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

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

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

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

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

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

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

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

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

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

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

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

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

(P.S. Stay safe.)

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

Essential? It depends.

So, I have now been exclusively working from home for . . . a number of days that … who am I kidding? Just like you, I barely can keep track of time at this point. March seems to have been 3 years long so far. It’s definitely been a while. And, importantly for context of this post, I’ve been doing it now for longer than the time that my firm’s office has now been closed.

My firm’s office, the Memphis office, of our multi-office firm, closed at 6pm on I think it was Tuesday of this past week. We did this because the “safer at home” order entered by the Mayor of Memphis went into effect at 6pm that day and it indicated that lawyers delivering legal services were only “essential services” exempt from the stay-at-home restrictions when we were delivering legal services necessary to the delivery of others who were providing essential services.

Our office had to go a different route than our Nashville office because Nashville’s “safer at home” order treated the delivery of legal services as essential services without exception.

This discrepancy from municipality to municipality in our state has prompted the Tennessee Bar Association to issue a public statement lobbying for the idea that lawyers should be treated as essential services under any such orders. Discrepancies elsewhere have also caused the American Bar Association to lobby for the same outcome: that any order requiring people to stay at home should include an exception for lawyers as essential services.

But, here’s the thing. In the context of orders for public safety designed to keep people in their homes for social distancing and prevent people from commuting to common spaces for the performance of work — most of us lawyers are not performing that kind of “essential services.”

Most of us with law licenses and an internet connection can do our jobs from the safety (both our own safety and the safety of others) of our home.

The taking of nuanced positions is difficult in normal times. It is incredibly difficult in the middle of a pandemic, but I feel obligated to say to both the TBA and the ABA that it is fundamentally irresponsible to stake out a non-nuanced position on this topic.

In the middle of a pandemic, certain things are undeniably essential services: healthcare, food, water, things related to infrastructure… the list is admittedly longer than that… but reasonable people should be able to agree that, in such circumstances, only certain lawyers in certain situations should qualify as essential services.

Lawyers representing criminal defendants? Absolutely. Lawyers working as prosecutors? Absolutely. Lawyers who somehow actually have a trial that is actually going forward despite the circumstances? Certainly. Lawyers representing juveniles defending themselves in delinquency proceedings where the juveniles could end up in prison? Yes.

But, the rest of us? No matter how important what we are doing is – and I’m NOT trying to gainsay the importance…I’m doing quite a few things that I would defy anyone to argue are not important right now (well, not “right now,” right now I’m just writing an incredibly unimportant blogpost) — but in the context of a discussion about whether we have to go to a business location, and require other staff members to do the same, the answer has to be simply no.

Lawyers are exceedingly important. But so many of us can do the things we do on a daily basis using only technology and so much of what we do can routinely be pushed off for 30 days at a time that, if the circumstances weren’t so grave, it would be almost laughable for us to be arguing so hard to be treated as exempt from stay-at-home requirements.

There will be content.

So, it is March 20, 2020. We don’t know much about much in terms of what comes next. Stress and anxiety are most folks constant companions at the moment I’m certain. (And I bet a lot of you weren’t expecting the need to tech competence under the ethics rules to come at you quite this fast.) Whether or not there will be things to read here probably matters almost not at all to most people. Nevertheless, for better or worse, as long as I’ve got access to the internet I will plan to continue to post contents on the same weird and unsettling sort of “schedule.” Today’s another one of those days.

Today’s post is an opportunity to talk a bit about the dark side of litigation funding. Now, do not get me wrong, I’m generally “pro” when it comes to the topic of litigation funding. In fact, I had the opportunity to be a lawyer for one of the early litigation funding companies that operated in a niche, high-end space. Even then, one of the consistent issues for a company doing things the right way was the stigma of litigation funders as being companies that would take financial advantage of people in need.

Today’s story isn’t exactly about taking advantage of the kind of person in financial need you might think of, but it certainly is a story that sheds some light on unsavory aspects of an industry that speculates on the outcome of litigation.

Today’s story though also is something of a revisiting of the travails of a prominent California law firm that I’ve written about a few times in the past. Those posts had focused on a very contentious set of litigation matters between the firm and one of its former partners that effectively boiled down to a “he said, it said” sort of situation where the “he” was saying that the “it” was engaged in financial fraud and fired him when he raised questions about it and the “it” said that “he” was a sexual harasser. (If you aren’t familiar with that post, you can catch up here.)

It’s been a very bad couple of weeks for just about everyone in the United States. It’s been an even worse couple of weeks for John Pierce, the founder of the Pierce Bainbridge law firm. It has been such a bad couple of weeks that it is hard for an objective viewer not to think that the previously-referenced “he” seems to have a leg-up in proving his side of events against the “it” in the “he said, it said” landscape.

Before elaborating on the litigation funding issue, just a short recap of the recent chronology of events for the founder of this particular law firm.

And, about that deal, that is the deal with Parvati Capital that was front and center in the allegations in the “he said, it said” litigation. As a result of the Philadelphia suit, the details of that arrangement have come out and involve a highly -unusual approach to litigation funding where the law firm was given the sole responsibility for placing a value on their cases as part of agreeing to a 50-50 split with the litigation funder on the fees obtained in such future cases.

If you have access to Law360, you can read a pretty good article about that piece of the puzzle, one in which a former law partner of mine (who I practiced with back when I had the chance to represent a good litigation funding company many years ago) speaks on the ethical problems with the Parvati Capital deal. (Spoiler: pretty squarely an RPC 5.4 problem since it quacks very much like a fee-sharing duck.)

There are lots of aspects to dealing with litigation funding arrangements that can raise difficult ethics issues. But there are a variety of ways to obtain litigation funding within the ethics rules. Interestingly enough, while the Parvati arrangement seems very problematic as to some issues, and while having the lawyer assign a value to cases is bad news for a variety of reasons, such an approach does avoid altogether problems with navigating how to share documents and other details with a litigation funder for purposes of evaluating a case while doing what can be done to comply with RPC 1.6 and seek to protect privilege and work product.

Change seems like it never comes … right up until it does.

So, I’m not a public health expert and I try to pride myself on not talking too much about conversations to which I am unable to meaningfully contribute. Thus, I’m not going to purport to speak directly to how to be dealing with the pandemic looming over everything. I’ve been doing what little I can to try to help “flatten the curve,” because I’m economically privileged enough and have robust access to technology to be able to do so. If you are in a similar situation, I hope you will do the same.

I’m going to instead focus on something much smaller … the disappointing news out of California yesterday that goes a long way toward kneecapping the efforts of the California ATILS task force. As mentioned in an earlier post, the ATILS task force itself had already scaled down its efforts but the California State Bar voted down significant aspects of even the watered-down proposal.

If you’d like to read the details, you can do so at this The American Lawyer article. If you’d like a sense of what comes next, you can read this Twitter thread from Andrew Arruda, a very irked member of the task force.

All I want to say for today is that I don’t think the California State Bar is going to have the last word on this, not by a long shot.

Beyond the fact that the post-pandemic world is going to be different, I’m not prepared to predict what different exactly looks like. But it seems clear already that, at least in the United States, we are learning quickly that a lot of things people have been told weren’t possible actually are.

Your job likely can be done remotely through telecommuting. The for-profit health system can make allowance to discount costs. A quality legal education can be obtained through online classes. Courts do not have to have as many in-person hearings in order to dispense justice.

The list is much, much longer.

It is hard not to think that there are going to be a variety of businesses, large and small (including law firms), that will not be able to survive in an environment where large swaths of the population do not venture out of their house for much of a 30 or 60 day period. It won’t all be businesses in the food and beverage delivery industry and businesses that otherwise require large groups to gather. Yet, given the legalistic nature of U.S. society today, the demand for people to be helped with their legal and contractual rights likely only increases.

Whether that translates to an increased demand for lawyers to do those things though is a lot less clear.

Innovations will likely happen out of necessity.

In the meantime, stay safe out there.

A tale of two signature issues.

There are certain things that ought to be ingrained in lawyers that they know they cannot do. Maybe we could reach agreement on all of what should be on that list of things, but that task is far too ambitious for any Friday, much less this Friday.

I would hope we could agree that an item on that list though is not to sign someone else’s name to something and claim that they were the one who actually signed it. In a lot of circumstances, this is called… and I’m going to use the technical term here, “forgery.” (Fun fact: this is also something that people who are not lawyers really shouldn’t do as well. This includes if you were [hypothetically-speaking] an 18-year old filling out a permission form that they think their parents would likely have signed.)

Now, admittedly, lawyers in collegial litigation practice settings certainly will, on many occasions during their professional career, end up signing opposing counsel’s name to an order for entry with the Court. But, the key of course in doing so is that the lawyer (a) always indicates that it is being done with the other lawyer’s permission; and (b) doesn’t try to make the signature look at all like that lawyer’s actual signature.

Earlier this week, a lawyer in Kansas has been visited with a weighty suspension from practice, in part, for signing names of folks for whom she should not have been doing that. Unfortunately, examples involved falsifying the signature of a judge on a court filing as well as a separate instance of a court clerk’s signature. Although it was the aspect that garnered the media attention, forging signatures was just really the tip of the iceberg regarding the findings of misconduct against that lawyer. Many others involving misrepresentations to other lawyers and clients and neglect of several different matters. A full read of the order imposing a two-year suspension also reveals that, as is often true of lawyers who make very bad decisions, the lawyer suffered from severe depression and anxiety.

But, also recently and in my own backyard, there was an instance of what turned out to be a much grayer area of a lawyer’s ability to sign someone else’s name to something that resulted, after prolonged disciplinary proceedings, in a determination that the lawyer did not commit any professional misconduct. If you are not at all familiar with the concept of a “conformed signature,” then reading the case will provide you with a bit of an education on that front.

But, the short version to walk away from that case though I think is still that the lawyer really should have gone about things in a markedly different fashion. Perhaps it is only true with hindsight, but I tend to think that even in real time, a lawyer would think that doing something more to clearly denote when placing a “/s [someone else’s name]” onto a document to then be used in litigation exactly what the lawyer is doing. For that particular lawyer, doing it the way they did certainly did not ultimately result in actual discipline, but it certainly ended up costing an awful lot of time and money to have to get all the way through the process to the Tennessee Supreme Court before being fully exonerated.

(P.S. Tomorrow is the 5th anniversary of this blog. In celebration, go treat yourself to something nice. It’s on you.)

Late to the podcast party.

As a white male in my mid-forties, it was probably inevitable that I’d end up with an appearance on a podcast since an unfathomably high number of podcasts are showcases for my demographic to espouse their views on things. While I’m a bit late to the party (46), my turn has come around.

More seriously, I was grateful and honored to be a guest on The Podvocate, a podcast produced through the Loyola School of Law in Chicago. We talked about the future of legal ethics with an emphasis on the impetus for, and the state of play of, efforts to re-regulate the profession but also weaved into the discussion a slice of what’s going on in D.C. and whether lawyers are demonstrating reason to believe they value independence of professional judgment under our current system. You can give it a listen at this link: https//soundcloud.com/thepodvocate/season-2-episode-17. The host, Jim Alrutz, does a very fine job of steering the discussion and has a bright future.

If you’re looking to read the voice of someone who is not a white male in his forties on one of these topics, I’d recommend checking out this post from a friend who is a lawyer in Wisconsin at her blog: www.ethicking.com. The post is more than a month old at this point, but, if you haven’t read it, it’s still quite good.

Lawyers continue to struggle with tackling online negative reviews.

Today’s topic come up again for two different reasons. First, because the North Carolina State Bar has put out a new proposed ethics opinion seeking public comment about the topic. Second, because it was also discussed at one of the presentations made at the APRL mid-year meeting a week or so ago.

As the title of the post indicates, the topic is the ethical constraints on lawyers when faced with trying to respond to an online negative review posted by a client where they feel hard done and feel like, if allowed, they could demonstrate that the client’s negative allegations are unfair.

Proposed 2020 Formal Ethics Opinion 1 in North Carolina reaches roughly the same conclusion as the other ethics opinions issued on this topic: tread carefully because none of the confidentiality exceptions offered by RPC 1.6(b) are satisfied merely by the posting of an online review. Attempting to offer some practical advice, the proposed opinion says that the attorney can “post a proportional and restrained response that does not reveal any confidential information.” Given the broad scope of confidentiality under the ethics rules, this outcome offers little room for lawyers to offer much of a response. Perhaps recognizing that a bit, the opinion tries to find ways to authorize a lawyer to contest the negative review with denials while walking a fine line of not disclosing actual information by referencing some “generic” or limited denials that other ethics committees have proffered.

It’s a fine proposed ethics opinion in so far as it goes. (It’s also a good round-up of the opinions issued to date on this issue by other groups.) But it fails to fully wrestle with one ethical question it acknowledges is relevant and fails to address at all at least one interesting ethical question that ought to be the most relevant one of all.

It does address, in part, the meaning of certain language in Comment [11] to RPC 1.6 about a lawyer not being required to “await the commencement” of an action or proceeding to rely upon the self-defense exception. But it only focuses on it in one direction. Looking only to whether the disenchanted (or disingenuous if you believe the lawyer targeted) client is likely to pursue a proceeding, the opinion brushes aside that language as any justification for a lawyer on the basis that the client’s willingness to post a negative review does not alone demonstrate that the client is contemplating pursuing any formal proceeding against the lawyer.

But the opinion does not spend any time talking about the flipside, which was actually raised by an audience member at the APRL mid-year meeting I referenced above: What if the lawyer is the one contemplating pursuing a proceeding?

For example, some lawyers — lawyers who rely very heavily for work on their online presence and can be very badly damaged by a false review — may view the inability to respond to an online negative review as meaning that actually filing a suit for defamation against the client/former client is their only viable option. If they actually filed the suit, they’d be able to disclose information about the representation to make the case. So the logic goes, could they not begin to exercise that right of self-defense before they have commenced that proceeding?

Under that line of thinking, couldn’t they respond to the online review to contest the allegations, and indicate to the client that they will file suit for defamation if the client doesn’t retract the statements? I don’t think that works primarily because any such communication to the client about the review making that kind of demand before filing suit would have no need to occur publicly. In fact, it would seem reasonable to read the language in the Comment to RPC 1.6 exhorting lawyers to take certain steps, including seeking protective orders or filing matters under seal, even when pursuing litigation so as to keep reasonable disclosures of client information from unnecessary public dissemination as fundamentally contrary to such a course of public action prior to commencing such a suit.

The relevant ethical question that the opinion does not address at all is what a lawyer can do with respect to crafting a path for being able to respond through RPC 1.6(a) rather than RPC 1.6(b). As a practical matter, having written frequently about The Streisand Effect here in the past, I still believe that most of the time the best course for a lawyer is not to do anything to risk amplifying the megaphone the client has already obtained. Usually, engaging in a public skirmish with the person is only going to result in more people learning about the criticism, but I recognize that there are some lawyers who simply cannot afford the damage that can be caused to their business pipeline from negative online reviews.

For those lawyers, I think the only ethical path to get beyond offering platitudes and perfunctory denials would be to secure a client’s agreement, in advance, as part of an engagement contract that the lawyer may respond to any future online negative review that the client chooses to make.

Given that RPC 1.6(a) clearly allows lawyers to disclose information about their representation of a client if they have the client’s informed consent to do so. It seems to me that if the issue is described sufficiently on the front end, and the client agrees in advance that the price of going online to complain is that the lawyer can use information about the representation to respond to the complaint, then the requirement of informed consent can be satisfied. While it could feel very much like a truly awful first foot to put forward with a client by raising the issue, if the lawyer’s practice is such that the issue is that important, there also is a benefit to being up front with the person about it at the time that they are prospective client.

But maybe you all can tell me if I’m missing something in that respect?

ABA favors innovation but really stresses the “no” part.

Okay. Now that all of the problems with the erosion of the rule of law in our country have been solved, I can write that post about the onslaught of developments in the last little bit related to potential efforts to “re-regulate” the legal profession.

Just kidding. Rule of law is still ENTIRELY in jeopardy despite the fact that more than 2,000 former officials of the U.S. Department of Justice have co-signed a letter calling on the current Attorney General of the U.S. to resign.

Nevertheless, we are doing this long-contemplated post today. So, in just the first two months of 2020, there have been several developments demonstrating continued momentum for reform in the world of legal ethics and the delivery of legal services.

In Utah, that states rapidly-moving effort continues apace. Utah’s Implementation Task Force on Regulatory Reform is up and running. And its website is accepting inquiries about participation in its Legal Regulatory Sandbox at this link.

In Arizona, a petition was filed on January 30, 2020 seeking to have the Arizona Supreme Court, among other things, delete its RPC 5.4. The petition was filed by a member of the Arizona Task Force on the Delivery of Legal Services who serves as the Chair of one of its work groups. The petitioner also happens to be Administrative Director of the Arizona Administrative Office of Courts.

Even earlier during January 2020, the Global Legal Practice Committee of the D.C. Bar put out a formal request for public comment about a number of topics related to its existing RPC 5.4. In so doing, Washington, D.C., which has permitted a limited form of non-lawyer ownership opportunities in law firms since 1991 has now announced feedback on seven pretty-thorough bullet point requests, ending with: “If D.C.’s existing Rule 5.4 should not be changed, why not?”

News reports in January 2020 indicate that the Connecticut Bar has launched a task force called the State of the Legal Profession Task Force.

California has a crucial meeting of its Task Force on Access Through Innovation of Legal Services on tap for February 24, 2020. The agenda for that meeting lists seven report and recommendations and one clarifying statement up for consideration. Included in the list is not only what sounds like some minor amendments to California’s RPC 5.4 but also implementation of some form of regulatory sandbox focused on being a pilot program to gather data, and the study of a licensing program to allow people other than lawyers to provide certain kinds of limited legal services.

And, most recently, the ABA House of Delegates has adopted Resolution 115 to seek to encourage states (such as those mentioned above that are already far out in front of the ABA) to pursue innovation.

When originally circulated, ABA Resolution 115 was the kind of thing that read as short, to the point, and (particularly given all the task forces already in place in various states) seemingly not truly all that controversial:

RESOLVED, That the American Bar Association encourages U.S. jurisdictions to consider innovative approaches to the access to justice crisis in order to help the more than 80% of people below the poverty line and the majority of middle-income Americans who lack meaningful access to civil legal services.

FURTHER RESOLVED, That the American Bar Association encourages U.S. jurisdictions to consider regulatory innovations that have the potential to improve the accessibility, affordability, and quality of civil legal services, while also ensuring necessary and appropriate protections that best serve the public, including the provision of legal counsel for children facing essential civil legal matters, for anyone facing a possible loss of physical liberty, and for low income individuals in adversarial proceedings where basic human needs are at stake.

FURTHER RESOLVED, That the American Bar Association encourages U.S. jurisdictions to collect and assess data regarding regulatory innovations both before and after the adoption of any innovations to ensure that changes are effective in increasing access to legal services and are in the public interest.

And, yet, even that was a step-too-far in the world of ABA politics as a number of prominent slices of ABA membership, including the New York State Bar and the Solo and Small Firm section of the ABA, went on the attack against Resolution 115 as a radical proposal.

Perhaps thinking it would be hard to imagine how the reaction to a sort of milquetoast resolution encouraging the exploration of innovative ideas to engendering such vociferous opposition, far too many media outlets reported on the resolution as proposing significant changes to the Model Rules when, in fact, no rule revisions at all were actually included.

Thereafter, the forces in favor of Resolution 115 made amendments to try to provide reassurance to the clamor from a variety of groups. In so doing, what was already a “meh” proposal was watered down even further. Specifically, the resolution was revised to add an additional “Further resolved” paragraph at the end:

FURTHER RESOLVED, That nothing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subject.

The extensive and thorough report that accompanied the Resolution was also pared down to remove references to, and discussions of, a number of efforts at exploration that have occurred or are under consideration in various jurisdictions, including in the area of considering revisions to RPC 5.4 and to allowing non-lawyer ownership. As a result, the original nine-page report became a three-page report. And given that the addition of the third “Further Resolved” paragraph just reads as surplus of the silly sort, it is the defenestration of 2/3 of what the Report had to say originally that is the true loss.

Having been further watered down to the point where it was still a resolution encouraging innovation but strongly signaling that some innovations would be encouraged a lot less than others, Resolution 115, as amended, passed the ABA House of Delegates with overwhelming support.

I mean, “Yay!” … I guess. If a half of a loaf is better than no loaf at all, then so it follows as well that a quarter of a loaf is better than the complete absence of a loaf. But I still can’t help but think of the message of Resolution 115 as being a lot like one of my favorite moments from the show Reno 911:

And I tell you what, ma’am — We are gonna tell you that we are gonna try our best.

That’s what we’re gonna tell you. We’ll try our best. Thank you.

We aim to try. We aim to try — That’s our motto.

That’s what our motto is becoming.

The future of legal ethics?

What I’d like to write about is a series of stories that have been piling up on pretty important developments on various fronts touching on the efforts to re-regulate the legal profession and debates about whether and how to do that … and all of those things would seem to be very important. But I’m not writing about that today because other things are going on that raise a much more immediate, potentially much more alarming, issue — is there even a viable future for legal ethics that means anything at all?

Yesterday, a number of alarming things happened rapidly to raise real questions about whether efforts to try to re-regulate the profession and tackle subjects like law firm ownership, fee-sharing, and payments for referral or other marketing arrangements to make legal services more affordable for middle-class consumers and possibly increase overall access to justice is just rearranging deck chairs on the Titanic.

The first thing you need to remember – in case it somehow slipped your mind — is that among the many people who have been convicted or plead guilty from within the President’s campaign circle is a man named Roger Stone. Stone was convicted for lying to Congress about his contacts with the Trump campaign and with WikiLeaks and for obstructing the Congressional probe into Russian influence in the 2016 election and for witness tampering. Prior to yesterday’s events, the federal prosecutors handling his case had filed paperwork with the court recommending that the appropriate sentence range for Stone would be between 7 and 9 years.

Then came yesterday. First, at about 1 a.m., the current occupant of The White House took to Twitter to complain that the sentencing recommendation made by the federal prosecutors handling the case against Roger Stone was too harsh. This was what he had to say:

Later that morning, the Department of Justice announced that it will be making a new recommendation for a shorter, less-harsh sentence, effectively overriding what federal prosecutors had already communicated to the court and certainly seeming to be in reaction to the tweet.

Later in the day, the third President in U.S. history to be impeached publicly stated that he had every right to tell the Department of Justice what to do. You can go see that video here.

By the end of the day, all four federal prosecutors who were counsel of record for the United States in the Stone case had filed papers to withdraw from the representation and one of those four also resigned altogether from their position as an AUSA and another resigned his position as a Special Assistant Attorney in DC while intending to keep his job as an AUSA in Baltimore. Then the media reports came out to indicate that the Attorney General of the United States was now personally taking on all of the cases that mattered to the guy who is likely, if the United States Congress is paying attention, to become the 1st President in United States history to be impeached twice. In addition to intervening in the Stone matter, the article indicates sources are relaying that Barr also was behind the change in the approach to sentencing for Michael Flynn another of Trump’s campaign comrades who pled guilty to lying to the FBI and is now, two years later, trying to withdraw his guilty plea.

I’ve written before about the fundamental problem under the ethics rules if not otherwise for the Attorney General of the United States to act as if he were the personal attorney for the President rather than the chief law enforcement officer of the United States. You can read that here.

But more importantly you can pretty quickly get up to speed on yesterday’s very troubling developments here, here, and here. Or if you want to go straight to the source to confirm what is going on, you can read this from this morning:

And, if you want some reference to the actual ethics rules to feel like this post somehow really counts as “on ethics,” let’s talk a bit about how the four AUSAs who are seeking to withdraw from the Stone case are – unlike their Attorney General — complying with their ethical obligations under the ethics rules.

They appear to have a keen awareness that, as lawyers representing the United States, the United States as an entity is their client and not the guy occupying the Oval Office. Both the Model Rules and state analogs, including D.C., uniformly make plain that when you represent an organization, the entity is your client. Both the Model Rules and state analogs, including D.C., pretty uniformly impose ethical obligations on a lawyer representing a governmental entity or other organization who comes to know that officers of the entity are acting in ways that violate the law.

Some state variations on RPC 1.13, including mine here in Tennessee (which admittedly has no bearing on any aspect of the Stone case) not only impose those requirements for reporting up the ladder in the organization but demand that “[i]f despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and is likely to result in substantial injury to the organization, the lawyer may withdraw in accordance with RPC 1.16….”

Please do go read the links. It is not really all that hyperbolic to describe this situation as truly jeopardizing the rule of law in our country. The fire may be spreading so rapidly that we’re about to be out of glass to try and break.

PDA: If you’re going to get disbarred in TN, get it done before July 1, 2020.

Because if you can get it finalized by June 30, then you might still have the chance to be reinstated starting July 1, 2025. In this instance, PDA is short for “public disservice announcement,” not “public display of affection.” You might remember back last year I wrote about a proposed revision to the rules of disciplinary enforcement in Tennessee and my reasons for thinking it was not a necessary change.

On Friday, the Court entered an order adopting the revisions as proposed. The order mentions that in addition to comments filed by the Tennessee Bar Association, the Board of Professional Responsibility, and the Knoxville Bar Association, there were comments filed by two individual lawyers. It should probably come as no surprise to anyone reading this that all of the comments, except for the BPR’s comment, voiced opposition to the proposed changes. You can read all of the comments that were submitted here.

The Court’s order offers no explanation for why the Court thought the revision to be necessary in the first place, nor does it undertake any explanation of why it disagreed with the majority of the comments or what about the Board’s position it found persuasive, if anything. (The most effort that the Board put into its response was actually to talk at length about the Hughes case that already demonstrates that the Court had the power and willingness under the current system to refuse to reinstate a disbarred lawyer who it doesn’t feel should be reinstated.) So … disbarment in Tennessee is about to become a “forever” punishment, putting Tennessee into a very small group of states that embrace such an approach, and we still don’t know “why” the Court thought the change was needed.

Thus, on the present record, there seem to be only two possible conclusions to draw: (1) the Court simply thinks that disbarment under the current system is not sufficiently severe in terms of a penalty because it provides for a second-chance; or (2) the Court thinks that disbarment should truly be reserved only for the worst-of-the-worst offenses and that most lawyers who get disbarred should actually be hit instead with a suspension of somewhere between 6 and 10 years in length.

Which one is it? Only time will tell I guess.