Three short burst updates

In case you haven’t yet “checked out” for the week to have what I hope is a makeshift, stay-at-home Thanksgiving banquet to kick-off your holiday weekend, here are four very short but, mostly timely, updates on topics of prior posts.

First, the Tennessee Supreme Court has put the TBA advertising rule revisions proposal out for public comment. You can access the order here. The deadline for public comments is March 12, 2021, so you can anticipate that if these revisions are adopted, they likely will not be going into effect prior to May or, more likely, June 2021 at the earliest.

Second, despite the fact that most if not all of the “battleground” states have certified their results, the outgoing, impeached, one-term President’s lawyers do not seem to be relenting on their insistence on court filings and out-of-court false statements. The ongoing behavior has spurred quite a few prominent voices in legal ethics to speak out on the issues, but that there appear to be clear violations and also the reasons that there will quite likely never be any discipline imposed. You can read a couple of different articles surveying the landscape here, and here. Also, as a slightly more direct follow up to my post from late last week, you can read this article from Reuters that includes some interactions with yours truly.

Third, and technically not what would typically qualify as an “update,” nor possibly even a “short burst,” lawyers continue to have difficulty navigating protecting client confidences when seeking to withdraw from representations. I haven’t written about any instances of lawyers getting disciplined for such missteps in a long time, but there now is an extremely recent example of a lawyer being publicly censured for exactly that, and it arises from my home state. You can read the press release about the public censure here.

The press release, unsurprisingly, does not contain much in the way of details beyond indicating that the problematic conduct was “negligently disclosing confidential client information in an affidavit filed with [a] Motion to Withdraw from representation.” In fact, it would be horrible if too many details were included in such a press release when the underlying problem was the lawyer disclosing too much information in connection with seeking withdrawal.

What is a little surprising is that this discipline came about only have a full trial before a hearing panel. If you’d really like to know more of the full story, you can read the Hearing Panel judgment after the trial at the link below. (Bad link replaced with PDF download.)

For those readers who may be thinking to themselves, sure but I would never make that kind of error, the lawyer in question has been licensed in Tennessee for nearly 50 years. So maybe you shouldn’t be so confident?

But, for the benefit of those same readers, the lawyer in question also made clear in his efforts to defend himself in the proceedings (a fact that likely explains the need for the trial) that he did not comprehend (even after 50 years of practice) that the ethics rules impose an obligation of confidentiality that is much broader than the attorney-client privilege.

So, maybe you can be confident?

Just the normal scrutiny.

I need something fun in my life at the moment to help deal with some of the insanity that is all around us all.

So, let’s tell something of a non-linear story about how haphazardly the disciplinary rules can be enforced as against lawyers. (Okay, so maybe you and I see “fun” differently.) Typically, many folks who do what I do for a living will tell you that the biggest divide in disciplinary enforcement is between how solo practitioners and lawyers in very small firms are more often singled out and disciplined than are lawyers who practice in large firms.

But this is a story of someone who now appears to be a solo practitioner, and who, as we will now discuss, is engaging in something of a speed-run through the rules of ethics to see if he can violate all of them in one 2-3 week period. But this solo practitioner, I’d be willing to bet (were I a betting man) will not face the consequences for his conduct that any other solo practitioner might face.

This is a story that, I think, reveals that the real imbalance in rules enforcement is between those who are powerful and those who are not. Yes, dear reader, this is a story about the absolute trainwreck of a lawyer who is the personal attorney to the outgoing President of the United States.

If you are truly a glutton for punishment, you can go listen to the complete audio recording of the hearing on November 17, 2020, during which this attorney demonstrated ignorance of enough important legal concepts to raise questions about compliance with Rule 1.1 regarding competence, but, more troublingly, also made quite a few statements to the court that could trigger discipline for untruthfulness under Rule 3.3 and Rule 8.4(c) and all in the pursuit of claims and contentions that are so unmeritorious as to run afoul of Rule 3.1.

But, perhaps even more remarkably, this attorney’s participation at the hearing only came about, at least in part, because he was willing to make false statements in his pro hac vice motion for permission to appear.

(As a side note, literally as I’m trying to write this post, this lawyer is holding a press conference, sweating his hair dye down both sides of his face, and continuing with just objectively, provably false statements that would also seem to trigger real ethical issues under Rule 3.6 if his client wasn’t also hastily withdrawing lawsuit after lawsuit through voluntary dismissals. )

Image

(Now, a different lawyer, part of the same team, is engaged in rhetoric that appears to be inciting militias to take the election outcome into their own hands. She was followed by another, different lawyer, accusing unnamed election officials of committing fraud. Again, all of these are statements being made that fly directly in the face of actual evidence. The hair dye sweat image is funny, but turns out nothing else about this is fun.)

In making his application for pro hac admission in a federal court case in Pennsylvania, and thus deciding to appear in federal court again for the first time in 30 years, this lawyer filed a motion that indicated that he was licensed and in good standing in a number of different jurisdictions, including D.C. But as this article walks you through, a number of people have confirmed that the attorney is actually current administratively suspended in D.C. for failure to pay certain fees.

That’s not how these things are supposed to work and falsely representing one’s status to a federal court to gain pro hac admission would expose regular lawyers to a significant risk of discipline. Among other rules implicated by that kind of conduct, RPC 7.1 requires lawyers to refrain from making false statements about themselves or their services.

And to keep to my commitment that this post be a non-linear story, I will close by saying that the press conference mentioned above will likely go down in history as being most memorable for the “My Cousin Vinny” reference, but that little anecdote itself was in furtherance of just the titanic levels of mendacity on display from this lawyer. The anecdote involved reference to the portion of the movie where Joe Pesci’s character impeaches the credibility of an eyewitness during cross-examination and pointing out how her version of events was unbelievable once she demonstrated that from a similar distance she could not tell how many fingers Joe Pesci’s character was holding up. Yet, the only way the story was at all germane was because this lawyer was trying to use it in aid of lying about how far away ballot count observers were when allowed to observe the counting of ballots.

Will any of this end up in the imposition of any discipline or consequences? I’m highly cynical. Candidly, given the lengths he is willing to go, and the lengths his client is willing to go, to subvert democracy, the United States will be lucky if this lawyer just continues to be subjected to public ridicule and derision.

Nebraska brings us … this.

It’s been something of a big month for Nebraska. First, thanks to its divided approach to providing electoral votes, it is contributing one of the electors totaling up to President-Elect Joe Biden’s 306 electoral votes. Second, like everywhere else in the United States (my state is doing just as bad if not worse) unfortunately, it has seen its COVID-19 numbers surge in November.

Third, and relevant to this space, it has issued an ethics opinion of note. It deserves a bit of discussion because it takes what could be a very interesting topic – one I have counseled people through in the past – and manages to make it not interesting at all. Moreover, it effectively avoids addressing the core issue on which lawyers actually need guidance.

The opinion in question – Nebraska Ethics Advisory Opinion for Lawyers 20-02 – offers an answer to the following question:

May a person/entity or group of defendants who are parties to pending litigation in a district court lawsuit brought by a plaintiff who is a trustee of a trust recommend a list of attorneys and pay for the non-party trust beneficiaries’ legal services needed to bring a county court action to
remove the trustee?

Ultimately, it only sort of answers that question because it points out that it can only give advice to lawyers and not litigants and so, instead, really just provides a refresher on the ethical obligations that a lawyer generally is going to have when they get retained to represent one person, but some other person is paying their bills.

Which is fine. But the world has a pretty good amount of guidance on that topic already. Given the actual question, this kind of ethics opinion would have been a tailor-made opportunity to address the ethics of being a lawyer who has a client who wants you the lawyer to help them secure a lawyer for someone else because the client thinks it is in the client’s best interest for that person to be represented by a lawyer.

One way the issue can come up is when a company wants to hook up a former employee with counsel. Wrestling through the ethics issues for the lawyer in that situation can be tricky as much of the analysis can turn on who came up with the idea and why they want to pursue it.

The closest that the Nebraska opinion comes to providing any sort of pointer toward guidance relevant to those questions is where it explains:

To the extent the question presented can be framed as whether the lawyer representing the litigants can recommend the hiring of another
lawyer, the Committee believes §3-508.4 applies. “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” As long as the lawyer representing the
defendants in the lawsuit brought by the trustee does not induce another lawyer to violate the ethics rules, the defendants’ lawyer has not committed an ethics violation.

Nebraska’s version of RPC 8.4(a) is patterned after the ABA Model Rule version and, thus, that can be a generally helpful pointer. But there are other risks floating around for the lawyer, even if it is their client who truly, independently came up with the idea of trying to hire a lawyer for their former employee.

One risk for the lawyer is if what is motivating the client is a desire to make the former employee “off limits” from informal communications with the opposing party because of the application of RPC 4.2. If that is in the mix, the lawyer may have to be concerned about whether the client is trying to get the lawyer to circumvent the prohibition in RPC 3.4(f) regarding requesting someone to voluntarily refrain from giving relevant information to another party. Lining up and paying for counsel for a former employee is always a safer proposition if what has prompted the idea is that the deposition of the former employee has been noticed.

Another risk for the lawyer (actually two different risks) is if the client wants the lawyer to also take on the former employee as a client rather than hire a different lawyer for that former employee. In addition to the conflicts issues the lawyer has to muddle through about that idea, if the lawyer is the one that is going to be foisted upon the former employee as a proffered free-of-charge counsel, then the lawyer also has to worry about application of the jurisdiction’s rules on solicitation of potential clients. Navigating that path very much drives home the point of the risk associated with RPC 8.4(a) – and not with respect to inducing some other lawyer to violate the ethics rules as the Nebraska opinion briefly mentions – but with respect to violating the rules “through the acts of another.”

And, at each stage, an additional ethics rule lurks in the background – RPC 1.2(d). That’s the rule that simultaneously prohibits lawyers from assisting clients in criminal or fraudulent conduct while attempting to make clear that lawyers are entitled to advise clients about all of their legal rights and the consequences of certain actions. In this context, it is the rule that means that if the client is the one that comes up with the idea, then the client may well be entitled to hear from their lawyer whether they have the right to try to make counsel available at no charge to a former employee and have a “discuss[ion of] the legal consequences” of that proposed course of conduct.

An ethics opinion offering guidance to lawyers navigating that kind of situation would be something that – if done right – lawyers in Nebraska and elsewhere would likely have found to be very helpful.

So, my question, dear readers, is this: does anyone out there know if a state has issued any kind of guidance like that? Hit me up and let me know if there is.

Increasing access to information about legal services – TN Edition

This will be a mostly short entry for this week because the most important item to put into your reading pile is what I’m writing about rather than the post itself. (Admittedly, I’m certain many of you are thinking … “well, that’s kind of always true Einstein.”)

I have written over the years here about a number of cutting-edge undertakings occurring in various states to try to address re-regulating the practice of law. I will not repeat that content here, but I will confess that I’ve fallen behind as there are some that have happened that have avoided my attention.

Many of those endeavors involve changes to the rules on legal advertising as a secondary-level improvement to other, bolder regulatory reforms. Here in Tennessee I don’t think we are very close to launching any sort of task force aimed at re-regulating the practice of law in the immediate future, but I am pleased to report that the wheels are beginning to turn on the topic of seeking reform of the rules on lawyer advertising.

Earlier this week, the Tennessee Bar Association filed a petition with the Tennessee Supreme Court asking it to adopt proposed revisions to the current ethics rules in Tennessee located at RPCs 7.1 through 7.6.

As the petition indicates, the rules revision proposal involves a blend of what APRL proposed back in 2015 and 2016 and what the ABA ultimately adopted as revisions to the Model Rules in 2018 regarding advertising matters. Like those reforms, the TBA petition would delete three rule provisions (RPC 7.2, 7.4., and 7.5) and move remaining comment guidance from those rules into the Comment to RPC 7.1. Tennessee would retain an RPC 7.3 addressing solicitation and some other issues.

The TBA also retains some existing Tennessee-specific approaches to issues, but, on the whole, the revisions would be significant progress toward two goals as explained in the petition itself:

(1) winnowing down restrictions imposed on lawyer advertising to the core requirement that lawyers not make false or misleading statements about themselves or their services, and (2) removing restrictions on communications by lawyers where the types of communications now barred are not likely to cause consumer harm.

As the petition was only filed this week, the Court has not taken any action on it such as putting it out for public comment.

Because I know a guy, if you’d like to read the petition and review its proposed changes, you can download those documents at the links below.

Conflicts in large law firms.

The title of this post is extremely boring. No getting around that fact. The topic though is not boring at all. Managing conflict issues in large law firms can be described in a number of different ways, but the adjective “boring” never fits the bill.

The topic is front of mind for me this week – in addition to all of the normal reasons — because of two recent developments arising in vastly different settings. One is an ethics opinion issued out of Ohio addressing the inability of a firm to cure a variety of conflict in the transactional world through the use of nonconsensual screening. The other is an appellate court decision in my state reversing a defense ruling involving evaluating of an advance waiver.

The ethics opinion undoubtedly gets the answer wrong. The appellate decision … I’m not so sure.

Let’s go with the problematic ethics opinion first.

Earlier this month the Ohio Board of Professional Conduct issued Opinion 2020-10, which addressed the following question:

Whether lawyers in a law firm may represent two directly adverse clients in the same transaction by screening separately assigned groups of firm lawyers and with the informed, written consent of the affected clients.

For the record, the answer should be “yes.” The answer should be yes even before you learn that the two clients in question are each sophisticated entities, with long-term relationships with the firm, and that each has their own in-house counsel. Yet, the Ohio Board cannot manage to get to “yes.” Instead, the Ohio opinion essentially exalts the existence of imputation principles for conflicts of interest in a firm to a higher level of importance than client autonomy. I will not offer a very extended analysis of the ways that the opinion goes wrong – in part, because the Ohio opinion doesn’t really offer much of an extended analysis either.

Essentially, the Ohio opinion wants to be capable of being read as being based on the conclusion that the arrangement is not consentable because the lawyers could not competently handle the representations adequately, but it really is more of an exercise of trying to pretend something is such a square peg that it can’t be made to fit into a round hole.

Where the opinion goes wrong the furthest is by taking rules that address the use of nonconsensual screens (RPC 1.10) to cure conflicts and acting like the fact that the rule does not address consensual screens means that consensual screens cannot be used to avoid imputation or as a condition of obtaining client consent. To call that highly flawed logic is probably being too nice.

While it is easy for me to shrug off the Ohio opinion since I do not practice in Ohio, a more recent appellate opinion from the Tennessee Court of Appeals is not something that can just be shrugged off. Thus, the struggle of whether it has offered the correct conclusion on the conflict issues hits much closer to home.

On October 16, 2020, the Tennessee Court of Appeals issued an opinion reversing a grant of judgment on the pleadings in a legal malpractice case against the largest law firm in Tennessee. The claims of legal malpractice stem from allegations of a conflict of interest. Interestingly, it involves litigation where not only is the plaintiff proceeding pro se but so is the defendant as the opinion indicates the defense side representation was handled by in-house lawyers for the law firm. You can read the full opinion in Culpepper v. Baker Donelson here.

The decision was overturned on two grounds. One involved the commencement of the statute of limitations not fit for today’s discussion. The other ground involved a conclusion that the trial court was wrong when it decided that the conflict waiver that the client in question signed was not enforceable.

I’ll turn it over to Bill Freivogel who offers a very to-the-point summation of the decision for you over at his site:

Joint Representation; Advance Waiver (posted October 19, 2020) Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No E2019-01932-COA-R3-CV (Tenn. App. Oct. 16, 2020). Plaintiff is suing Law Firm for malpractice, arising out of Law Firm’s representing Plaintiff and Plaintiff’s former employer in an SEC investigation. The trial court granted Law Firm a judgment on the pleadings. Plaintiff claimed Law Firm had a conflict of interest. The trial court ruled that Plaintiff had waived any conflict by signing Law Firm’s “engagement, waiver and consent letter.” In this opinion the appellate court reversed and remanded the case to the trial court. [Our note: Law Firm’s waiver letter was carefully drafted for a joint representation of an employer and employee. It covers the usual subjects of sharing confidences (or not), withdrawal from one client and continuing with the other, and so forth. The issue, as we see it, is whether, given the facts of this case (including Law Firm’s conduct) the letter could have adequately protected the employee. Too early to tell.]

To give just a little more helpful background, Bill isn’t kidding when he says that the language of the client waiver covers all of the ground you might expect. The portion of the engagement letter addressing the joint representation of Culpepper, his company, and two other individuals spans six paragraphs. Here are some excerpts:

In a situation where our firm represents multiple clients jointly in the same matter, we are free to share confidential information
communicated to us by one client with the other joint clients in the course of and in furtherance of the joint representation. We would expect to share information we receive from you with the Company, but we will not necessarily share with you information that we receive from other clients, and you will not be entitled to obtain any confidential information provided to us by any other joint client either during the joint representation or thereafter. Please contact me immediately if you have any objections or concerns regarding this approach.

[snip]

If a conflict should arise between you and the Company, we will be
required to withdraw from representing you, and you may need to engage another attorney to represent you. You agree that, should this occur, we would be free to continue to represent the Company and other joint clients (except in litigation directly adverse to you in this or a substantially related matter) and that we and they may use any information we have obtained during our representation of you, including any confidential information you may provide to us.

[snip]

You should be aware that joint representation of multiple clients
may result in significant benefits for each client, but it may also result in
certain risks that might not arise if each client had his or its own separate counsel. . . . In addition, the Company has decided as a condition of this joint representation, that confidential or privileged information disclosed to Baker Donelson by individual clients will be shared with the Company and that confidential or privileged information of the Company will not necessarily be shared with individual clients, including yourself. The Company may disclose, or direct us to disclose, to the SEC, or other federal or state regulatory agencies or other third parties confidential or privileged information provided by you and could decide to use such information in a manner that could be disadvantageous to you.

So, in the end, the plaintiff’s argument is fundamentally that the situation was one in which he could never have voluntarily and knowingly waived the conflict under any circumstances. That argument is made despite the fact that the conclusion of the engagement letter, preceding his signature read as follows:

I have carefully read the foregoing letter, considered all information
necessary and useful in determining whether or not to consent to the
representations outlined above. I have been encouraged to consult with
independent counsel regarding this consent to representation, and I am fully aware of my legal rights in this regard. Upon reasoned reflection, I hereby voluntarily consent to the representations by Baker Donelson as outlined above.

As an outsider to the proceedings, I could potentially be convinced that somehow the very nature of the matter involved – the SEC investigation – could have been so fraught with peril that it was not the kind of particular conflict that the firm could ever be able to handle for all involved competently and diligently. But the opinion that has been issued – albeit only resolving things at a judgment on the pleadings stage – certainly isn’t convincing on that front.

What is most disappointing about the opinion though is that, despite the portions of RPC 1.7 and accompanying Comment that are discussed, the Court does not address at all the language in our Comment that specifically addresses the waiver of conflicts in advance, Comment [22].

It would have been helpful for the Court to at least attempt to offer thoughts of its analysis through the lens of this Comment because it would have helped many lawyers and firms attempt to glean some guidance about whether there was something about the disclosures that was not sufficiently specific and detailed or if the problem truly amounts to nothing more than an application of the final sentence of that comment:

In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

Rotting from the top down.

Being a lawyer is hard. It is certainly not the hardest thing in the world to be, but it is hard. Lawyers have lots of obligations and lots of stress. Again, there are many who have things worse, of course.

Among those “lots of obligations” are obligations to supervise those who work for them that are not also lawyers. For lawyers who practice as solo practitioners, they might not have anyone in that category, or they might have one or two such people to supervise. Lawyers who work in firms may have more, sometimes, many more.

Government lawyers can have blurry lines regarding who all is within their realm of supervisory responsibility. Attorneys who work as prosecutors can, for example, have to evaluate not just their supervisory responsibility over direct staff but whether other law enforcement officers’ conduct is something they have to be concerned with from a supervisory perspective.

In any particular jurisdiction, the ethical issues regarding all of this are primarily governed by whatever version of Model Rule 5.3 has been adopted. Other law can come into play as well.

Today’s post isn’t exactly about how all of that works, today’s post is an attempt to suss out how things like this keep happening with respect to the way that agents of Immigrations and Customs Enforcement agents are doing their jobs and engaging in deceptive, and illegal, conduct. In a different time, the instinct would be to say that the answer to questions of “Where were the lawyers?” would be that they were actively excluded by the other law enforcement officials so as not to know. But then there are things like this that also seem to keep happening.

So, at the moment, the simplest answer I can figure out for how this keeps happening is laid out in the contents of this editorial written by a career Justice Department prosecutor who resigned after 36-plus years of service.

The ABA comes through with another quality ethics opinion.

So, nearly everything is awful these days. Finding something interesting enough to avoid highlighting the awfulness around us is not altogether easy. This is pretty much too traumatic and damning to write about. Dwelling on this would just be petty at this point.

Coming through as a light at the end of the tunnel today is ABA Formal Ethics Opinion 494 released by the ABA Standing Committee on Ethics and Professional Responsibility addressing a decent topic.

The topic – what are an attorney’s obligations that can arise from personal relationships with opposing counsel? Patterned a bit, as it explicitly acknowledges, on a recent Formal Ethics Opinion regarding judicial personal relationships with lawyers (Formal Opinion 488), Formal Opinion 494 hits all of the correct notes for dealing with this issue.

Most importantly, it appropriately centers the analysis where it fits in the Model Rules: it is an issue involving RPC 1.7(a)(2) – material limitation conflicts arising from a lawyer’s own personal interests. The opinion stresses that ordinarily such conflicts are not imputed to others at the firm. And it lays out reasonable categories to help guide lawyers in their thinking about these issues.

It also makes the point that while, most of the time, the obligation on the lawyer is disclosure to the client and moving forward only if the client is willing to waive the conflict, there can be situations where the conflict is, itself, not waivable.

The opinion posits a relationship between two lawyers that is so close that the lawyer could never get comfortable filing a well-founded motion for sanctions against the other lawyer on behalf of a client as an example of a situation where the conflict may not even be waivable.

And that entire genre of thought has, over the years, been very helpful to me in talking lawyers through situations, both in their real practice, and just as an educational tool at seminars. I, like many other ethics CLE speakers, have used lots of hypotheticals to tease out ethics issues and one that has always been fun to discuss involves something like this scenario:

You are at lunch with opposing counsel on an appellate matter who is a close friend and former colleague. Unprompted, he says, “I bet you can’t wait to see what I’ve got in store for you in my response brief. Well, you’ll have to wait a bit because I’m going to take every day allowed for me before filing so you won’t get your hands on it until a week from tomorrow.” You know, because you just checked it before coming here, that his deadline for his brief is actually tomorrow. What do you say?

This scenario usually prompts a good discussion and there is always someone in the crowd willing to say that they would tell their friend to, at least, go back and double check their math on the deadline. The problem, of course, is that doing that without first talking to your client to get approval would be extremely ethically dicey. The easiest way to drive that point home to lawyers is to ask them if, since the personal relationship with opposing counsel is so important to them, they secured informed consent from their client at the outset with respect to how the lawyer’s personal interest in their close friendship with opposing counsel could materially limit the representation.

Formal Opinion 494 is a well-done explanation of this same concept as well as something that offers a more formal set of guiding principles for determining whether disclosure to a client may be required. The full opinion is worth a read.

Is it perfect? No. It is infuriating in one respect. It is dated July 29, 2020 but was only released today, October 7, 2020.

We are all struggling with linear time these days. The last thing we need is the ABA trying to gaslight us about what month it is. Plus, if they are going to do that, you might as well go full bore and date Formal Opinion 494 as having been issued on the 221st day of March 2020.

Truth is stranger than fiction.

This is not a post about politics in the United States, though the title of the post might make it seem like it could be.

This is instead a post that has to be written because I saw a headline and thought, “well that has to be fodder for a post,” and then it turned out to be a new story about someone I wrote about previously.

(NB: I could have titled this post, “Turns out it was a story about two men named Brady” but that would have been both too deep of a deep cut if you are a new reader, and a pretty unacceptable level of punnery even for a Friday post.)

Having now “cleared my throat” on screen more than sufficiently, I’ll actually deliver some content… this is a quick hit follow up on a story I wrote about back in the before-times… July 2019.

Christopher Brady used to be a Florida lawyer. He got disbarred for some Hollywood (California not Florida) style breaking and entering to steal a computer server from his former law firm.

I got pulled into writing about his story originally because the ABA Journal online ran a headline about how he got disbarred over punctuation which was, at best, partially correct. (He created a new law firm that had the same name as the firm that had terminated him but that added periods to the abbreviation part of the law firm name, so that his former employer was Barak Law Group, PA but his new firm was Barak Law Group, P.A.)

(Barak. Like a misspelled version of the first name of the most-recent prior President of the United States. Barack Obama. You remember him, right. A man who would have never responded to a question about whether there would be a peaceful transition of power in the United States in a chilling fashion.)

So, why am I rehashing this guy’s story? Well, because the ABA Journal got me with a headline again, but this time it appears the headline was 100% accurate:

Disbarred lawyer is convicted even though twin took responsibility for the crime.

I mean, come on. Now that I know this guy had a twin brother, how in the world was that not more integral to the defense of the disciplinary proceedings?

“No, I’m not the guy you see on that video recording tying a rope from that truck to the front door of the Barak Law Group law firm and then moving the truck so that the door rips open. . . No, sir, not me. Also, I’m not one of the two guys on that tape who go inside and take out a safe and a computer server. No, sir. I’ve got a twin. That has to be the work of my twin!”

(The above is, of course, entirely fictional dialogue I just made up out of whole cloth.)

The twin defense didn’t exactly work in the latest criminal case, of course, but still. “Feels” like this should have been mentioned earlier.

The criminal case that captured the ABA Journal’s attention this week involves a crime that has much more of a “Better Call Saul” flavor rather than the “Breaking Bad” style of the truck-door-computer server heist. The criminal act was the faking of a court order impacting child custody for the benefit of the lawyer’s twin brother. The fake order, which indicated it was filed on a day the court clerk’s office wasn’t open for business and which included misspellings such as “habeus” and “honerable,” commanded the twin brother’s ex-wife to deliver custody of the child to the twin brother. According to the news reports of the trial, the former lawyer was convicted for the forgery even though the twin brother testified that he was the one who committed the act.

Interestingly, these events all occurred earlier in time than the server heist. The events leading to this conviction actually did involve the Florida lawyer acting as a lawyer because he was representing his twin brother in the child custody proceedings and was still permitted to practice law during the events. Representing family is often a bad idea for lawyers. The reasons typically are more subtle than the issues presented by the Brady twins.

If you’re looking for photos of the twins (identical not fraternal), rest assured they do have the “Florida man” flavor you might expect and you can get them at this link to some local Florida media.

The era of permanent disbarment in TN has begun.

What now seems like an eternity ago, because it was written in the before-times, I wrote about Tennessee’s change to its disciplinary procedural rules resulting in implementation of permanent disbarment. I questioned exactly why the change was needed and what it would mean given that it was being paired with changes to extend the maximum length of suspensions from 5 years to 10 years.

As with a lot of things I have written, it amounted to nothing more than screaming into the void as the changes went forward and became effective as disbarments entered on or after July 1, 2020. (Also, “Screaming into the Void” sounds like a very good high school yearbook theme for 2020-2021.)

Earlier this month, the first two permanent disbarments were entered in Tennessee under the new procedural rules. An attorney practicing in middle Tennessee was disbarred forever on September 10, 2020. The charges against him stemmed from having pled guilty in federal court in 2019 to wire fraud, identity theft, and tax fraud. The underlying conduct involved misappropriations of funds in trust belonging to a minor and misappropriating other funds in a probate case.

The second permanent disbarment order was entered a day later involving a Tennessee lawyer based in Alabama. Her case has few similarities to the first beyond the ultimate outcome. She essentially took on clients in immigration matters (6) and failed to provide services despite being paid, dumped the clients, and retained the fees. She apparently did this in the process of abandoning her practice. Once a disciplinary investigation began, she did not respond to the Board, was then temporarily suspended (did not comply with the requirements for providing clients notice after such a suspension), and then consented to the permanent disbarment ruling against her.

So, what we can learn from this with respect to how permanent disbarment might be used? Not much, I guess. Neither of these lawyers have very sympathetic stories, one of the two consented to being disbarred forever and the other is likely in federal prison for essentially stealing money. That doesn’t mean that neither might have been able to trod a path to redemption under the prior procedure, but neither presents the kind of case that would make anyone want to even online browse for, much less go to, any mattresses.

But there are two things still worth thinking about.

The first is the capriciousness of timing. As mentioned in my ancient posts, the rule change implementation was not one that was going to apply only to new cases arising after a certain date but to orders of disbarment entered after a certain date. To drive that point home, on June 26, 2020, a lawyer in Washington County, Tennessee consented to disbarment over conduct that is not publicly clarified in any respect other than with reference to rules (RPC 8.4(a)(b)(c)(d) and (e), which would imply the situation would have involved some sort of criminal conduct and some sort of dishonesty. But, because the order was entered before July 1, 2020, that lawyer has the glimmer of hope for redemption because they can apply for readmission to the bar on or after June 27, 2025.

The second is an administrative issue that probably does not matter in the two permanent disbarments so far but that might be worth some further scrutiny in the future. Both of the September 2020 permanent disbarment orders end with the statement that the former lawyers must also comply with the portions of the rules applying to disbarred attorneys with respect to notifying clients and others of the disbarment. Now that disbarments are permanent in Tennessee, that’s a pretty pointless requirement. There is no hammer to force compliance and now no longer any carrot to incentivize compliance. In the past, whether a lawyer complied with those notice requirements would play a role in any future efforts to be reinstated.

But now? If not a purely aspirational requirement to maintain, it is practically, entirely toothless.

The thing about the re-regulation of the practice of law …

. . . is it really could go either way. It could make things better or it could make things worse. It truly depends on who ends up doing the re-regulation and what motivates them along the way.

What is prompting the need to say this sentiment out loud today exactly? Well, cynical types might say it is because there are these two things I want to write about and maybe it is the only thing they have in common. Less cynical types might say … well pretty much the same thing.

It also might come from the general feeling, shared by lots of folks out there I believe, that so many things in life sit on a knife’s edge at the moment and, depending on lots of variables, could pivot in one direction and start to get better or another direction and get even worse.

Recently, we revisited the state of things on the general topic of re-regulation to note that the Utah Supreme Court actually pulled the trigger on creating their regulatory sandbox to allow lawyers and others to collaborate more closely in the delivery of legal services. Frequent readers of this space will know that, in the past, posts about the happenings in Utah have always been in close proximity to the happenings in Arizona and will not be surprised to know it has happened again.

The Arizona Supreme Court has once again jumped ahead of Utah’s trailblazing by simply eradicating RPC 5.4 altogether (as well as eradicating any restrictions on solicitation by lawyers in the advertising rules) effective January 1, 2021. No sandbox or limited experiment, just full steam ahead.

My initial belief (which will also come as no surprise to readers) is that this is and will be a good thing for consumers of legal services. But there is no guarantee that it will be. Much will depend on who takes advantage of the changes. If Arizona sees an influx of interest by investors into lawyers and law firms that represent consumers, then the needle will almost undoubtedly move in the direction of greater access to both information about the availability of legal services and access to meaningful justice. If Arizona instead sees growth mainly in the delivery of business services or expansion by large accounting and consulting firms into the practice of law and outside investment in lawyers and law firms that defend wealthy clients, then things could actually get worse in terms of the balance between the haves and the have-nots.

The battle for the re-regulation of the practice of law, however, will not be fought only in changes to ethics rules that govern those who actually already have become lawyers. It will also be fought over how those who wish to become lawyers are evaluated before being admitted to practice. In terms of evaluation, I do mean both from an intellectual preparedness standpoint but also on the topic of character and fitness to be a lawyer.

As to the first, there are many, many stories to be read on the internet these days about the difficulties facing states all over the country in how to deal with bar examinations for law school graduates as we, as a nation, still struggle with COVID-19. Unfortunately, less than a handful states so far have pivoted to granting diploma privilege to the graduates caught in this professional limbo. Fortunately, only a few states insisted on simply plowing forward with in-person examinations. All of the other states have engaged in experiments in trying to deliver online examinations. The results have been mixed at best. (With luck I will have a bit more to say on this topic later today, but only over on Twitter so hit me up with a follow @bsfaughnan over there.)

As to the second, the process of evaluating the character and fitness of those who aspire to be lawyers is a significantly less-than-perfect process. The fact that the same process is also applied to lawyers who seek additional licenses from other state bars further reveals its flaws. That it is a process that often improperly seeks to force aspiring lawyers to provide information about receiving treatment for mental health unrelated to questionable conduct further invites strong criticism.

This week in an opinion out of federal court in Kentucky a judge managed to simultaneously strongly call out that state’s problematic and invasive approach in a way that is nearly impossible to disagree with on the merits but also to provide evidence that the ABA was correct when it concluded that he was not fit for the federal bench in the first place. The opinion is a particularly bittersweet ride given that, effective today, the judge in question is now being elevated to a set on the U.S. Court of Appeals for the D.C. Circuit. (As to the appellate position, the ABA has concluded that he is qualified.)

If you’d like the short version of the opinion in question, you can check out this ABA Journal online article. A full copy of the opinion, however, can be obtained at the download button below.

In the opinion, the judge absolutely savages how Kentucky treats applicants for licensure and does so in circumstances involving a lawyer who had practiced, without incident, for many years in Florida before seeking to add a Kentucky license to her tool belt. The judge particularly focuses upon the invasive nature of Kentucky’s demands for disclosures about treatment for mental health conditions, demands unbounded by any relationship to any prior inappropriate conduct or any effort by the lawyer-applicant to explain such conduct as being caused by some prior untreated condition.

In the strongest and most emotionally charged language that tends to resonate with those of us who strongly believe that mental health issues in the profession need to be de-stigmatized, the judge closes his opinion out as follows:

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him — as Kentucky’s did against Jane Doe.

It is not a matter of if, but when.

The entire opinion, in fact, is filled with this kind of simple language that is compelling and easy for lawyers to understand. But 90% of the 18-page opinion is all dicta because the judge actually disposed of the lawsuit filed by the lawyer because they had now finally become a lawyer and no longer had standing to challenge the process they went through when they were an applicant. Only an applicant would have standing to bring the kinds of claims being sought – and, perhaps, not even then because of immunity issues associated with the decision-makers. It could have been a straightforward, nondescript, three- or four-page opinion.

Thus, what the opinion really reads like is an attack on what the judge “tags” as the “Bar Bureaucracy” and drips with the vindictiveness of someone whose credentials were challenged by the largest national association of lawyers in the United States, the ABA.

As someone who believes, on the facts laid out in the opinion, that the Florida lawyer was poorly treated by the Kentucky approach to such issues, reading the opinion is still a highly bittersweet experience. (A bit like watching a shark attack even your worst enemy — something you can’t take any pleasure in because at any point the shark might turn its attention to tearing into you.)

This is particularly true when you bear in mind that this judge – like many that have been installed on the federal courts during the last 4 years and that are career-long members of The Federalist Society — appears to have a very likely overall agenda that is not centered in the kind of empathy that he now expresses over issues of mental health in the legal profession.

Instead, this is a judge whose other prominent decisions during his short-lived tenure include attacking a mayor in Kentucky who was trying to deal with the pandemic as having “criminalized the communal celebration of Easter.” He is also a judge who, if given the opportunity, is likely to vote to strike down the Affordable Care Act and strip healthcare from millions in the middle of a pandemic. He is a judge in a mold of judges who will decry all that they do not like as “judicial activism,” but blithely engage in the kind of judicial activism that involves writing a scolding and self-righteous decision nearly 90% of which was unnecessary as dicta.

If the landscape surrounding entry into the practice of law is shaped and re-regulated by the kinds of judges that have been enshrined into power over this last Presidential term of office, then things might improve for the better or they could very well become much worse.