Texas Two Steps Forward…One BIG Step Back

I have written in the past about the fact that I am fortunate to be the Chair of the Tennessee Bar Association’s Standing Committee on Ethics and Professional Responsibility. Because our committee is currently beginning a process of chewing over whether to try to recommend changes to the advertising rules in Tennessee, I’ve been trying to pay closer attention to developments in other states. Specifically, trying to pay closer attention to whether the revisions to the ABA Model Rules inspired by the work of APRL are moving the needle in the correct direction.

Long time readers of this space will know that my long-espoused view is that the only real rule needed in terms of lawyer advertising is a prohibition on false or misleading communication. The ABA Model Rules have moved closer – but not all the way of course — to that kind of approach.

Today’s post is about the fact that the Texas Committee on Disciplinary Rules and Referenda has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.

You can read the proposed revisions here.

The short version is that these proposed revisions seem like a very positive development in a few respects as to regulation on lawyer advertising. The biggest positive is that these changes would replace wholesale the kind of improper categorization of certain statements that can be made truthfully (like comparison of one lawyer’s services to another or discusses past results obtained for clients) currently housed in Texas’s Rule 7.02(a) with a revised Rule 7.01 that isn’t perfect in terms of just prohibiting actually false or misleading communications but is better.

Unfortunately, the other piece of the short version is that the Texas revisions would still perpetuate a very pernicious and unnecessary barrier to speech in the form of filing requirements and payments in the form of filing fees for any advertisements that are not limited to certain types of “pre-approved” information.

The Texas proposed revisions would do this by continuing to carry forward in a revised Rule 7.04 the following requirement:

A lawyer shall file with the staff of the Advertising Review Committee of the State Bar of Texas, no later than the date of dissemination of an advertisement of legal services via public media, or the date of a solicitation communication sent by any means, including social media, for the purpose of obtaining professional employment:

(1) a copy of the advertisement or solicitation (including packaging if applicable) in the form in which it appeared or will appear upon dissemination;

(2) a completed lawyer application advertising and solicitation communication application; and

(3) payment to the State Bar of Texas of a fee set by the Board of Directors.

For context, currently the fee is set at $100. You can review the relatively invasive application form that is required and all of its bells and whistles here. In reading it you will also learn the cute part where if more than one lawyer in separate firms is involved in the same advertisement they are still each required to separately submit applications and pay multiple $100 fees.

The proposed revision would also exempt certain limited types of communications from these requirements as long as they only contain the “vanilla” categories of information pre-approved by the regulators.

Such a regulatory regime does not exist for any reason other than to fundamentally discourage advertising., should not be tolerated, and pointlessly mars any progress the Texas proposal otherwise offers.

Friday follow up: Yesterday’s post

Well, this may be the most rapid Friday follow up in this blog’s history.

A wise and well-connected reader has been in touch to let me know why my analysis yesterday of NYSBA Op. 1160 was all wet. He was, of course, right as I somehow managed to blow past a very important piece of the puzzle regarding the situation NYSBA Op. 1160 was addressing. The inquiring lawyer was actually willing to put together an arrangement that would have made the out-of-state lawyer a part of his “firm.”

I wrote that was not the case prior to discussing the part of the opinion that sought to distinguish prior guidance from about 8 years earlier. Specifically, where I went awry was here:


New York’s 1.5(g) only lets lawyers not in the same law firm (and to be clear the inquirer’s desire to affiliate did not apparently involve actually forming a law firm together) share legal fees if, among other bells and whistles regarding consent and the existence of a writing, the amount of the division of the fee is either proportional to the service performed or (if it is going to be disproportionate in that respect) if both lawyers assume joint responsibility for the work.

The “facts” section of the opinion, however, makes clear that I got that wrong.

The inquirer, an attorney recently admitted to practice in New York, is acquainted with another lawyer. The other lawyer, like the inquirer, resides in New York, but the other attorney is admitted only in another state, not New York, though the latter is admitted to practice in federal courts located in New York. According to the inquirer, the other lawyer is capable of generating business, and the inquirer would like to affiliate with this other lawyer, listing the other lawyer as a partner, associate, counsel, or otherwise, on letterhead showing that the other lawyer is admitted solely in the other state and not New York. The inquirer anticipates that the other lawyer would attend initial meetings with the clients being produced by the other lawyer, but then would not deal with any of the legal work being performed.

I certainly regret my error.

I particularly regret my error because it was part of my thinking when I said at the outset of yesterday’s post that NYSBA Op. 1160 still got the answer right. Now that I actually am paying better attention to the facts, I realize that the opinion absolutely did not get to the correct answer. Instead it was flat wrong.

Rule 1.5(g) wouldn’t be in the mix since that is sharing of fees among lawyers not in the same firm. Likewise, the stated concerns in the opinion about Rule 7.2(a) are irrelevant because that rule surely is not intended to apply to arrangements among lawyers within the same law firm.

There are multi-state law firms all over this nation that have partners who do absolutely nothing on a particular client matter beyond what is described as the role the out-of-state lawyer would have had under the inquiry. Those lawyers most definitely share in the fees of the client when they make rain through something often called “origination credit” by law firms.

Some of those firms most certainly have offices in New York and I just about guarantee that no one would think twice about such internal compensation arrangements in terms of questioning whether they are ethical because all of those lawyers are in the same firm and the decisions they make about how to divide fees are treated as pure business questions of compensation.

The rules in that regard shouldn’t be any different for a firm of two lawyers than for a firm of 2,000.

In a New York (out-of) state of mind…

It has been a minute or two since I’ve stumbled upon an ethics opinion that provides a quick and easy example of how to take an issue, makes it overly complex and in so doing highlight several ongoing problem areas in the regulation of the profession, but ultimately still get to the correct result as to the “yes” or “no” answer to the question addressed.

But along comes New York State Bar Association Committee on Professional Ethics Opinion No. 1160. This one seems to me to be just such an opinion so let’s chat about it briefly.

Op. 1160 exists to answer the following question:

May a lawyer admitted in New York affiliate and share legal fees with another lawyer, who, while a resident of this State, is not admitted here, with the affiliation intended solely for the purpose of obtaining clients referred by the non-admitted lawyer?

Now, because the question included the desire to share legal fees with the rainmaking lawyer who was living in but not licensed in New York, the opinion could have chosen to cut to the chase based on a relatively straightforward application of New York’s Rule 1.5(g) which largely tracks ABA Model Rule 1.5(e).

New York’s 1.5(g) only lets lawyers not in the same law firm (and to be clear the inquirer’s desire to affiliate did not apparently involve actually forming a law firm together) share legal fees if, among other bells and whistles regarding consent and the existence of a writing, the amount of the division of the fee is either proportional to the service performed or (if it is going to be disproportionate in that respect) if both lawyers assume joint responsibility for the work.

Given that the inquiry transparently admitted that the rainmaker would not be doing anything beyond landing the client and passing the client on to the New York lawyer for handling, it seems pretty clear that Rule 1.5(g) could only be satisfied if the lawyers would be assuming joint responsibility. Given the lack of a New York license for the rainmaker, that would seem an impossible state of affairs because while landing a client might not cross the line into the unauthorized practice of law in New York, agreeing to have joint responsibility for legal work performed in New York for a New York client would be harder to argue involves staying on the right side of the line. Thus, it feels like the NYSBA committee could have wrapped this one up with a bow in a 1 or 2 pages tops.

In fairness, they almost managed to do something like that when they attempted to explain the difference between this situation and an earlier opinion they issued in 2011:

We examined Rule 1.5(g) in N.Y. State 864 (2011), in which the inquirer wished to accept a referral from an out-of-state lawyer in a personal injury matter. The injury occurred in New York and the referring lawyer proposed that, in the particular matter at issue, the in-state lawyer would “handle” the matter and pay the referring lawyer a portion of any recovery. We endorsed the proposal subject to compliance with Rule 1.5(g)…. Although we have declined to delineate the precise contours of “joint responsibility” under this Rule …, we have made clear that the mere cultivation of client relationships does not qualify as “services performed” by the referring lawyer… Thus, the inquirer’s contemplated action would violate Rule 7.2(a) unless it could be said that the inquirer is ethically permitted to be affiliated with the out-of-state lawyer in the circumstances presented.

Where the committee goes awry is that last sentence which is pretty viciously circular.

It seems like it should have said: Thus, the inquirer’s contemplated action would violate Rule 7.2(a) unless it could be said that the out-of-state lawyer was willing to undertake “joint responsibility” for the matter and if doing so would not constitute the unauthorized practice of law.

They did not write it that way, however. And, as a result, the rest of the pieces of the opinion exist all of which for rhetorical purposes treat the rainmaker, despite being a lawyer licensed in at least one jurisdiction, as a “non lawyer.” And much of which bears the hallmarks of heavy-handedness that often arise in ethics opinions construing restrictions on (1) the ability of lawyers to offer compensation to those who refer them work, (2) the ability of lawyers to ask for work from clients; and (3) the ability of lawyers to practice law remotely.

You can read the full opinion here.

Friday Follow Up: Despite “Full Stop,” lawyer still might not stop.

Last year, I wrote about the curious case of a Tennessee lawyer who demonstrated that while it is difficult to get disbarred over a conflict, it is not impossible. You do have to try really, really hard though.

Perhaps not surprisingly, the lawyer’s Quixotic continuing violation of the First Rule of Holes had at least one more wrinkle to it as the Tennessee Court of Appeals revealed in an opinion issued yesterday.

In addition to the all of the various activities that the lawyer in question continued to pursue, despite having been suspended from the practice of law, mentioned in the order of disbarment entered last year, there was one other pretty remarkable one that didn’t get discussed in that order.

In November 2017, the lawyer filed a petition for contempt against the receiver and a number of attorneys back in the original 2002 case at the trial court purporting to act as a pro se party. As disciplinary counsel across the country will gladly tell you, one frustrating fact of life even after disbarring a lawyer is that the lawyer can still file lawsuits representing themselves – and they often do against those that they believe wronged them in the disciplinary process. The problem for this lawyer though was that he wasn’t actually a party to the litigation, just prior counsel of record, and he didn’t undertake any sort of filing to seek to intervene and be made a party in the underlying litigation.

The relatively short appellate opinion issued yesterday details that the trial court astutely figured out that this was a problem and that the lawyer’s conduct was “subterfuge to circumvent his suspension from the practice of law.” It also succinctly addresses and rejects the “somewhat perplexing” arguments the lawyer continued to make on appeal to justify his conduct. Perhaps tellingly in trying to determine whether this will be the last of the efforts, the lawyer attempted in the appeal of that matter to argue that the orders of the Tennessee Supreme Court suspending him from practice were not valid.

The saddest part of that whole story still seems to be that, prior to this more than 15-year period of losing the plot over this one piece of litigation, the attorney had no prior disciplinary problems.

Tennessee, of course, is not alone in having these kinds of stories. In fact, you can go read about a very remarkable new one out of Pennsylvania here if you so desire.

That lawyer is a former state legislator with a clean prior disciplinary record over many years who has now been suspended from practice for 2 years over what the ABA Journal highlights was an inability “to take no for answer.” As the 46-page report that originally recommended a 5-year suspension explains pretty exhaustively, the underlying case that this lawyer refused to let die involved a client seeking less than $4,000 in damages who apparently was willing to ratify the litigiousness as a matter of “principle” but has now had to file bankruptcy.

There are many lessons that can be learned from the things that lawyer did wrong. While the most fundamentally important lesson might well be the need to have a sense of proportionality, I’d say (with all due apologies to Memphis’s own Justin Timberlake), that the story could be made more catchy if set to music and called “Can’t Stop Appealing.”

My favorite post of 2018

This post (which is not the post referred to in the title) is inspired entirely by something that is done by Nate DiMeo, the wonderful and talented force behind The Memory Palace podcast. (If you’ve never heard it, you are missing out and should grab a few episodes from wherever you download podcasts.)

At the end of the year, he rebroadcasts what is his favorite episode of his podcast performed in the prior year. He manages to do it in a way that is likely much less heavy-handed than I will and also manages to come across entirely self-effacing in evaluating his own content.

I wasn’t entirely sure I could pull something like that off – and still am not so sure — but thanks to the ABA Journal Web 100 recognition this year, there are undoubtedly some new eyeballs at this site that likely didn’t read everything I wrote before that development.

So, with many of the same caveats that Nate offers, here goes. This is not necessarily the best thing I wrote this year or even the thing that sparked the most views or interest, but it is (for a variety of reasons) my favorite post from 2018. It was written in June and was titled: “Time to choose: are you Illinois or New Jersey?” So, in case you missed it the first time, I’m putting it right down below these words without any further editing or re-writing [i.e. warts and all], which might be the hardest part of re-publishing it.

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.

A recipe for ethical lawyering?

Now that the Ethics Roadshow is complete in all of the cities where it was staged, I want to repackage the main idea from this year into a post and make a similar ask of my readers that I made of the attendees as to feedback on the point.

The title of the Roadshow this past year was “Back to Basics: Sailing the Five Cs of Ethical Lawyering,” but the main ultimate question or conceit when boiled down was whether the 5 Cs I had identified could provide not only a basic road map for being an ethical lawyer no matter the nature or setting of your practice but could also provide the ingredients of a recipe that can be used to justify the existence of those pieces of the ethics rules that are absolutely worth keeping moving forward in discussions about the future of legal ethics and lawyer regulation. 

The 5 Cs as put forth as the ingredients of the recipe were:

  • Be COMPETENT at what you do
  • Recognize and respect your obligations of CONFIDENTIALITY
  • COMMUNICATE appropriately with your clients (and others) both as to content and frequency
  • Employ CANDOR in all situations in your practice [If you absolutely cannot be 100% truthful, and can’t simply stay silent, then don’t be false.]
  • Avoid CONFLICTS for which you don’t have, or cannot get, consent.

Recognizing that some people might immediately think of another important “C,” avoiding commingling I then offered thoughts about how quite clearly rules about trust accounting could be readily reverse-engineered by combining ingredients.  I initially suggested that Competence + Candor + Communication could do the trick; some others suggested that particularly the requirement to avoid commingling could be described as Candor + Communication + Conflicts.

There are a number of different groups at work on trying to make progress on what the modern regulation of the practice of law should look like.  One of those is APRL’s Future of Lawyering Committee.

I’m fortunate to be a member of that committee and our mission is this:

[T]o explore the evolving nature of technology and its impact on the delivery of legal services and access to justice.  Our goal is to develop specific proposals for amending the legal ethics rules and reforming the lawyer regulatory process.

And so my ask of you is the same as my ask of attendees: Unless a rule is truly, and absolutely, required in order to protect consumers of legal services, shouldn’t the rules worth revisiting be the ones that are hard, if not impossible, to describe using a combination of ingredients from this recipe?

Friday Follow Up: TIKD off at the Wisconsin judicial system

Just two short items by way of follow up from pieces I’ve written about in the past here.

First, I’ve written several different posts about the saga down in Florida that appeared to be one of the first big disputes – post the U.S. Supreme Court decision in the North Carolina Board of Dentistry case –  in which the rise of technology and alternative methods of delivering legal services to consumers would be pitted against traditional bar regulation with antitrust law issues serving as the rules of engagement.  You can read each of those older posts at the links above and this one right here too.

If you haven’t read any of those earlier posts, or don’t know the reference to the Florida litigation, TIKD is an app that you can put on your phone to use to resolve speeding tickets and similar moving violations without ever having to go to court yourself.  It arranges the retention of a lawyer for you and even provides you with a financial guarantee on cost and a promise to pay court fines for you if unsuccessful.  The company behind the app filed an antitrust lawsuit against The Florida Bar and a Florida law firm (The Ticket Clinic) challenging allegedly conspiratorial conduct designed to damage TIKD’s business operations.  I’ve focused so much on the dispute and what its ramifications might be that it would be a pretty big cop out not to mention the fact that the federal district court in Florida issued a 1-page order earlier this month granting the Florida Bar’s motion to dismiss the antitrust claims against it.

It is a classically unsatisfying order for an outsider to litigation to read because it offers no insight into its rationale other than to say it ruled that way based on the “reasons stated at the motions hearing.”  Having followed the events, I would think the reasons have to be a belief that, despite the fact that the Florida Bar regulators include market participants, the regulations they are enforcing are clearly delineated and emanate directly from the Florida Supreme Court.  Assuming there will be an appeal, then there may be more discussion of how this shook out, but, for now, it appears that TIKD’s shot at the regulatory framework in Florida ended up being full of sound and fury but signifying nothing.

Going much back further into the archives, you will find a couple of posts expressing frustration and outrage with a particular Wisconsin lawyer who became infamous (at least for a while) with the release of Netflix’s Making a Murderer documentary.  You can read my original thoughts on the awfulness that was Len Kachinsky’s way of practicing law here and here.

His was a name I was never hoping to run across again so it was quite a roller coaster of emotions to simultaneously learn that Kachinsky had been arrested and charged with stalking but to simultaneously learn he had been acquitted of the charge.  The roller coaster ride went even lower though at the moment the words I was reading about his employment situation fully engulfed me … he had become a municipal judge in Wisconsin.

WT actual F Wisconsin?  Are y’all not even trying?  How can that guy have failed upward into a position in your judiciary?  How is he allowed to preside over any case about any thing?  That’s just a travesty.

Not all who wear capes are heroes.

This really is just too absurd not to write about.  The absurd story commanding my fingers to tap these keys today involves a lawyer who managed to blow some significant aspects of the fundamentals of being an ethical lawyer.  You may have seen the ABA Journal online story about the now-disbarred lawyer whose absurd story is commanding my fingers to type entitled: “Former lawyer who portrayed Excuseman pleads guilty to client theft.”  If not, you can take a quick look at it (and even watch the bizarre montage video of his cosplay/hacky stand-up/performance art in a really, really bad costume) at that link immediately above.

(*Adult subject matter warning, some of the “comedy” in the video is pretty blue, but it’s the stuff that is weirdly done by some other person who is included in the video for no obviously discernible reason and she seems to be reading from printed pages?)

What the ABA Journal article doesn’t exactly do for you is make absolutely plain the timing of the events.  Several years before this gentleman ended up getting disbarred, he was doing . . . whatever this thing was . . . some combination of bad stand-up comedy or bad performance art . . . that involved portraying this, “Excuseman,” character who …. I give up.  I watched the video at the link and I can’t make heads or tails of the point.  I mean it was obviously a cry for help, but I can’t figure out what he thought the point of doing it was.  He did spend some real money on pursuing his cosplay dreams and, as it turns out, given the timing of the events it is quite likely he funded the folly with some of the money that he stole from clients. 

After first being temporarily suspended, he was disbarred in Illinois in 2015 as a result of his conduct in settling cases of his clients without their consent and pocketing the settlement proceeds.  He is back in the news now because he has pled guilty to felony theft arising out of that same conduct.

And, yet, remarkably, the thing about the current version of the story that hits me hardest in terms of dramatic, nigh poetic, irony is it now feels like the person who truly needs to offer a good excuse for their conduct is the prosecutor who ended up agreeing to the plea deal this guy obtained: 

As a Chicago Tribune article linked in the ABA Journal story explains:

Margolis was initially charged with 36 felony counts of theft, theft by deception, misappropriation of financial institution property, continuing a financial crimes enterprise and forgery.  But in a plea agreement with prosecutors, he pleaded guilty to a single theft count.
He faces up to three years in prison and a maximum fine of $25,000 at his sentencing next June.

Apparently, the total amount swindled from clients was as much as $1.1 million.  The various articles also indicate that, in the disciplinary proceedings, he was hit with a large restitution order and was separately hit with a large judgment in a legal malpractice case, but the existence of those judgments and awards doesn’t necessarily translate to those dollars ever making it into the hands of those wronged clients.

The articles also indicate that the disbarred lawyer now lives in California and is pursuing a career as a screenwriter.  Somehow I don’t imagine Excuseman will be showing up as a character in the fourth Avengers film….so I’m guessing that if those judgments haven’t already been satisfied, they won’t be getting paid in full any time soon.

Threats to the legal profession include threats by members of the profession

This post is coming late in the week because this week marked the first two stops on the Ethics Roadshow for 2018.  (If you are in or near Memphis and Nashville you can still register to come attend next week’s stops and hear about a potential recipe for ethical lawyering involving the 5 Cs of Competence, Communication, Candor, Confidentiality and Conflicts.)

This year’s Roadshow doesn’t focus much on threats to the legal profession from developing technologies and outside providers of legal services nearly in the way that last year’s Roadshow did, but today I want to discuss a slightly different kind of threat to the legal profession – threats made my members of our profession.

I’ve written in the recent past about the generalized problems of anger and violence given that we are living in angry times but two recent things I came across (one a full blown story and the other a Twitter thread) lead me to think that a bit of attention should be paid again to threats of violence particularly where the people engaged in the threatening conduct are attorneys.

The ABA Journal, working from a Louisville Courier Journal story, highlighted right at the end of November an arrest of a Kentucky criminal defense lawyer.  The lawyer who, it will come as no surprise, is male was arrested and charged with, among other things, terroristic threatening.  Perhaps in an effort to just let some irony simmer, the news articles point out that one of the lawyer’s own clients was convicted of terroristic threatening earlier in the same month.  The subject of his allegedly terroristic threats were two lawyers involved in the handling of his own child custody case – one was opposing counsel and the other had been appointed by a court to be the guardian ad litem.

The ABA Journal piece highlights the nature of the threats — which ranged from some aggressive voicemail messages to much more tangible examples of actually communicating to third parties an intention to kill the lawyers involved.  The article also discusses other recent problems the lawyer has been going through related to those proceedings and published reports of a positive drug test for meth.  Even though the lawyer’s conduct doesn’t involve representation of a client, this Kentucky lawyer will likely be at real risk of discipline (in addition to having to deal with the criminal law issues) under a variety of parts of RPC 8.4.

I also managed to stumble onto a thread involving similarly unprofessional and threatening behavior by a lawyer on Twitter.  You can peruse the thread here if you’d like to read it yourself.  It involves someone who appears to be a Texas lawyer and who, if the fact that he was willing to be a lawyer for (and apparently member of) The Proud Boys (a white supremacist group) in the past wasn’t already a pretty good indication of what kind of fellow he might be, decided to make his feelings plain by going on the attack against a journalist employing a homophobic epithet and a threat of violence sent by email.

As seems like a fairly good option, both for purposes of self-protection and as a way of possible shaming the lawyer involved, the reporter posted a screen shot of the email on Twitter.  The email the reporter received read as follows:

Now that I am no longer part of the Proud Boys and no longer representing them.  I want to let you know that you are a despicable and evil human being.  It is my hope that your duties as a HuffPo reporter bring you to the metroplex this holiday season so that I can give you the gift of a left hook.

Kiss my ass, faggot.

For what it is worth, this particular reporter has been focusing a good bit of time on trying, through reporting, to highlight the problem our country has involving the rise of violent extremists.  It appears that shedding some light on this particular lawyer only shows how deep some of those problems go.

Reading these kinds of exchanges also makes me continue to think through questions in my own head – written about in the past — about whether the willingness to be openly racist should simply be disqualifying for lawyers from a character and fitness standpoint.

(P.S. The Twitter thread itself tries to bring this conduct to the attention of Texas disciplinary authorities so it will be interesting to see what comes about.  With a little digging, this lawyer appears to have retired his Texas license but also appears to be licensed in Colorado, D.C., and Georgia and appears to have a clean disciplinary record in each of those states.)

(P.P.S. An entirely different reporter received death threats from the same Texas lawyer and also created a thread on Twitter about those exchanges as well.)

(P.P.P. S. BlacKkKlansman is a movie all should see, is germane to the above discussion of the problems of white supremacists in our nation, and I’m thrilled that it is getting some rightly deserved nominations.

Asking for a conflict waiver is a step that is hard to take back.

Look, I understand too little too late
I realize there are things you say and do
You can never take back
But what would you be if you didn’t even try
You have to try
So after a lot of thought
I’d like to reconsider
Please
If it’s not too late
Make it a cheeseburger

– Lyle Lovett

Working though questions of conflicts of interest can certainly be challenging for lawyers.  The initial phases of figuring out whether a conflict exists are highly important.

From a loss prevention standpoint, you want to get it right as you certainly do not want to take something on that you shouldn’t because you had a conflict that you simply couldn’t even ask to be waived or for which you strongly suspected you’d never be able to get a waiver from those from whom a waiver would be needed.

It is also important to get right, however, so that you don’t treat something as a conflict that isn’t a conflict.  Once you start down the path of asking someone for a conflict waiver, you empower them to tell you “no” and you potentially reduce your choices about what to do in such event pretty severely.  It is not impossible to change course after unsuccessfully asking for a conflict waiver and begin to claim that the waiver wasn’t needed in the first place.  But it is certainly difficult.  Thus, it isn’t just the case that you don’t want to treat something as a conflict that isn’t a conflict; you also might want to think long and hard about treating something as a conflict if you intend to contend it isn’t a conflict.

An interesting story touching on just how difficult unwinding such a situation can be was written about by The American Lawyer earlier this week.  It involves an effort – seldom used (for reasons that ought to be a bit obvious) — to file a separate lawsuit seeking a declaratory judgment that something was not a conflict in the first place and an injunction to allow the lawyer to start working for a new firm.

You can read the full article here, but the short version is this: a Houston lawyer who was looking to change firms has been unable to do so because a corporate entity much in the news of late – USA Gymnastics — refused to provide a conflict waiver requested by the lawyer.  USA Gymnastics is a client of the lawyer’s former firm.  The firm to which the lawyer had hoped to move currently represents a number of individuals who have sued USA Gymnastics over the sordid situation involving Larry Nassar.

Typically, conflicts of interest get litigated through motions to disqualify.  Although firms and clients do not like to have to deal with those for obvious reasons, at least in those proceedings the firms and clients have the ability to argue that the party moving for disqualification has the burden of proof.  Even that procedural tool can be lost when the lawyer or firm is the one bringing the action to ask a court for a ruling that they have no conflict.

A quote from the story itself taken from the managing partner of the firm to which the lawyer wanted to go to work provides a helpful bit of transition:

The law as we understand it is that if a person worked at a law firm and doesn’t work on a case, and goes to work for another law firm that has that case and [the lawyer] is shielded from the case … there’s no conflict.

Now, if this were being governed by Tennessee law, I could readily delve into whether that statement would be correct or incorrect assertion of the state of play here, but these are events that involve other states and different rules.

But, to repeat the larger point, if that is what the relevant law or rules set out, then the lawyer and his new firm should never have sought the waiver in the first place.