California proposes an ethics opinion that needs further workshopping.

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

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

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

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

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

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

Factual Scenarios

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

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

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

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

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

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

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

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

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

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

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

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

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

Brooding about ethics.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What decade is it again?

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

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

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

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

Florida lawyer faces ethics complaint over pit bull ads.

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

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

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

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

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

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

“Here’s a new post.” (cleaned up)

I have tried for the better part of a week to convince myself that I needed to write something about the most recent ABA Formal Ethics Opinion which was released in February 2021 and which attempts to explain what “materially adverse” means in the context of ABA Model Rule 1.9 (and Model Rule 1.18). I really have. But – and I’m probably wrong – I just can’t manage to feel like Formal Opinion 497 merits an entire post as it all just reads like an effort to continue to try to justify something that was just a mistake – an easily understandable mistake to have made but a mistake all the same.

Model Rule 1.9 really shouldn’t say “materially adverse” if what it means is just the same thing as directly adverse. As the opinion explains in footnote 8, during a past process of revising the rules, someone figured this out but that only ended up with a sentence or two being deleted that the ABA had relied upon in the past instead of some affirmative effort to explain in the comment what it actually means in terms of things in addition to direct adversity. This opinion offers up a lot of words but never really manages to identify some way of truly understanding what would be materially adverse but that wouldn’t also be directly adverse. Worse yet, the opinion is even more frustrating for me in Tennessee because our rules define “material or materially” to mean something specific and something that specifically doesn’t work so well as a modifier for the word “adverse.” RPC 1.0(o) in Tennessee reads:

“Material” or “materially” denotes something that a reasonable person would consider important in assessing or determining how to act in a matter.

So, instead of trying to make a whole post about that, let’s add an entirely different topic into the mix. A topic that speaks to a version of me that died a long time ago, the citation format nerd. (1995-2005. RIP)

You may have heard a little bit of discussion among lawyers of the big news coming out of a recent United States Supreme Court opinion authored by Justice Thomas. No, it wasn’t who won and who lost the case which involved aspects of the Federal Tort Claims Act. The big news was that the Court embraced an upstart approach to parenthetical citation, the use of “(cleaned up)” to replace the tedious combination of items such as internal citations omitted and emphasis added or similar items required to be said when you are quoting language from a case that is also quoting language from one or more other cases and also possibly citing to some other authority and that prior authority might also have been referring to some other precedent. [If you really want more insight into the history of the “(cleaned up)” movement you can go here.]

Justice Thomas cemented his legacy as decidedly not an originalist when it comes to legal citation by writing the following in the unanimous opinion issued by the Court in Brownback v. King:

Under that doctrine as it existed in 1946, a judgment is “on
the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the
court.” Id., at 501–502 (cleaned up).

So why do I even think this works at all as fodder for ethical discussion? Well, ellipses have long been recognized as an appropriate way of omitting words from a quote in terms of citations. And, at some point, a lawyer thought it was okay to manipulate a quotation in a case cite to make the citation seem favorable when it wasn’t by omitting one or more words that changed the meaning and using ellipses. Bad idea all the time. And the kind of thing you will get admonished or disciplined for when you get caught.

So, you know it is going to happen, right?

A lawyer is going to try to use (cleaned up) to make a quote seem different and more favorable for their position than is the reality of the quoted authority.

Please don’t be that lawyer.

(P.S. I’m just a week or so away from the Sixth Anniversary of this here blog and about 10 days away from my quarantineversary. As to the blog, I’m looking forward to many more years. As to the pandemic, I’m really ready for this to be over.)

Lawyers and publicity. Two related but unrelated stories.

This space has focused on a number of occasions on the difficulties for lawyers in dealing with certain forms of negative publicity. I won’t link to all of those past stories for a variety of reasons. (If you are stuck at home both because of the pandemic and winter weather and are looking for things to read, you can find them by searching for the “public relations” tag on this blog.) I will, however and for obvious reasons, offer a link to an article I had the opportunity to provide a number of quotes for that discusses the most recent ABA Ethics Opinion about the difficulties for lawyers in responding to a negative online review posted by a client. You can go read that piece here.

But lawyers can also be the harbingers of their own negative publicity online. The simplest way they can do that can also involve violating their obligations of confidentiality to their clients or former clients.

The opportunity to segue from the little bit of shameless self-publicity above to what I’m about to write below falls short of true hubris, I think, but also feels salient because one of the distinct memories I have of my interview with the reporter for the story linked above was demurring on her inquiries for me to offer an anecdote of a story where I actually helped a lawyer try to deal with negative online publicity because I couldn’t do so without violating my obligations of confidentiality.

An extremely high-profile version of one or more lawyers dunking on themselves occurred this week when the lawyers that made up the “team” that represented Donald Trump in his impeachment trial before the United States Senate appear to have cooperated with prominent peddlers of village gossip at The New York Times by speaking at length about the dysfunction among the attorneys for the former President.

The story certainly makes for a fascinating read and you can digest it here, but is a story that should never have been available because the lawyer who is repeatedly quoted in the piece, Schoen, had no business talking to the media about his representation of his client. (Lest it be unclear, he also would have had no business speaking to the media about any of his co-counsel’s representation of the client if he had left it at that because that still would have been information protected from disclosure by RPC 1.6.)

Now, I’m assuming that Schoen didn’t have permission from the client to have done so, but I feel I’m on pretty safe ground about that assumption.

Ironically, the only lawyer involved in the Senate representation that actually appears to respect his obligations of confidentiality is the lawyer who provided the worst substantive representation during the actual proceedings, Castor.

There are, of course, lots of side lessons that could be learned from all of the machinations involved and described in the article. But let’s just stick with a lesson that can have universal applicability.

RPC 1.6 – nearly everywhere – imposes an obligation of confidentiality on a lawyer as to any information related to the representation of a client. A lawyer can disclose such information if the client gives consent or if doing so is impliedly authorized in order to carry out the representation. The rule does not have any clear provision in it that would waive its requirements for publicly disclosed information. Rather, its commentary guidance indicates that it still applies even to matters of public record. Discussing internal quarrels after a representation is over will never fit the implied authorization requirement. Also, the same analysis that explains why none of the discretionary exceptions work to allow a lawyer to respond to a negative client review online applies pretty squarely to explain why “unhappy with public perception of my competence” isn’t a sufficient justification to speak publicly about work done for a client.

It’s always easy to get distracted by the cat.

So, if you’re involved in the legal profession, one thing was guaranteed to make it into your email inbox or social media feed or both. And, no, it wasn’t even the atrocious lawyering that was on display in the defense in Washington, D.C. of a former social media influencer. It was undoubtedly the 34 second video from a Zoom hearing of a lawyer who was stuck using a cat filter and didn’t know how to disable it.

I am extremely confident that you’ve seen the video. I probably watched it at least 5 times yesterday and laughed pretty raucously each time. Everything about it is pretty seriously funny. Except for one part. That’s the part that I think needs to be discussed seriously and, so far, hasn’t been.

Now I’m not going to weigh in on the “tech competence for lawyers and ethics” piece, others have already rapidly covered that ground. You can read three of the better quick pieces here, here, and here.

No, I want to focus on a slightly larger issue for lawyering and a much larger issue for the public at large.

While all the humor was occurring in the bottom right square of the video, the upper left square had text of warning. (Now, admittedly, the warning may have been disregarded in order for all of us to have seen the video, but it was still there and presumably appears ubiquitously in proceedings in that particular court.)

The language of warning read:

394th Judicial District Court

Recording of this hearing or live stream is prohibited.

Violation may constitute contempt of court and result in a fine of up to $500 and a jail term of up to 180 days.

Excuse me?

Earlier in my career, along with normal litigation and legal ethics work, I represented a few media entities from time-to-time including work on access to courts issues so I can still remember many of the better quotations by heart, including this one:

What transpires in the courtroom is public property.

Now I remember the quote off the top of the dome, but have to look it up to be able to tell you the name of the U.S. Supreme Court case it comes from, which is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and, actually, is quoting an even older U.S. Supreme Court case, Craig v. Harney, 331 U.S. 367 (1947).

The pandemic has sown much chaos and disruption into our judicial system. This has been particularly difficult for people facing criminal charges as many have had to languish in prison for inability to take their case to trial in states where in-person judicial proceedings have continued to be prohibited because of the risk of transmission of the virus.

The ability to allow the business of the courts to continue through remote virtual proceedings has been a positive, but the cavalier nature in which courts are disregarding the issues associated with finding ways for the public to still have access to proceedings is not at all a positive for our system of justice.

While the restrictions on physical access to court proceedings where such in-person proceedings still take place can be justified on emergency grounds of being necessary for the protection of the actual, physical health of the public, presumptive restrictions on members of the public being able to monitor and watch judicial proceedings that are able to happen online are very unlikely to be justifiable as necessary at all. Such restrictions also are harmful to the health of our judicial system.

As another of the most important cases serving as the foundations of public access to judicial proceedings fleshes out, allowing for people to see and scrutinize trials and court proceedings “enhances the quality and safeguards the integrity of the fact finding process” and “fosters an appearance of fairness, thereby heightening public respect for the judicial process.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982).

The fact that our profession, 11 months into a pandemic, is being pretty blithe about the idea that the contents of public court hearings in February 2021 come with a broadcast threat that you could go to jail for recording them or sharing the contents of a live stream of them is not at all a good look for attorneys, judges, and the system.

The ethics rules in most jurisdictions (patterned after ABA Model Rule 6.4) make clear that lawyers are allowed to participate in judicial and legal reform efforts even if doing so might get you crosswise with the interests of clients you represent, I’d like to encourage lawyers out there to be more willing to do so to make certain that the increasing trend toward making what happens in court proceedings essentially private comes to an end.

Everything is arbitrable in New Jersey. (Sort of)

Lawyers and law firms have long struggled – at least during the length of my career – with whether they can, or should, include a provision in their contracts with clients that would require arbitration of some, or all, kinds of disputes.

In situations where a local or state bar association offers a free, voluntary fee dispute arbitration forum, the decision to put something into an engagement letter requiring participation in such a tribunal upon demand tends to be an easier call.

Seeking to have clients agree to arbitrate fee disputes and only fee disputes also tends to be an easier call even in the absence of bar association provided venues.

Whether a lawyer can, or should, seek to have a client agree to arbitrate all claims or disputes, is much trickier stuff. Many jurisdictions do not offer much in the way of formal ethics guidance beyond making clear that you cannot avoid having to take a trip through your state’s disciplinary process by trying to claim that an agreement to arbitrate disputes would include preventing a client from pursuing a grievance against the lawyer’s license. (In fact, in some places, simply trying to do that could get you into disciplinary trouble.) Another issue that exists in this realm but is often not fully focused upon is any impact that federal law, and specifically the Federal Arbitration Act, would have on enforceability in that it can be difficult for a client to try to argue that the nature of a legal matter does not affect interstate commerce. If the FAA is recognized as applying, then obstacles to enforcing an arbitration agreement with a client should be significantly reduced.

In advising lawyers on the topic, I have tried to be practical about the risk associated with such provisions and the need to be exceedingly clear and transparent about how any such provision is explained to a client. (I also make an effort to strongly suggest that the lawyer communicate with their professional liability insurance carrier as those folks tend to have strong opinions about whether arbitration is a good forum for resolving a legal malpractice claim or whether it is more likely to result in a “split-the-baby” outcome.) I have not actually written anything about this topic here in more than five years though.

Recently, the New Jersey Supreme Court has issued a thorough, and pretty good, opinion navigating the waters of how an attorney may balance their ethical duties of communication with obtaining an enforceable arbitration agreement from a client. Unfortunately, for the law firm in question that was involved in the litigation, the decision is only applicable on a going-forward basis. In that regard, it is helpful to know that the nature of the dispute in question was an engagement agreement between a lawyer and a sophisticated business client, a fee dispute was being arbitrated and the client then brought a lawsuit for legal malpractice. The engagement agreement established arbitration through JAMS and included a hyperlink in the engagement agreement where the 33-pages of JAMS rules were available, but the lawyer did not provide the actual JAMS rules to the client at that time.

One can certainly quibble with the New Jersey court’s analysis of application of the FAA given that it still clearly treats a contract between a lawyer and a client differently from other commercial contracts. The New Jersey court doesn’t actually confront the fact that it is treating an arbitration provision in an attorney-client contract differently from one in another type of contract. Instead, it compares arbitration provisions in an attorney-client contract with all other provisions in an attorney-client contract and says:

“When viewed through the lens of the RPCs, arbitration provisions are not treated differently from other provisions in a retainer agreement. Requiring attorneys to explain to a client the advantages and disadvantages of arbitration so that the client can make an informed decision whether to arbitrate a future fee dispute or legal malpractice claim against the firm does not single out a retainer agreement’s arbitration provision for disparate treatment and therefore does not run afoul of the FAA or NJAA. See Snow, 176 A.3d at 739; see also Hodges, 103 So. 3d at 1077.”

One can also argue about the fact that the opinion makes no effort to address the notion that a person who hasn’t yet signed an engagement agreement isn’t a client of the lawyer and so all of the arguments about fiduciary duties attorneys owe to clients and ethical obligations to clients are not actually on point unless you assume and agree that the law should treat a potential client as a client during the process of negotiating a fee agreement.

For lawyers generally though, even if you are not in New Jersey, the opinion provides pretty safe guidance to look to follow if you want to head down the path of pursuing such a provision.

You can access and read the full opinion here, but I’ll close by offering what I think are the two best excerpts:

We now hold that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c).
An arbitration provision in a retainer agreement is an acknowledgement that the lawyer and client may be future adversaries. That the retainer agreement envisions a potential future adverse relationship between the attorney and client — and seeks to control the dispute-resolution forum and its procedures — raises the specter of conflicting interests. An arbitral forum and judicial forum, and their accompanying procedures, are significantly different.
We do not make any value judgment about whether an arbitral or a
judicial forum would be more beneficial to a client if the client and attorney part as adversaries. We conclude, however, that an attorney’s fiduciary obligation mandates the disclosure of the essential pros and cons of the arbitration provision so that the client can make an informed decision whether arbitration is to the client’s advantage. See RPC 1.4(c). That obligation is in keeping with an attorney’s basic responsibility to explain provisions of a retainer agreement that may not be clear on their face. Accordingly, the disclosures required of an attorney in explaining an arbitration provision in a retainer agreement stand on an equal footing with the disclosures required in explaining other material provisions in the agreement. Such comparable treatment does not offend the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, or the New Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -36.

and

Consistent with ABA Formal Opinion 02-425, the weight of authority as
expressed in professional advisory opinions and judicial case law in other jurisdictions, and this Court’s interpretation of its own RPCs, we hold that attorneys who insert provisions in their retainer agreements to arbitrate future fee disputes or legal malpractice claims must explain the advantages and disadvantages of the arbitral and judicial forums. Attorneys can fulfill that requirement in writing or orally — or by both means.
Attorneys may explain, for example, that in arbitration the client will not have a trial before a jury in a courtroom open to the public; the outcome of the arbitration will not be appealable and will remain confidential; the client may be responsible, in part, for the costs of the arbitration proceedings, including payments to the arbitrator; and the discovery available in arbitration may be
more limited than in a judicial forum.
Additionally, a lawyer who drafts a retainer agreement that channels any future legal malpractice action into an arbitral forum must say so directly in the written agreement. The client should not be left to discern the meaning of language that is clothed in ambiguity.

The New Jersey Supreme Court also referred the topic to the state bar’s Advisory Committee on Ethics for the issuance of any further ethical guidance deemed appropriate about the obligations of disclosure for New Jersey attorneys.

Bad judgment leads to bad judgment.

A Tennessee disciplinary matter has made some national news this past week, so what I am writing about might be something you’ve heard about already.

It involves a Tennessee lawyer who has been given a 4-year suspension from practice, with one-year of active suspension for providing advice over Facebook to a woman about how she could potentially kill someone but make it appear to be self-defense and who advised that woman to delete the evidence from Facebook if she was serious.

Incredibly bad decision-making, obviously unethical conduct, and something that certainly is very deserving of punishment. I want to make all of that clear up front because I’m here otherwise to offer a pretty contrarian take on the opinion that the Tennessee Supreme Court put out explaining the outcome.

Before I do that though, and in case you hadn’t read anything at all about the case elsewhere, here is the gist of the relevant facts of the conduct itself taken from the Court’s very good summary, starting with its second sentence:

The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she
should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.”

I started with the second sentence and not the first because the first sentence says: “This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

Well, it is now because the Tennessee Supreme Court decided to make it into one and to make that the most important thing that they have decided to emphasize. Why that was how the Court decided to frame this eludes me a bit.

This lawyer’s situation wasn’t one where he was merely interacting with people on social media without touting himself as a lawyer and without wading into the explicit giving of legal advice. That’s important to note at this moment in our nation’s history in particular as lots of robust debates are being had about where one might draw the line on the intersection of attorney ethics rules and First Amendment rights of lawyers. The Court’s opinion — as a result of its overall focus — offers some words that likely will only be capable of being read as having a very chilling effect on online speech. (More about that in a minute.)

The Court could have focused on what this situation fundamentally was – an instance of a lawyer doing at least two things that are absolutely antithetical to what it means to be a lawyer: (1) giving legal advice to people designed to help them commit crimes and get away with it; and (2) giving legal advice to people about how to destroy evidence.

Instead, the Court puts an exceedingly high amount of emphasis on the fact that this interaction occurred on social media because these posts, made publicly, “fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process.” The Court even almost exclusively justifies its decision to change the original outcome of the disciplinary proceedings from a 60-day suspension to a 4-year suspension on treating the lawyer’s having done this on public social media as an aggravating factor. In so doing though, the Court drops a footnote to say that it didn’t know, and it didn’t matter, whether the person being given the advice had made their Facebook page public or private. (If it was going to go down this path, it should have gotten an answer to that question because it does in fact matter.) In so doing, the Court also avoids acknowledging that, on some level, if the lawyer had sent the legal advice to the person via a private Facebook direct message then that conduct actually might have been worse on the whole.

Admittedly, the lawyer’s self-representation before the Court in these proceedings did not help much. He continued to struggle with admitting the gravity of his errors, persisted in trying to say he was fundamentally joking in his statements, and only made the point about the distinction between a private message and a public “wall” post in trying to claim that he couldn’t have really been serious or he wouldn’t have made the statements so publicly. But still, in the end, there is something deserving of real thought about whether a lawyer who does something like this in daylight where others can see is actually doing something worse — in the way that the Court views it — then a lawyer who does something like this but better covers their tracks.

And, in having this laser-like focus on the social media component of this galling conduct, the Court also ends up – at least in the opinion of one Justice — issuing an opinion that is more dicta than opinion. Justice Lee filed a separate opinion, concurring in the judgment and concurring in the section that evaluated why the 60-day punishment was insufficient – but not joining the rest of the opinion. In it, Justice Lee explains that in the posture the case arrived — not appealed by the lawyer or by the Board of Professional Responsibility — the Court could only evaluate the appropriateness of the level of discipline. Thus, all of the Court’s discussion about other matters, including all the reasons why the lawyer’s communications did violate RPC 8.4(d) was, in Justice Lee’s view, just dicta.

If all of those sections are dicta, that does help tamp down concerns that the Court analyzed this situation so thoroughly and never referenced the need for lawyers to understand that this likely was not just a violation of RPC 8.4(d), but truly likely was a violation of RPC 1.2(d) [“A lawyer shall not counsel a client to engage … in conduct that the lawyer knows or reasonably should know is criminal…] as well as a violation of RPC 1.6 because the lawyer essentially disregarded all notions of concern for confidentiality by having the entire interaction with this client on a Facebook wall. Not to mention, of course, a violation of RPC 3.4(a) for counseling someone to destroy or conceal potential evidence. (The lawyer was not charged in the disciplinary proceedings themselves with any violation of anything other than RPC 8.4(d) and the ubiquitous bootstrap charge of RPC 8.4(a)).

Whether or not Justice Lee is correct about the dicta issue does not help me any as to the piece of the opinion that I believe could have the most chilling effect on speech of any sort because it appears in the portion of the opinion addressing the appropriate disciplinary sanction which Justice Lee joined. Again, before quoting the problematic passage a reminder of the context, this was a situation in which the lawyer in question expressly touted the fact that they were a lawyer in their online postings and were clearly engaged in giving direct legal advice to a person, including advice to attempt to conceal or destroy evidence.

It was in that context that the Court chose to say this:

“[A]ttorneys in any setting — including on social media platforms — remain bound by our Rules of Professional Conduct. See In re Vogel, 482 S.W.3d at 545 (All attorneys licensed to practice law in this state have a duty to “act at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.”). Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment. Social media posts are widely disseminated, and the damage from a single ill-advised comment is compounded and magnified.

That is not say that the passage is not good, practical advice. The problem is that coming out of the mouth of the Tennessee Supreme Court it must be given greater weight than being just good, practical advice. Attorneys in Tennessee now have to be greatly concerned that the Court does not believe that there can be any separation in terms of online speech between the personal lives of lawyers and their professional lives.

For reference, the Vogel case cited by the Court was not a disciplinary proceeding involving anything that a lawyer was doing personally rather than in their role as a lawyer. Vogel involved a lawyer who improperly disclosed confidential information of a former client and engaged in a sexual relationship with a client during the representation.

To use what was – with all appropriate respect — a throwaway line at the end of the Vogel opinion to appear to signal now that simply being a lawyer means that there can be no “purely personal” interactions online, nor any ability to comment on politics in a capacity outside of one’s law license, is an exceedingly troubling development.

ABA SCEPR Increases Lifetime Batting Average.

Look at me with the super seasonally timely sports reference. Baseball. In January.

I have written on quite a few occasions in the past about the perils for lawyers in responding to criticism posted about them online. Well, the ABA has issued its latest ethics opinion to address the same topic. Behold ABA Formal Ethics Opinion 496 396 – Responding to Online Criticism.

Let’s have a double-header of untimely cultural references.

Issued January 13, 2021, ABA Formal Ethics Opinion 496 is the hottest ABA ethics opinion regarding online criticism ever.

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This opinion has everything. Sound rule interpretation. Meaty footnotes chock-full of research material for disciplinary cases and state ethics opinions. Acknowledgement of the important role that Barbara Streisand plays on this topic. Good practical guidance for what a lawyer might do.

Seriously, go read it.

The only quibble I have with it is its initial conclusion that online criticism alone from a client does not qualify as a “controversy” under Model Rule 1.6(b)(5). I think that is wrong, but the opinion goes on to even make my quibble pointless because they acknowledge that even if they are wrong about that, the lawyer wouldn’t need to respond online in kind to “establish a claim or defense on behalf of the lawyer” with respect to the controversy. I’d prefer that the opinion just rely upon that point rather than arguing that an online dust-up could not constitute a controversy.

To me, the point that is unassailable is that whether or not it is a “controversy” isn’t dispositive, the issue is whether an online response would be necessary to establish a claim or defense. Given how the internet works currently, the answer to that question with respect to the Model Rule, and any state that has adopted the same language, is obviously “no.”

You can access the full opinion here.

(Edited to fix my embarrassing mistake on the opinion number.)

Two Tennessee updates that aren’t really just Tennessee updates.

Welcome to 2021 or, as some astute observers are calling it, 2020 goes to extra time.

In an effort to feel a marginal amount of normality, I wanted to weave together two topics that might ostensibly be treated only as updates relevant to Tennessee lawyers but that actually involve developments of as much, if not more, importance outside of my own state.

Sound fun? No? Well, what if I told you that they involve the world of prosecutors on one hand and the world of lawyer advertising on the other?

Sound fun? No? Well, we’re still doing it.

Some may recall that a couple of years ago now, the Tennessee Supreme Court issued an order vacating a Formal Ethics Opinion. It was, I believe, only the second time in history that occurred in Tennessee, and it involved a Formal Ethics Opinion the Board of Professional Responsibility had issued regarding the duties of a prosecutor under RPC 3.8(d). For those who want to fully refresh your recollection of the event, you can do so here.

For those in more of a hurry, the short version is that the Court rejected the BPR’s position and indicated that RPC 3.8(d) in Tennessee was, and is, more or less co-extensive with a prosecutor’s duties under the Brady line of U.S. Supreme Court precedent.

Recently, two other jurisdictions have cited (on back-to-back days) to Tennessee’s ruling in grappling with the issue, one favorably, one not so. In Indiana, on December 29, 2020, a trial level ruling in a disciplinary case has adopted the Tennessee approach in determining that a prosecutor should not be viewed as having violated Indiana’s RPC 3.8(d). In New York, on December 30, 2020, the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York has determined that a prosecutor should be suspended for 2 years for violating NY’s RPC 3.8(b) [NY’s (b) is the equivalent of (d) in Tennessee, Indiana, and elsewhere] over failing to disclosure exculpatory evidence. In that case, the Tennessee opinion is listed just in a string citation of countervailing authorities for the New York approach to the scope of the ethics rule. You can get to the New York opinion here.

Both the Indiana matter and the New York case are good reads, and it should likely come as no surprise that the story involved in the Indiana case presents a much more sympathetic character in terms of what happened than in the New York case. You can read the full Indiana decision at this link below.

On the topic of lawyer advertising, I previously shared with you the petition filed by the TBA seeking reform to Tennessee’s ethics rules related to lawyer advertising. Should you wish to refresh your memory on that, you can do so here.

Just this week, the state of Washington has adopted its own revisions to its advertising ethics rules that are even more progressive than the proposal made in Tennessee. You can go read the new Washington rule revisions though the link below.

In Tennessee, in a not at all surprising but still extremely disappointing development, the Board of Professional Responsibility has filed a comment that opposes most aspects of the TBA proposal. Despite the fact that most bar regulators openly admit that the only people who complain about lawyer advertising are other lawyers, our BPR has staked out a position for itself where it wants to continue the status quo and keep in place relatively pointless requirements. If you truly want to hear what the regulator in Tennessee is objecting to, you can get access to its publicly-filed comment here.

Sigh.

(P.S. If you think the Board is trying too hard to make things unnecessarily restrictive, the deadline for public comments does not pass until March 2021.)