The ethics of putting together an unenforceable contract.

It is still astounding (as well as deeply dispiriting) that the context of the discussion I’m about to launch is the work of White House Counsel but this is the world we currently occupy.  You may very well have read this fascinating The Washington Post article by now released in connection with the ongoing news story of a former White House staffer who repeatedly secretly taped conversations – including her own firing in The Situation Room — inside The White House and what those recordings may reveal about whether that person says even more outrageous things in private than the outrageous things he says in public, as well as whether that person is suffering from a decline in his mental faculties.

Because tackling the notion of the ethics of representing a client with diminished capacity if that client happens to be – at least theoretically – the most powerful politician on the planet – is too depressing to tackle, I’m not writing about that today.  If you want to delve into those issues, your starting point is ABA Model Rule 1.14.

Instead I want to talk about [as the title of the post telegraphed] what can be a thorny ethics issue even in much more pedestrian contexts: is it ethical for a lawyer to draft and create a contract for a client’s use that the lawyer knows to be unenforceable?

As the topic du jour the context of the question is requiring staff at The White House – public employees — to sign non-disclosure agreements including provisions that would prohibit them from disparaging the 45th President of the United States.  Seemingly everyone acknowledges that given the nature of public employment, democracy, the at-least-still-for-the-time-being cherished concept of transparency in government, and numerous other federal laws such an agreement is obviously and undisputedly unenforceable.  The article describes what the media has been told about the events:

A number of White House aides were urged to sign NDAs in early 2017 by White House Counsel Donald McGahn, according to current and former aides, who requested anonymity to discuss internal West Wing deliberations. Trump was obsessed with leaks to the news media and repeatedly demanded that McGahn draft the agreement, the aides said.

Initially, McGahn told Trump he would not draft or give aides the NDAs because they were not enforceable, White House officials said. But in the end, McGahn created a document that said aides would not divulge any confidential or nonpublic information to any person outside the building at any time, according to three people who signed it.

Other media outlets have reported that McGahn may have convinced people to actually sign the document by reassuring them that it was unenforceable.  One of the reasons the question is important ethically is that if you create a contract for a client that you know is unenforceable, they will likely still try to use that contract in the future against people and cause them harm (at the very least economic harm and inconvenience associated with defending a lawsuit seeking to claim a breach of the unenforceable contract).  Media reports today indicate that something like this is now being undertaken – although admittedly apparently based on an NDA that was required by the campaign and not the actual government.

My opinion about the answer to the question of whether any such conduct by a lawyer is unethical is, unfortunately, less than equivocal.  At heart, it will have to turn on a situation-by-situation analysis.  Using the Model Rules to explain, this is because there is not exactly a specific rule outside of the litigation context that flatly prohibits a lawyer from assisting a client in pursuing a frivolous position in negotiation of a document in the same way that there is such a rule prohibiting the pursuit of frivolous claims in litigation.

What is available is a collection of rules that would need to be sifted through and applied to the circumstances to reach a conclusion about the lawyer’s role in assisting a client in getting someone to agree to a provision in a contract (or an entire contract) that is known to be unenforceable.  Those rules are:

RPC 1.2(d):  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

RPC 1.16(a):  … a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law ….

RPC 4.1:  In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RPC 4.3:  In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. . . . The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

RPC 4.4(a):  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….

RPC 8.4(d):  It is professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice.

Assuming that, at all times in dealing with the members of staff being asked to sign the contracts, White House counsel was truthful about the situation, then the most troublesome provisions from the list above would be RPC 4.4(a) as there seems no “substantial” purpose other than to burden these people to seek to have them agree to an unenforceable contract — particularly where one of the grounds of unenforceability in this scenario is a constitutional issue.

In other circumstances, for example, where the unenforceable piece of the contract puzzle is just one part of an otherwise enforceable contract or, on the other extreme, where the contract itself is unenforceable because its purpose is inherently criminal or illegal, then the interweaving of these rules may provide a clearer outcome.

ABA adopts new, more modern advertising rules! So, of course, Eeyores assemble.

Earlier this week, the ABA House of Delegates, on a voice vote, passed some much needed improvements to the Seven Series of the Model Rules in order to modernize certain aspects of the regulation of lawyer advertising.  I’ve written in the past about how the proposal before the ABA came about as a result of the hard work and persistent effort of APRL.  Although the ABA revisions have been brought about as a result of APRL’s proposal, the ABA revisions are not as good as APRL’s original proposal.  A number of items fell by the wayside, but they are still a significant improvement and should be championed as such.  This is true because of the incremental nature of change when it comes to the rules that govern our profession.  If the substance of the changes have not already been described to you, you can read about them here.

Nevertheless, and in no small part because there are always opportunities for page views and clicks for those willing to champion the perfect as the enemy of the good, a number of legal writers have already come out with their hot takes decrying the ABA revisions as insufficient.  While that kind of commentary is certainly predictable, it is still disappointing.  (And one of those folks, on Twitter, used a now-trite deck chairs on the Titanic analogy, which was both lazy and disappointing given that the deck chairs on the Titanic analogy would have been much better directed at the ABA membership revisions aimed at staunching their bleed of membership and revenues.)

This kind of improvement to the ABA Model Rules is incredibly significant because it is likely to move the goal posts and increase the ability of states to tinker further in a pro-consumer direction.  As a staunch backer of the original APRL proposal, I would have loved it if more states followed Virginia’s lead and largely just adopted the APRL proposal even before the ABA took action,

That didn’t happen though.  Now that the ABA has acted, two paths for improvement are available.  States that merely decide to adopt the ABA improvements will be positively impacting the landscape by streamlining regulation and removing unnecessary barriers to proposing a commercial transaction.  Other states, particularly ones that may see themselves as wanting to put down a marker for being more progressive on lawyer advertising issues, can choose to view the ABA action as a good first step and adopt their own, even more substantial modernizing revisions,

(P.S. This is my first post written entirely in an ENO on a porch of a beach house in a beautiful breeze.  If you want more of this kind of content, then y’all are going to need to set up some sort of GoFundMe to keep me down here at the beach.)

It’s still a good ethics opinion, even if the rule itself may need rethinking

Not quite 5 months ago, I wrote a bit of a shorter post about my view as to why ABA Formal Ethics Opinion 480 counted as a good ethics opinion.  For those that may not be remembering the opinion off the top of the head, it was the one that reminded lawyers – primarily in the context of social media — that RPC 1.6 governing confidentiality does not have an exception for “generally known” information nor an exception that says it is okay to discuss just because it is a matter of public record.

This opinion has been the subject of some renewed criticism — particularly a very well done column by Bill Wernz in the Minnesota Lawyer which (if you have a subscription you can read here) — and has been (in no small part because of Bill’s influential column) the topic of some spirited debate on an ethics listserv to which I am privileged to be a part.  (Loyal readers may recall an earlier effort on my part to address a first wave of criticism directed at this particular ABA opinion here.)

The summarized version of the criticism generally is that it feels increasingly illogical for confidentiality under the ethics rules to extend to information known or knowable by scads of other people.  An example that has been bandied about is a hypothetical of an attorney who has just secured a helpful published appellate opinion in case on a Wednesday and would like to argue and make reference to that case on Thursday for a different client and whether the restriction in RPC 1.6 means they cannot without the express permission of the client in the appellate case.

A few years back in Tennessee we accomplished a revision to our version of RPC 1.6 that provides some help for hypothesized conundrums such as these with the adoption of a Comment [3b] that reads:

Information made confidential by this Rule does not include what a lawyer learns about the law, legal institutions such as courts and administrative agencies, and similar public matters in the course of representing clients.  For example, during legal research of an issue while representing a client, a lawyer may discover a particularly important precedent, devise a novel legal approach, or learn the preferable way to frame an argument before a particular judge that is useful both in the immediate matter and in other representation.  Such information is part of the general fund of information available to the lawyer.

Other aspects of the renewed criticism keep coming back to the argument that the meaning of the word “reveal” in RPC 1.6 continues to be overlooked in efforts to interpret the rule.  I continue to believe that ABA Formal Opinion 480 and opinions like it are good opinions because I don’t think the people that put so much weight in their argument on the idea that “reveal” is something you cannot do as to already public information are as correct about that as they think they are.  If you didn’t know something until I tell it to you, I think it is entirely fair to say I “revealed” it to you even if it was already public.  It is not the greatest analogy in the world but harken back to your worst experience of someone spoiling for you the shocking twist of a film before you could see it.  In discussing that with someone and explaining your dismay in having the surprise revealed to you without warning, I don’t think you’d think much of someone claiming that millions of people already knew it so telling you about it didn’t really “reveal” anything.

While we obtained the language for Comment [3b] in Tennessee, there was another proposed revision to RPC 1.6 that was not successful but that I still believe would make the rule better and that, ideally, would be a decent fix to the Model Rule as well.  We had proposed adding a piece to RPC 1.6(a) – that would have required adding some numbering to make express consent of a client reason number (1) and implied authority to carry out the representation reason number (2) — where a third reason where revealing RPC 1.6 would be allowable where:  “the disclosure is limited to information relating to the representation of a client which has already been made public and the disclosure is made in such a way that there is no reasonable likelihood of adverse effect to the client.”  Our Court rejected that proposal, but I think an amendment to the Model Rule and other rules patterned on it along those lines would address many of the criticisms of the scope of RPC 1.6 while still protecting against disclosures that it makes sense as a matter of public policy to prohibit lawyers from making — like that one offered in my most-assuredly-unopened open letter post.

 

Traps for the Unwary – Married lawyers edition.

Within the last week, there was an interesting Law.com article (subscription required) on a topic that has been something of a pet . . . well not really “peeve” of mine, and not really a pet project of mine, but a topic that I feel like is somewhat uniquely overlooked by the people to whom it should be most relevant — spouses/significant others who are both lawyers but who work different places.

The article discusses an Ohio disciplinary case that is ongoing and that involves something that – based on anecdotal evidence over the course of my career — is an extremely frequent occurrence:  the sharing of information about cases and matters between spouses and significant others who both are lawyers but who aren’t both representing the client in question.

Although (as indicated above – unless you are particularly wily about how you use the Internet and various search engines ability to “cache” content — you need a subscription to read the article, here’s a snippet to give you a flavor of the fact pattern involved.

The Ohio high court is set to review a proposed disciplinary sanction against two education law attorneys, ThomasHolmes and Ashleigh Kerr, who are engaged to one another and admitted to exchanging emails that included work product and confidential client information.

Although Holmes and Kerr focus on similar types of law—namely the representation of public school districts—they have never shared clients and they worked at different firm. Holmes practiced most recently at [a firm] in …Ohio, and Kerr practiced at [a different firm] in … Ohio.

In a disciplinary complaint lodged in December against the couple, the Ohio Supreme Court’s board of professional conduct said the two have lived together since October 2015 and became engaged in November of that year. From January 2015 to November 2016, the disciplinary complaint alleged, the two exchanged information related to their client representations on more than a dozen occasions.

“Generally,” the board alleged, “Kerr forwarded Holmes an email exchange with her client in which her client requested a legal document (i.e. a contract, waiver or opinion). In response, Holmes forwarded Kerr an email exchange with his client which attached a similar legal document that he had drafted for his client. More often than not, Holmes ultimately completed Kerr’s work relative to her particular client.”

If you want more of the detail, you can access the disciplinary complaint here.  And you can go read the pending recommendation of the Ohio board as to the discipline — which has been agreed to by each of the lawyers here.

The proposed, agreed discipline is a six-month suspension from the practice of law for each lawyer (but with the suspension fully stayed/probated.)

I suspect the outcome of that matter – and perhaps even the fact of disciplinary proceedings at all — will come as a huge surprise to many lawyers.  But the simple fact is that the underlying practice — sharing information about cases in order to try to get your spouse or significant other to help you — despite how much it may seem consistent with human nature is almost always going to be undeniably a violation of the ethics rules.  It is possible that one of the lawyers could get the client to consent to the arrangement, but beyond that approach there are very few ways to avoid the simple fact that RPC 1.6 in almost any jurisdiction won’t permit doing this.

I also strongly believe that most lawyers who do this kind of thing — if they think about it from an ethics standpoint – believe that the risk is quite low of ever being found out because of the marital privilege.  But not only because of some of the inherent limits on how far that may take you, but also because of the increasing frequency in which we all do everything digitally… this case demonstrates that there are a number of ways that the communications can surface into the light without anyone ever having a spouse voluntarily provide information any marital privilege notwithstanding.

Ridiculous from up close and far away.

I have some real-world experience in trying to help lawyers already admitted in at least one jurisdiction obtain admission to practice here in Tennessee.  My state’s system now is still less than ideal but not necessarily in a way that makes it strikingly more problematic than is the case in many other states.  (In the long, long ago I wrote a bit about how it was strikingly more problematic but we obtained some important rule revisions that made things better, if not perfect.)

Part of the overall problem with this aspect of lawyer regulation is the antiquated nature of the overall process plus the increasingly-difficult-to-intellectually-justify approach that we have to the regulation of the practice of law in this nation that clings to the notion that each of the 50 states plus D.C. is entitled to make its own determinations about whether someone who is perfectly competent at practicing law in one state can manage to grasp how to practice law in their state.

The underlying premise and approach is one that institutionally leads itself easily into a protectionist and parochial approach to making admissions decisions.  There are lots of ways in which the patchwork approach that exists to these issues has been very difficult to reconcile with advancements in technology and how easy it is for a lawyer sitting on a chair, in let’s say Oregon, with an internet connection can effectively practice law in, and service clients in, California or Texas or Maine or . . . well, you get the point.

This recent Law.com story tells the tale of an associate in a Kentucky office of Dinsmore Shohl who relocated to Ohio to work in the Cincinnati office and who is now at risk of being denied admission to the Ohio Bar based on “character and fitness” issues.  The problem with her character and fitness to practice is that Ohio has concluded that she’s been engaged in the unauthorized practice of law in Cincinnati by continuing to represent Kentucky clients where she is licensed while waiting for a decision on her application to be admitted to practice law in Ohio.

As far as fact patterns go, this one is among the more innocuous and is one that – if you happen to practice in a firm that has offices in multiple states — you’ve probably seen happen without incident and perhaps never even contemplated could go awry for the lawyer involved:

The questions about Jones’ potential admission to the Ohio bar trace back to 2015, when the associate requested a transfer to Dinsmore’s Cincinnati office so she could start and raise a family in Ohio, according to court documents. The firm granted her request but asked Jones to first apply for admission to the Ohio bar. It also required her to continue working only on matters arising under Kentucky law while her application for admission to the Ohio bar was pending.

Following the firm’s suggestions, Jones applied in October 2015 for reciprocal admission to the Ohio state bar—a process that would allow her to avoid retaking the bar exam in Ohio. She then moved to Cincinnati and worked only on Kentucky matters. She took a maternity leave and returned to practicing Kentucky law while based in Cincinnati, according to court documents in the case.

The article also indicates that those advocating for her admission in Ohio have raised constitutional arguments that also address one of the core problems with the way admissions authorities will often take a “cake and eat it too” approach to these issues:

Jones also invoked the U.S. Constitution’s due process provisions under the 14th Amendment. In a May brief, Jones’ lawyer noted that Ohio’s bar rules would allow an Ohio lawyer to practice Ohio law even if that lawyer was physically doing the work in another place. But, Jones argued, the board’s view would prohibit an out-of-state lawyer who wanted to do some work while in Ohio.

Even merely reading about this situation is a frustrating endeavor but important to highlight because, even if the Court ultimately gets the answer right, it shows how archaic some aspects of this whole approach to these issues are.  (Not the least of which being that we are talking about a situation in which this associate has now been under this cloud and in this situation for nearly three years.)  And heaven help all the multi-state firms with Ohio offices if the Court gets the outcome wrong.

The end of Avvo Legal Services should not be the end of the discussion.

A lot of the time, saying something seemed “inevitable,” only makes sense to say when you’ve had the benefit of hindsight.  At some level, every outcome can be justified as having been inevitable when you are doing the justifying after the event has already happened.

I say that to make clear that I understand the problem with making the following assertion:  As soon as the news came out that the same company that owned Martindale Hubbell was buying Avvo, it seemed inevitable that Avvo Legal Services was on the road to being scrapped/shut down.

Further, if the mere news that a much larger, much more “conservative” company was taking over didn’t signal for you how things would shake out ( a company that also owned other significant legal marketing products that might “compete” with or be intended to compete with Avvo), the news that quickly followed — all the key people at Avvo (the founder and CEO, the General Counsel, the marketing person who was to some extent the “face” of Avvo) were cashing out and moving on — should have left no doubt that large change was coming.

This week Internet Brands, that new owner of Avvo, let the cat out of the bag in perhaps the weirdest way possible that Avvo Legal Services would be shut down.  As this ABA Journal article reports, an unauthorized practice of law committee of the North Carolina Bar had sent an inquiry letter, apparently, to continue or begin an evaluation of whether Avvo Legal Services somehow involved the unauthorized practice of law.

In response, the General Counsel of Internet Brands sent the North Carolina committee a letter advising that Avvo Legal Services was going to be shut down imminently.  That’s a weird way for the news to come out because, of all the problems that Avvo Legal Services’s business model had, unauthorized practice of law simply wasn’t one.

If you follow this space, then you are likely well-versed on what those problems were: the business-model required participating lawyers to take on all of the risk that participation would involve them in one or more violations of their state’s ethics rules, including rules against sharing fees with people who aren’t lawyers or paying someone something of a value for a referral of legal work.

The end of Avvo Legal Services, however, should not mean that the legal profession should stop efforts to determine how the ethics rules need to be revised in order to facilitate the existence of things similar to Avvo Legal Services.  Consumers who have grown accustomed to using that kind of platform to get assistance with their legal needs are just going to look around the Internet for a new option.

One of the folks behind Avvo has been promoting the existence of one such new option pretty vigorously of late.  But there are all kinds of others out there and likely new ones waiting in the wings.  Very few, if any, of them can truly be described as providing any sort of service that is likely to hurt consumers seeking legal services.  Real-world transactions have demonstrated that the kind of approach to pairing consumers in need of help with lawyers with time on their hands and a willingness to assist at a desirable price point can take place without hurting the consumers of legal services.  The fact that those business models are currently prohibited by the ethics rules simply means that slavish devotion to those prohibitions based on theoretical concerns rather than how things truly are is an untenable position for the profession to try to maintain.

I still think a big choice has to be made in our profession, and I continue to think that choice is clear.

When the job requires you to do the impossible.

I’d long thought that the ethical issues associated with representing clients held in Guantanamo would be the most flagrant example in my lifetime of our government purposefully making it impossible for lawyers to fulfill obligations to their clients.  Sad to say that I may just have been wrong about that.  (P.S.  I only started this blog in 2015 and have never really written about the dilemma created for lawyers trying to represent detainees in Guantanamo because it felt like most everything worth saying about it had already been said by others.  You can still read one the best legal journal articles providing an overview of the dilemma here.  But, it is worth noting that the absurdities of the overall situation have not dissipated and it can be argued that the situation for defense lawyers in those proceedings is now worse than it has ever been.)

The situation created by our government’s forcible separation of families seeking asylum at our border has created a dynamic that might be just as bad or, perhaps, worse.

This weekend I had the chance to read some about the bizarre scenes playing out now in Immigration Court in our country.  Perhaps the two most poignant accounts are this piece on a 1-year old who had to appear, albeit with a lawyer, and this video recreation using actual immigration court transcripts of how surreal this whole thing is.

Because this is a blog about legal ethics, I will limit what I have to say to the perniciousness of the impact this policy has on lawyers who are attempting to represent an immigration client — which while a horrible situation is about seventh on the list of importance in terms of the overall horribleness (which includes but is not limited to all of the children who have to deal with immigration court without a lawyer at all.

A lawyer has an ethical obligation to provide competent representation to a client (see RPC 1.1), a lawyer has an ethical duty to communicate with the client as to information that is important for the client to make informed decisions about the representation (see RPC 1.4), a lawyer has an ethical duty – even when dealing with a client with diminished capacity — to try to treat the client as much as is possible like a client with normal capacity (see RPC 1.14).  Almost all of those ethical duties become close to impossible to accomplish when the lawyer’s client is one to five years of age, not allowed to see their parents, not sure why they aren’t allowed to see their parents any longer, unable to effectively communicate about complicated legal questions even in their own language much less in the language the lawyer speaks, and, for the most part, simply altogether unable to appreciate what is going on at the moment.  And, none of what I just said even takes into account the possibility that the client is also being forcibly drugged to a point of sedation in order to try to address crippling anxiety brought about by the forced separation from their parent or parents.

Opportunities to discuss RPC 1.14 in a meaningful way are not all that frequent, but one of the big things that rule seeks to do is to insure that the lawyer try to empower the client as much as possible despite the client’s diminished capacity as much as possible.  It does this front-and-center in the black letter of the rule stating:

(a)  When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority . . . or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Thus, for example, it does not trumpet pursuing the appointment of a conservator or guardian for a client as a primary course of action.  Instead, it establishes in the rule that such efforts are appropriate only when there is something more going on than just the fact of diminished capacity:

(b)  When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

Yet, in the situation these immigration counsel are grappling with, it seems impossible to figure out how a lawyer could do anything other than want to seek the appointment of a guardian or guardian ad litem to assist the client with the decision-making that has to occur.  Of course, immigration courts – unlike other courts in our judicial branch — are creatures of the executive branch.  When the head of the executive branch is publicly railing against due process at all in the immigration courts, one fears that an already nearly impossible task for the lawyer will be made all the worse by a system that will be less-than-friendly toward any efforts to have such a person appointed at all.

In Tennessee, we have a version of RPC 1.14 that goes a further step in Comment [9] – and would likely describe much of what lawyers in this situation will have to do by necessity — act on an emergency basis on behalf of a client with seriously diminished capacity without meaningful input:

[9]  If the health, safety, or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.  Even in such a situation, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available.  The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm….

The only other hope for the situation is that the lawyer representing the child may be able to count on the immigration judge to try to make every effort to accommodate and account for this inherent failure in the process.  Again, given the dynamic going on in the system itself right now, this does not seem like a very realistic hope.  Certainly not one on which the lawyers involved can count.

 

 

RPC 5.6 and settlement agreements: The TN BPR messes up another ethics opinion.

This is not truly a development that merits the “Bad Ethics Opinion or the Worst Ethics Opinion” treatment, but it is a development that deserves commentary.

Last week while my wife and I were getting some short R&R, the Tennessee Board of Professional Responsibility issued Formal Ethics Opinion 2018-F-166.  If all you read of it were the first two paragraphs, it would sound like a reasonable (albeit somewhat circular) ethics opinion to have issued:

The Board of Professional Responsibility has been requested to issue a Formal Ethics Opinion on the ethical propriety of a settlement agreement which contains a confidentiality provision that prohibits any discussion of any facet of the settlement agreement with any other person or entity, regardless of the circumstances, and which prohibits the requesting attorney from referencing the incident central to the plaintiff’s case, the year, make, and model of the subject vehicle or the identity of the Defendants.

OPINION

It is improper for an attorney to propose or accept a provision in a settlement agreement that requires the attorney to be bound by a confidentiality clause that prohibits a lawyer from future use of information learned during the representation or disclosure of information that is publicly available or that would be available through discovery in other cases as part of the settlement, if that action will restrict the attorney’s representation of other clients.

So, again, that sounds reasonable in a vacuum (and it’s that last clause that makes it relatively circular as an application of RPC 5.6.  As the opinion makes clear that the rule on which it is premised and hinges is RPC 5.6(b), which provides:  “A lawyer shall not participate in offering or making: (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

But, this opinion isn’t issued in a vacuum.  It manages over the course of 4 pages to barely acknowledge the existence of an earlier-issued ethics opinion — Formal Ethics Opinion 98-F-141.  It also doesn’t even mention the existence of a more recent Formal Ethics Opinion 2010-F-154.  Those oversights are extremely unfortunate because the existence of those two FEOs should have made the issuance of this new FEO entirely unnecessary.

FEO 98-F-141 explained that a plaintiff’s attorney should not be required to, and should not agree to, be a party to a release and settlement agreement of their client unless the attorney is specifically releasing a claim for attorney fees.  Otherwise, being a party to the release creates conflict of interest issues between the client and the lawyer.  FEO 2010-F-154 repeated this guidance as part of explaining why – despite the problems associated with Medicare super liens — settlement agreements could not require the lawyer for the plaintiff to agree to indemnify the defendants for such liens.  Thus, the second paragraph of FEO 2018-F-166 (if it was ever issued at all) could have read:

We have already opined in FEO 98-F-141 and FEO 2010-F-154 that it is unethical for a plaintiff’s attorney to be required to, or to agree to, be a party to a client’s release and settlement agreement.  For any such provisions to be enforceable against plaintiff’s counsel, (s)he would have to be a party to the settlement agreement, which we’ve already explained is a no-no.  As long as the lawyer is not an actual party to the agreement, then any such provisions are only binding upon the client – not the lawyer — and whether or not the client wishes to agree to them is up to the client given that RPC 1.2(a) declares that the client’s decision to settle a case is something that a lawyer has to abide.  Thus, if a client wants to agree to terms of settlement that are lawful and the lawyer cannot be held to those terms as a party, then the client gets to do as the client wishes in that respect.

And then, FEO 2018-F-166 could have stopped right there.

Since it didn’t go down that way, this new opinion is, at best, unhelpful to the extent that it implies that a client doesn’t have the right to agree to things that they obviously would have the right to agree to or that it implies that if a client does it is somehow binding on the client’s lawyer going forward in future situations even if the lawyer is not a party to the release and settlement agreement and not bound thereby.

Far too often anger begets violence both by, and against, lawyers.

I failed again as a blogger last week and do not have anything resembling a good excuse.  There is a lot going on in the world that is troubling and last week was simply a week where it felt like writing anything that was not about how our country has become okay with putting children in cages seemed frivolous.  That topic was not one that had any legal ethics component, however, so …

I’m still very angry about what my government is doing, but beyond the 50 or so words that precede this one, I’m not writing about that today.

There are two short stories sitting in my idea pile that have anger as their common thread so I’m threading them together today to simply talk about how easily anger can get the better of people if not channeled to something productive.  One story involves a lawyer being properly disciplined for failing to manage his own anger.  The other involves a tragic end of life for a lawyer who was slain by someone else who let anger take over.

A lawyer in Maryland, who already had a track record of disciplinary problems, now finds himself suspended from the practice of law for 30 days as a result of engaging in “road rage.”  Dana Paul’s suspension, premised upon violations of RPC 8.4(a), (b) and (d) is not only yet another in a long list of incidents where angry lawyers do inexcusable things but also a reminder that RPC 8.4 is the kind of disciplinary rule that applies to lawyers even when they aren’t engaged in the practice of law.

The Maryland opinion describes the three different versions (Paul’s, the other driver’s, and a third-party witness to some of the incidents) of the events presented in evidence in the case which involved sustained interactions between Paul and another driver spanning over two counties in Maryland.  Paul’s own testimony minimized his conduct but he ultimately did plead guilty to two counts – negligent driving and failure to return to/remain at the scene of an accident.  Paul claimed that things started when the other car slowed down in front of him and he observed the driver of the other car on her cell phone.  Paul says he passed her and beeped at her – claiming that he always beeps at people on their phones “as a way of telling drivers to not use their phones while operating a vehicle.”  Paul then claimed that the vehicle passed him and cut him off and then would intentionally slam on her brakes.  Then at a red light, Paul left his vehicle to question the driver.

The other driver testified to a different version of events at Paul’s criminal trial.  A third-party witness who saw both the altercation at the traffic light and the moment when Paul’s car and the other car impacted each other offered testimony that the court found persuasive:

At the traffic light, [witness] asserted that Paul exited his vehicle, displayed both of his middle fingers towards [other driver,] and reentered his vehicle and drove of.  Approximately eight miles later, [witness] was driving in the right lane while [other drive] drove next to [witness] in the left lane.  [Witness] witnessed Paul’s car drive in between [witness] and [other driver’s] cars, causing [witness] to move to the right shoulder.  [Witness] attempted to alert Paul that he could drive in front of her in order to avoid injury to any party  Thereafter, [witness] observed Paul’s vehicle make contact with [other driver’s] vehicle.  After the cars hit, [witness] stated that Paul moved behind [other driver] and took a picture of [other driver’s] license plate.  Once [other driver] then pulled off onto the shoulder, [witness] did the same and gave [other driver] her name and address.  [Witness] later drove to Easton at the request of the police to identify Paul as the person who struck [other driver’s] vehicle.

Paul’s conduct on the road did himself no favors, but Paul’s own statements to law enforcement were damaging as well as he was confronted by a state trooper after he had stopped at a restaurant to use the restroom and asked what had happened to his vehicle.  After Paul said nothing happened, and after the state trooper pointed to paint on the side of Paul’s car, Paul then denied the allegation that he had hit the other driver’s car.

Ultimately, the Maryland court concluded that it had been proven by clear and convincing evidence that Paul’s “road rage” conduct was both criminal and of a nature that reflected adversely on his “fitness as an attorney” to be a violation of RPC 8.4(b) and also that because his conduct “involved dangerous, harmful, and threatening behavior stretching across two counties,” it was sufficiently prejudicial to the administration of justice to be a violation of RPC 8.4(d).

Of course, lawyers can be victims of unhealthy anger as well.  Last week the ABA Journal online posted a story of a Georgia lawyer (just three years younger than I am) who was found dead in his law office after having apparently been gunned down by the husband of one of the Georgia lawyer’s divorce clients.  The husband was also found dead in his former wife’s bed from an apparently self-inflicted gun shot.  The police knew to go to the law office only after the husband had called his former wife and confessed to killing her lawyer.  Although I was just a baby lawyer when it happened, I remember well when something not too different than this happened in Memphis back in 2002 when Robert Friedman was ambushed in his parking garage by the husband of one of Friedman’s divorce clients.

It is a difficult time to begrudge anyone the right to be angry, and you can count me on the side of those who don’t take kindly in the political arena to slavish calls for “civility” that really only amount to trying to prevent relatively powerless people from sending a message to powerful people, but if you are reading this and you get violent when you get angry, seek out ways to learn how to manage your anger.

Time to choose: are you Illinois or New Jersey?

Blackhawks or Devils?

Bulls or Nets?

Barack Obama or Chris Christie?

Northwestern or Rutgers?

Kanye or Wu-Tang Clan?

Wilco or Bruce Springsteen?

Some of those are easy calls; some are harder decisions to make.  What they all have in common though is that one comes out of Illinois and the other comes out of New Jersey.

As to the future of legal ethics, we now face a similar decision that has to be made.  Are you down with what is coming out of Illinois or will you choose what New Jersey has to offer?

I’ll explain further.  Avid readers of this space will be well aware that I have devoted quite a few bits and bytes to discussions of the evolving market for legal services and the push/pull in place between companies that push the envelope of what lawyers can do under existing ethics rules and various ethics opinions that have been released explaining how lawyers can or cannot do business with such companies.  In order to avoid spamming this post with about 10-15 links to previous posts of mine, I’ll just say that if you are just getting here for the first time (welcome!), then look through the older posts for ones with the tag “Future of Legal Ethics” and you are sure to find one pretty quickly that discusses these topics.

Within the last couple of weeks, these have been the two developments that pretty nicely identify the choice that lawyers (and the legal profession) face.

First there is the Illinois development.  The Illinois ARDC — which is Illinois’s regulatory and disciplinary agency [Attorney Registration and Disciplinary Committee] — issued a more than 100-page report making the case for why the ethics rules need to be overhauled to permit lawyers to ethically participate in “lawyer-matching services” such as Avvo and other platforms but that, along with such changes, there need to be regulations adopted to impose certain requirements on such companies and platforms for lawyers to be able to participate.

In large part, much of what Illinois describes sounds a bit like a subtle variation on RPC 7.6 in Tennessee that I have written about in the past.  But it still also requires fundamental changes to other pieces of the ethics rules addressing financial arrangements between lawyers and those not licensed to practice law.

By way of juxtaposition, the New Jersey Supreme Court, asked to review a joint opinion issued by its legal ethics regulatory body, its advertising regulatory body, and its body focused on UPL aligned with other jurisdictions that have issued ethics opinions prohibiting lawyers from participating in programs like Avvo Legal Services, declined to review the opinion or otherwise disagree with its conclusions.

For my part, I think the choice is an easy one to make.

But, the most important thing for today (IMO) is for people to understand that there really is not a middle ground position here — you are going to have to make a choice and you are going to have to decide that you are either on board with the Illinois approach or the New Jersey approach to this topic.

Choose wisely.