2020 too?

This past year has certainly been … something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice versa, and being bolstered along the way by a surprisingly large number of attorneys willing to file politically-motivated lawsuits that in normal circumstances I’d like to think wouldn’t pass muster under Rule 11 or RPC 3.1.

These anti-democracy lawsuits continue relentlessly with a parade of lawyers who don’t seem at all deterred by sanctions imposed against other lawyers.

So what will 2022 bring? Other than hopefully the end of the pandemic. Surely we will get that. Surely.

Here is where I go out on a limb and make a prediction or too about the world of legal ethics over the next year.

First, given the focus of media attention on lawyers who continue to help high-profile clients pursue questionable legal objectives — not all of which involve subverting democracy of course — I think there will be significant attention and action taken on further defining prohibitions on lawyers assisting unworthy clients in illegal endeavors.

Along those lines, with a particular focus on combatting lawyer-involvement in money-laundering activities, the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Regulation circulated thoughts on potential ways to address that issue better in the ethics rules in a memo put out seeking public input on December 15, 2021. The memo previews a number of possible ways that the comments to the rules could be amended to better define obligations of lawyers in doing due diligence on clients and toward having lawyers have obligations to report suspicious activity.

Interestingly, the memo floats no proposed changes to any rules but only in the guidance offered in comments to rules. Thus, for example, there would be no effort under such a proposal to remove any ethical barriers that currently exist to forcing attorneys to support suspicious transactions beyond what already would be required by law. The potential revisions include:

  • Addition of a new Comment [11] to RPC 1.0 indicating that, as to a lawyer’s knowledge, that it “may be derived from the lawyer’s direct observation, credible information provided by others, reasonable factual inferences, or other circumstances.” And that a lawyer “who ignores or consciously avoids obvious relevant facts may be found to have knowledge of those facts.”
  • Adding several new sentences of guidance to Comment [5] to RPC 1.1 including: “In some circumstances, competent representation may require verifying, or inquiring into, facts provided by the client. Ignoring or consciously avoiding obvious relevant facts, or failure to inquire when warranted, may violate the duty of competence.”
  • Adding significant new language to the Comment to RPC 1.2 including: “To determine whether further inquiry is warranted regarding whether a client is seeking the lawyer’s assistance in criminal or fraudulent activity, including money-laundering or terrorist financing, relevant considerations include: (i) the identity of the client; (ii) the lawyer’s familiarity with the client; (iii) the nature of the requested legal services; and (iv) the relevant jurisdictions involved in the representation (when a jurisdiction is classified by credible sources as high risk for criminal or fraudulent activity).”

You can read the entire memo here and, if you happen to be planning to be in Seattle in February, you can plan to participate in a public roundtable discussion about the potential proposals.

Another area that I predict will be the subject of significant attention in 2022 is whether changes to RPC 5.5 are needed to better address modern legal practice. The restrictions imposed on the ability of a lawyer duly licensed in one state to represent clients in other states or to handle matters because they involve laws of a different state have been questioned, off-and-on, over the years, but the last almost two years of practice in a pandemic has helped push things to a potential boiling point. Perhaps never before has it been easier to make people see the relative-absurdity that RPC 5.5 can prohibit a lawyer with 20 years of business law experience licensed in South Dakota from representing a client in North Dakota who needs a contract drafted but would not prohibit a lawyer licensed in South Dakota who has never handled a tax matter in 20 years of litigation experience from representing a South Dakota client in a tax dispute. I anticipate that 2022 will bring efforts from a number of different groups to seek to modify RPC 5.5 to better offer “full faith and credit” to a lawyer’s law license.

In the meantime, thank you ever so much for your readership, stay safe, and I will see you again in January 2022.

This for Thursday.

Originally, I had plans to do another of those three-in-one posts for today, but we have some news from Tennessee, so we are pivoting to just focus on that development.

I’ve written previously about the Court’s proposal to improve upon the approach to intermediary organizations in Tennessee. Well, yesterday, the Court entered an order adopting those proposed rule revisions effective January 1, 2022.

This means that, starting next year, this better, but not perfect, approach to addressing entities that offer “matching” and similar services between lawyers and consumers of legal services will come into existence.

No longer will such entities have to register in any fashion with the Board of Professional Responsibility because Tenn. Sup. Ct. R. 44 is being deleted. As a result, it will no longer be inherently unethical for a lawyer to accept fees from a client who found their way to the lawyer through an unregistered service.

Instead, whether it is ethical for a lawyer to do business with such an entity will turn significantly more on how transparent the arrangements are and the lawyer will be charged with doing the due diligence about any such entity.

Now, I mention that the new rules approach isn’t perfect — because it is not — but also as a way of justifying highlighting what I anticipate will remain as the “thorniest” issues for lawyers who want to work with such entities.

First, what will we mean when we say, “such entities?” As revised, Tennessee’s RPC 7.6 will apply to lawyer-advertising cooperatives, lawyer referral services, lawyer matching services, online marketing platforms, prepaid legal insurance providers, and “other similar organization[s] that engage[] in referring consumers of legal services to lawyers or facilitating the creation of lawyer-client relationships between consumers of legal services and lawyers willing to provide assistance for which the organization does not bear ultimate responsibility.”

Now, this still has a “catch all” concept, but it might be “better” than the previous catch all in terms of likely to snag fewer companies in its net. Regardless though, it constitutes an improvement in terms of the perspective of both lawyers and consumers, as well as servicer providers, because even if swept into the net, these entities will not have to go through any registration process with the Board.

Second, what will be the easy issues for lawyers to navigate. I think that it will be pretty easy for a lawyer to know whether the organization is trying to direct or regulate the lawyer’s professional judgment, and whether the organization is owned or controlled by the lawyer or their law firm. It will also be easy, perhaps not as easy, but still easy for the lawyer to ensure that the function of the referral arrangement is fully disclosed to the client at the beginning of the interactions with the lawyer and whether the organization “makes the criteria for inclusion available to prospective clients” including payments and fees at the beginning of the client’s interactions with the organization.

Finally, the sticking points. What will be significantly more difficult for the lawyer to determine will be whether the organization, including its agents or employees, are doing anything that involves improper solicitation under RPC 7.3 in Tennessee and whether the organization is only requiring the lawyer to pay “a reasonable sum representing a proportional share of the organization’s administrative and advertising costs.”

And, candidly, this last piece is where the need for further reform exists — it shouldn’t matter what the organization and the lawyer agree is going to be paid in terms of compensation as long as that deal is made fully transparent to the client.

Until then, this rule also at least provides some further protection for lawyers if they end up struggling with being able to figure out these two tougher sticking points because if they discover a problem after they get involved, they don’t have to immediately stop participating. Instead, they can first seek to get the organization to correct the noncompliance. Only if they cannot convince the entity to correct things do they have to withdraw from participation. Importantly, withdrawal from participation in the arrangement is what is required and not withdrawal from representing any client that may have found their way to the lawyer through the program.

Second chance to play Peril!

Allow me a short promotional post that can (almost) be justified as a public service to lawyers (at least some Tennessee ones).

This past Tuesday I did the first of two presentations of the 2021 Ethics Homeshow. We go again next Tuesday at 11:30 central. If you still need an hour of CLE credit, you can still register an play Peril! with us. We covered 14 topics in an hour this week, and we have 16 potential topics left to reveal.

It’s a fast-paced presentation, mildly fun, requires very little of you other than helping choose the squares through chat, and I will, once again, wear my game show hair as you can see in a screen shot from this week down below.

If you’re interested, and not already registered, you can do so here.

The thing about doing bad things on purpose…

Is that you have to be perfect about it pretty much all of the time.

I’m not going to tell you that there are only two kinds of people in the world because I know that kind of thing is only used as the set up to really good jokes. But among the various kinds of people in the world are people who follow the rules because they believe in rules and want to do right and people who only follow the rules because they are afraid of getting caught.

As to that second category, if they really think they can get away with breaking a rule they just might try. Another kind of person is the kind that has no problem flouting rules and sometimes does not even think about the consequences of getting caught.

I have no idea which kind of person the lawyer we are writing about today is but, regardless, this tale provides supporting evidence of two things: (1) the convenience of Zoom depositions does probably also increase the risk that lawyers will improperly try to coach witnesses if they think they can get away with it; and (2) the point made in my title plus introductory sentence … if you are going to do bad things on purpose you pretty much have to be perfect about it or you likely will get caught.

You can read the full opinion suspending this lawyer for 90 days for improper coaching of his client during a deposition here. His approach was not a very high-tech one but the one that I think many lawyers believe is going on when they suspect the other side of coaching during these kinds of depositions — he was sending text messages to his client. The opinion lays out the blunt nature of the “coaching” that the attorney (James) was doing with the client (Gray) during the questioning by the opposing counsel (Villaverde):

The following messages were exchanged between Gray and
James during Villaverde’s questioning of Gray:

10:19 a.m. (James): You don’t
10:20 a.m. (James): As to settlement checks expiration
10:20 a.m. (James): You remember the deposition but not discussing checks
10:20 a.m. (James): yes
10:21 a.m. (James): Just review notes from 02/20/2018 forward
10:23 a.m. (James): Be careful just say
10:23 a.m. (James): You may not see today
10:25 a.m. (James): Take a break in 15 minutes?
10:25 a.m. (Gray): Up to you

The opinion also details how all this misconduct came to light. So, in a development that some might say actually does shed light on which type of person this lawyer is, after 10:25 a.m., opposing counsel called out what he heard as typing during the deposition and confronted the lawyer and the witness about whether they were texting each other during the deposition. They denied the allegation and the lawyer claimed he was only receiving a text from his daughter. All the same opposing counsel requested that the lawyer put his phone away and the lawyer agreed.

Then after a break, the lawyer sent the following text messages:

11:53 a.m. (James): Just say it anyway
11:53 a.m. (James): Just say 03/28
11:54 a.m. (James): In addition to the 03/28/2018 email
containing the signed release I show . . .
11:55 a.m. (James): Don’t give an absolute answer
11:55 a.m. (James): All I can see at this time but I cannot rule out existence
11:55 a.m. (James): It’s a trap
11:56 a.m. (James): Then say that is my best answer at this time.

The text messages above, however, were somehow sent to the opposing counsel instead of the lawyer’s client. Once the opposing counsel checked his phone and saw the messages, the jig was up, and the result was the 90-day suspension for violating RPC 3.4(a) because coaching a witness about how to testify during ongoing deposition testimony is easily understood as “unlawfully obstruct[ing] another party’s access to evidence….”

Now above I mentioned that this case likely will confirm suspicions lawyers have that Zoom depositions bring a greater risk of “cheating” by the lawyers involved. In fairness, that is something of a pretty big leap because, in case you were wondering, the deposition involved in this case happened back in 2018 and occurred over the telephone, not on Zoom during the pandemic.

Florida again. Sigh.

It has only been a little over a month at this point since I wrote about how Florida was a hopeless place.

Well, here we are again. The Florida Bar Board of Governors has unanimously rejected a few proposals aimed toward progress in the re-regulation of the practice of law in the last week or so. Now, I want to be realistic in both my outrage and disappointment.

So, let’s talk first about the much less surprising piece of this development because it is just Florida rejecting something that, to date, most every state has rejected and only two states and the District of Columbia have been willing to consider or enact.

The Florida Bar Board of Governors rejected a proposal that had been submitted to it by a Special Committee to Improve the Delivery of Legal Services established by the Florida Supreme Court. That proposal would have involved amending Florida’s ethics rules to allow some nonlawyer ownership in law firms as long as the majority ownership interest was still in the hands of lawyers and to allow fee-sharing to occur between lawyers and nonlawyers. The proposal involved the notion of giving these kinds of items a try in a regulatory sandbox approach rather than simply throwing doors open wide.

Given that, to date, only Arizona and Utah have joined D.C. in allowing for people without law licenses to have an ownership interest in a law firm, the fact that the Florida Bar rejected this proposal is really not surprising. It is maybe a little bit surprising that the vote was 46-0 and 45-0, but ….

Now, the other aspect of the Special Committee’s suggestions that was rejected at the same time really is a cause for outrage and disappointment. These suggested revisions targeted Florida’s regime for regulating lawyer advertising.

Florida has long been an embarrassment to the profession when it comes to its approach to restricting advertising by lawyers. And while reasonable lawyers can disagree about whether revisions to ownership regimes and fee-sharing are an inherently good direction for the profession to pursue, the notion that Florida can continue to insist that it’s approach to lawyer advertising makes sense is beyond the pale at this point.

The Special Committee had suggested revisions to the Florida advertising rules that were intended to streamline the rules — in large part this was proposed to be done by moving some of the more detailed rules into comments — if this sounds familiar to readers of this blog that would be because it should be. This kind of revision was recently enacted in Tennessee, and the Tennessee endeavor was inspired by the same things that inspired the proposal of the Florida Special Committee, the work of APRL in encouraging these kinds of revisions and the adoption by the ABA of more streamline advertising rules. The Florida Special Committee also proposed ending Florida’s mandatory review process of lawyer advertisements that offer more than just basic information or are not law firm websites.

The notion that a prominent member of the Florida Bar Board of Governors could explain opposition to such proposals by saying:

“While well intentioned, I think both of them are ahead of their time,” Sellers said.

That is the stuff of farce if not outright gaslighting. Ahead of their time? I guess if Florida wants to insist that it is the 1990s down there in terms of the refusal to streamline, and I guess the 1970s down there in refusing to stop imposing a prior restraint on constitutional speech, then, sure.

The notion that the vote on that was also unanimous (43-0) is extremely unsettling.

To be clear about what we are talking about when we talk about Florida’s advertising rules, these are rules that still, in 2021, have an entire separate rule prohibiting certain forms of advertisements as being somehow “unduly manipulative” because they contain the image or a voice of a celebrity. This is a state that has rule that also makes it improper to advertise using “an image, sound, video or dramatization in a manner that is designed to solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client.” This is a state that still has an entire separate rule that purports to tell lawyers what content for their advertisement will be “presumptively valid content.”

All of that is bad enough, but the notion that Florida still imposes a pre-publication review requirement for commercial speech — a concept that is anathema to any reasonable understanding of the First Amendment — and that its governing body of lawyers just reaffirmed unanimously that this should continue is just … sad.

It’s another fine day to abolish the bar exam.

Now is another of the various times of year throughout the nation when law school graduates finish waiting anxiously for bar results and find out whether they passed and get the opportunity to start digging their way out of the debt they amassed in law school or failed and, thus, have to wrestle with the “sunk cost” fallacy and decide whether to amass some more debt to take another shot at passing the exam.

I’ve written a little bit before about how I’ve come to conclude that the bar exam needs to be abolished. I have admittedly not always felt this way but have come to the position over time and (I happen to think) because of growth and a better appreciation for the fact that it is a test that does not measure in any meaningful respect whether the examinee has the skills to be a competent attorney.

That was true even before the pandemic and the “pivot” from in-person exams to online undertakings but has become even more undeniable over these last 18 months.

Very, very little of the work of an attorney involves memorizing things and knowing answers off the top of one’s head. Success during a law school career spread out over three years is a much more reliable indicator of whether someone should be issued a law license. Now that states have had to partner up with software companies to administer the bar exam remotely — an opportunity that could have been used as a perfect vehicle for shifting what is tested to an open-book format that might better test the skills that an actual lawyer would have to use going forward has instead become a test of resources and sometimes just endurance.

Over the pandemic there have been a variety of news articles about the plight endured by folks taking the bar exam online. To the extent those stories ever mentioned litigation it involved efforts before an exam occurred to try to stop it from happening under certain terms and conditions or various kinds of petitions under state procedures to try to convince courts to grant a diploma privilege in lieu of requiring the exam take place.

What you do not hear a lot about is any efforts to sue by someone who fails the bar exam to seek a court ruling that they should be considered to have passed instead. There is a very good reason for that. Most states strictly circumscribe the grounds upon which the outcome of the grading of a bar exam can be challenged.

As an example, here in Tennessee, Tenn. Sup. Ct. R. 7 takes great pains in explaining the various mechanisms for seeking to have the Tennessee Supreme Court review actions of our Board of Law Examiners that are believed to have aggrieved someone seeking their license to make clear that the decision about whether you obtained a passing score is not reviewable.

Sec. 13.02. Petitions to Board.

(a) Any person who is aggrieved by any action of the Board involving or arising from the enforcement of this Rule, other than failure to pass the bar examination or a determination that an applicant has not completed the application process for an examination, may petition the Board for such relief as is within the jurisdiction of the Board to grant.

(emphasis added)

ARTICLE XIV. REVIEW OF BOARD DECISIONS

Sec. 14.01. Petition for Review.

Any person aggrieved by any action of the Board may petition the Supreme Court for a review thereof as under the common law writ of certiorari, unless otherwise expressly precluded from doing so under this Rule. 

Sec. 14.04. No Review of Failure to Pass Bar Examination.

The only remedy afforded for a grievance for failure to pass the bar examination shall be the right to re-examination as herein provided.

Now, at a surface level, this makes perfect sense because absent such a restriction you could foresee graduates seeking a redo of a subjective process – grading – in court. But, given the kinds of technological failures that are coming to light from the less-than-ideal approaches being taken to online examinations and approaches to remote proctoring when the exam is administered online, the notion that asking courts to step-in and change unfair failing grades to passing grades is verboten seems worthy of some reconsideration.

And with all of that as a pretty lengthy prologue, that brings me around to what prompted these thoughts today — this story about a graduate who missed a passing score on the remote bar exam by 5 points and has filed a petition in Arizona seeking a law license because, while he was taking the exam, the software crashed, costing him the time it took to reboot his computer and that caused him to have to redo the portion of an answer he was working on. Importantly, the graduate’s score on the portion of the exam being worked on at the time of the crash was significantly lower than the score obtained on the other portions.

This kind of lawsuit can potentially be filed in any state – even in the face of a Court’s own rules seeking to handcuff itself – in reliance upon the inherent authority that the highest court of any jurisdiction has to determine who should, or should not, receive a law license. But interestingly in Arizona at least, the relevant rule appears to provide some wiggle room for directly challenging whether a passing grade was obtained.

As the Petition itself explains, Arizona Sup. Ct. R. 35(d) provides that “the Committee on Examination’s decision regarding any applicant’s grade score is final and will not be reviewed by the Court absent extraordinary circumstances.”

Hopefully, before there become enough instances of this type of outcome becoming “ordinary” circumstances, this applicant’s challenge will be successful and other jurisdictions will thoughtfully tackle the entire question of what purpose does the bar exam actually serve.

The scams evolve. So too must lawyers.

I mentioned in a prior post that I was going to be fortunate enough to preside over the first in-person meeting of APRL in many, many moons last week.

I’ve also written in the past about APRL has begun working into its programming items we call “Fred Talks.” These are Focused. Rapid. Ethics. Discussions. Shorter and snappier presentations focused on an ethics issue or topic that is of interest but that might not justify a longer presentation than 10-12 minutes of time.

I think APRL’s program in Chicago went pretty well, and we avoided most technological glitches that might come from something of a hybridized program. It wasn’t a true hybrid as large parts of the program were simply available as a live stream to online attendees. But, I think it went fairly well.

At least it did up until it was time for me to present by own Fred Talk. That’s when things melted down. So, as promised to attendees, here is my Fred Talk on a new iteration of a potentially very devastating (and pretty sophisticated) scam that is targeting lawyers.

I Take No Joy in Writing This.

So, a relatively quick post for this week in terms of content as I’m thrilled to be somewhere else and to be presiding over the first in-person meeting of APRL in two years.

A lawyer in Tennessee brought my attention to an article in a recent ABA publication where two academics, Professor Peter Joy and Professor Kevin McMunigal, write to embrace another academic’s theory (Professor Jon Bauer) published 13 years ago that Model Rule 3.4(f) should be read to absolutely prohibit lawyers from participating in non-disclosure agreements. The new article is “The Ethics of Buying Silence,” and it is in the ABA Criminal Justice publication for Fall 2021. The Bauer piece was in the Oregon Law Review back in 2008 and was titled “Buying Witness Silence: Evidence Suppressing Settlements and Lawyers’ Ethics.”

The context for the more recent discussion of the argument is the pretty shameful use of NDAs in the representation of Harvey Weinstein to seek to prevent victims of a sexual predator from speaking out. But that doesn’t change the fact that the argument that this is the meaning of the rule just seems to fail on its face so obviously.

Granted, I admit that a couple of states over the years have issued ethics opinions adopting the same rationale, and I’ll admit that I haven’t had time to dig into those state’s versions of the rules to see if there is any difference from the Model Rule, but Professor Joy and others’ argument as to the Model Rule itself is, in my opinion, just wrong.

It also seems weird for these two professors to say that “[t]hose who argue that NDAs are not unethical tend to ignore the language of Model Rule 3.4(f).” No, the language of the rule itself is almost all the evidence I need to make my point.

For context, the rule we are talking about says that a lawyer shall not:

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

This is a rule, Rule 3.4, that is titled “Fairness to Opposing Party and Counsel.” This a rule that uses both the term “person” and the term “party.” This is a rule that absolutely, and clearly, contemplates the existence of litigation at the time of its application. This is a rule that prohibits a lawyer, in connection with a litigation matter, from trying to stop someone other than their own client (or as the rule indicates a family member of the client or the client’s employees or agents) from agreeing to voluntarily provide relevant information to the opposing party (or some other party) in that litigation.

Two of the four comments to the rule even more clearly make the point about the context of the rule:

[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

Model Rule 3.4(f) is not a rule that can reasonably be read to apply to an agreement that is entered into as a matter of contract between two or more contracting parties well in advance of any litigation about what is being made the subject of the contract ever existing.

It just can’t. And I don’t even have to trot out the language in the Preamble/Scope about how the ethics rules are rules of reason and must be construed as such to cut the legs out of the argument. And the proponents who are arguing that it prohibits all NDAs reveal that even they know their effort (if not their analysis) is flawed when they admit that there are certain forms of NDAs that they would agree with and that ought to be permitted, such as in the realm of protecting trade secrets or in resolving breach of contract actions before litigation is brought.

Just stop. If you want the rule revised, spend your time arguing for how to revise it. Admittedly, these two professors sort of do that by urging the ABA and states to take actions to “clarify” what RPC 3.4(f) means but trying to argue that the rule already means that – when it doesn’t – just seems disingenuous.

Florida is a hopeless place.

No, I’m not going to have to get into talking about that it has a joke of a governor and has been actively trying to not make decisions in the best interest of public health during a crisis.

I’m just going to focus on two developments in the legal ethics space that have occurred in the last 24-48 hours.

First, in something that will be given short shrift because of the second development, the Florida Bar has advanced a proposal to revise its rules to establish that disciplinary complaints filed by judges against lawyers should be entitled to greater weight than other complaints. I have defended many lawyers in disciplinary proceedings. I have defended lawyers when complaints were filed against them by judges. The fact that a judge has filed a complaint against a lawyer does not inherently mean that the complaint should be entitled to more weight nor that it should be harder to convince disciplinary counsel to drop the complaint. This kind of proposal is problematic on at least two levels – One is that it becomes ripe for abuse by judges. But the other is that it inherently indicates an existing flawed process must exist already. Either you have a mechanism for enforcing discipline that can appropriately investigate and evaluate a complaint to determine if it should be pursued or you don’t. If you tell the public that complaints from certain categories of people need to get special treatment, then you don’t.

Second, you might recall many years ago I wrote a series of posts about the TIKD app down in Florida and its fight with regulatory authorities. What you might find crazy is that up until today the Florida Supreme Court had not gotten around to ruling on the question of whether TIKD was engaged in UPL. Well, the Florida Supreme Court ruled today and what you might find even crazier is that they concluded that the TIKD app was UPL and entered an order permanently enjoining it from operation. The Florida Supreme Court did this even though that the referee that initially heard the matter granted summary judgment in favor of TIKD. Madness.

Three justices attempted to stave off this madness in their well-done dissent. That part of the opinion starts at p. 21 of the link above.

If you don’t have the time to read that part, the following two snippets would tell you what you need to know:

TIKD formulated no legal strategy. It gathered no evidence. It filed no court papers. It made no court appearances, no arguments to a judge or jury. Other than in explaining its offerings on its website, it answered no questions. It did not, because it could not, promise its customers that their communications would be privileged. In short, if you had hired TIKD to solve your legal problem and received only what the company offered—without the
services of the member of The Florida Bar it helped you find—you probably would have wanted your money back.

That is because TIKD offered not legal services, but a business proposition: hire a lawyer we introduce, at a fee we set, and you will not bear the risk that the lawyer’s services, or indeed your ticket, will cost you more than our fee. Offering that bargain does not constitute the practice of law, and thus cannot have constituted the unauthorized practice of law. Because today’s decision reaches well beyond our constitutional mandate to “regulate the admission of persons to the practice of law and the discipline of persons admitted[,]” art. V, § 15, Fla. Const., and into the business arrangements of people trying to solve their legal problems, I respectfully dissent.

If you ever wanted to think about just how difficult the task of regulating the practice of law will be and how entrenched some mindsets are within the bar and the judiciary, today is the kind of day to mull it over.

They knew he wasn’t covered. That was the original problem.

Some lighter fare for today but you are stuck with the cringeworthy title.

I have a stack of important potential topics to write about, but the ABA Journal online today reeled me in with their headline on this story (“Litigants claiming GEICO auto policy covers STD from car sex can’t proceed anonymously, judge rules.”) and reading the order in the case only fascinated me further. And it really was not just from a prurient interest perspective, nor just from an “I can’t believe someone was willing to make these kinds of arguments” perspective, but also as a fact pattern that works as a pretty good template for examining multiple ethical obligations of lawyers.

The opening scene, almost unbelievably, of this story is the inside of a 2014 Hyundai Genesis. Two adults, M.B. and M.O. are inside that vehicle and having sex. The sex was unprotected. M.O. later contracts an STD and concludes that M.B. was the source. M.O. contends that she did not know that M.B. had the STD and contends that M.B., who is alleged to be fully aware, certainly never told M.O. that he had the STD.

So, how does this end up in litigation at all, much less litigation that gets a mention in the ABA Journal online? If you guessed an automobile insurance coverage dispute prompting the filing of a declaratory judgment action by the insurance company in federal court, then … well I guess the ABA headline does help a reader ferret out that possibility.

And how did the insurance company find itself in a position where it thought it needed to file a declaratory judgment action? Well, M.O. drafted up a state court lawsuit against M.B. for negligence and negligent infliction of emotional distress, sent the draft to M.B.’s insurance company and demanded settlement with payment by the insurance company of its $1 million policy limits to avoid the suit.

When the insurance company did not agree, the lawsuit was filed and then the parties entered into an agreement under a particular Missouri statute that allows an insured to agree to settle a case but limit the other side’s ability to collect on the settlement only to what they can get from the insurance company.

The insurance company headed over to federal court to file its declaratory judgment action. The parties to the state court action agreed to arbitrate their dispute and the matter resolved with a $5.2 million judgment against M.B. They then proceeded to enroll and seek confirmation of that arbitration award in state court and try to take steps to levy against M.B.’s auto insurance policy.

What was the order that put all of this into the national legal news spotlight? A 23-page order in the federal court proceeding about whether M.B. and M.O. can proceed in the federal court litigation anonymously. Seriously, the Court managed to need 23 pages to work through all of the procedural issues created by the fact that the insurance company — taking its cue from the fact that the parties used pseudonyms in the state court litigation — filed the suit against M.B. and M.O. anonymously. The court ultimately decided that once it rules upon a motion to dismiss focused on personal jurisdiction brought by M.O. (who contends that the sexual intercourse occurred in Missouri and that she shouldn’t be able to be sued by the insurance company in Kansas) any remaining defendants will have to proceed under their real names. And, in so doing, also seemed to engage in bit of unnecessary kink-shaming: “Furthermore, any allegedly private details became less private (although the court questions how private those details actually were if they were having sex in a car) when M.O. sent GEICO a demand letter making an insurance coverage claim.”

Now setting aside the notion that this whole scenario could be used to demonstrate how broken litigation is generally and why it is such an overly expensive proposition, a variety of fun legal ethics questions can be teased out of this matter.

How in the world does a lawyer comply with RPC 3.1 by advancing an argument that the transmission of an STD as a result of sexual intercourse inside an automobile is an injury for which automobile insurance coverage would apply? At first blush, that would seem a real stretch to be able to claim you have a “good faith argument for an extension, modification, or reversal of existing law.” Yet, it is certainly likely to be a question of first impression and so some level of lenience likely exists if there is arguably no existing law addressing the claim or contention at all.

Assuming that the parties did “collude” at least a bit with respect to the arbitration of the matter, at what point, if at all, would it become ethically problematic for a lawyer for either M.B. or M.O. to knowingly go along with such events? Would it matter if those lawyers were limiting their involvement to obtaining the judgment as to M.B. and have not been involved in helping try to collect against the insurance company? And does the existence of the kind of procedural statute that Missouri has muddy that water, I mean what exactly is the purpose of a statute that says an insured can go ahead and agree to settle a case with someone as long as the other side agrees they can only collect from the insurance company other than to encourage at least marginally collusive settlements that become the insurance company’s problem in the end?

And, if the lawyer involved found a way to get comfortable that arguing for coverage under the automobile policy passes muster under RPC 3.1, does the lawyer have to be worried that they didn’t also try to pry money out of M.B. home insurance policy? After all, the federal court decision in talking about the jurisdictional questions and the kinds of issues that could come up in the underlying dispute makes the point that only some of the sexual intercourse occurred in the Hyundai while some of it occurred in M.B.’s house.

Could the lawyer carve out pursuing any other insurance companies as part of a reasonable limitation on the scope of the representation under RPC 1.2(d)?

I’m sure I’ve missed at least one other ethics issue in there somewhere… feel free to be the first to let me know.