Throwback Thursday on Cinco de Cuatro Eve

Usually the concept of Throwback Thursday should reach back farther than merely months ago, but I can’t resist given yesterday’s news.

So, I throw you back to this February 15, 2018 post.  And I do so to point out something about which I was right and something about which I was quite wrong  but with a twist.

At the end of that post, I wrote this:

Instead, I want to point out my own opinion, given the way a certain someone is known to operate, about how this likely went down:

Cohen is likely telling the truth about paying with funds of his for which no one reimbursed him, but omitting the most salient detail.  He probably wasn’t “reimbursed” by anyone after making the payment because he was probably provided those funds, pretty much immediately in advance of the transaction, as some sort of bonus or even a “gift” with the tacit understanding about what he was expected to do with those funds — purchase Ms. Daniels’s silence.

This was me sort of making things too complicated when I should have stuck with simple.  And, yet, I wasn’t too far off the mark.

Earlier in the post, I wrote this:

(c) It also is quite likely that Cohen’s version of the events is probably not 100% the truth, key details have been omitted, and it could very well, if nothing else, be a violation of a rule such as RPC 8.4(c).

That bit, at least if you are now willing to believe another lawyer for the same client over the earlier lawyer for the same client and the client himself now explaining in a series of tweets clearly written by another lawyer – though one who either can’t spell “role” or who knows enough to know his client can’t spell “role,” was pretty much spot on.  You can read a pretty decent, condensed version of the roller coaster events of that last 12-18 hours – including links to a deeper dive, in this The ABA Journal piece.

The fact that we now know more about this situation because the latest in a parade of what may go down in history as the worst high-profile legal team ever assembled blurted out this latest on cable news leads me to my segue.

For many reasons, Jeffrey Tambor ought to play the 45th President when the movie of this unprecedented period of American history is filmed.

And, on that note, and in news entirely unrelated to legal ethics but about which I’m even more excited and nerdy than I am about legal ethics generally, tomorrow, on Cinco de Cuatro, the creator of Arrested Development is releasing an entirely re-cut and transformed version of the 4th season of this incredible show.  If you’re interested [Ron Howard voice: they were not interested], you can read all about that development here.

TN BPR releases two more “stealth” ethics opinions

Earlier this month, and again in a fashion that seems a bit more in keeping with NOT wanting people to know they’ve been released rather than to give advice and guidance intended to be disseminated far and wide, the Board of Professional Responsibility here in Tennessee issued two new Formal Ethics Opinions.

The only way to know they had been released would be to have not only paid attention to a Board Notes newsletter that was sent out, but to also have gone in and read said newsletter to see that it contained these two FEOs.  Other than being quietly rolled out at the same time, the two FEOs do not have much in common.

One, 2018-F-165, blesses – with a laundry list of caveats – lawyer participation in an unnamed legal marketplace website that would essentially be a bit like an eBay for legal services where people looking to hire lawyers could pay for access to the site to post requests for needed services and lawyers interested in being hired could pay for access to the site and purchase the right to make a certain number of bids for services.  You can go read the opinion if you’d like here, but I’m not inclined to spend any real time talking about it because there really isn’t much to say about it and the service it addresses simply doesn’t sound, realistically, like much of the kind of thing any regular consumer is going to be seek to use since it would require the consumer to pay merely to have the ability to use it to try to hire lawyers.  (I could be wrong about that, of course, but, even so, this particular opinion is not of the earthshaking variety.)

The other is one that I do want to discuss at some length.  It weighs in on whether the ethical duty of a prosecutor under RPC 3.8(d) is the same as the duty to disclose under the constitutional series of cases most readily referredto in shorthand as Brady.

First, based on numbering alone, it is has been in the works and obviously on hold for a bit.  It is 2017-F-163.  It is a bit silly for the Board to stick with, and insist on titling it a 2017 opinion, since it was signed on March 15, 2018.  (For context, Opinion 165 was signed on March 9, 2018.)  Though, in fairness, perhaps the Board decided to stick with a “2017” title for this FEO because it didn’t update its research from the summer of 2017 when it crafted this particular opinion.  This can readily be gleaned from the fact that footnote 4 still cites to a 2005 Louisiana Supreme Court opinion as part of a “majority of states hold[ing] that the ethical duty of a prosecutor is broader and extends beyond Brady.”  That decision though was overruled/repudiated by the Louisiana Supreme Court in October 2017 in In re Seastrunk:

We reject ODC’s efforts here to broaden Rule 3.8(d) beyond that which Brady and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and Brady are coextensive

Second, the opinion unfortunately persists in speaking of a prosecutor’s ethical duty of disclosure as going to “favorable” evidence.  This is not a helpful approach because it isn’t what the rule being interepreted actually says.  At all.  RPC 3.8(d) doesn’t use the term “favorable evidence,” and this opinion truly should not either.

What RPC 3.8(d) speaks of [other than with respect to sentencing] is the duty to disclose “information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”  Those are objective categories of things and not susceptible to the kind of subjectivity that is involved in trying to decide whether people agree as to the status of evidence as “favorable.”

Third, and related to the second, the opinion’s ultimate conclusion that the ethical duty under RPC 3.8(d) is “broader than and extends beyond Brady” is an acceptable conclusion to reach to the extent it is intended to mean that the actual language of the rule and what it says must be disclosed is not to be read to include the word “material” before “information” but, and particularly given the erroneous reference to what has to be disclosed as “favorable evidence,” it is also a woefully incomplete message to send to the bar and to prosecutors without also expressly explaining that the ethical duty is also narrower than Brady in some respects.

Specifically, what is missing from this opinion, to further explain to the public and to members of the bar generally and to remind prosecutors specifically, is language along the lines of the following:  It should be noted, however, that there are aspects of the disclosure requirements of Brady that are broader than the disclosure requirements of RPC 3.8 as well.  One example being that Brady may require disclosure of information that would provide a basis for impeachment even if it was not evidence that tended to negate the guilt of the accused.

 

A short post-mortem for Tennessee’s proposed RPC 8.4(g)

With the flood of comments in opposition, and particularly the fact that the Attorney General of our state felt the need to file not just one but two comments in opposition, the unsuccessful end of the effort to convince the Tennessee Supreme Court to adopt a version of RPC 8.4(g) has felt inevitable for the last month or so.

Yesterday, the inevitable end came in the form of this one-page order from the Tennessee Supreme Court rejecting the petition.

I’m personally very grateful for the handful of entities that lent their support to the TBA/BPR petition which included not just specialty bar associations such as The Ben F. Jones Chapter of the National Bar Association and the Association for Women Attorneys, but also the Memphis Bar Association, the Knoxville Bar Association, and the Lawrence County Bar Association.

I’m not inclined to spend much space here discussing just how deeply disappointed I am in the outcome.  Given that I’m not likely to be the victim of any of the harassment and discrimination we were really aiming to protect against with this proposal, my disappointment is, at best, vicarious.  There are other lawyers in Tennessee who this impacts more directly.  Lawyers who have been told by many of those who filed comments that they are fair targets for disparagement as long as the lawyer disparaging them is not representing a client.

I wrote more than an 18 months ago about how skeptical I was that a state like Tennessee would adopt a black-letter rule addressing harassment and discrimination.  Admittedly, I let myself get a bit too optimistic along the way.  I remain convinced that the sentiments expressed by the most strident lawyers (mostly male, and nearly entirely Caucasian) who submitted comments opposing the proposal do not represent the future of our profession in this state even though they prevailed in the present.

If you have the stomach for plowing through knowing that some of them truly serve as only a forum for attorneys who look like me to sound off with typo-filled paeans to a Limbaugh-esque worldview, I will again state that reading through the comments is an educational experience.

If you’d rather not, I can sum up alot of them with the following TL/dr:

“When you’re accustomed to privilege, equality feels like oppression.” – original source to quote a bit unknown as explained here.

 

Client Number Three – Seven lessons learned

I can’t believe I’m doing this as neither of these people deserve any benefit of the doubt or serious treatment afforded for their contentions.  But, based on spending time on the web reading comments (despite the always-spot-on advice “don’t read the comments”), there are so incredibly many people who do not understand these concepts and, thus, yesterday’s events do present a good teachable moment about privilege and confidentiality.

Lesson the 1st – it can never be said too many times that the concept of, and the scope of, attorney-client privilege and the ethical duty of client confidentiality are different.  Attorney-client privilege is an evidentiary concept and a privilege with respect to testimony and compelled production of communications in connection with litigation.  Client confidentiality is an ethical duty that imposes shackles on lawyers with respect to voluntary disclosure of information about clients or information about the representation of clients.  If you are familiar with Venn diagrams, then you can think of attorney-client privilege as a smaller circle within the much larger circle that is confidential client information under Model Rule 1.6 and its state analogs.  Client confidentiality is also different because while it imposes real restrictions on attorneys voluntarily disclosing information, it can fall to a court order requiring disclosure.  (See, for example, Model Rule 1.6(b)(6)).

Lesson the 2nd – both privilege and confidentiality will adhere to communications between an attorney and a prospective client during conversations or written communications while deciding whether or not to form a relationship.  Under the ethics rules, most states have adopted a specific rule to drive this point home patterned after Model Rule 1.18.  New York’s version of that rule reads, in pertinent part, as follows:

(a) Except as provided in Rule 1.18(e), a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Lesson the 3rd – the identity of a client, though rarely a piece of information that is itself privileged, is always confidential information under the ethics rules.

Lesson the 4th – if a prospective client communicates with an attorney in order to see if they might want to form an attorney-client relationship, those communications should not involve the actual giving of legal advice to the prospective client.  If they do, then the person is not a prospective client anymore because they have now become your client even if only for a limited time period.  If a person asks you for legal advice, and you have given them the legal advice they asked for, then they are your client.  (A much more pedestrian way this can be a problem for lawyers is along these lines:  A lawyer who decides not to take on a plaintiff’s case because the lawyer has concluded that the statute of limitations on the claim has run and the lawyer tells the plaintiff that conclusion.  The lawyer turns out to be wrong about that conclusion, but the plaintiff relies on the advice, later realizes that it was wrong, and then sues the lawyer for malpractice.  Lawyer is going to be unable to defend the malpractice claim on the basis that they were not the plaintiff’s lawyer because they gave the plaintiff legal advice.)

Lesson the 5th – you don’t have to pay a lawyer any money at all to be a client.  Communications can be protected by the attorney-client privilege without respect to whether any money ever changes hands.  And, most certainly, client confidentiality adheres without regard to payment to the lawyer.

(NB: Here endeth the legal ethics lessons.  These two bonus lessons are not about legal ethics.)

Lesson the 6th – there is no point in discussing journalistic ethics when talking about Client Number Three.  He ain’t a journalist.

Lesson the 7th – if a lawyer with only two clients takes on a third client and the common subject-matter of representation of the other two clients involves facilitating hush money payments regarding sexual improprieties, you don’t have to be Sherlock Holmes to begin to think you know the kind of services the third client was seeking.

 

 

Awesome post. Except for the part that isn’t.

There is an awful lot to like and agree with in this post from Dan Lear, one of the folks who have been the face of Avvo for quite some time.  But there is a piece of it that is just simply wrong, and while it would be hyperbole to say it is dangerously wrong, it certainly is wrong in a way that lawyers don’t need to have reinforced.  Lear writes:

Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.

Even understanding the larger point Lear is attempting to make, this is utterly and simply wrong.  ABA Model Rule 8.4 – with language that is tracked in I believe pretty much every U.S. jurisdiction — does not limit itself to situations in which a lawyer is only representing a client and also does not draw a bright line around a lawyer “being a lawyer,”

The easiest, and most obvious, part of the rule that makes the point is RPC 8.4(b) which gets lawyers in ethical trouble for certain criminal acts even having nothing to do with, or not happening while, they are working as a lawyer.

But there are two other, more broadly problematic ways that RPC 8.4 does extend to, and actually govern, the conduct of people who happen to also be lawyers while they are doing things that they don’t think of as working as a lawyer know matter how much they may subjectively think they are being “awesome.”

Those two other pieces are RPC 8.4(a) and (c).  When combined those pieces of the rule read:

It is professional misconduct for a lawyer to . . .

(a) violate or attempt to violate [the ethics rules], knowingly assist or induce another to do so, or do so through the acts of another . . . [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation….

I’ve often joked about 8.4(c) as being the only ethics rule in the books that has to mean something other than what it actually says because, as written, it would make it professional misconduct for me to answer questions from children about Christmas presents or bluff while playing poker or dive to get a call while playing over-35 soccer on Monday nights.  I’ve also, once before and also in response to something written by a lawyer more famous than I, advocated that it shouldn’t apply to a lawyer operating a parody account on social media.   But there are aspects of how that rule truly does apply to dishonesty by lawyers, even when not acting as lawyers, which are quite serious.  Easy examples from the recent past involve deans and others affiliated with administrative positions at law schools lying about statistics to improve enrollment numbers and the like.

And, perhaps the most perplexing and concerning of the examples Lear offers of things a lawyer could do where they wouldn’t be bound by the ethics rules is serving as an expert witness.  I’ve been fortunate enough to serve as an expert on more than a handful of occasions in my career, and, suffice it to say, RPC 8.4 is not the only ethics rule that will still apply to the lawyer when serving in that capacity.

They got away with it, but that doesn’t make it worth trying.

Lawyers billing clients on the basis of time spent is less than ideal for all involved.  For lawyers, it isn’t the best proxy for value delivered in terms of service and incentivizes inefficiency.  For clients, it isn’t the best proxy of value received in terms of service and leaves clients feeling like the only way to cut corners on costs is to either demand limited time on a task or to just not agree for a lawyer to perform a particular task.  For clients and lawyers alike, it also creates distrust of lawyers with respect to second-guessing the amount of time they spend on tasks (or claim to have spend on tasks).  It also doesn’t give clients much of a sense that they are paying for results or accomplishments.  Lots of pieces have been written, over many, many years, about how the billable hour model is outdated or on its way out the door.  Yet, it persists.

This is not going to be one of those pieces today.  Rather, I want to write a few words about a case out of Wyoming that I would worry is going to send exactly the wrong message to lawyers.  That case is a ruling on fee dispute litigation out of the Wyoming Supreme Court, Manigault v. Daly & Sorenson, LLC.  You may have seen headlines of stories about it that are in the nature of: Court rules billing in 15-minute increments was not abusive.

All lawyers who bill by the hour end up having to pick some base line minimum increment for billing purposes.  I, and my firm, do so using 6-minute increments (.1) as the baseline.  It is certainly possible to measure time more accurately than that, but (I believe) that the standard minimum these days for keeping time is to carve time up into 6 minute blocks.  There was a time when the standard minimum for those blocks were 15 minute intervals, but technology has advanced, timekeeping has improved, and the time when minimum quarter-of-an-hour billing was acceptable (in my opinion) has passed.

In the Wyoming decision, the Court ultimately found that this particular law firm’s use of a 15-minute minimum increment with this particular client was ultimately reasonable.  Remarkably, it did so even when the firm did not have a written fee agreement with the client.  But there are a couple of things about the case that – to me – stand out as crucial to the particular result and also help drive home the point that this is not something that most lawyers could get away with and, thus, should not attempt to do.

The first, and I think the more outcome-determinative, is that the fee dispute was one that was with a very long time client of the firm and, thus, someone who, over time, would be much less sympathetic to be heard complaining about 15-minute billing increments as the minimum.  Since apparently that was how this client and that firm had interacted over the course of almost 100 prior matters over 15 years.

The second is that the record indicated that the firm was relatively diligent about aggregating tasks into the minimum increments so that the minimum increment was not used as a method of easily increasing the charge to the client.

The Wyoming Supreme Court explained quite cogently the difference between the situation it had before it this time and other, prior circumstances in which it took lawyers to task for how they used their 15-minute minimum billing increment approach:

Manigault likens the firm’s use of a fifteen-minute billing interval to that which was the subject of a disciplinary proceeding in Casper.  In that case, the attorney employed a number of unethical billing practices and admittedly misused her fifteen-minute minimum billing interval.  She billed fifteen minutes every time she signed a document, and several times she billed fifteen minutes for reviewing a one-page document.  She also billed fifteen minutes to review a short document and then billed the same amount of time again for signing it.

In Casper, this Court discussed the practice of billing according to minimum intervals of six, ten, and fifteen minutes. . . . we observed it would be abusive to bill two fifteen minute charges for two five-minute phone calls in the same fifteen-minute period.

Nothing approaching that sort of unreasonable or abusive billing is evident on this record.. . .

[snip]

What is not often discussed is this concept of the need to still attempt to hew toward composite accuracy in the amount of time billed regardless of what minimum increment is used.  “Composite accuracy” might not be the right phrase but what I’m using it to attempt to describe is that the ultimate measure for a lawyer who bills by the hour has to be that you don’t use it to bill clients for more time in the day than the total time you actually spend working.

The truly pernicious problem for lawyers who attempt to still use 15-minute increments as their method of billing is how easily that can lead them to bill a collection of clients for 8 hours of time while only putting in 3 or 4 hours of actual work.  Or, more likely, billing 14 or 15 hours for a day where 6 or 7 hours of actual time was spent performing work for clients.

The Wyoming case also, unfortunately, gave credence to a common attempted justification by lawyers confronted with trying to justify the 15-minute billing increment that – to me – involves a significant amount of disingenuity:  that billing a client 15 minutes of time for a phone call that they know full well may have taken only 5 minutes is justified because the 15 minute time period also captures the time associated with stopping one task, shifting to the client’s task, making a note in the file about the interaction, and then trying to get back into the mindset of whatever you were working on before.

In modern practice, however, there is one dominant form of communication that simply – and often unequivocally – undercuts any lawyer that tries to use that justification.  Email.  Find me a lawyer who wants to justify a 15-minute minimum increment based on that kind of rationalization, and I strongly suspect that I can show that lawyer, by way of a review of their email history, that they turned much more quickly from answering an email for one client, to crafting an email for another client, then on to responding to some other email.

What that means is, if a lawyer is out there trying to charge their clients for 15 minutes of time for reading and responding to an email, which may have only taken them 5 minutes, and then attempting to justify it based on other things that were done or time lost as part of that, then it will often be extremely easy to demonstrate that within the same 15 minute period they will have replied or sent other emails to other clients on other matters and, likely, they will have billed that client for a 15 minute block as well.  This quickly adds up and is how a lawyer could easily manage in only 20 minutes of actual working time to attempt to bill for an hour of work.

That fudging of the numbers, of course, can also happen using 6-minute increments of time, which raises the ultimate larger point that I fear escapes notice of far too many lawyers:  no matter the minimum increment you pick (unless you are recording and billing for your time truly down to the minute), you are supposed to still be using that system as a proxy toward attempting to best capture your actual time spent.

That means that even if you are billing in 6-minute increments, you are supposed to be trying to bundle smaller tasks during the course of the day together into one of the minimum increments.  If, for the same client, you respond to 2 and only 2 emails during the course of a day and each one took you only a couple of minutes to address, you are supposed to bill that client for one .1 time entry – because you spent a total of 4 minutes working for them that day and you have arranged to bill them at a minimum increment of 6 minutes.  You are not supposed to bill .2 (12 minutes) for that 4 minutes of working time.  When lawyers do both this and opt for the minimum 15 minute incremental block, then the problems with the arrangement increase in magnitude because the lawyer ends up billing the client for 30 minutes of time for 2 tasks that only took 4 minutes to perform.

The intersection of the First Amendment and the Ethics Rules

So, I don’t know if any of you have ever played HQ Trivia.  In any session, they have between 500,000 and almost 2 million players, so statistically speaking, I guess there is a chance you have.  While it has nothing to do with legal ethics, in order to understand the context of what follows, let me give you a quick primer.

It is something that would have been 5 years ago the stuff of science fiction or an even an episode of Black Mirror.  It is an app on your phone through which you can play trivia in real-time answering questions read by a human being host.  Each question is presented with three multiple-choice answers and you have 10 seconds from when the host starts reading the question to click your answer.  If you answer correctly, you get to move on to the next question.  If you don’t, you are eliminated.  In the standard format, the quiz consists of 12 questions and, if you answer all the questions correctly, you win or split the pot with any other players who have done so.  (When the largest pots are offered they increase the number of questions to 15 or, quite recently, they have experimented with as many questions as is necessary to narrow down to just winner in a winner-take-all format.)

The dollar amount of the prize varies.  It is typically $2,500 but, as it appears they are closer to whatever plan they have in place for monetizing the app approaches, they have recently offered a pot as large as $100,0o0.  Reportedly, tonight they will be offering a $250,000 pot.  I have won the game on one occasion and, of course, when I did there were so many other winners that my share came to just shy of $2.  (I also know there are other companies doing similar games and some of those are competing against HQ on the basis of how awful one particular financial backer of HQ reportedly is, so I’m not going to link or provide publicity to the game, but it is the one I play [for better or worse] so if you decide to sign up for it and put in my user name – bsfaughnan- as a referral code then I will get some extra lives.)

Now all that is background for today’s topic – which is the intersection and overlap of the ethics rules and what they prohibit members of our profession from doing and the First Amendment.  This topic is frequently one I spend time thinking about because for many years my practice has also involved representing clients on First Amendment issues and, in fact, though I continue to not be listed in Best Lawyerfor Legal Ethics and Professional Responsibility, in addition to being listed for Appellate Law, I am listed for Litigation-First Amendment.  It is also a topic that I have been thinkng about frequently because of various events that have worked their way into my line of sight either directly or indirectly.  Those three events are: (1) the outpouring of comments from particular portions of the bar in Tennessee arguing that the proposed RPC 8.4(g) in Tennessee is an assault on their First Amendment rights; (2) the latest post from Avvo’s GC criticizing ABA Formal Op. 480; and (3) the head of a prominent law firm speaking out publicly to indicate that a star lawyer of his firm turned down the opportunity to represent the current occupant of The White House.

So, here’s the HQ-style question and, remember, there is only one correct answer.  You won’t be limited to 10 seconds to answer from the time you start reading the question however:

Which of these presents the most compelling case for finding that discipline against a lawyer would violate the lawyer’s First Amendment rights?

  • A lawyer tweets – without client permission – about a jury verdict she obtained in order to advertise the successful outcome.
  • A lawyer, during a CLE or bar association social event, decides to lecture everyone in the room about why he considers marriage between two persons of the same gender to be an abomination.
  • A lawyer, consulted by a politician who she finds to be vile, or have views she finds to be vile, holds a press conference or tweets that she refused to represent that politician because she disagrees with everything he stands for.

 

 

Outside counsel guidelines and term limits

While I am on something of a short streak of writing about people much more famous and influential than I am, it seems as good a time as any to offer my thoughts about the article that two very fine lawyers with Hinshaw & Culbertson wrote for The Professional Lawyer in 2017 about even more aspects of the growing problems outside counsel guidelines are creating for lawyers in private practice.  (These same two authors did an earlier article that talked about the problems with indemnity provisions in such guidelines – you can go read that here if you’d like.)  The more recent article was titled The New Battle Over Conflicts of Interest: Should Professional Regulators–or Clients–Decide What is a Conflict?

If you don’t know the article of which I speak, or it has been a while since you read it, you can go read it (again) here.

It is difficult to contest the point being made by the authors in this article, and the earlier one, that increasingly frequent provisions in OCGs are creating real problems for lawyers in private practice.  Particularly so, those pieces of OCGs that feel like they are overreaching related to who must be treated as clients for purposes of determining conflicts.

The authors summarize the nature of these issues quite well as involving clients using OCGs to “expand[] the definition of who is the client (far beyond the bounds of prevailing case law);” “limit[] the universe of other clients from whom lawyers and their firms may accept work;” and to “expand[] the definition of ‘interest’ and ‘positional’ conflicts in order to prevent lawyers and firms from undertaking or continuing to work for other clients that may take public positions on issues that the client unilaterally—and often ex post facto—deems adverse to its own interests.”

What I do disagree with, however, is the authors’ proposal for how to fix this problem.  The authors propose that states amend their versions of Model Rule 5.6 to make it unethical for lawyers to propose or agree to restrictions on their right to practice in connection with being hired by a client, just as is now the case for employment agreements or as terms for resolving a client’s matter.

Under the proposed revision, Rule 5.6 would read as follows (the bold and italicized piece being the new stuff):

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement
concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the terms of engagement of a lawyer by a client or of the settlement of a client controversy.

My immediate reaction to reading that proposal was to think of the problems I have whenever people argue for imposing term limits on their elected representatives.  You get the opportunity to vote people out every time they come up for re-election.  You shouldn’t need a law that limits the number of terms they can serve because you can always simply just vote them out of office in the regular course of things.

The solution to overreaching in outside counsel guidelines is equally simple: lawyers and firms should reject OCGs that go too far and refuse to agree to terms that unreasonably define who must be treated as the client or that become tantamount to restrictions on the right to practice.

The counterargument for that position is about the same as the counter-argument when the discussion involves term limits — the deck is typically too stacked in favor of incumbents so that the balance of power is truly off and that simply saying “you can vote them out” is naive.

The nature of present day demands on lawyers and law firms means that most firms and lawyers won’t be willing enough to turn work away to push back on outside counsel guidelines that are unreasonable and amount to overreaching.  Any firm that really wants to take a stand will have too much economic pressure on it to do so.  I hear the point, but, while that might be a pretty bad basis for enacting term limits and preventing some truly effective politicians from serving for as long as their constituents might like, it’s an extraordinarily bad basis for revising an ethics rule.

In particular, it is a bad basis for revising an ethics rule when there are already one or more ethics rules that lawyers can point to as being breached by aspects of the very OCGs being complained about.  For example, the authors point out that OCGs, in order to enforce their expansive requirements about what is a conflict, also impose obligations on the lawyer to tell the client about matters they are contemplating undertaking.  In so doing, these OCGs are demanding that lawyers agree to disclose information that they are obligated to treat as confidential under RPC 1.18 (assuming they have that provision in their state).

A lawyer who wants to refuse to agree to outside counsel guidelines of that type would have a strong, persuasive argument to offer not only about that violation but the potential risk that an in-house lawyer would have – if insisting that it remain in the agreement – of being considered to have violated their state’s version of Model Rule 8.4(a) which, in most places, makes it a disciplinary violation for a lawyer to “knowingly … induce” another lawyer to violate the ethics rules.

It also seems to me be a bridge too far for lawyers and firm to be able to demand that clients be permitted to agree to advance conflict waivers and similar contractual provisions which would serve to narrow the scope of conflicts but also demand that clients should not be able to propose that the lawyer agree to treat requirements of conflicts even more broadly.

The authors also offer an alternative to their own proposed revised language – perhaps to avoid issues associated with when a restriction would be made a term of engagement or not, by suggesting that Rule 5.6 could otherwise be revised simply in (b) to prohibit “an agreement containing a restriction on the lawyer’s right to practice.”  There would be significant problems — perhaps in the nature of unintended consequences – that would come from that alternate revised Rule 5.6 proposal.

If someone is being hired as an in-house lawyer, their corporate employer should be permitted to require that they restrict their practice to only representing the corporate employer and not represent any other clients while employed in-house.  Technically speaking, the second version of the revised Rule 5.6 wouldn’t permit that.  And, even if you are a private practice lawyer and one client wants to provide you with enough work that they also want to have you agree that you won’t work on any other matters for any other clients, why shouldn’t that be okay?

There are examples out there of such lawyers other than just Tom Hagen, the lawyer in The Godfather.

And, coincidentally, Hagen’s also a pretty good example of a lawyer who should have simply turned down a proposed client engagement rather than allowing economic benefits to sway his decision.

 

A sad day in the world of legal ethics

Professor Ronald Rotunda, a legend in the field of legal ethics, has passed away at the age of 73 from complications of pneumonia.  You can read a bit about the man here.

I disagreed strongly with Professor Rotunda’s politivcal views, but when it came to the world of legal ethics he was amazingly influential, highly intelligent, and more-often-than-not correct in his analysis of those matters.  (In fact, about the only times anyone ever had a chance of trying to demonstrate that he was incorrect on an issue of legal ethics were cases in which   I can see his Legal Deskbook on Professional Responsibility from where I sit,.

It is undoubtedly true that there are a relatively small number of truly invested, truly credible experts in the world of legal ethics.

That number is smaller by one with Professor Rotunda’s untimely passing.

An object lesson about “staying in your lane.”

Prominent technology blogger, Robert Ambrogi, has taken to Above the Law to criticize the latest ABA Formal Ethics Opinion.  In addition to attempting to savage it over being somehow untimely since lawyers have been blogging for almost 20 years, his primary substantive criticism of the opinion is that it makes no sense for an ethics rule to prohibit a lawyer from speaking or writing (or blogging or Tweeting) publicly about information that is already in the public record.

Ambrogi’s criticism is a bland (and perhaps satisfying at a surface level) kind of thing to say, but it reveals that the author is not someone who has spent a bunch of time working with, or thinking about, the ethics rules.

In the nature and spirit of “open letters to people who are unlikely to read them,” I offer this primer to Mr. Ambrogi on why our profession has crafted an ethics rule that does, in fact, err on the side of prohibiting lawyers from further discussing things even that are public record without our client’s consent or the need to do so to further the representation.

Dear Mr. Ambrogi:

Let’s pretend that I was currently representing a prominent legal technology blogger in a divorce proceeding.  This is, admittedly, a hard thing to pretend as I don’t do family law, but we’ll push on nonetheless.

In order to secure the desired divorce for the blogger, and because of the truly toxic nature of the blogger’s relationship with their significant other, I end up having to share a lot of deeply personal, highly intimate, and potentially quite embarrassing information in the complaint for divorce not only about the blogger but about the blogger’s significant other and that person’s various other romantic partners.

Now that happens in a state where it is very difficult to establish the need for court filings to be sealed, thus the complaint for divorce is a public record upon filing.  It also occurs in a state where, while it is true that court records are public records, they are not well-organized online and are not all that easy to locate.

Thus, my client knows that what is in the complaint is a matter of public record, but they are certainly hopeful that the information will not be widely disseminated and that these intimate and embarrassing items are only ever learned and read by people directly associated with the court process.

Now, if your approach to the ethics rule on confidentiality were what our profession had adopted, then I’d be free at a cocktail party, or on a blog, or in a Tweet to share the wild information about my client’s personal life because it was a matter of public record, and I could do so simply to entertain those around me.

I would hope at this point we would both agree that would be a bad approach for the ethics rules governing our profession to take.

Thus, to protect against that kind of ability to disclose information, the rules are crafted to start from the premise that lawyers ought not to talk publicly about their client’s matters unless they have the client’s consent or some legitimate reason to do so.  (This includes not only further communications impliedly authorized to carry out the representation but situations where it becomes necessary to make disclosures, for example, for the lawyer to defend themselves in other proceedings.  If the blogger’s significant other turned around and filed a defamation lawsuit against me over the publication in the complaint about the intimate details of that person’s life, the ethics rules would allow me to disclose information reasonably necessary to defend myself.)

So, as that ends my rant, I will conclude by saying that I still stand by (another writing that you are unlikely to read) my prior take that Formal Opinion 480 is a good one.