years after letting their only law license (Tennessee) become administratively suspended.

Really broad spectrum of “stuff” all resulting in the same level of discipline, right?

Now, I know nothing about any of the individual circumstances (including nothing about any of the unavailable information that might help explain one versus another) but it certainly seems like some of these sound much more like the stuff or private discipline and, at least, one of them seems like the kind of thing that — if all of the other offenses are properly public censures might much more likely be expected to involve a short suspension.

And, for those particularly diligent readers who might be thinking, well what about prior public discipline, any of those folks have any of that? The equally unhelpful answer to that question is … yes. Three of the lawyers detailed above have prior public disciplinary history.

  • May 13, 2022 had a public censure 16 years ago, was suspended for 1 year (90 days active/9 months on probation) 11 years ago, and received another public censure 3 years ago.
  • May 17, 2022 had one prior public censure from 14 years ago and another prior public censure from 1988.
  • July 5, 2022 was temporarily suspended on an emergency basis 12 years ago, got that dissolved, and then again was temporarily suspended 11 years ago, and got that dissolved.

That really clears it all up, doesn’t it?

One good item and one bad item for your Friday

Some days the inspiration kicks in and other days it most certainly does not. If this were Instagram, I’d likely try to spout some sort of perspiration to inspiration platitude. But this isn’t, so I won’t.

I will though write about two items that somehow caught my attention this week and even though I can’t spot anything about them that involve any significant commonality we’ll discuss them together.

First, the good item. Within the last month or so, the New Hampshire Bar Association has published a pretty good ethics opinion to provide guidance to lawyers that find themselves representing clients who end up seeking out crowdsourcing to help pay their legal fees in connection with matters. You can read the full opinion — and in my opinion it is worth the time to do so — at this link. If you lack the time (or just generally are inclined to do the opposite of what I suggest in most circumstances), then I would offer that the two best portions are the guidance on having to be wary about (and make sure you fully counsel your client about) providing any sort of informational updates to those who provide funds whether as a “perk” or “reward” for participation or otherwise and the reminder that funds raised explicitly for the purpose of paying for legal fees and legal expenses cannot then be used to provide the client with financial assistance for living expenses if the lawyer essentially appears to be the one raising the funds or so involved in the effort to raise the funds publicly because of the prohibition in RPC 1.8(e) on lawyers offering that kind of financial assistance.

The opinion does not take the next step though of offering the relatively obvious practical advice that the most flexible way to crowdsource would always be to seek funds for a client to allow them to financially survive their circumstances without promising that all or even any of the funds would go to attorney fees. Once raised and available to the client, the client could then use them for whatever purpose they wish, including paying their lawyer.

Now, the bad item. Being a lawyer, particularly practicing certain types of law, can lead to getting into bad binds and sticky situations. When the lawyer ends up somehow coming into possession of something that is a crime to have under any circumstances, the options are highly limited often to there being only one correct approach and what that is can be counterintuitive.

Matter of Bickman out of New York (but really out of Indiana as it is just a reciprocal discipline case in New York) demonstrates one way in which a lawyer in such circumstances can get themselves into trouble by not threading the needle. The opinion succinctly lays out the gist:

On December 14, 2015, respondent, as outside counsel for a private high school, along with the school’s headmaster, met with the father of a 15-year-old student who informed them of inappropriate communication made by a teacher to his daughter. At respondent’s request, the father gave respondent his daughter’s laptop computer containing sexually explicit images and messages sent by the teacher. The teacher was later fired and eventually sentenced to 14 years in prison on federal criminal charges.

After advising the school’s headmaster that the Department of Child Services (DCS) should be notified, respondent discussed a potential settlement agreement with the attorney for the family which included, in relevant part, a confidentiality provision prohibiting disclosure of the agreement or information regarding the matter to anyone other than their attorney. Pertinently, the agreement was never executed but it would have prohibited cooperation with law enforcement. At one point, when the family was contacted by DCS, respondent told the family that any cooperation with the agency would violate the confidentiality clause. Although he later retracted that position, the family had cancelled its appointment with DCS.

Additionally, respondent instructed a computer specialist at his law firm to make copies of the offending content on the victim’s computer and place them on a thumb drive. Respondent, who believed he was preserving evidence that could have been considered child pornography (and that there was a possibility that the evidence would be deleted from the computer as other images had been deleted), placed the thumb drive in a sealed envelope in a cabinet in his office and returned the laptop computer to the school (which in turn returned it to the father).

Indiana publicly censured the lawyer some time in 2020 for violations of RPC 1.1 and RPC 8.4(d), and the same discipline was imposed by New York on a reciprocal basis in 2022. Interestingly, all of the focus in the opinion in terms of the unethical conduct is upon the concept that the settlement agreement would have stopped the clients from cooperating with law enforcement. The opinion lays out, however, facts that the lawyer repeatedly was less than truthful with law enforcement during interviews about the fact that he possessed a copy of the illicit material. Though the lawyer likely doesn’t feel like it, he appears to be fortunate that the proceedings did not spin out into ones for potential direct criminal liability or, if not that, then additional violations premised upon RPC 8.4(b).

A virtual example of better, but not good enough.

I know it really hasn’t been that long (a little over two months ago) since I wrote on here to trumpet the APRL proposal for a new ABA Model Rule 5.5. If you missed that, it would help a lot to go read that post first. Here’s a link. I’ll wait right here until you come back.

Hey regular readers! This could get awkward all of us just shoegazing waiting on those folks. Are you following cats being weird little guys on Twitter? If not, go look at a few of those photos to kill the time. Here’s a good starter: https://twitter.com/weirdlilguys/status/1537593869507956737/photo/1

Okay. Now that everyone is back. The strengths of the APRL proposal are again demonstrated by a different development coming out of Michigan that is up for consideration as an amendment to that state’s RPC 5.5.

About six weeks ago, the Michigan Supreme Court put out a proposal for adopting a new 5.5(e) that would provide for better protection for lawyers not licensed in Michigan but who are using computers and the internet to practice law to reside in Michigan. The proposal, which is open for public comment until September 1, 2022, would involve adopting the following language for 5.5(e) and a supporting new paragraph (presumably [22] in the accompanying Comment):

(e) A lawyer admitted in another jurisdiction of the United States and not disbarred or suspended may remotely practice the law of the jurisdiction(s) in which the lawyer is properly licensed while physically present in the State of Michigan, if the lawyer does not hold themselves out as being licensed to practice in the State of Michigan, does not advertise or otherwise hold out as having an office in the State of Michigan, and does not provide or offer to provide legal services in the State of Michigan.

[22?] Paragraph (e) is not meant to infringe upon any authorized practice in the federal courts. See, e.g., In re Desilets, 291 F.3d 925 (CA 6, 2002). In addition, paragraph (e) does not authorize lawyers who are admitted to practice in other jurisdictions to maintain local contact information (i.e., contact information within the State of Michigan) on websites, letterhead, business cards, advertising, or the like.

Now, would this kind of protection added to Michigan’s current Rule 5.5 be helpful for some lawyers? Of course, absolutely. If lawyers currently are at risk in Michigan that working out of a home office, for example, would subject them to a UPL charge for having a continuous and systematic presence in Michigan for the practice of law, then this is certainly an improvement.

But one of the many reasons that the time is right for the much more comprehensive proposal along the lines APRL is advocating is that something like this is nowhere near enough of an improvement.

The first, and most significant, problem with the proposal is that it limits what is okay to practicing “the law of the jurisdiction(s) in which the lawyer is properly licensed.” What exactly does that mean? Does that mean that if the lawyer is licensed in Minnesota, representing a Minnesota client, but the representation involves providing advice about a contract the Minnesota client has entered into with an Iowa manufacturing company will be okay? Or would it only be okay if the contract is governed by Minnesota law? Should anything really turn on that sort of question? Also, what if the contract had a choice of law provision that selected Michigan law? Would this now be entirely off limits?

While the “law of the jurisdiction” trope is the most severe problem, there is at least one other. When the proposed comment attempts to elaborate on the meaning of not being able to hold yourself out as being licensed to practice in Michigan or offering to provide legal services there, it indicates that you couldn’t even have local contact information on letterhead or a business card or a website. So, what if because you live in Michigan, you have a cell phone that has a Michigan area code? Should the answer really be that if a lawyer’s website otherwise clearly indicates they are only licensed to practice in Minnesota but provides a telephone number (a cell number) with a Michigan area code then their conduct is prohibited?

So, to sum up, if Michigan moves forward on this front, it will be an improvement on the status quo, but there are much better, bolder ways to address the overall issue.

New case offers rare glimpse into the black box of the Board of Law Examiners.

I fairly regularly represent people in proceedings in front of the Board of Law Examiners, and as a result, I have a bit of a running list of “grievances” with aspects of how that body conducts itself. At times where I have matters pending before it, it becomes difficult to spend too much capital speaking out publicly about the problems.

Some of those problems cannot be solved by simply fixing the rules under which the Board of Law Examiners operates, but some of those problems certainly can be easily remedied.

Here’s an example of a simple problem that can be remedied by a rule revision and that complaining about cannot hurt any of my clients. The Board of Law Examiners refuses to accept a declaration under penalty of perjury as sufficient in instances where Supreme Court Rule 7 calls for an “affidavit” and even in places where the rule doesn’t use the word “affidavit,” but merely requires that something be done under “oath.” At any point after the Tennessee Supreme Court adopted Tenn. R. Civ. P. 72 – which indicates that such a declaration can be used in lieu of affidavits – imposing a cost and access obstacle for applicants by making them find a Notary Public was silly. After we have all lived through 2+ years of pandemic conditions, continuing to do so is absurd.

The Board’s only justification for its position is that the TN Rules of Civil Procedure do not expressly apply to Board proceedings. In so doing, it also often describes declarations under penalty of perjury as not being “sworn” statements. The manner of fixing that is straightforward. Unlike Rule 9 governing disciplinary proceedings, I do not think it makes sense for anyone to have Rule 7 say that all of the Rule of Civil Procedure are applicable. The Court though should revise Rule 7 in all the necessary spots to make clear that declarations under penalty of perjury that would satisfy Tenn. R. Civ. P. 72 are acceptable in lieu of affidavits.

Other grievances about aspects of the Board’s approach to matters will need to wait for another day to be aired.

There is presently pending before the Tennessee Supreme Court a case that I have nothing to do with and that demonstrates beyond question another aspect of the rules under which the Board of Law Examiners operates that needs to be revised. It involves the way that the Board of Law Examiners deals with applicants for admission who have received their undergraduate education in other countries. (It is also an interesting case to have exist simply because it provides some rare information about how the Board goes about certain things that otherwise always remain confidential.)

Here is a thought exercise for you to imagine before we talk about this any further though.

Assume a person who is an applicant for admission to the Tennessee bar has the following credentials: (1) they are duly licensed to practice law in New York; (2) they passed the Uniform Bar Examination with a score significantly higher than the passing score in Tennessee; and (3) they obtained an L.L.M. from Pace University in New York.

Can you imagine any basis – not related to character or fitness – for Tennessee to justify contending that the person should not be qualified for admission to practice in Tennessee? Is there any reason to think any other aspect of their prior education should matter?

Well, if you answered like a normal person, you might be surprised to know that such a person has been denied admission in Tennessee and has had to petition the Tennessee Supreme Court for relief.

The reason? The Board of Law Examiners determined that her degrees earned in Canada – specifically a Bachelor of Civil Law degree and a Juris Doctorate from the University of Ottawa – are not substantially equivalent to having graduated from an ABA accredited law school and having obtained an undergraduate degree from a college in the United States.

You can get access to the petition filed for this person, Violane Panasci, with the Court, and the Board’s response in opposition using the download links below at the end of this post. You can get access to a potential amicus brief submitted by what appears to be a collection of right-wing groups by clicking on that link you just saw a few words ago.

The fact that the Board has gotten itself into this kind of pickle again after losing a very similar case – Gluzman v. Tenn. Bd. of Law Exam’rs – just a few years ago is a bit surprising. But that, again, can be explained away to some degree by the way that the current language of the rules hems the Board in.

What is a bit more difficult to explain is why the Board’s response to the Court does anything other than be a verbal shrugging of the shoulders to say “we don’t think we have the power to do anything other than what we did, but we think the Court ought to exercise the power it has to to give this person a license.” Given that the Board admits that if it thought it had discretion to do so, it likely would have, then why in the world litigate this any other way?

By failing to litigate this that way, it is also possible that the Board will find itself getting a much broader adverse ruling from the Court exploring constitutional and other issues with a broader impact — which is what the proposed amicus seeks to have the Court focus upon. (And if the Board was really trying to win this case for some reason, you have to wonder why it wouldn’t point out that the petition itself is not sufficiently verified. The applicant, Ms. Panasci, hasn’t sworn to anything. The applicant’s lawyer has tried to swear to all the facts instead which is … a … pretty baffling approach.)

My guess is that the Court will be able to simply exercise its power to grant Panasci admission without weighing into all of the other thorns the case might present. Given though that the newest member of the Tennessee Supreme Court is a Federalist Society member and an Alito acolyte, on this day when a Justice Alito-penned majority opinion ripped constitutional rights away from women, it would be very naive for me to fail to recognize that my guess is, just that, a guess.

RPC 8.4(g) update – “blue” states keep pushing forward.

Yesterday, June 20, 2022, was the inaugural federal Juneteenth holiday here in the United States. Far too few lawyers and law firms acknowledged it like we do other federal holidays by … you know, closing and not requiring people to work that day. Admittedly, some federal holidays are not fully observed but given the rampant diversity issues in our profession and the rhetoric law firms espouse about diversity and inclusion efforts, the disconnect in taking this opportunity to put tangible action behind the rhetoric is striking.

It appears likely that this will be a continuing problem for certain in the South. Which likely should come as no surprise given that the South was the problem necessitating the existence of Juneteenth in the first place. Not just because of the issue of slavery itself, but because of the unwillingness in the South to spread the information that the Emancipation Proclamation had been made back on September 22, 1862 decreeing freedom for all slaves as of January 1, 1863. Thus, we now have a federal holiday to commemorate the event, on June 19, 1865, when word finally reached Texas that the Emancipation Proclamation had been issued as it was read aloud in Galveston by a general of the Union.

The legal profession, not just in the South, also has a continuing problem regarding racial demographics. In a concrete and clear piece of information demonstrating this, earlier this month the ABA released data from its survey reflecting that over the last decade, the population of lawyers has increased by more than 6.5% but the number of black lawyers was unchanged. Now there are limits to the data, as thirteen different states (including my own) did not participate in providing data to the ABA in 2022 so the ABA had to use the best/most recent data available for those jurisdictions.

The issues that collectively bring about such disparities are obviously multi-faceted, but the sheer difficulty the legal profession has had in acknowledging the need for an ethical prohibition on discrimination and harassment by lawyers is most assuredly in the mix.

Thus, let’s pivot toward some more positive and hopeful news. The list of states that have taken action to adopt a rule targeting harassment and discrimination patterned after ABA Model Rule 8.4(g) has grown by two in the last few weeks as both Illinois and New York have either enacted new rules or appear to be on the precipice of doing so.

The Illinois State Bar Assembly has now approved a version to be sent to the Illinois Supreme Court for (hopefully) adoption that hews closely to the ABA Model Rule in a number of ways. This action by the ISBA is a reversal of their prior decision in 2017 to reject the rule. The proposed Illinois RPC 8.4(j) would, like the ABA version, apply to all contexts “in the practice of law,” including things such as bar activities and social events. The Illinois proposal would also highlight through language in comments the notion that this rule, like all other ethics rules, is still a rule of reason requiring a reasonable construction. The Illinois proposal says out loud what is just implicit as to the ABA Model: “The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

New York has officially adopted, effective on June 10, 2022, a variation on the ABA Model Rule version that shuns comments and puts all the moving parts into the rule itself. The New York version varies from the ABA Model Rule in four substantive respects:

  • Defines “harassment” to require that the conduct be “directed at an individual or specific individuals”
  • Also clarifies that any conduct “that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment” under the Rule
  • Extends to more conduct than just representing clients but does not extend as far as the ABA rule would in that it does not explicitly reach, for example, conduct during bar events or other socializing arising from being a lawyer
  • Specifically carves out “express[ing] views on matters of public concern in the context of teaching, public speeches, [and] continuing legal education programs”

You can read the full text of the rule at the link below:

What will be very interesting to watch is whether, despite the variations made from the ABA Model version, the New York rule is subjected to litigation and attacks of the variety that have been the playbook in other states where adopted, such as Pennsylvania. Given that this is also exactly what has happened recently in Connecticut despite the efforts there to try to water down the rule, I remain skeptical that anyone anywhere can pass any version of RPC 8.4(g) that will not be attacked by the same interest groups, or people egged on by those interest groups, that decry the ABA version as violating First Amendment rights.

Obviously, there really is such a thing as bad publicity.

So, earlier this week I was fortunate enough to be able to participate in a seminar put together by Bloomberg Law that focused on the risks and benefits for lawyers in speaking to the press. I think it was a pretty good panel presentation, it was free of charge to attendees, and I believe you can still register for it and access it on demand at this link.

We limited our discussion – unsurprisingly – to situations where a lawyer is being contacted by a reporter either because the lawyer is directly involved in representing a client in a high-profile matter or because the reporter is looking for feedback and hopefully quotable material from the lawyer as an expert of some sort in an area relevant to the story.

So, the circumstances of the situations highlighted in today’s post most definitely do not come up. Today’s post focuses on two examples of highly unwanted publicity for attorneys. Neither one is entirely self-inflicted, though one of the two situations can at least be said to truly be entirely self-inflected if you believe at all in the intended lessons of The Streisand Effect.

The first example is yet another warning of the dangers of the digital age and how (1) often things are recorded by others; and (2) quickly recordings can be disseminated. This story is that of a defense lawyer in California bragging at an internal firm event about winning a medical malpractice case that, perhaps, involved facts that should have resulted in a different outcome. Because we all have access to the video of the speech, it is certain that the lawyer involved at least gave voice to the notion that he and other lawyers at his firm had won a case that they should have lost on the facts. The details of who exactly video recorded the remarks, why they were doing so, and why they decided to disseminate them publicly are not included in the first level of this story, so it is hard to make it anything much beyond a general cautionary tale for lawyers to think about how comfortable they can ever be about talking about a client’s matter if the way they are doing it is something they would rather not the client or others ever hear. To be clear, it looks like the error was coming from inside the firm as the video was briefly posted to the firm’s own Instagram account so it was likely an error by someone who thought it might be good marketing. The Los Angeles Times treatment of the story grabs quotes from the same lawyer at the trial of the case that, in a jurisdiction that has a Model Rule version of RPC 3.4(e), could well be a violation of the rules against going too far in stating personal opinions about “the justness of a cause” or “the culpability of a civil litigant.”

The second example is, in a way, so brutal that it makes me wonder if the way to get lawyers to better understand The Streisand Effect is to rebrand it for modern times as The Leavitt Effect (or maybe better yet “The Leavitt Alone Effect.”)

There were lots of things I wouldn’t have wondered about a week ago. One such thing is whether there was any possibility that the county attorney for Utah County in Utah might be a cannibal. Then I saw this story.

Now, I’m pretty certain that he isn’t. I’m less certain than I would have been a week or so ago if you had just asked me cold whether an attorney with that guy’s name in Utah was a cannibal. I mean it must be a pretty rare trait even among the worst people, but it wasn’t even a thought that crossed my mind as possible until the guy held a press conference to make sure everyone knew that decades-old allegations that he was a cannibal were untrue.

I’m paraphrasing someone much more influential than me, but if you’re holding a press conference to deny being a cannibal …. you’re losing the media war. Now, as is discussed during the press conference in question, apparently some random person in the lawyer’s local community was unearthing very old allegations of this nature at a time in which he is running for re-election and even the local sheriff’s office seemed to be willing to investigate, but surely if there were someone with more savvy in the area of public relations had been consulted, the lawyer would have not opted to hold the press conference.

There seems little doubt that the press conference was the cause of The ABA Journal taking notice as well as all the other news outlets within (and beyond) Utah mentioned in that piece.

I’ve written here repeatedly about the risks for lawyers in taking allegations made against them in one corner of the online world and seeking to refute them but repeat them and cause them to become much more widely publicized and discussed. This story of course involves a reminder that the same phenomenon can happen IRL as opposed to only online.