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.

Lawyers (but really judges) in a #meToo world.

I was fortunate enough to be invited to speak last week at a half-day seminar that was called a “#meToo CLE” and was focused on legal and ethical issues for lawyers in the environment that now exists after #meToo went viral.

I was the only male speaker at the seminar and fully recognize that still might have been one too many male voices for the topic.  Nevertheless, it was an honor to participate all the same.  Sitting through the two hours of presentations before mine was a thought-provoking time as it helped to drive home many systemic problems still prevalent that become overwhelming to think about.

Some of my time spent talking through ethics issues for lawyers in a #meToo world focused on Tennessee’s rejection of a proposed RPC 8.4(g) and how that leaves us in a position where there is little, if anything, in our ethics rules to address toxic conduct by lawyers when representation of a client is not involved.

I spent some of the time talking about the fact that there is more, significantly more, built into our judicial ethics rules not only to stop judges from engaging in this kind of behavior but that also requires at least some form of what would, strictly speaking, be classifiable as judicial activism — doing what must be done to stop others from behaving in this fashion.

Specifically, we have adopted RJC 2.3 Bias, Prejudice, and Harassment – patterned after the ABA Model —  and it requires the following of judges in Tennessee:

(A)  A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C)  A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Tenn. Sup. Ct. R. 10, RJC 2.3 (all emphasis added by me)

This obligation of judges not only to personally avoid engaging in harassment both on and off the bench but also to stop others within their control, including lawyers, from doing so has stayed on my mind after the seminar for two reasons.

The first is the recent news of the release of this working group report that was submitted to the Judicial Conference of the United States declaring, among other things, that federal judges “have a special responsibility to promote appropriate behavior and report instances of misconduct by others, including other judges.”  The working group report also recommended that existing codes of conduct need to be revised to make clear that retaliating against someone who reports misconduct should itself be treated as judicial misconduct and that the obligations of confidentiality that court employees have do not extend so far as to prevent them from reporting misconduct.

The second is that we’ve got some contested judicial elections going on in Tennessee and I’m very curious whether any candidates will make this topic into a campaign issue.  Candidates for elected judicial positions are often very constrained in what they can say about how they will go about their jobs because of the problems associated with staking out public positions on matters they will have to later adjudicate.  Judicial ethics rules are rife with restrictions on campaign speech,  such as rules prohibiting promises or pledges about how they would rule on a particular case or on a particular legal question that may come before them.

But, this issue, and particularly, what a candidate might plan to do in keeping with his or her ethical obligations once on the bench to police bad behavior and not permit court officers to engage in harassment would be something that might well move the needle with some voters and would not be the kind of statement about issues relating to cases that judges should shy away from in order to avoid having to recuse in the future.

Things former judges can and can’t do.

(Edited on June 4 to fix very embarrassing mistaken reference to the wrong RPC.  Twice.  Thanks to Roy Simon for pointing out the mistake.)

There are some pieces of the attorney ethics rules that it almost seems like there is never an organic opportunity to write about them.  RPC 1.12(a) regarding restrictions imposed on someone who previously was a judge but then returns to the practice of law is one of those rules.

But, lo and behold, there now is a development that is both local to my state and in the national news that provides an organic opportunity to discuss.  The ethics nerd in me rejoices.

Of course, often times the reason there aren’t many organic opportunities to discuss a particular rule or its application can be because there is not much that can be said about the rule beyond what it says.  RPC 1.12(a) happens to be one of those rules.

Here’s what it sets out in Tennessee:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge …, unless all parties to the proceeding give informed consent, confirmed in writing.

What it indicates it restricts is quite plain and relatively straightforward.  For example, if someone had served as a federal judge and been involved in sentencing a defendant, then left the bench to resume private practice with an explanation that he no longer wanted to have to impose the kind of sentences required as mandatory minimums, and then an appellate court reversed the judge’s sentencing determination, that former judge could not turn around and take that defendant on as a client with respect to further proceedings.

So, for example, if in a very weird set of circumstances, the defendant had actually been released from prison, returned to society, and appeared to have turned his life around, but, as a result of the appellate ruling, now looks like he has to be pulled from his life and returned to prison, the former judge could not become the attorney for the defendant and undertake representation in the continuing proceedings unless all involved, not just the defendant but the prosecutors gave written consent to the participation.  The mere fact that the situation is treated as one that should be consentable is, itself, pretty interesting from a public policy perspective.

What the rule does not prohibit, however, is really anything else not involving representation of a client in the matter.  So, it would not prohibit that former judge from going on television and advocating as to how that defendant should now be treated.

Pretty fascinating sometimes to actually mull over where some lines are drawn in the ethics rules.  If the concern is the appearance of the situation, then it would be a curious place to split the hairs, but if the concern is the idea that the former judge in such a situation might use their access to information learned in a judicial capacity in a later capacity as an attorney of record in a matter, then where the lines are drawn (and the fact that the parties to the proceeding can bless the involvement) makes sense.

 

The good and bad of social media on display

Today’s title refers to two developments worth writing about that caught my attention in the last little bit that only have the issue of social media in common.  I will try to let the reader decided which is which (or if both are both) in due course.

The first development is an example of a lawyer behaving badly who managed to get caught in a lie because of his own social media posts proving that he had not been truthful with a federal judge.  Now lying to a federal judge is never a good choice to make, but doing so and then providing the seeds through social media for someone to prove that you did is just… well… “sloppy” seems like the wrong sort of word given that it appears to imply a value judgment that the “wrong” here is not the falsehood, but the careless unwillingness to try to maintain the facade.  Nevertheless, that is the one of the takeaways of the short version of the story of how this New Jersey lawyer ended up in this situation.  In summary form, lawyer blew some important deadlines, told the court it was because of a family medical emergency, but posted on several occasions during the time period in question on Instagram pictures showing she was on vacation in Miami, traveling and sightseeing in New York City, and other places.  You can read the much longer version at the link.  In the end, it was the freedom (and accompanying folly) that robust use of social media can bring that brought the lawyer down but that also brought the truth to light.  As the story reveals, the lawyer now no longer represents the clients in question and, instead of learning the art of the Latergram has, at least, now managed to set her Instagram account to private.

The second is a new judicial ethics opinion issued out of Massachusetts that continues the process of taking Massachusetts down a path in which judges cannot have lawyers as “friends” on Facebook at all if those lawyers are likely to appear before the judge.  I learned about CJE Opinion No. 2018-03, and the earlier opinion on which it builds (Letter Opinion 2016-01), because it was circulated on a very robust (and very valued) listserv/forum that is available to members of the Association of Professional Responsibility Lawyers.  (If you aren’t an APRL member, it is always a good time to explore the benefits of membership.)  This opinion talks about the obligation of judges to disclose to litigants whether they used to be Facebook friends with any of the lawyers appearing before them since the earlier opinion mandated that they delete lawyers as friends.  I normally like to proffer original content here, but, in this instance, I’ll simply restate the opinion I offered on that forum a few days ago.  (Repasting it seems particularly appropriate where loyal readers will recognize that the sentiment is pretty much repetitious of earlier content here anyway.]

Well, that’s a pretty silly add-on to an inherently silly underlying opinion.  The judicial ethics rules don’t prohibit judges from having friends who are attorneys.  If someone can be a friend IRL, then there is no reason they cannot appear as a friend on social media.  The fact that this entity had to issue this opinion about how long you have to disclose that you essentially tried to cover your tracks by deleting attorneys from your connections belies the point that allowing/encouraging judges to go about their normal friendships on social media is actually a good thing since it permits a way to “search up” information they might not disclose about relationships they have with the attorneys appearing before them.

In fact, the only thing that judicial ethics opinion writing bodies ought to be mandating is that judges make certain that they have their settings established in a way that lets the public have access to their list of friends/connections even if they put all of the rest of it into a “private” setting.

A tale of two ethics opinions.

So, I’ve made something of a habit of writing about ethics opinions.  Bad ones and good ones.  Mostly bad ones though.

As the trite – almost hackish – title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from a well done ethics opinion on the kind of issue that cries out for guidance in the form of an ethics opinion and the harm that can come from the kind of ethics opinion that likely should not be issued at all.

First, the good – an opinion issued out of Texas (which Karen Rubin has already written some about) that tackles a thorny problem that can confront a lawyer who has been retained by an insurance company to represent one of the company’s insureds in a piece of litigation.

The particular question addressed in Texas Opinion 669 is this:

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer retained by an insurance company notify the insurance company that the insured client he was assigned to represent is not cooperating in the defense of the client’s lawsuit?

The answer the Texas opinion provides, as difficult as it might be for insurance defense lawyers to hear, is “no.”  And, that answer is the correct one in any jurisdiction where the way the “tripartite” relationship is structured is that the lawyer’s only client is the insured and the insurance company is merely someone who is permitted to pay the lawyer’s bills as long as the lawyer complies with the state’s version of Model Rules 1.8(f) and 5.4(c).

In Tennessee, for example, RPC 1.8(f) specifically states one of the requirements for permitting the lawyer to accept compensation or direction from someone other than the client as being that “information relating to representation of a client is protected as required by RPC 1.6.” (Interestingly, the Texas opinion makes no mention of, or reference to, any of those kinds of rules but simply uses only its confidentiality rule to justify its analysis.)

The unfortunate opinion comes out of Virginia.  Virginia, you might recall, recently made a great leap forward in streamlining its rules on attorney advertising by revising its rules to look very much like the proposal circulated by APRL.  After adoption of those revisions, which became effective on July 1, 2017, Virginia’s ethical restrictions on advertising were largely capable of being described as simply prohibiting false or misleading communications.

Unfortunately, with the issuance of Legal Ethics Opinion 1750, Virginia manages less than a year later to undermine much of its progress by simply re-issuing and updating a lengthy opinion it has released on multiple past occasions that attempts, in advance and not in response to evaluating any particular real advertisement, to provide “guidance” about what kinds of advertising practices should still be avoided because of the potential to be considered to be misleading.

Unlike the Texas opinion, which answered a real dilemma that lawyers can face and for which definitive guidance can be provided, the Virginia opinion is the kind of ethics opinion designed almost exclusively to chill commercial speech.  Even if the guidance it gave on all of the topics it unilaterally decided to address were correct, it would still be the type of opinion that ought not be issued.

Certainly, it says some things that are undoubtedly true and fun to read about ways that a lawyer could engage in truthful advertising that would still be a problem because it would be misleading by omission.  I’ve spoken at seminars before where I’ve tried to make this point by saying that a lawyer whose ad truthfully proclaimed “I’ve never lost a jury trial,” but fails to also mention, for context, that they’ve never actually been involved in a jury trial is going to be at risk under any fair set of ethics rules.  The Virginia opinion grabs a slightly different version of this rich vein by explaining that a lawyer truthfully crowing that “They secured a $1 million jury verdict in case,” but not mentioning that it came only after turning down a $2 million settlement offer before trial would have disseminated a misleading advertisement.

But, even that guidance is something that really ought not be opined about unless there were an actual lawyer seeking actual guidance about just that sort of advertisement.

So many other pieces of the opinion are even worse, however.   Cautions about using actors in ads, hand-wringing over “no recovery, no fee” statements, and subtle digs at the use of testimonials by actual clients in the opinion appear to be rolled back out for no real reason other than to undermine the progress on lawyer regulation of advertising that had appeared to be achieved by streamlining the rules themselves.

On wellness: An indirect explanation of last week’s lack of content

Content is a hungry beast.  I starved it last week.  Apologies.

It was really a bit of a rough week to let things get away from me and not be able to write anything because there were actually quite a few things worth delving into that happened.  Perhaps the biggest piece of news actually came the same day that I had a speaking engagement at a CLE for in-house counsel here in Memphis.  There were California in-house lawyers with the hosting corporation who were attending remotely and I apologized at the outset for the fact that the differences between their rules and Tennesssee’s were going to make their next hour of time pretty wasted and, also, mentioned that they were certainly striving to change their rules but then saying that we all strive toward lots of things …  implying that they’d never manage to adopt rules that look like the ABA Model Rules.  That very same day California was able to announce that, after 17 years of effort to get there, rules patterned after the Model Rules are being adopted and will become effective in November 2018.  I can’t write much more about that in any meaningful way because I haven’t had time to study any of it, so I won’t.  You can read the first wave of information about what those rules will look like here.

I’m also not going to “write” today about any other ethics topic of interest.  But, I do want to ask for 6 minutes of your time today in the name of the important issue of attorney well-being to watch the clip you can get at the link I’m posting below. (I promise this is not me trying to “pivot to video.”)

The last 12 minutes of the 2017 Ethics Roadshow

I shared this story about me for the first time during last year’s Ethics Roadshow after staying quiet about it for more than 7 years.  If you didn’t attend, or you didn’t stay for the last 12 minutes, then you won’t have seen it.  It offers an indirect window into why there was no new content offered here last week.  (Also, I know I said I’m only asking for 6 minutes of your time.  My personal story starts at the 6 minute mark on the clip.)

All things considered, I remain very lucky.  Client obligations and family obligations come first in terms of what gets accomplished.  After that, speaking engagements and all that entails comes next.  Pretty much everything else, including this blog, ends up third on the depth chart.  Sometimes I’m not deep enough to get that far down in the chart.

Throwback Thursday on Cinco de Cuatro Eve

Usually the concept of Throwback Thursday should reach back farther than merely months ago, but I can’t resist given yesterday’s news.

So, I throw you back to this February 15, 2018 post.  And I do so to point out something about which I was right and something about which I was quite wrong  but with a twist.

At the end of that post, I wrote this:

Instead, I want to point out my own opinion, given the way a certain someone is known to operate, about how this likely went down:

Cohen is likely telling the truth about paying with funds of his for which no one reimbursed him, but omitting the most salient detail.  He probably wasn’t “reimbursed” by anyone after making the payment because he was probably provided those funds, pretty much immediately in advance of the transaction, as some sort of bonus or even a “gift” with the tacit understanding about what he was expected to do with those funds — purchase Ms. Daniels’s silence.

This was me sort of making things too complicated when I should have stuck with simple.  And, yet, I wasn’t too far off the mark.

Earlier in the post, I wrote this:

(c) It also is quite likely that Cohen’s version of the events is probably not 100% the truth, key details have been omitted, and it could very well, if nothing else, be a violation of a rule such as RPC 8.4(c).

That bit, at least if you are now willing to believe another lawyer for the same client over the earlier lawyer for the same client and the client himself now explaining in a series of tweets clearly written by another lawyer – though one who either can’t spell “role” or who knows enough to know his client can’t spell “role,” was pretty much spot on.  You can read a pretty decent, condensed version of the roller coaster events of that last 12-18 hours – including links to a deeper dive, in this The ABA Journal piece.

The fact that we now know more about this situation because the latest in a parade of what may go down in history as the worst high-profile legal team ever assembled blurted out this latest on cable news leads me to my segue.

For many reasons, Jeffrey Tambor ought to play the 45th President when the movie of this unprecedented period of American history is filmed.

And, on that note, and in news entirely unrelated to legal ethics but about which I’m even more excited and nerdy than I am about legal ethics generally, tomorrow, on Cinco de Cuatro, the creator of Arrested Development is releasing an entirely re-cut and transformed version of the 4th season of this incredible show.  If you’re interested [Ron Howard voice: they were not interested], you can read all about that development here.

TN BPR releases two more “stealth” ethics opinions

Earlier this month, and again in a fashion that seems a bit more in keeping with NOT wanting people to know they’ve been released rather than to give advice and guidance intended to be disseminated far and wide, the Board of Professional Responsibility here in Tennessee issued two new Formal Ethics Opinions.

The only way to know they had been released would be to have not only paid attention to a Board Notes newsletter that was sent out, but to also have gone in and read said newsletter to see that it contained these two FEOs.  Other than being quietly rolled out at the same time, the two FEOs do not have much in common.

One, 2018-F-165, blesses – with a laundry list of caveats – lawyer participation in an unnamed legal marketplace website that would essentially be a bit like an eBay for legal services where people looking to hire lawyers could pay for access to the site to post requests for needed services and lawyers interested in being hired could pay for access to the site and purchase the right to make a certain number of bids for services.  You can go read the opinion if you’d like here, but I’m not inclined to spend any real time talking about it because there really isn’t much to say about it and the service it addresses simply doesn’t sound, realistically, like much of the kind of thing any regular consumer is going to be seek to use since it would require the consumer to pay merely to have the ability to use it to try to hire lawyers.  (I could be wrong about that, of course, but, even so, this particular opinion is not of the earthshaking variety.)

The other is one that I do want to discuss at some length.  It weighs in on whether the ethical duty of a prosecutor under RPC 3.8(d) is the same as the duty to disclose under the constitutional series of cases most readily referredto in shorthand as Brady.

First, based on numbering alone, it is has been in the works and obviously on hold for a bit.  It is 2017-F-163.  It is a bit silly for the Board to stick with, and insist on titling it a 2017 opinion, since it was signed on March 15, 2018.  (For context, Opinion 165 was signed on March 9, 2018.)  Though, in fairness, perhaps the Board decided to stick with a “2017” title for this FEO because it didn’t update its research from the summer of 2017 when it crafted this particular opinion.  This can readily be gleaned from the fact that footnote 4 still cites to a 2005 Louisiana Supreme Court opinion as part of a “majority of states hold[ing] that the ethical duty of a prosecutor is broader and extends beyond Brady.”  That decision though was overruled/repudiated by the Louisiana Supreme Court in October 2017 in In re Seastrunk:

We reject ODC’s efforts here to broaden Rule 3.8(d) beyond that which Brady and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and Brady are coextensive

Second, the opinion unfortunately persists in speaking of a prosecutor’s ethical duty of disclosure as going to “favorable” evidence.  This is not a helpful approach because it isn’t what the rule being interepreted actually says.  At all.  RPC 3.8(d) doesn’t use the term “favorable evidence,” and this opinion truly should not either.

What RPC 3.8(d) speaks of [other than with respect to sentencing] is the duty to disclose “information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”  Those are objective categories of things and not susceptible to the kind of subjectivity that is involved in trying to decide whether people agree as to the status of evidence as “favorable.”

Third, and related to the second, the opinion’s ultimate conclusion that the ethical duty under RPC 3.8(d) is “broader than and extends beyond Brady” is an acceptable conclusion to reach to the extent it is intended to mean that the actual language of the rule and what it says must be disclosed is not to be read to include the word “material” before “information” but, and particularly given the erroneous reference to what has to be disclosed as “favorable evidence,” it is also a woefully incomplete message to send to the bar and to prosecutors without also expressly explaining that the ethical duty is also narrower than Brady in some respects.

Specifically, what is missing from this opinion, to further explain to the public and to members of the bar generally and to remind prosecutors specifically, is language along the lines of the following:  It should be noted, however, that there are aspects of the disclosure requirements of Brady that are broader than the disclosure requirements of RPC 3.8 as well.  One example being that Brady may require disclosure of information that would provide a basis for impeachment even if it was not evidence that tended to negate the guilt of the accused.

 

A short post-mortem for Tennessee’s proposed RPC 8.4(g)

With the flood of comments in opposition, and particularly the fact that the Attorney General of our state felt the need to file not just one but two comments in opposition, the unsuccessful end of the effort to convince the Tennessee Supreme Court to adopt a version of RPC 8.4(g) has felt inevitable for the last month or so.

Yesterday, the inevitable end came in the form of this one-page order from the Tennessee Supreme Court rejecting the petition.

I’m personally very grateful for the handful of entities that lent their support to the TBA/BPR petition which included not just specialty bar associations such as The Ben F. Jones Chapter of the National Bar Association and the Association for Women Attorneys, but also the Memphis Bar Association, the Knoxville Bar Association, and the Lawrence County Bar Association.

I’m not inclined to spend much space here discussing just how deeply disappointed I am in the outcome.  Given that I’m not likely to be the victim of any of the harassment and discrimination we were really aiming to protect against with this proposal, my disappointment is, at best, vicarious.  There are other lawyers in Tennessee who this impacts more directly.  Lawyers who have been told by many of those who filed comments that they are fair targets for disparagement as long as the lawyer disparaging them is not representing a client.

I wrote more than an 18 months ago about how skeptical I was that a state like Tennessee would adopt a black-letter rule addressing harassment and discrimination.  Admittedly, I let myself get a bit too optimistic along the way.  I remain convinced that the sentiments expressed by the most strident lawyers (mostly male, and nearly entirely Caucasian) who submitted comments opposing the proposal do not represent the future of our profession in this state even though they prevailed in the present.

If you have the stomach for plowing through knowing that some of them truly serve as only a forum for attorneys who look like me to sound off with typo-filled paeans to a Limbaugh-esque worldview, I will again state that reading through the comments is an educational experience.

If you’d rather not, I can sum up alot of them with the following TL/dr:

“When you’re accustomed to privilege, equality feels like oppression.” – original source to quote a bit unknown as explained here.