Ethics opinion about a business conflict goes wrong.

It is very tempting to stay on the topic of bar examinations today, given recent absurdist developments. Arkansas has declared it simply has to have its in-person bar exam in July 2020 because things are likely to get worse as the year goes on. Oklahoma has attempted to reassure everyone about the safety of their in-person planned exam in a message that simultaneously demands that all test takers self-quarantine for 14 days before the exam. Virginia, trying to take the cake apparently, is insisting on a courtroom attire dress code for their in-person exam but is doing away with having to wear a tie as a concession to COVID-19. It is tempting, but it’s all too frustrating, so…

Instead, let’s go back to some of our roots and discuss a recent ethics opinion. It comes out of Ohio and it addresses a conflict issue, but is noteworthy for at least two reasons: (1) it addresses a conflict of interest issue involving representation of a government entity and (2) it sort of addresses something that is more a business conflict issue rather than a true ethical conflict. If you’d rather just read the opinion, you can access it here.

Ohio Board of Professional Conduct Adv. Op. 2020-04 weighs in on whether a firm has a problem representing a group of landowners who are opposing a zoning variance sought by an agency seeking to establish a shelter for domestic violence victims. The agency is not a client of the firm in other matters, but the firm does represent a community mental health board that contracts with the agency. The firm has a one-year contract to perform legal services on an “as needed” basis to the board but has not been asked to do any work related to the zoning variance matter. The firm does know though that the board supports the agency’s effort to obtain the variance and wants the agency to succeed.

Now, most lawyers would hear that scenario and see a likely “business” conflict but no ethical conflict. By business conflict, I simply mean that the firm might not have wanted to take on the landowners because it might displease the institutional client – which might be a better source of ongoing and continued business to the firm.

The Ohio opinion, however, finds a way to treat the situation as an ethical conflict but, at its heart, it does so only by turning the business conflict into a material limitation conflict using the idea of “personal interest” of the lawyer as something that could be expanded to be the firm’s “personal” financial interests.

I am far from convinced that such an analysis actually works.

The opinion spends only a paragraph explaining something that should be obvious – this is not a representation involving direct adversity between firm clients. After that, the opinion lays out its argument for the existence of a “material limitation” problem for the firm. The opinion begins on the right foot by explaining how there does not appear at first to be any conflict because “the law firm’s provision of legal services to the board and its representation of the landowners are wholly separate and unrelated.” The opinion though pivots to a required “closer examination” leading it to the idea that “it would be reasonable to conclude that the board’s overall interest in supporting the agency’s zoning variance may compromise the firm’s
representation of the landowners opposing the variance.”

Delving into more explanation, the opinion speculates that the firm might be limited in pursuing legal alternatives for the landowners because of the overall interests of the other firm client. All of that is well and good, as it is true that sometimes material limitation conflicts require some digging to understand, but the opinion then moves fully into rhetoric that sounds as an analysis of a business conflict.

Specifically, the opinion points to the firm’s “inherent financial interest in maintaining its standing client-lawyer relationship with the board” as one of the factors leading to a conclusion that there is a material limitation conflict requiring waivers from both the landowners and the board in order for the firm to continue both representations.

The opinion further undercuts any claim to be purely addressing an ethical conflict question by explaining that, if the clients won’t provide consent, then the firm only has to withdraw from one of the two engagements. That remedy is most assuredly the stuff of business conflicts. Traditionally, a firm that needs to extract itself from conflicting representations that run afoul of the ethics rules cannot simply drop one of the two clients like a “hot potato,” but have to withdraw from both client representations. There are exceptions, but none of those exceptions are identified in this opinion.

The opinion also suffers from at least one more flaw. Even under its own premise, it does not follow that both the board and the landowners would need to provide consent. The only representation that the opinion discusses as being potentially harmed by the conflict is the representation of the landowners. Thus, the landowners can be said to be the only clients “affected” by the material limitation conflict. Notably, the opinion never actually quotes the language of the rule it is purporting to apply and never reminds the reader that RPC 1.7(b) only requires informed consent from “each affected client.” Thus, as long as the landowners in the zoning variance proceeding were willing to provide informed consent to the firm’s representation despite the fact that the firm’s relationship with the board could limit available options and approaches, then the rule would still be satisfied.

Two for Thursday.

It is Thursday, right?

In a “recent” effort, I mentioned that there were recent developments I was planning to eventually write about. Today presents an effort at checking two of them off the list that have only Tennessee in common. Neither of which likely provides fodder for a full post, so they will be covered together.

The first is a recently enacted revision to Tennessee’s ethics rules regarding money held in trust accounts. Specifically, the Tennessee Supreme Court has adopted a revision to RPC 1.15 regarding trust accounts to impose requirements for dealing with “unidentified funds” held in trust.

As revised, RPC 1.15 now has a new subsection (f):

(f) A lawyer who learns of unidentified funds in an IOLTA account must make periodic
efforts to identify and return the funds to the rightful owner. If after 12 months of the discovery of the unidentified funds the lawyer determines that ascertaining the ownership or securing the return of the funds will not succeed, the lawyer must remit the funds to the Tennessee Lawyers’ Fund for Client Protection (TLFCP). No charge of ethical impropriety or other breach of professional conduct shall attend to a lawyer’s exercise of reasonable judgment under this paragraph (f).

A lawyer who either remits funds in error or later ascertains the ownership of remitted funds may make a claim to TLFCP, which after verification of the claim will return the funds to the lawyer.

I personally was opposed to this proposal because in almost all circumstances “unidentified funds” simply shouldn’t exist in a trust account in the first place and, thus, this is one of the very few places in the rules that addresses a situation which can nearly only come to pass because of lawyer misconduct. Although the rule doesn’t define “unidentified funds,” my understanding is that these are different from “unclaimed funds” because the lawyer simply has no idea to whom the funds belong at all. Comment [14] still indicates that as to “abandoned” funds those will likely have to go through the process of escheatment to the State. Thus, other than circumstances in which a lawyer purchases someone else’s law practice and then finds that the underlying records aren’t up to snuff, this rule addresses obligations of a lawyer who has already dropped the ball on a very important duty.

The Tennessee Bar Association publicly signaled support for the proposal, however. The rule revision was not accompanied by any new comment paragraphs, so perhaps a time will come in the future for the Court to give a bit more clarity about how funds might come to be “unidentified” and whether the protection for judgment extends only to whether to send funds to the TCLF or not and not also to judgments about whether funds qualify as “unidentified” or not.

The second development raises a question of judgment as well. If you’ve been following aspects of how the legal profession is trying to cope with the ongoing, and now worsening in the U.S., pandemic, you’ve likely seen a variety of approaches in various states to dealing with graduates of law school and how to provide them with an opportunity to get their law license. Some states have transitioned to having their bar exam online, some states have limited the number of people who can sit for the traditional bar exam in a socially-distanced room (and some of those states have given preference to in-state law school grads), and some states have opted instead to offer diploma privilege rights to law students and allow them to become licensed without having to sit for a bar examination.

To date, my state has gone with an approach that involves limited availability but with a twist. The traditional July bar exam would have limited spaces, but they also determined to hold an extra bar exam later in the fall.

Last month, however, a collection of law school graduates has filed an emergency petition with the Tennessee Supreme Court requesting that the Court take action to allow for diploma privilege in Tennessee because of, and in response to, the pandemic. You can go read the full petition here.

It is hard to try to argue that they don’t have a point.

Edit/update: About an hour after putting this up, the Tennessee Supreme Court posted an order cancelling the July 2020 bar examination in Tennessee. You can go read the order here … it doesn’t sound like the Court is seeing it along these lines … but having to cancel it rather than move it online seems to me to be more support for seriously considering the diploma privilege route.

For Juneteenth.

There have been a lot of developments in legal ethics both nationally and in Tennessee over the last few weeks, and I hope to be catching up on discussing those in posts over the coming weeks.

But not today.

Tennessee like most jurisdictions has a version of RPC 6.1 about pro bono service and calls for an aspirational goal for each lawyer to deliver 50 hours of such service and while those hours are supposed to be primarily directed at actual legal representations, the rule does also address the ability to do so by participating in activities for improving the law, the legal system, or the legal profession.

In a small, personal effort to do a little bit of that today. I want to do two things.

First, with full awareness that it includes within its recitation of shameful events that have been whitewashed from the teaching of history a massacre in my home city of Memphis, I encourage everyone who is reading this to go take 6 minutes to watch this video that has been put together by the Equal Justice Institute in connection with the release of its Reconstruction in America report: https://youtu.be/HRj35PtXnLs

If it moves you to do so, you can, through the www.eji.org website get a copy of the full report to read.

Second, to highlight just one vein of examples of how these problems are still ongoing, it is hard to pay attention these days to all of the important news – as it is constant – but a story that is not yet getting the scrutiny it deserves is that there have now been 6 people of color found dead hanging in trees over the last several weeks in locations spanning from California to Texas to New York to Oregon. Each of these has been initially reported by police to have been suicides.

You can read one of the most recent articles about this here.

I can only speak for myself, but I do not believe at all that any black man, woman, or child in 2020 in the United States who commits suicide would do so by hanging themselves from a tree.

When you look around at what is happening in this moment in history, the Occam’s Razor answer to this is not to believe the contents of the initial police reports but to reach the conclusion that it much more likely that these are homicides.

They deserve justice.

Lawyers out there losing their goddamn minds.

Apologies in advance for the fact that today’s content is going to be something of a mishmash or stream-of-consciousness type of presentation, but it’s where the brain is at based on the events of the last 48-72 hours. (Loyal readers will likely wonder why I think a mishmash is any different than the normal presentation.)

I’m pretty sure none of us expected in 2020 to be living both 1918 and 1968 simultaneously. I know I didn’t. I have a wide variety of political thoughts about our situation, but if you are interested in those go find me on Twitter.

The fragile and incendiary nature of our circumstances in the United States though have recently resulted in a variety of instances of lawyers making incredibly poor decisions. I struggled a bit with whether any of the situations merited posting about or if bringing extra attention (Ha! As if I have that kind of power or reach…) was unhelpful.

Then, yesterday, through a “professional” listserv I participate in I witnessed a lawyer call for the assassination of public officials and incarcerating people without trials and for as long as it would take for them to contract COVID-19. I also watched a different lawyer throw wholehearted support to the first lawyer’s writings and sentiments. That second lawyer though might just be salty about having previously been criticized among the same group for having disparaged an entire generation of lawyers. Those two instances did drive home the point to me that a much larger percentage of lawyers then you might think are doing what the title of this post suggests.

More instances of lawyers reacting very poorly to the current environment have been bombarding us in the legal news of late.

You’ve certainly read about the two lawyers, one of whom work(ed) for a very large law firm, who have been arrested for throwing an incendiary device into an unoccupied police car. Perhaps you’ve also read about the Florida prosecutor who just got fired over a racist Facebook post that involved comparing protestors to animals. You might also have read about the lawyer in Vermont who was immediately and temporarily suspended over pulling a gun on a store clerk in a dispute over social distancing.

But I really, truly hope you’ve been doing your reading on what – in terms of historical ramifications – was the worst of the recent lawyer conduct. If the latest reports are correct, it was the Attorney General of the United States (someone who I’ve written about repeatedly in the past with respect to defiance of his ethical obligations) who approved/authorized the deployment of tear gas and rubber bullets on peaceful protestors in D.C. in order to provide a clear pathway for the current occupant of the White House to make this video. If you’d like a different video to show you just a snippet of what it took to make that video, try here. It continues to be difficult to wrap my head around the fact that we live in a situation in which the fact that this man continues to hold the office of Attorney General is, itself, prejudicial to the administration of justice in a way that runs afoul of RPC 8.4(d).

This same lawyer also appears to be redirecting other federal law enforcement resources, including the DEA, into expanded roles that are impossible to view as anything other than highly threatening to the exercise of civil liberties and First Amendment rights of assembly and petitioning the government for redress of grievances.

In fairness, to Mr. Barr, it is not fair to say he’s lost his goddamned mind because of the ongoing circumstances. This seems to be who he has always been.

Abuse of “Iowa nice” leads to rare Dubuque rebuke.

Readers of this space know that a large part of my practice involves representing lawyers in disciplinary proceedings. Disciplinary proceedings are difficult for all that are involved, but rarely can anyone involved question that they don’t know the stakes. They are what they are and they have their own rules and procedures.

Today’s post involves a story of a lawyer getting actual discipline in Iowa, in the form of a public reprimand, not through Iowa’s disciplinary system, but imposed by a federal district judge in Iowa through a sanctions-style set of proceedings deemed “informal disciplinary proceedings.”

And, as a lawyer who does a great deal of disciplinary defense but who also does still have a “normal” litigation practice as well, I’m quite torn. Based on the story that the federal court opinion tells, the Los Angeles lawyer absolutely deserves to be on the receiving end of discipline. And the court is a bit kind when it refers to the situation as being a “he said/he said” sort of dispute when, in fact, it was a “he said/he said and this other he said and then this other he said and this she said and this other he said” dispute.

The toxic approach to litigation the Los Angeles lawyer seems to embrace is something that a handful of lawyers in my state do as well, and they almost always manage to skate through without ever being sanctioned for their conduct because, when you are dealing with them, it’s always in your client’s best interest to just try to limit the amount of time you have to deal with them rather than increase it by pursuing discipline against them for their conduct. I’m confident Tennessee is not exceptional and that there are a handful or two of these folks in just about every state. Yet, given that there exists a system for pursuing discipline rather than monetary sanctions in Iowa, no matter how bad the conduct was it feels like the federal judge should have just made a referral to the Iowa disciplinary authorities instead of imposing discipline directly.

I’m also a bit torn that the only ethics rule upon which the court premised its punishment was RPC 8.4(d) – the notion that the conduct of the lawyer was prejudicial to the administration of justice. And, throughout, the extent of the analysis is not far from saying that just about anything improper that multiples or complicates litigation proceedings to make them unnecessarily protracted or unpleasant is the same thing as being prejudicial to the administration of justice. That is something of a slippery slope under normal circumstances but also problematic when there exists a separate remedy in federal court, under 28 U.S.C. 1927, for handling litigation tactics that unreasonably and vexatiously multiply proceedings.

Yet, here, all of the misconduct found to have happened would also have run afoul of RPC 4.4(a) — ” In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….” — so part of me thinks, at least as to the particular situation, that this falls into a “much harm, no foul” category. But the idea that the “wrong” ethics rule was also used to get to what was likely the right outcome is just further fuel for the fire that the better path would have been to refer the matter to disciplinary authorities.

You can go read the full opinion and draw your own conclusions about whether it was the right manner for imposing discipline by clicking on the download button below.

And a word of thanks to Todd Presnell for spotting this case and sending it my way as fodder for discussion. If you aren’t reading Presnell on Privileges, well, under normal circumstances I’d chide you and say you should, but we’re all doing what we can to hold things together these days so … what I’ll say instead is, if you’ve got the mental bandwidth to add it to your reading list, it’s really good.

Panzerotti ≠ calzone : NY confidentiality ≠ TN confidentiality

It’s been a while. I know. But I saw a blurb about a story that caught my attention in the before-times and then a second story about the same case more recently that hooked me enough to write about.

Primarily, it hooked me because it provides a compelling opportunity to discuss two important points about legal ethics at the same time. First, the ethical obligations lawyers owe to former clients go beyond simply restricting certain future representations and include restrictions on using the client’s information. Second, even a clear violation of the ethics rules does not automatically translate to a viable cause of action against an attorney.

As we’ll see at the end, it is a story that because it happened in New York might just be a bad look for the lawyer involved when it would be a lot more damning if it had happened here in Tennessee.

The initial story that caught my eye was this one in Law360 where the proprietors of a panzerotti restaurant in Brooklyn sued an attorney saying he had stolen their idea for such a restaurant and the logo they used. The more recent story that lured me, also from Law360, is that the lawyer has now filed a motion to dismiss that suit, in part, arguing that the USPTO had rejected the restaurant’s trademark claims.

You can go read the amended complaint in the lawsuit in question for yourself:

But from the “former client” side of the story, this is how they tell it. Its principals retained the lawyer, Cea, to help with documents to be filed in connection with the seeking on E-2 visa application and that, as part of that process, they had to turn over their confidential business plan for the proposed restaurant. After they did that, they say they also retained Cea to represent the business regarding lease negotiations and obtaining a liquor license for their restaurant.

The lawsuit then claims that after their restaurant opened, Cea and a partner opened a competing restaurant, but in Manhattan, using the improperly obtained confidential business plan information of the former client. The lawsuit also claims that the competing restaurant’s logo infringes upon their logo in violation of The Lanham Act.

Now, I’m no trademark lawyer but my unsophisticated eyeball comparison of the two logos doesn’t impress me at all. The rest of the complaint, though, when it focuses upon the strong similarities on how the insides of the restaurants are laid out, and the kinds of equipment used, and even approaches to menu items is a bit more compelling. The complaint also alleges that the lawyer even hired the same architect that the former client used for its restaurant for the competing restaurant. Notably, the complaint also alleges that when first contacted after the opening of the competing restaurant, the lawyer claimed that his only involvement was in helping the second restaurant with its lease.

When first digging into this story, I was overwhelmed by the audacity of any lawyer thinking they could ever do something like this without running afoul of RPC 1.9(c)’s restrictions on adversely using information related to the representation of a former client.

In Tennessee, that rule reads as follows:

A lawyer who has formerly represented a client in a matter … shall not thereafter reveal information relating to the representation or use such information to the disadvantage of the former client unless (1) the former client gives consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect to a client; or (3) the information has become generally known.

While proving a successful cause of action would be a different kettle of fish for reasons discussed below, because Tennessee (like most jurisdictions) treats all information related to the representation as confidential, under Tennessee’s rules, someone doing what Cea was alleged to have done would have real problems defending a disciplinary complaint. Perhaps, as to some of the allegations, Cea could engineer a defense based on all of the public facing aspects of the former client’s restaurant became “generally known” once they opened for business.

Even in Tennessee though, violations of RPC 1.9(c) wouldn’t automatically translate to a viable civil cause of action. (The actual lawsuit asserts a breach of fiduciary duty claim and that would likely be what someone would hazard as a claim in Tennessee.) That is because we, like most states, clarify in the Scope section of our rules that while ethics rules exist as a framework for imposing discipline, they are not intended or designed to provide a basis for an independent cause of action.

[21] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability….

We also have a final sentence in that part of the Scope that tries to clarify that there are some situations in which the violation of a rule can be relevant to determining whether a breach of the standard of care also occurred but since New York doesn’t I’ll leave that for another day.

New York’s approach to client confidentiality though is different and, as a result, even though its RPC 1.9(c) reads largely similar to Tennessee’s on adverse use of information its reduced scope of confidentiality under RPC 1.6 really changes the landscape.

New York’s RPC 1.6 limits confidential treatment to “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.”

That distinction and what it means for a lawyer appears to be salient to Cea’s situation. Cea’s motion to dismiss, while primarily focused on an attempt to enforce an alleged settlement agreement as well as other procedural arguments, does poke at the margins of whether he was ever asked to treat any of the information he learned from any client as confidential. He also appears to take issue even with the idea that he ever had any fiduciary relationship with anyone who is a party to this litigation. You can look at the memorandum of law supporting that motion to dismiss if you are so inclined.

Utahlking real reform? Yes, Utah absolutely is.

Infrequent readers will know this pun structure is one that I have no shame in running into the ground every time it is relevant.

Frequent readers will know I am far too willing to break the fourth wall here. So just for background I had resigned myself to writing a post on Friday about the New Jersey lawyer who could only get reinstated to practice if he could assure that his wife would not have any further access to their trust accounts and it was going to likely be unnecessarily preachy and riddled with hacky references to how hard that might be when everyone is trapped in their house. So, while you are only getting content a few days late, thanks to Utah you at least are spared that the content that could have been.)

Last Friday, Utah released for public comment the final version of its work product for an overhaul of significant parts of its ethics rules. If you need to get back up to speed on that issue and the pre-pandemic discussions of it, you can find prior posts about the rapid work of Utah’s task force here.

If you’d rather read the source materials put out for public comment on April 24, 2020 yourself, you can get to them all through this link.

If you’ll allow me to describe them to you in all of their relative glory, I’ll do so now.

I’d like to start with what ought to be the least controversial piece but a part that still really ought to be cherished for the elegant thing that it is, reducing the rules on lawyer advertising down to the core and nothing but the core.

  • The Utah Supreme Court’s proposal would eliminate RPCs 7.2, 7.3, 7.4, and 7.5 and, instead, revise RPC 7.1 to address the terrain by (a) prohibiting lawyers from making false and misleading claims about themselves or their services and (b) prohibiting lawyers from going about dealing with people in ways that involve coercion, duress, or harassment.

If any state were proposing to do this to their advertising rules, and only just this, it would be an exciting development toward important regulatory reform. But wait … there’s so much more to Utah’s proposal. As a result, comprehensive reform of the advertising rules is nearly just the icing.

The centerpiece of Utah’s proposed rule revisions though involves an overhaul of RPC 5.4 in the form of the creation of two rules, one 5.4A that will look a good bit like the current rule with one very significant change and another 5.4B that will look like nothing that has been actually implemented so far in the United States.

Under the proposal, RPC 5.4A will apply to lawyers who continue to operate in the traditional fashion (read, at least in its pre-pandemic context to mean working in a law firm owned and operated only by lawyers). That rule would carry forward existing restrictions on partnerships with non-lawyers and on operating in the form of any entity in which someone who is a not a lawyer has a financial interest but would permit lawyers in such conventional settings to be able to share fees with people other than lawyers as long as sufficient disclosure is made to the client (and anyone other than the client who is paying the fee) about the fact that such sharing is occurring/going to occur and with whom. The rule though is also refashioned to make clear that lawyers still can only do these things as long as there is no interference with their independent professional judgment, maintaining their loyalty to their client, and protecting client confidences.

(One other seemingly pedestrian item in its package of revisions is to remove the current restrictions on fee sharing between lawyers not in the same firm by deleting RPC 1.5(e) altogether. This makes a lot of sense on a standalone basis as a variety of jurisdictions already permit “naked” referrals between lawyers not in the same firm as long as there is a certain amount of disclosure, but if you are going to open the doors for lawyers to share fees with people who aren’t lawyers then you certainly have to drop the RPC 1.5(e) approach.)

RPC 5.4B would be a new thing altogether and would govern the conduct of lawyers that choose to practice in nontraditional structures as part of a legal regulatory Sandbox to be launched Utah. This proposed rule establishes an ability for lawyers to practice in ways that RPC 5.4A would prohibit as long as there is no interference with any of the lawyers duties that are also stressed in RPC 5.4A (independent professional judgment, loyalty, and confidentiality). Specifically, what it permits is best described using the proposed rule itself:

(b) A lawyer may practice law with nonlawyers, or in an organization, including a partnership, in which a financial interest is held or managerial authority is exercised by one or more persons who are nonlawyers, provided that the lawyer shall:

(1) before accepting a representation, provide written notice to a prospective client that one or more nonlawyers holds a financial interest in the organization in which the lawyer practices or that one or more nonlawyers exercises managerial authority over the lawyer; and

(2) set forth in writing to a client the financial and managerial structure of the organization in which the lawyer practices.

And to implement the Sandbox concept that RPC 5.4B will permit lawyers to participate in, and to make sure that there exists an entity that will have regulatory authority over those participants in the Sandbox who are not lawyers, the Utah Supreme Court has released a proposed Standing Order that would be the foundational document for establishing the relevant regulatory entity and the regulatory principles that will govern its work.

The relevant regulatory entity will be the Office of Legal Services Innovation and, for a pilot period of two years from whenever the effective date of the Standing Order comes to pass, this Innovation Office will “establish and administer a pilot legal regulatory sandbox (Sandbox) through which individuals and entities may be approved to offer nontraditional legal services to the public by nontraditional providers or traditional providers using novel approaches and means, including options not permitted by the Rules of Professional Conduct and other applicable rules.”

And, as for the relevant regulatory principles? Those will be as follows:

  1. Regulation should be based on the evaluation of risk to the consumer.
  2. Risk to the consumer should be evaluated relative to the current legal services options available.
  3. Regulation should establish probabilistic thresholds for acceptable levels of harm.
  4. Regulation should be empirically driven.
  5. Regulation should be guided by a market-based approach.

There is a 90-day comment period on the proposal which ends on July 23, 2020. That comment period is not only for Utahns. (And, yes, according to the Standing Order that is how to refer to a collection of residents of Utah. College football fans likely believed, and My Cousin Vinny fanatics would likely have been demanding, that Utes to be the official term.)

Pennsylvania wins the race to be first with COVID-19 ethics guidance.

I’ve lived in Memphis since 5th grade at this point, but I was actually born in Pennsylvania. I’ll heed all the guidance making the rounds of social media about not sharing information that might be a security question somewhere and won’t tell you what city.

But a part of my heart will always be in Pennsylvania since part of me really grew up there. It’s also the reason why my sporting allegiances beyond the Memphis Grizzlies and Chelsea Football Club all involve Pittsburgh teams.

So, I feel somewhat proud that the Pennsylvania State Bar seems to be the first bar to put out a truly comprehensive ethics opinion attempting to give guidance to lawyers and law firms about their ongoing ethical duties during the pandemic and in dealing with the “new normal” of working remotely from home.

While typically Pennsylvania ethics opinions have been hard to get access to some times because they have historically restricted them, Bob Ambrogi seems to have gotten his hands on the full opinion in digital format, so I’m linking to it as his site here.

It is quite good and really quite thorough (and you probably have some time on your hands), so I’d encourage you to read the whole thing. It addresses a number of rules, including Pennsylvania’s version of the ethics rules on competence and supervising non-lawyer assistants.

I only want to highlight two things that it specifically addresses and one thing that it, unfortunately, does not say at all.

First, I think this is the first ethics opinion from any lawyer regulatory body that comes out so clearly to call out what happens with smart speakers and other “always on” listening devices. It links to a vox.com article to allege that Amazon’s Alexa device and the Google Home speaker actually do have people reviewing the recordings of what those devices pick up and encourages lawyers (and people who work for lawyers and law firms) to not have client conversations in rooms where those always listening devices are located. I cannot remember for certain and have run out of the mental bandwidth today to go searching but I think I’ve written before about how the epiphany is obvious once you have it that the only way such devices can recognize when you call out their name for assistance is that they have to be “listening” before their name is uttered, but your view of such items profoundly changes once you have the epiphany. For what it is worth, I’ve been doggedly adhering to this by trying to have all of my calls take place in one of two places in my house (and on my second-floor balcony) where such devices are not located. And, yet, there’s still my iPhone and Siri which presumably also is a vigilant digital assistant just waiting for me to say her name.

Second, I feel a little personally attacked by the guidance that is stressed about only going to websites that are “secure” in that they have the https: designation. You might notice that this blog is not such a site but also I don’t ask you for any information or try to sell you any products here, so please keep coming around.

And, finally, the one thing that the opinion does not say that I really wish it would have done is this: Pennsylvania’s rules, like Tennessee’s and most others, contain language in the Preamble/Scope to stress that the ethics rules are rules of reason and should be construed as such.

All of the guidance in the opinion is very good and particularly offers a very good clearinghouse of things that lawyers should be trying to do, if at all possible. At the same time though, given how difficult all of this is we should not be sending messages to the profession that we are going to make perfect the enemy of the good.

During these difficult times, my hope will be that mistakes that lawyers may make with respect to the confidentiality and safeguarding of information will be treated as fodder for disciplinary proceedings only in instances of truly reckless or grossly negligent conduct and not mere negligence caused from trying to accomplish what client’s need to get accomplished in circumstances of a prolonged emergency.

That, to me, is a highly practical but entirely timely application of what the rules mean when they say they are rules of reason. Along those lines, while not guidance from a state bar or regulatory entity itself, I also commend for your reading a piece put out by the Holland & Knight law firm that ultimately grabs the spirit of that aspect of the ethics rules to analyze some guidance that can be found in the Restatement of the Law Governing Lawyers.

There will be discontent.

The title of today’s post is an inside joke in that it makes reference to this post from what feels like years ago now.

As these are not particularly humorous times at the moment, it will be the only attempt at humor.

Professionally, I’ve had a pretty good week. I didn’t get what I wanted for clients on a couple of matters, but I participated in a nearly 10 hour Zoom mediation that resulted in the resolution of a case earlier in the week and closed out the week winning summary judgment in a federal court case. Yet, I feel no professional satisfaction and just mostly discontent.

Discontent at what is going on around me, my circumstances, and all the work that must be done to try to repair things. Fortunately, just discontent and not despair.

That’s likely because in the grand scheme of things I’m exceedingly fortunate. I have an established law practice and a better safety than many. I have a roof over my head and thus a place to stay home and stay safe. My family can afford to buy the things it needs right now, and, most importantly, so far all of us have stayed healthy.

All of that is to say that I am entirely cognizant of how good I have it. I recognize that my safety and relative comfort does not make my discontent particularly important, but I do think it makes it telling and, perhaps, worth acknowledging out loud for those who are reading this. Mostly because I think it indicates just how many people who might only be in a slightly worse off position than I could easily slide from discontent into despair.

I still strongly believe as I wrote before that most lawyers are not delivering “essential services” in the context of risking the safety of others. But I just as strongly believe that all the human beings who are those lawyers are essential.

Lawyers as a profession were plagued with higher statistics of depression and anxiety and substance abuse and suicide before the pandemic than the national average. If this pandemic makes those numbers seem closer to the norm, it will likely only be because the average increases.

When you struggle, seek out the help you can afford. There are a wide variety of resources better than this blog to get that help. Here’s just one pretty good one.

I’ve shared my small story before. I feel very fortunate that my timing was such that I went through it when it was physically a lot easier to leave the house and get help. I know it would have been much harder if it were happening now for me. And I’m incredibly fortunate that I’m doing okay on that front.

For any new readers, I’m sharing the post (which is actually from years ago) where I shared the video (you have to click on the link inside the post regarding the last 12 minutes of that year’s Ethics Roadshow) of my “coming out” about this issue again here.

Stay safe. And as a truly final word for now, stolen from someone much smarter and more eloquent than me but because I only saw it on Twitter and failed to note the author: “Try to remember that you aren’t really working from home now. You are staying home in order to live through a pandemic and you are also trying to work.”

Cute story? No. Chance for Cutestory reference? Yes.

♫ You’re a crook, Captain Hook / / Judge, won’t you throw the book at the pirate… ♫

For me, much as I’m certain it likely is for you, it is now “Day Something” (I’ve lost track) of surviving a pandemic. I hope that you are doing all that you need to do to both stay safe and take the appropriate steps to value your mental health and overall wellness.

What I had originally envisioned for a post for today was going to be something that sort of collected a variety of instances of attorneys being jerks and emphasizing how incongruous such behavior is with our current reality, but Michael Kennedy, the chief disciplinary counsel for Vermont, has already done that better than I might have, so here’s a link to his post on that subject.

Instead, I’m going to talk about a very specific, pre-pandemic incident that involves a maritime lawyer and, thus, gives me an excuse to talk about bingeworthy television, and specifically, my absolute favorite comedic television program of all time, Arrested Development.

We certainly live in the Golden Age of Television and will do so for at least a little bit longer until the current shut down in production schedules translates in the future to a lack of new content. But even before this true golden age of television, Arrested Development came on the scene. It hit me in all the right spots. So, if you are somehow desperately trying to figure out what to watch in your spare time and have access to Netflix and haven’t yet watched all of it – please feel free to do so.

Now, I segue from this into how I tie this even tenuously to legal ethics. This past week Law360 released a story, and the ABA Journal online followed with one of their own, about a maritime lawyer who got sanctioned in the form of a $1,000 fine for his bad behavior during a deposition as well as the opposing party’s attorney fees associated with certain aspects of the proceedings which will likely amount to much more than $1,000. Specifically, he interrupted the deposition questioning 145 times including 106 rather lengthy objections. This happened in federal court in Louisiana, one of the few places in the United States where maritime lawyers could thrive because of the robust seaport there.

The order is made available through both web portals but the ABA Journal requires no subscription so it’s likely easier for you to read that one here.

Because of the impact that Arrested Development had on me, I will forever associate being a maritime lawyer with Chareth Cutestory – a pseudonym used by Michael Bluth when he tried to flirt with Maggie Lizer, a lawyer played by Julia Louis-Dreyfuss.

It feels particularly on brand to reference that fictional plotline because (a) the real maritime lawyer involved was named Salley (but not Sally Sitwell) and (b) it feels like if Michael Bluth had actually been permitted to be in a deposition pretending to be a maritime lawyer then he could have ended up with a judge issuing a ruling that said something like this as well:

Of the 255-page transcript of the deposition, Salley appears on 170 pages. Salley objected 106 times, 52 of which were lengthy speaking objections. There are long, speaking objections that cover entire pages of the transcript. One speaking objection and Salley’s attendant argument, which followed a question asking the deponent when an affidavit was signed, covers in excess of six pages of the transcript….

That is simply a smattering of cites to Salley’s objections from the transcript. He also instructed the witness not to answer 16 times…. This Court’s review of the record reveals that none of these instructions was based on a valid reason under Rule 30.

And if you, like many, need a little visual help in getting the whole oeuvre of both this post and the Chareth Cutestory subplot, here you go.

(P.S. Stay safe.)

(P.P.S. And if you take any depositions in the next few weeks by Zoom, or Skype, or WebEx or telephone or otherwise, don’t do the kind of stuff (like speaking objections) that will get you sanctioned.)