I’m writing from Boise where tomorrow I’m delighted to have the chance to speak on legal ethics for the Idaho Prosecuting Attorneys Association. (I’m also delighted that the weather is unseasonably warm at the moment.) Last year I had the chance to do a similar presentation for the Tennessee District Attorneys General Conference. Prosecuting attorneys throughout the country are finding themselves more frequently in the cross-hairs of disciplinary proceedings.
But today’s post isn’t really about that, but it does help explain the selection process. As I find myself drawn to write about a recent instance of discipline imposed on a private attorney in Idaho that involves behavior that I’ve counseled lawyers about so I know it happens to be relevant beyond just the Idaho Bar.
The case involves the issuance of a suspension order against Attorney Beckett issued at the end of January 2018, but for which the 28-day active suspension period will run during the month of February. You can read the press release put out by Idaho State Bar Counsel here.
The underlying case was a personal injury lawsuit, and Beckett was able to get the case successfully settled for his client. His client, though, wanted immediate access to parts of what would be forthcoming from the settlement. Perhaps simply motivated by an effort to be accommodating, or more likely because of a failure to properly communicate with the client and manage expectations regarding how long such things take, Beckett agreed to provide two advances of the forthcoming settlement funds to the client out of his own money and from money belonging to a separate company Beckett owned.
As the press release explains, he didn’t do that in a way that was at all proper because she didn’t manage to keep the funds properly segregated to avoid commingling them with money in other accounts and also didn’t communicate to the client the available alternatives. Despite the fact that, as the press release makes clear, Beckett didn’t charge any interest or fees for the transaction and that no other clients were harmed in any way, the conduct violated Rule 1.15 and 1.4 of the Idaho Rules and merited a 60-day suspension, with 28 days of active suspension, and a six-month probationary period.
What is interesting is that the press release makes no mention of Rule 1.8(a) governing business transactions with clients. When I have had to counsel lawyers about inquiries from clients along these lines, that is the Rule most pertinent to the discussion for a path to actually doing what the client wants if the lawyer is insistent on providing an accommodation.
Idaho, like Tennessee, has a Rule 1.8(a) patterned after the ABA Model Rule. Tennessee’s, for example, provides that a business transaction with a client – which is what a loan like what Beckett did would be — cannot happen unless
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
Now, working through that rule is not 100% of the battle altogether, because the risk still exists that a bar counsel would argue that other provisions in the same rule, RPC 1.8(e) and (i) in Tennessee for example, would still work to prohibit such a business transaction altogether if the case has been settled but no order of dismissal ending the litigation has been entered.
Those provisions provide:
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
RPC 1.8(i) has always struck me as a prohibition that can be drafted around in the transaction documents to sever any connection between the litigation and the loan, but (e) is trickier if the litigation, despite being settled is technically still “pending” at the time of the client’s inquiry.