Things you might not know (for a Thursday)

Am I about to write about this just for the click-bait possibilities? Probably.

Does that make the underlying topic less worth discussing? I hope not.

So there used to be a time when people could become lawyers without ever having to go to law school. You could effectively apprentice in the law where you could work for and study with (through working for mostly) a practicing lawyer and then be able to sit for a bar examination and, if you passed, then become licensed to practice.

At some level, that sort of model makes some sense if you believe the ultimate goal of a legal education is for someone to be able to actually practice law at the end of their professional education.

In fact, many voices of criticism of modern law school education tend to focus on how disconnected it can be from teaching people how to actually practice law.

The flip side of course is that law school does a very fine job of teaching people how to think like a lawyer — a skill that readily translates to the ability to practice a variety of kinds of law. Whereas the idea of apprenticing into the practice of law may be more limited in that if you apprentice for a probate litigator you likely will learn how to be a good probate litigator but you might not learn that in a way that would translate into practicing some other type of law.

What you might not know (and I certainly didn’t before today) is that you can still apprentice into the law in California. I learned this from today’s news over at Above the Law that Kim Kardashian (you may have heard of her) is pursuing that path to becoming a California lawyer.

Mulling all of that over has returned me to a thought that I kick around from time-to-time from admittedly a different perspective but that is certainly related.

If successfully attending law school and passing the bar exam actually do each have real meaning such that both have to be required to practice law, then why shouldn’t (other than character and fitness requirements as an additional piece of the puzzle) the logical consequence of that be that anyone who has managed to do that to be able to practice law in at least one state, then be considered sufficiently qualified to be able to then at least apply to be admitted in any other state without having to jump through lots of procedural hoops? (For today, I’m not even going to go the step further that might also be a legitimate question if we really want to get contemplative.)

Quite a lot of states are pretty flexible in their procedures for letting folks already licensed in one jurisdiction “waive in” to get a license in that jurisdictions without having to take another bar exam. Some states are still pretty parochial in their approach – particularly states that have a good bit of beach front property.

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.”

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?

Three short technology stories for a Tuesday

Throwback Thursday is definitely a thing all over the World Wide Web it seems, but maybe Tech Tuesday ought to be a thing?  Though, I guess, for lawyers focusing on technology has to be an every day affair.

Like multitudes of others, I wrote a little bit recently about the Panama Papers and the Mossack Fonseca data breach fiasco.  Fortune now has an article online about a Wired U.K. story that casts a harsh light on the electronic security measures that the Panamanian firm had in place.  Blurbs like these

Mosseck Fonseca’s client portal, according to Wired, runs on a version of Drupal last updated in 2013, and vulnerable to an array of attacks, including one that would allow attackers to execute commands on the site. Another weakness allows access to the site’s back end just by guessing the right web address.

Just as bad is the firm’s webmail portal, which runs Microsoft Outlook Web Access, and hasn’t been updated since 2009. The firm also did not encrypt its emails. As one expert speaking to Wired put it, “They seem to have been caught in a time warp.”

sound very bad when you are talking about a firm that trafficked almost exclusively in “highly sensitive financial information.”  I suspect though that there are lots of other lawyers out there that are hopeful that their technology arrangements will never be subjected to even half as much scrutiny.

One lawyer who is in the middle of a highly public examination of their choices in technology is the lawyer at the heart of this story yesterday.  The lawyer has been sued by her former clients over a theft from them of $1.9 million resulting from hacking of the lawyer’s email account.  The couple had hired the attorney to represent them in the purchase of a nearly $20 million co-op apartment.  Luckily, it appears that the clients figured out what was going on even before the lawyer did and were able to recover almost all of the $1.9 million that was to be the down payment but was wired to the fraudsters.  The lawyer — and you ought to brace yourself here (though I admittedly know lawyers who still use this service) — was using an AOL email account for her real estate law practice.

The lawsuit contends that AOL accounts are particularly vulnerable to hacking and that the hacking was what let the cybercriminals know when certain transactions were going to take place, but as the article makes clear there were other opportunities for the lawyer to realize something was amiss:

It accuses Doran of forwarding bogus emails from the hackers — who were impersonating the seller of the apartment’s attorney — about payments from the Millards without confirming their authenticity last December. The name of the seller’s attorney was misspelled in the email which should have been a tip off that something was amiss.

Finally, the usually on-point Karen Rubin has a well-done post over at The Law For Lawyers Today about a relatively fortunate Oklahoma lawyer who managed to avoid full reciprocal discipline over his inability to figure out how to e-file in bankruptcy court.

The Oklahoma lawyer was permanently suspended by the Western District of Oklahoma bankruptcy court from ever practicing before it again, but the Oklahoma Supreme Court hit him only with a public censure.  Given the current rhetoric surrounding the practice of law and the demands everyone appears to assume lawyers absolutely must satisfy when it comes to using technology, it is pretty startling to read a state supreme court, in that case Oklahoma’s, issue an opinion in a lawyer discipline case that can be read to seem to minimize the obligation to be technologically competent.  But, in fairness, unless the Oklahoma Supreme Court was going to be willing to disbar the lawyer in question — which would seem supremely harsh — then any discipline imposed through reciprocal channels was going to be less than that meted out by the federal bankruptcy court and a public censure sounds about right to me.