The thing about the re-regulation of the practice of law …

. . . is it really could go either way. It could make things better or it could make things worse. It truly depends on who ends up doing the re-regulation and what motivates them along the way.

What is prompting the need to say this sentiment out loud today exactly? Well, cynical types might say it is because there are these two things I want to write about and maybe it is the only thing they have in common. Less cynical types might say … well pretty much the same thing.

It also might come from the general feeling, shared by lots of folks out there I believe, that so many things in life sit on a knife’s edge at the moment and, depending on lots of variables, could pivot in one direction and start to get better or another direction and get even worse.

Recently, we revisited the state of things on the general topic of re-regulation to note that the Utah Supreme Court actually pulled the trigger on creating their regulatory sandbox to allow lawyers and others to collaborate more closely in the delivery of legal services. Frequent readers of this space will know that, in the past, posts about the happenings in Utah have always been in close proximity to the happenings in Arizona and will not be surprised to know it has happened again.

The Arizona Supreme Court has once again jumped ahead of Utah’s trailblazing by simply eradicating RPC 5.4 altogether (as well as eradicating any restrictions on solicitation by lawyers in the advertising rules) effective January 1, 2021. No sandbox or limited experiment, just full steam ahead.

My initial belief (which will also come as no surprise to readers) is that this is and will be a good thing for consumers of legal services. But there is no guarantee that it will be. Much will depend on who takes advantage of the changes. If Arizona sees an influx of interest by investors into lawyers and law firms that represent consumers, then the needle will almost undoubtedly move in the direction of greater access to both information about the availability of legal services and access to meaningful justice. If Arizona instead sees growth mainly in the delivery of business services or expansion by large accounting and consulting firms into the practice of law and outside investment in lawyers and law firms that defend wealthy clients, then things could actually get worse in terms of the balance between the haves and the have-nots.

The battle for the re-regulation of the practice of law, however, will not be fought only in changes to ethics rules that govern those who actually already have become lawyers. It will also be fought over how those who wish to become lawyers are evaluated before being admitted to practice. In terms of evaluation, I do mean both from an intellectual preparedness standpoint but also on the topic of character and fitness to be a lawyer.

As to the first, there are many, many stories to be read on the internet these days about the difficulties facing states all over the country in how to deal with bar examinations for law school graduates as we, as a nation, still struggle with COVID-19. Unfortunately, less than a handful states so far have pivoted to granting diploma privilege to the graduates caught in this professional limbo. Fortunately, only a few states insisted on simply plowing forward with in-person examinations. All of the other states have engaged in experiments in trying to deliver online examinations. The results have been mixed at best. (With luck I will have a bit more to say on this topic later today, but only over on Twitter so hit me up with a follow @bsfaughnan over there.)

As to the second, the process of evaluating the character and fitness of those who aspire to be lawyers is a significantly less-than-perfect process. The fact that the same process is also applied to lawyers who seek additional licenses from other state bars further reveals its flaws. That it is a process that often improperly seeks to force aspiring lawyers to provide information about receiving treatment for mental health unrelated to questionable conduct further invites strong criticism.

This week in an opinion out of federal court in Kentucky a judge managed to simultaneously strongly call out that state’s problematic and invasive approach in a way that is nearly impossible to disagree with on the merits but also to provide evidence that the ABA was correct when it concluded that he was not fit for the federal bench in the first place. The opinion is a particularly bittersweet ride given that, effective today, the judge in question is now being elevated to a set on the U.S. Court of Appeals for the D.C. Circuit. (As to the appellate position, the ABA has concluded that he is qualified.)

If you’d like the short version of the opinion in question, you can check out this ABA Journal online article. A full copy of the opinion, however, can be obtained at the download button below.

In the opinion, the judge absolutely savages how Kentucky treats applicants for licensure and does so in circumstances involving a lawyer who had practiced, without incident, for many years in Florida before seeking to add a Kentucky license to her tool belt. The judge particularly focuses upon the invasive nature of Kentucky’s demands for disclosures about treatment for mental health conditions, demands unbounded by any relationship to any prior inappropriate conduct or any effort by the lawyer-applicant to explain such conduct as being caused by some prior untreated condition.

In the strongest and most emotionally charged language that tends to resonate with those of us who strongly believe that mental health issues in the profession need to be de-stigmatized, the judge closes his opinion out as follows:

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him — as Kentucky’s did against Jane Doe.

It is not a matter of if, but when.

The entire opinion, in fact, is filled with this kind of simple language that is compelling and easy for lawyers to understand. But 90% of the 18-page opinion is all dicta because the judge actually disposed of the lawsuit filed by the lawyer because they had now finally become a lawyer and no longer had standing to challenge the process they went through when they were an applicant. Only an applicant would have standing to bring the kinds of claims being sought – and, perhaps, not even then because of immunity issues associated with the decision-makers. It could have been a straightforward, nondescript, three- or four-page opinion.

Thus, what the opinion really reads like is an attack on what the judge “tags” as the “Bar Bureaucracy” and drips with the vindictiveness of someone whose credentials were challenged by the largest national association of lawyers in the United States, the ABA.

As someone who believes, on the facts laid out in the opinion, that the Florida lawyer was poorly treated by the Kentucky approach to such issues, reading the opinion is still a highly bittersweet experience. (A bit like watching a shark attack even your worst enemy — something you can’t take any pleasure in because at any point the shark might turn its attention to tearing into you.)

This is particularly true when you bear in mind that this judge – like many that have been installed on the federal courts during the last 4 years and that are career-long members of The Federalist Society — appears to have a very likely overall agenda that is not centered in the kind of empathy that he now expresses over issues of mental health in the legal profession.

Instead, this is a judge whose other prominent decisions during his short-lived tenure include attacking a mayor in Kentucky who was trying to deal with the pandemic as having “criminalized the communal celebration of Easter.” He is also a judge who, if given the opportunity, is likely to vote to strike down the Affordable Care Act and strip healthcare from millions in the middle of a pandemic. He is a judge in a mold of judges who will decry all that they do not like as “judicial activism,” but blithely engage in the kind of judicial activism that involves writing a scolding and self-righteous decision nearly 90% of which was unnecessary as dicta.

If the landscape surrounding entry into the practice of law is shaped and re-regulated by the kinds of judges that have been enshrined into power over this last Presidential term of office, then things might improve for the better or they could very well become much worse.

Lawyers out there losing their goddamn minds.

Apologies in advance for the fact that today’s content is going to be something of a mishmash or stream-of-consciousness type of presentation, but it’s where the brain is at based on the events of the last 48-72 hours. (Loyal readers will likely wonder why I think a mishmash is any different than the normal presentation.)

I’m pretty sure none of us expected in 2020 to be living both 1918 and 1968 simultaneously. I know I didn’t. I have a wide variety of political thoughts about our situation, but if you are interested in those go find me on Twitter.

The fragile and incendiary nature of our circumstances in the United States though have recently resulted in a variety of instances of lawyers making incredibly poor decisions. I struggled a bit with whether any of the situations merited posting about or if bringing extra attention (Ha! As if I have that kind of power or reach…) was unhelpful.

Then, yesterday, through a “professional” listserv I participate in I witnessed a lawyer call for the assassination of public officials and incarcerating people without trials and for as long as it would take for them to contract COVID-19. I also watched a different lawyer throw wholehearted support to the first lawyer’s writings and sentiments. That second lawyer though might just be salty about having previously been criticized among the same group for having disparaged an entire generation of lawyers. Those two instances did drive home the point to me that a much larger percentage of lawyers then you might think are doing what the title of this post suggests.

More instances of lawyers reacting very poorly to the current environment have been bombarding us in the legal news of late.

You’ve certainly read about the two lawyers, one of whom work(ed) for a very large law firm, who have been arrested for throwing an incendiary device into an unoccupied police car. Perhaps you’ve also read about the Florida prosecutor who just got fired over a racist Facebook post that involved comparing protestors to animals. You might also have read about the lawyer in Vermont who was immediately and temporarily suspended over pulling a gun on a store clerk in a dispute over social distancing.

But I really, truly hope you’ve been doing your reading on what – in terms of historical ramifications – was the worst of the recent lawyer conduct. If the latest reports are correct, it was the Attorney General of the United States (someone who I’ve written about repeatedly in the past with respect to defiance of his ethical obligations) who approved/authorized the deployment of tear gas and rubber bullets on peaceful protestors in D.C. in order to provide a clear pathway for the current occupant of the White House to make this video. If you’d like a different video to show you just a snippet of what it took to make that video, try here. It continues to be difficult to wrap my head around the fact that we live in a situation in which the fact that this man continues to hold the office of Attorney General is, itself, prejudicial to the administration of justice in a way that runs afoul of RPC 8.4(d).

This same lawyer also appears to be redirecting other federal law enforcement resources, including the DEA, into expanded roles that are impossible to view as anything other than highly threatening to the exercise of civil liberties and First Amendment rights of assembly and petitioning the government for redress of grievances.

In fairness, to Mr. Barr, it is not fair to say he’s lost his goddamned mind because of the ongoing circumstances. This seems to be who he has always been.

There will be discontent.

The title of today’s post is an inside joke in that it makes reference to this post from what feels like years ago now.

As these are not particularly humorous times at the moment, it will be the only attempt at humor.

Professionally, I’ve had a pretty good week. I didn’t get what I wanted for clients on a couple of matters, but I participated in a nearly 10 hour Zoom mediation that resulted in the resolution of a case earlier in the week and closed out the week winning summary judgment in a federal court case. Yet, I feel no professional satisfaction and just mostly discontent.

Discontent at what is going on around me, my circumstances, and all the work that must be done to try to repair things. Fortunately, just discontent and not despair.

That’s likely because in the grand scheme of things I’m exceedingly fortunate. I have an established law practice and a better safety than many. I have a roof over my head and thus a place to stay home and stay safe. My family can afford to buy the things it needs right now, and, most importantly, so far all of us have stayed healthy.

All of that is to say that I am entirely cognizant of how good I have it. I recognize that my safety and relative comfort does not make my discontent particularly important, but I do think it makes it telling and, perhaps, worth acknowledging out loud for those who are reading this. Mostly because I think it indicates just how many people who might only be in a slightly worse off position than I could easily slide from discontent into despair.

I still strongly believe as I wrote before that most lawyers are not delivering “essential services” in the context of risking the safety of others. But I just as strongly believe that all the human beings who are those lawyers are essential.

Lawyers as a profession were plagued with higher statistics of depression and anxiety and substance abuse and suicide before the pandemic than the national average. If this pandemic makes those numbers seem closer to the norm, it will likely only be because the average increases.

When you struggle, seek out the help you can afford. There are a wide variety of resources better than this blog to get that help. Here’s just one pretty good one.

I’ve shared my small story before. I feel very fortunate that my timing was such that I went through it when it was physically a lot easier to leave the house and get help. I know it would have been much harder if it were happening now for me. And I’m incredibly fortunate that I’m doing okay on that front.

For any new readers, I’m sharing the post (which is actually from years ago) where I shared the video (you have to click on the link inside the post regarding the last 12 minutes of that year’s Ethics Roadshow) of my “coming out” about this issue again here.

Stay safe. And as a truly final word for now, stolen from someone much smarter and more eloquent than me but because I only saw it on Twitter and failed to note the author: “Try to remember that you aren’t really working from home now. You are staying home in order to live through a pandemic and you are also trying to work.”

A tale of two signature issues.

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

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

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

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

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

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

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

Hoosier overseer?

If you are a reader of legal publications or legal blogs, you’ve likely already read something about the nightmarish night out in Indiana that resulted in two state court judges being shot and three state court judges being disciplined. You can read all of the underlying facts if you’d like in the decision that was issued earlier this month imposing judicial discipline here.

Beyond making, by pretending I’m not making, a joke about how their trip to White Castle went much worse than Harold and Kumar’s, I’m not particularly interested in piling on with opinions about that situation.

If you’ve ever personally allowed yourself to consume much more alcohol than you should – and as a result experienced a situation in which you stopped making new memories (which as I understand it is actually what scientists and researchers believe happens when you “blackout”) — then even if you think what happened would never happen to you, you know deep down that maybe, just maybe, you’ve been at risk of such an outcome. But, I do want to use this story to make two points that are worth continuing to think about.

First, each of the judges was a lawyer in the past (and still had a law license at the time) and all of the discussions that we have as a profession about mental health and substance abuse issues in our profession apply equally, if not more in some circumstances, to those on the bench. The need to de-stigmatize seeking help and treatment for judges is just as topical as it is for lawyers.

Second, these judges ultimately were subjected to discipline over this. That is because when it comes to lower level judges we have bodies that oversee their compliance with judicial ethics rules and impose judicial discipline. If the players in the events outlined in the Indiana opinion were not Indiana state court judges, but instead were Justice Kavanagh, Justice Alito, and Justice Kagan experiencing a drunken night on the town that went horribly wrong, there would not be any potential for any disciplinary repercussions whatsoever because we have no regulatory body that is imbued with the authority to enforce any code of federal judicial ethics as against any members of the United States Supreme Court.

Sure, it is possible that articles of impeachment could be pursued to seek to remove a Justice from the bench over conduct like that, but . . . well, let’s just agree that a body a bit more removed from politics would seem like a more reliable regulator in terms of predicting whether it would see certain conduct as indefensible and worthy of rebuke.

There are people out there generating ideas for ways to bring about ethics reform with respect to the United States Supreme Court. The Brennan Center has put out a white paper with three ideas for reform you can read here. The U.S. House of Representatives passed a bill (not acted upon in the U.S. Senate of course) that would require the Court to adopt a code to govern the conduct of its justices. It has recently (earlier this year at least) been in the news that Justice Roberts is exploring creating such a code.

I don’t purport to know what the correct answer is exactly, but I know that while the risk of something like what happened in Indiana happening to members of the highest Court in the land is likely pretty slim, there are real, substantial ethics questions in play about the members of the Court conduct themselves and our system would be greatly benefited if there was clear, and clearly articulated, rules governing their conduct just like exist for all other judges in our country.

Nearly four years later… and I’m making that James Bond reference this time.

So, if any of you are still around these parts after I’ve gone some 12 days without writing any content, then you are in for me dredging someone up that I previously wrote about on June 30, 2015. An attorney named Rodger Moore.

Rodger Moore. And he was suspended for the practice of law for conduct that involved stealing adult beverages (wine) and also stealing the oil of olives. You know… olives… the garnish that goes in a martini.

I guess back in the halcyon days of this venture I considered myself above making a James Bond reference? Well, I’m four years older now and don’t consider myself above much of anything I guess. So…here goes.

Rodger Moore is no longer licensed to bill.

Also, Roger Moore was not the best Bond, but this Rodger Moore was not the best lawyer.

The need for just a bit of “dry” humor for today’s post is in order because nothing else about the story is humorous. And, in fact, while not doing so in a fashion that is at all effective for his case, Mr. Moore raises a topic in the press that is not deserving of being milked for humor of any sort — the problem of depression in our profession.

You (like me) may have seen the story in The ABA Journal about the fact that after previously being suspended for failure to disclose certain pieces of his criminal past, Mr. Moore has now been disbarred for trying to charge over $10,000 to a client he had promised to represent for free. If you’d care to read the full Ohio opinion disbarring him from practice, you can get it here.

In short-form version, a woman who qualified for legal aid representation going through a divorce agreed to switch lawyers to Moore, after Moore sent an email saying he would represent her for free. Shortly thereafter, he sent her an invoice for $9,500 but then told her she didn’t have to pay that but that he was going to seek to have the court award his fee against her husband. He never did that but did send her an $11,000 promissory note and seek to have her sign that. Eventually, he had to bow out of her case because of his suspension from practice (but not until first trying to appear in court for her the day after he was suspended). He then got an attorney he shared office space with to take over the representation. That lawyer confirmed to her that he was providing the services for free but, ultimately, filed a lawsuit against her, representing Mr. Moore’s firm, seeking to force her to pay pursuant to the promissory note.

Based on his past history, his failure to appear on his own behalf in the disciplinary case, and the fact that he tried at the eleventh-hour to proffer up his license to retire or resign from practice rather than being disciplined, the Ohio Supreme Court decided to permanently disbar him.

In a real plot twist, Mr. Moore has communicated extensively with The ABA Journal as their article reveals and shared with them a draft letter that he was thinking about sending to the Ohio Supreme Court to complain about how he was treated.

Now, I’m fortunate enough that I do not suffer from depression. As I’ve revealed before anxiety is my issue. There is no question that problems with depression are rampant in our profession and little doubt that mental health issues continue to be stigmatized, hidden, and not treated effectively when it comes to lawyers.

I don’t have the necessary clinical training to know the first thing about whether Mr. Moore’s narrative could be explained by depression but I do know that the opinion reveals that he continued to practice while suspended for a pretty significant period of time, represented himself, and that both of those facts likely played a role in his ultimate disbarment. Both of those facts are the kind of things that are also not inconsistent with side effects of depression.

Mr. Moore may not be a very good messenger for the underlying message of the continued need to preach about the awareness of mental health issues, and his claimed beef that the disciplinary process should take depression into account as a mitigating factor misses the mark because nearly all states do – through application of the ABA Standards for Lawyer Misconduct – take mental health issues into account.

But he is, albeit maybe just inadvertently, a good messenger for making an important, and hard, point. Those kinds of proceedings can only take such things into account if the lawyer is able to disclose them so that they can be considered. Mr. Moore pretty clearly didn’t disclose any issues with depression at the time of the proceedings themselves but, because of the nature of such things and, if he was representing himself, if he really was suffering from untreated depression he might not have been able to bring himself to do so.

Any lawyer interested in reading up on issues of attorney wellness can now find a variety of good resources online. Perhaps the most recent report issued by a state bar comes out of Virginia and you can read that one here if you are so inclined.

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.

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.

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.