As a matter of fact, yes, this potato is still hot. Why do you ask?

In October of this year, I’ll have the honor of again getting to serve as a moderator for a panel discussion at Aon’s Law Firm Symposium.  This year’s event will take place in D.C.  The topic of the panel I get to be a part of will be something of a DQ motion boot camp.  It is still months away, my guess is that we will be focusing on aspects of disqualification motion proceedings that will be harder to predict than the outcome of this case out of Mississippi should have been.

If you know a little something about conflicts, then you are probably have passing familiarity with all of the core concepts necessary to immediately predict the outcome of the scenario that was involved in McLain v. Allstate decided in the S.D. Miss.  I’ll succinctly describe the scenario for you:

Lawyer has had a long term relationship with an insurance company client.  That relationship is not as robust as it used to be as the lawyer is continuing to handle quite a few matters for them but has come to notice that no new matters have been coming from the company for quite a while.  Lawyer is contacted by a potential client who has a matter that would be adverse to this insurance company client.  Lawyer goes ahead and decides to take on the new representation but also terminate the ongoing representation of the insurance company client.  Insurance company brings motion to disqualify, and lawyer argues that insurance company client should be treated as former client and disqualification should occur only if new matter is substantially related to prior matters.

How will lawyer fare?

I have no doubt you answered this correctly.  Not well, the lawyer will not fare well.  The lawyer will get disqualified.  The court will explain that a lawyer cannot drop one client like a “hot potato” in order to transform them into a former client so that you can take on representation of a new client.

Thus, for you Dear Reader, almost all of the contents of the seven-page order disqualifying this lawyer will come as no surprise.

What might come as a surprise to you – it certainly surprised me — is that the federal judge who ordered disqualification actually included a sentence praising the lawyer involved for how he handled the situation. Specifically:

[Lawyer] undertook commendable efforts to insulate himself from a conflict of interest by declining to discuss or investigate McLain’s claims until after [Lawyer] promptly and formally terminated the firm’s relationship with Allstate.

I know people often accuse me of being stingy in terms of doling out praise, but that sentence just leaps off the page as trying too hard to find something nice to say.  Commendable seems a stretch.  Particularly so given that when you work your way back earlier in the opinion itself where it lays out the chronology of events, you will find that the lawyer in question had the new client sign a contract with his firm on October 11, 2016 and, then, on October 12, 2016 sent the letter that attempted to drop Allstate like a tuber of elevated-temperature.

If any aspect of the lawyer’s effort is commendable (and I’m still stretching the utility of the word itself), it would be the whole not-being-very-Machiavellian about it angle.  A truly Machiavellian type would have done more to attempt to manipulate the timeline of events.  Perhaps, having the new client execute an engagement letter, only after the lawyer had time to send the letter to terminate the current client relationship.  I’m not sure that not doing that qualifies as “commendable” exactly.  But it’s something.  As long as it was very close in time, the potato would still be hot and the outcome unchanged, but … like I said it would be something.

A glimpse into the world of consumer-facing legal services providers

Yesterday, I had the pleasure of serving as a moderator at a CLE event in Nashville focused on developments in the world of consumer-facing legal services providers.  There are a world of companies – predominantly existing only online — that have an increasing presence in the lives of people in need of legal services and answers to their legal questions who, often otherwise, would not reach out directly to a lawyer to try to obtain help for their problems.

The full event was a 3 hour long seminar covering several topics, but the panel I moderated encompassed an hour of conversation with Bob Aicher of ZeekBeek, Matt Horn from Legal Services Link, and Dan Lear from Avvo.

Now, if you are reading this, you’re likely already familiar with the various aspects of Avvo’s footprint in the marketplace.  You may not know as much, however, about ZeekBeek or Legal Services Link.

In some ways, they do quite similar things but the approach is different.  Both operate as an online platform through which people in need of legal services can connect with lawyers who are willing to provide services.  ZeekBeek partners exclusively with state bar associations and, thus, in those states comes across as an entity that has the imprimatur of the state regulatory body and also — for a fee — provides its participating lawyers within a state a different platform for making referrals of work to other lawyers.  Legal Services Link monetizes its provision of a market place for consumers to ask questions and obtain legal advice and representation from participating lawyers by allowing lawyers to view questions for free but requiring lawyers who want to interact with the consumer by replying and answering their inquiries to pay an annual membership fee for that privilege.

While each of the three representatives had differing views on the topic of whether they versus those they compete with are able to do what they do in a way that the participating lawyers can be assured of compliance with the ethics rules, it was very interesting (though not surprising) to hear all three of them agree that the ethics rules that relate to their services are desperately in need of change.

It was a very interesting and engaging discussion.  The good news for you, if you are interested in checking it out, is that you can view the entire program by registering/purchasing it at this link from the TBA.  (As of now there is no way to just pay for the middle hour which was the program I moderated, but should that change I will update this post.)

 

Bad ethics opinion or the worst ethics opinion? New York State Bar Ethics Opinion 1110 edition

Again, not fair actually.  This NY ethics opinion isn’t in the running for being the worst ethics opinion and isn’t even truly bad and actually, I guess, not even wrong.  But it does point out a really bad flaw with respect to the language of the particular NY rule it applies.

What seems like an exceedingly long time ago now, I was first inspired to title a post with this “Bad or Worst” title.  I did so when I wrote about what I thought truly was a woeful ethics opinion — and one that I cannot believe anyone even asked about in the first place — in which the Ohio Board of Professional Conduct imposed some ridiculous limitations on the ability of a lawyer to communicate with attendees at a seminar or continuing legal education presentation.

The subject matter of NY State Bar Ethics Opinion 1110 is similar – whether New York’s ethics rules on advertising, and derivatively solicitation, apply to a situation in which an attorney wishes to invite people to come to a seminar that he would put on regarding intellectual property issues.  As the opinion explains:

The inquirer, an intellectual property lawyer practicing in New York, plans to conduct online webinars and live seminars on topics within his principal fields of practice for persons who may have a business interest in those topics and a need for legal services.  Inquirer contemplates identifying persons fitting that description by use of commercially available business listings, including such listings on government agency web sites, such as business entity lists.  Admission to the webinars and seminars may be free or may be for a fee.

The opinion then lists a litany of questions it has to resolve to determine whether this can be done, but the core question is whether the seminars would be advertisements and, if so, whether they would be solicitations.  Now the opinion goes on at some length about ways that the lawyer could limit what is said or done at any such presentation so that it would not even qualify as an advertisement, but, eventually, it does the practical thing and assumes that the lawyer would likely during the seminar say things that would amount to talking about his “skills or reputation” sufficient to make the seminar an advertisement.

Assuming it is an advertisement, the opinion then also quickly gets to the conclusion that the seminar would be a solicitation — and that it would be an in-person solicitation, and, thus, the attendees would have to be limited to “close friends, relatives, former client(s), or existing client(s).”

This is the moment where, inside my head, there is the sound of screaming.

It is one thing to have an ethics rule that imposes strict prohibitions on in-person solicitations.  That’s fine.  It is also fine to have an ethics rule that requires, as to written solicitations, certain requirements about those.  I often disagree with the details of what states require as to disclaimers or font sizes, but I can be swayed not to get up in arms about the requirements.  It is another thing to have a rule that creates such a strict definition of solicitation to justify writing an ethics opinion that would say that someone who accepts an invitation to attend a seminar is being subjected to a solicitation at the seminar they could have just chosen not to attend.

The closest that New York’s RPC 7.3(b) gets to carving out communications that are initiated by a person who isn’t a lawyer from being a solicitation is the language that states that solicitation . . . “does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.”

But the inanity of the outcome articulated by this ethics opinion is pretty epically demonstrated by analogy to an actual written solicitation letter to a targeted potential client.  Assume that a lawyer sends one of those, and complies with all the bells and whistles in such a written communication as to what the envelope cannot say, the font size, the disclaimers at the beginning, and mandatory language, but the recipient then decides — “hey, I’m interested in hearing what a lawyer could do for me” and proceeds to go to the lawyer’s office to ask for a meeting.  Everything that happens then is.not.a.solicitation.

The rules regarding in-person solicitation seek to protect potential consumers of legal services from overreaching by lawyers.  That is the espoused rationale.  I often, with tongue-in-cheek, will explain at seminars that such rules exist because when we graduate law school we have been imbued with superpowers as to persuasion that allow us to convince mere mortals to do things that they otherwise would never do but for our incredible superpowers.  (I can often then use the exception to the rules against solicitation for lawyer-on-lawyer solicitation to explain that since both sides have equal superpowers there is no need for the protection.)

But, in the conceptual situation evaluated by this formal ethics opinion, if the recipient of the invitation to the seminar doesn’t want to be in a room where a lawyer is speaking about the area of law in which they practice, they.can.just.not.go.to.where.the.seminar.is.happening.

What is missing from the text of New York’s rule to prevent this sort of result is the language that we have here in Tennessee in RPC 7.3(a)(3) indicating that an in-person or real-time solicitation of professional employment from a potential client is not prohibited if “the person contacted . . . has initiated a contact with the lawyer.”

Two quick technology takes – texting and more on email “bugs”

Not too long ago, I weighed in on an Alaska Ethics Opinion about the ethics of lawyers using email “bugs” that surreptitiously track what happens to an email after it has been sent.  There is a new, interesting read on the “legal or not” aspect of this technology in the ABA/BNA Lawyers Manual on Professional Conduct authored by Chad Gilles, a former lawyer who is now involved with customer strategy and legal affairs with a company called MailControl.net.  It certainly makes for an interesting and informative read, and I appreciate the short mention of a snippet of what I said here on my blog.  I was surprised in the Gilles article to read that Professor Dane Ciolino of Loyola University New Orleans had espoused a belief that it was ethical to use such technology if you were a sending lawyer and, for what it is worth, I’ve now gone and read Ciolino for myself on the issue  and … well, color me still unconvinced.

For what it is worth, the notion that Gilles explains that the jury is out on whether the conduct — using mail bugs — also runs afoul of one or more federal statutes (think the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act) leaves me more confident that my conclusion that the conduct is unethical is on the right side of things.

On an unrelated note — other than being related by way of the broadly encompassing “technology” category — Thomas Spahn and I will be doing a teleseminar on January 20, 2017 focusing specifically on a variety of ethical issues that can arise in connection with lawyers using text messaging to communicate with clients and each other.  I haven’t been fortunate enough to do a seminar with Tom in a few years and am looking forward to discussing this topic with him.

I’ve also spent a little bit of time — unsuccessfully — trying to re-find a case/situation that was reported on within the last couple of years involving a lawyer who saw part of the contents of a text sent to a judge because the judge’s phone was laying out on the bench and it lit up and the first part of the message was viewable.  I can’t remember if it was the lawyer who got in trouble for the snooping or the judge because of what was on the text, but I remember it happening.  It serves as a great teaching tool for thinking about turning off the “preview” function for texts on your smart phone, but only if I can properly reference it.

If anyone reading this, recalls it or is more proficient at finding it before January 20, I’d appreciate you shooting me a message of where to find it.  And, either way, if you have the time please feel free to sign up for our teleseminar — it is being offered through a variety of bar entities so you should be able to find it with a google search, but here’s a link to one state bar where you can sign up for it.

 

My 200th post: Living in a “post-fact” world?

So, not a milestone for some, but, for me, it feels like an achievement to have made it to my 200th post.  And because I’m a sucker for wordplay, I’ll use a “post” milestone to talk about an issue I’ve written about a good bit before but with a twist that also involves the word “post” but as a prefix.

If you’ve been paying attention at all to U.S. politics, you may have seen some discussion about how we seem to be living in a “post-fact” world and lots of accompanying criticism about how the media has played a large role in making it easy for prominent people to simply refuse to acknowledge facts and then inculcate beliefs in those who support them or identify with them that such facts are not actually facts.

Well, here’s something of an example — but in the world of legal ethics — of just how easily it is for that kind of thing to seem to happen.

So, in late October, the Montana Supreme Court put an order out for public comment about potentially adopting the new ABA Model Rule 8.4(g) addressing harassment and discrimination by lawyers in conduct related to the practice of law.  The Montana Supreme Court has floated adopting the entirety of the ABA Model Rule black-letter language such that if adopted, Montana’s 8.4(g):

would provide that it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

You can read the Montana Supreme Court order here.  The deadline for public comments is actually today and, within the last few days, there was some publicity in Montana about the proposal.

This story is what has prompted me to write.  The reporter has included a quote from a law professor at a Montana law school who stakes out the position that the rule would suppress free speech and who is quoted as saying:

“There’s a wide variety of attorneys from a wide variety of backgrounds that are opposing this proposed rule, not necessarily on faith based reasons, but on the ability to ask questions in depositions and determining who should be seated on a jury. So it’s raised concerns amongst all types of attorneys.”

But, you might say to yourself, I just read that the proposed rule, if adopted, would have a sentence that says: “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”  And, also since you read the blog, it probably means you keep up enough with these issues to know that the ABA Model Rule, at least, has specific language in an accompanying comment even addressing peremptory challenges, but that even if Montana isn’t also looking at adopting the comments, as long as what the lawyer does in jury selection is “legitimate advocacy,” it ought to be protected.  Yet, the news article contains no push back against the law professor’s statement and not even a competing quote from someone saying the actual rule would raise no such issues.

How can that be?  Well, there is a fairly easy and revealing answer that is pertinent to a number of much larger issues going on in the world around us these days (in my opinion).  The news article, describing the rule for the public, merely says this about the content of the proposed rule:

Proposed rule 8.4 (g) states: It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

So, the news report simply omits two of the sentences of the proposed rule including the one that contradicts the law professor’s stated concerns.  Thus, regular folks would have no idea of the rest of the content of the proposed rule when reading the story and certainly no reason to question why the law professor would be willing to make claims that appear to be contrary to clear language in the rule.

Sigh.

(And, if you are in Chattanooga or Knoxville, I’ll be doing those stops on the Ethics Roadshow next week and ABA Model Rule 8.4(g) is one of the topics on the menu for discussion.  It’s not too late to register and attend if you are so inclined.)

ABA Ethics 20/20 revisions. New York adopts some; Tennessee proposal still pending.

Roy Simon, the Chair of the NY State Bar Association Committee on Standards on Attorney Conduct, was kind enough to include me on an email last week and, as a result, I learned that New York’s proposed adoption of certain aspects of the ABA Ethics 20/20 revisions was approved, effective January 1, 2017.  Back in 2015, New York adopted certain revisions to Comments to the Rules consistent with Ethics 20/20, but the proposal to change the rules themselves required Court action.  You can read the details of the revisions that were adopted in this PDF: order-adopting-black-letter-amendments-to-part-1200-eff-jan-1-2017.  As with many jurisdictions, New York has picked up the move to a black letter duty in Rule 1.6 to “make reasonable efforts” to safeguard confidential information but not adopted several of the other Ethics 20/20 black-letter revisions  For example, New York has not adopted the Ethics 20/20 revision to acknowledge in Rule 1.6 the need to disclose certain information in connection with lateral moves and mergers in order to comply with the concomitant duty to avoid conflicts under Rule 1.7.  The Comments adopted in 2015 in New York did pick up the Ethics 20/20 revisions to the Comment to Rule 1.6 on that topic, however.

The Comments adopted back in 2015 also included the new paragraphs in Rule 1.1 that are touted by many as establishing a duty of technological competence for lawyers.

I wrote back in the late part of the summer about the TBA’s petition to the Tennessee Supreme Court proposing that Tennessee adopt almost all of the ABA Ethics 20/20 revisions.  The deadline for public comments expired in November 2016, but not before our disciplinary body, the Board of Professional Responsibility, filed comments proposing a number of additional amendments to be layered upon the TBA proposal.  Several of the BPR proposals, all of which you can read here (starting at page 2 of the linked PDF), are puzzling.

The TBA filed a response/reply to the BPR’s comment arguing against the majority of the BPR proposals.  The TBA’s response is not yet up at the Court’s website, but as I was one of the signers of it, I happen to have a copy, and you can read it at this link:  petition-bpr-comment-response

This situation regarding the pending proposal is one of the 12 developments I’ll be covering, including a detailed discussion of some of the puzzling pieces of the BPR proposal, during this year’s Ethics Roadshow.

The first stop is this morning in Memphis, and I’ll be doing it again tomorrow in Nashville.

 

DC Ethics Opinion 370 – Y’all knew I wouldn’t be able to resist

So, the D.C. Bar has come out with a far-reaching, sort of two-part ethics opinion addressing lawyers and social media usage.  Opinion 370 (Part 1) can be grabbed here.  Opinion 371 (Part 2) from here.  Opinion 370 has lots of really good parts, but much of the publicity it has received to date revolves around something it throws out for lawyers to bear in mind and be wary of that hasn’t really been said by opinion-writing entities before.

Here’s how the ABA Journal online headline treated it – “beware” of “social media statements on legal issues.”  Other aspects of the reporting I have seen described it as warning lawyers who offer opinions online of the potential for creating an “issue” conflict.  There’s a reason, I think, this topic hasn’t been explored much by other opinion-writing bodies:  it is a relatively silly and irresponsible take.  Regardless, given the minimal treatment of the issue that the opinion offers, even if you think there were merit to flagging the issue for consideration, the portion of Opinion 370 that “addresses” it still would be better left on the cutting room floor.

Here, in its entirety, is the analysis of this issue as a risk for lawyers from the DC Opinion:

Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer’s own financial, business, property or personal interests,” unless the conflict is resolved in accordance with Rule 1.7(c). Content of social media posts made by attorneys may contain evidence of such conflicts.

Now, to help get your bearings straight if you aren’t a D.C. lawyer, D.C.’s Rule 1.7(b)(4) is different from what is set out in the ABA Model Rules and, thus, different from what we have here in Tennessee (for example) in the closest equivalent rule, RPC 1.7(a)(2).  Our RPC 1.7(a)(2), just like the ABA Model, establishes a conflict of interest — albeit a potentially consentable one — where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

In a (stop-me-if-you-heard-this-one-before) well-done story by Samson Habte with the ABA/BNA Lawyers’ Manual on Professional Conduct, some quotes are gathered from folks pointing out that the concept of an “issue” or “positional” conflict of interest necessarily involves or requires taking contrasting positions in front of one or more tribunals and, thus, a lawyer’s public statements of opinion about a legal question couldn’t create a positional or issue conflict.

In Tennessee, for example, we address issue/positional conflicts of interests in Paragraph [24] of our Comment to RPC 1.7.  While incapable of being that kind of conflict, supporters of the D.C. Opinion warning might argue that it is still a risky endeavor to express opinions about a legal issue because the lawyer might then have a “personal interest” in how something is resolved that would materially limit the ability to represent a client.

To me, that kind of approach to the topic not only misunderstands what it means to be a lawyer representing a client but also what the rules say in a variety of places it means to be a lawyer at all.  I’ll stick for now to just the Tennessee rules though I’d venture a guess that similar principals are laid out in D.C.’s rules.

In the Preamble to our Rules, in the second paragraph, we lay out a list of things that a “lawyer” is and, included among them, is “a public citizen having special responsibility for the quality of justice.”  In the seventh paragraph of the Preamble to the Rules we say:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession.  As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law; and work to strengthen legal education.

Further, we have a rule, RPC 6.4, patterned after ABA Model Rule 6.4, that specifically makes the point that lawyers can ethically undertake service in connection with entities that seek to reform the law or its administration even though such efforts could detrimentally affect the interests of a client of the lawyer.  If a Tennessee lawyer can engage in organized efforts to reform the law even though those efforts, if successful, might detrimentally affect the interests of one of the lawyer’s clients, then absolutely they can make public statements about what the law should be without violating the ethics rules.

Now, might a client decide not to hire a lawyer who has already indicated a personal belief contrary to the client’s position.  Sure, and they’d have every right to make that decision.  But they might also make a different decision and think that, if the lawyer is willing to take on and argue their position despite past public statements to the contrary, it would make their arguments stronger.

To my knowledge. opinion-writing entities have never warned lawyers about writing learned treatises or books on legal subjects or discouraged lawyers from speaking at Continuing Legal Education events or seminars (which are these days often videotaped and archived) because of some notion that expressing an opinion about a legal issue could create an ethical conflict for the lawyer.  Seems to me that the same “logic” that drove the almost offhand reference by the DC Bar in the Ethics Opinion could be applied to tell lawyers to “beware” of such other activities as well.

One thing I hope everyone could agree upon though is: if you are going to go to the trouble of injecting this issue into what is otherwise an extremely lengthy ethics opinion, then you should have done a better job of tackling the issue comprehensively rather than simply throwing out a half-baked statement that could serve to dissuade lawyers from speaking out.

Going from “easiest” to “most difficult” in three weeks.

It is Election Day, but neither the title nor the subject-matter of this post have anything to do with that.

Later this week, November 11, I will be fortunate enough to present at the annual meeting of the Tennessee Association of Construction Counsel in Nashville and have billed my topic as “The Easiest Hour of Ethics You’ll Ever Learn.”  Unlike my normal seminars, I don’t plan to push the audience to participate at all, but (and this is a warning for those who are planning to attend and reading this post… here be SPOILERS and if you want to stay surprised you should read no further…)

Okay.

That should be enough hard returns and buffers for those who are trying to hit the back tab.

As most of you won’t be there, let me continue.  My plan is to essentially provide an “everything you ever wanted to know about the disciplinary process in Tennessee but were afraid to ask” presentation.  Far too few lawyer truly understand how the process works – and no one wants to learn about it for the first time when dealing with a disciplinary complaint filed against them, so hopefully it should be informative and a bit enjoyable.

Exactly three weeks later though, we’re going down the opposite path as I’m going to present at the Memphis Bar Association Labor and Employment Law section’s annual seminar in Memphis and my presentation is titled:  “The Most Difficult Ethics Hour You’ve Ever Earned – An Open Discussion of New ABA Model Rule 8.4(g) and What Comes Next.”  That one is going to be almost entirely interactive and given that the folks in the room will be employment and labor lawyers… I expect an opinionated bunch with thoughts on the relative merits of turning an employment law issue into an ethics and disciplinary issue.

I’ve written on this blog three times previously about the ABA Model Rule and won’t repeat myself today.  But I did want to briefly discuss a development along these lines.  Specifically, it comes from the Philadelphia Bar Association which, on October 26, 2016, passed a Resolution urging the Supreme Court of Pennsylvania:

to adopt the amendment to Rule 8.4 of the ABA Model Rules of Professional Conduct which adds section (g) making it an ethical violation to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

It will be interesting to see if this spurs any action from the Pennsylvania Supreme Court, or not, particularly given the negative publicity that various justices have brought upon that court over the last few years.

A very Tennessee-specific discussion for this Friday.

Later today I will have the honor of speaking as part of a panel at the TBA Health Law Forum.  The other panelists are Sheree Wright, the Senior Associate General Counsel with Vanderbilt University and Bill Hannah a lawyer in Chattanooga with the Chambliss Bahner firm.  I’m fortunate enough to have both Sheree and Bill as members of the TBA Ethics Committee I chair and am very excited to spend a couple of hours talking with them and the crowd about ethics issues near and dear to Health Care lawyers.  We’ll be talking about “The Ethics of the Distracted Lawyer.”  If you happen to be in the Franklin/Cool Springs part of Tennessee, you probably still might be able to work your way into the venue to register and attend.

As indicated in the title of the post, the only other thing I’m going to discuss today also is a topic that really is relevant only to Tennessee lawyers (but to a larger segment of that group, then the people that might actually contemplate a last minute visit to the above-highlighted seminar.)

I’ve now gotten enough inquiries over the last several weeks about the revised state-of-play in Tennessee state court litigation when it comes to attorney’s conferring with deponents during breaks in a deposition that it likely makes sense to write about it to have another handy link to send to folks that ask for a recollection refresher.

Whether such arrangements are kosher or not is subject to significant variance in various jurisdictions.  Perhaps the original case staking out the notion that an attorney’s communication with a client/deponent  during a deposition was not a privileged communication is Hall v. Clifton Precision,150 F.R.D. 525 (E.D. Pa. 1993).  I’ve done quite  few CLEs over the years where I used one hypothetical or another to tease out the situation and to lead the audience into a discussion about whether the lawyer taking the deposition can successfully force disclosure of what was said to the witness by another lawyer during a break.  The general principle from which courts have concluded that no privilege applies and that the contents of such discussions can be explored is that depositions are supposed to take place in the same manner as if they were trial testimony.  Karen Rubin back in 2015 delved pretty thoroughly into the state of the law on this issue at her firm’s blog here.

Tennessee has, assuming the vehicle chosen actually does the trick, created a very clear answer to this question now for cases pending in our state courts. The answer, in effect as of July 1, 2016, makes communications with a deponent during a break in the deposition perfectly appropriate, as long as: (1) there is not a question pending; and (2) the lawyer’s communication with the deponent during the break does not cross any lines so as to amount to a violation of RPC 3.3 or 3.4.

The vehicle chosen for doing this is a 2016 Advisory Commission Comment to our rule of civil procedure addressed at depositions, Tenn. R. Civ. P. 30.03  The comment provides as follows:

Rule 30.03 provides that “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence.” This language does not imply that Tenn. R. Evid. 615 is applicable to depositions. Unless otherwise ordered by the court, a lawyer may communicate with a deponent about deposition procedure or the substance of deposition testimony before, during (unless a question is pending) or after the deposition; however, such communications are subject to the Rules of Professional Conduct including, but not limited to, Tenn. Sup. Ct. R. 8, RPC 3.3 and RPC 3.4.

Now I don’t know exactly where an Advisory Commission Comment to a rule of procedure ranks in terms of authority and precedent as a technical matter, but there is no question that this is the latest word on this matter – words that our Court has bought into or they would have not approved the release – and, thus, a lawyer who wants to talk to their client during a deposition in our state court system no longer has to be worried about the client being forced to divulge the discussion on a claim that privilege does not apply.  At least as long as there wasn’t a pending question at the time of the break and the conversation.

What lawyers will still need to be concerned about – whether the deponent is their client or not — is communications that could be construed as amounting to violations of RPC 3.3 because they involve assisting a fraud on the tribunal or that could be construed as violating RPC 3.4.

The two most obvious pieces of RPC 3.4 that a lawyer could run afoul of through coaching a deponent during a break would be:

(a)       unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act; or

(b)       falsify evidence, counsel or assist a witness to offer false or misleading testimony

So, still a topic that can be explored through interesting hypos at future seminars even in Tennessee.

Everything’s bigger in Texas, including rule problems sometimes.

First, no argument from me that I’ve been a bad blogger this week.  I’d offer excuses, but no one likes to hear excuses.

Second, how about some actual substantive content … I’ve written in the past about ethical issues surrounding the verein structure of some of the largest law firms in the world.  Those prior discussions involved conflicts issues stemming from treatment of the verein as one firm for purposes of the ethics rules.

Within the last few weeks the State Bar of Texas Professional Ethics Committee issued Opinion 663 which reveals a new problem for lawyers practicing in a verein but a problem that is relatively specific to Texas given that it involves a pretty antiquated approach to law firm names — an approach that bars “trade names” altogether but that also gets very particular about whether a law firm name can have the name of someone who doesn’t actually practice law in that firm.

Texas still has in place a very persnickety rule about what law firm names, Rule 7.01 which reads:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that … if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.

So, what particularly was the issue – and the opinion does genericize the firm names involved but you can read this TexasLawyer article if you want to know the real details — well, the issue is a law firm, previously known as Smith, Johnson wants to operate under the name of the verein it has joined – Brown, Jones, Smith — as explained by the Committee is that there has never been a lawyer at the Smith, Johnson firm named Brown or Jones.  Kind of silly, right?  They also say it is misleading because it would make people think that all the lawyers in the firms in the verein are all lawyers in the same law firm when they aren’t really.

The outcome of the opinion also raises an interesting question of larger impact which is why did the Texas committee make the assumption it made in the first place? Everything about the opinion flows from the assumption that the Committee explains to open the “Discussion” portion:

This opinion is based on the Committee’s assumption that the lawyers in the law firms that become members of an organization that includes other law firms (in this instance a verein) are not legally determined to be members of one law firm as defined in the Terminology section of the Texas Disciplinary Rules of Professional Conduct.

The word “firm” in that Terminology section, by the way, defines a firm in an entirely circular fashion as being “a lawyer or lawyers in a private firm; or a lawyer or lawyers employed in the legal department of a corporation, legal services organization, or other organization, or in a unit of government.”

The opinion explains that the facts it had been provided about the verein’s role in a way that would seem to support the conclusion that it was not one firm:

The verein provides some administrative services to each of the member firms and coordinates certain activities of the firms, but it does not provide legal services to clients. The lawyers who are members of the Texas law firm and who are licensed in Texas are not partners or members of the other law firms in the verein. The lawyers in the Texas law firm do not share profits, losses, or liabilities with the lawyers in the other law firms in the verein. The lawyers in the Texas law firm have no authority or vote in the actions of the other law firms in the verein. The law firms who joined the verein are not merged as a result of joining the verein.

So, in an interesting way, this Texas opinion truly is the flipside to the disqualification ruling involving Dentons that I wrote about so long ago.  That judge decided that because Dentons held itself out to the world as one firm, it should be treated that way under the ethics rules as to conflicts.  The Texas opinion says that you can’t hold yourself out to the world as one firm because you aren’t really one.

And, if you happen to be in the Murfreesboro area today and happen to be a legal professional, you could come hear me speak about the “12 Commandments of Social Media for Legal Professionals.”