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

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

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

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

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

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

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

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

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

Kiss my ass, faggot.

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

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

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

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

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

The intersection of the ethics rules and the GDPR “right to be forgotten”

Although today is Halloween in my part of the world, I am not offering any spooky content.  I thought about trying to replace all mentions of Maryland in this post with Scaryland, but that just seemed like I was trying too hard.

In fact, I’m a bit torn about even writing about this particular topic because I’m really of two minds in all respects about what to say about Maryland becoming the first U.S. jurisdiction to issue an ethics opinion attempting to wrestle with any aspect of the EU’s General Data Protection Regulation (“GDPR”).

On the one hand, it seems like Maryland ought to be applauded for trying to be on the leading edge of issues of concern and many lawyers (and their firms) are struggling with exactly what GDPR might require of them.

On the other hand, the core premise of the inquiry being addressed involves an assumption about a legal question — not an ethics issue — and is the kind of thing ethics-opinion-writing bodies likely ought to stay away from.

Lots of commentators will give ethics-opinion-writing bodies grief for not, for example, striving to apply Constitutional issues when issuing opinions about the ethics rules.  I’ve probably done that myself in the past.  But, on the whole, more trouble for lawyers can likely come from ethics opinions straying outside the lines and getting a legal issue altogether wrong.

That might or might not have been how it would have shaken out if the Maryland State Bar Association Committee on Ethics had fully committed to trying to figure out whether the premise of the question posed to it in Opinion No. 2018-06 was even how the GDPR would work in the circumstances.

Instead, the committee flagged for the reader the possibility that the GDPR would not require the lawyer to respect the request to be forgotten at all but offered up what is, on the whole, pretty sound guidance that lawyers can bear in mind as to this and similar questions as other jurisdictions start adopting new privacy laws and regulations that may hit closer to home than the GDPR.

The question posed relied on the premise that a former client, if a citizen of the EU, could exercise the “right to be forgotten” by demanding the lawyer delete data about the person and, thereby, cause the lawyer to delete information that would otherwise protect the lawyer in terms of conflict checking in the future to avoid taking on a new client or matter that would involve an unethical conflict of interest as to the former client representation.

The core of the guidance ultimately given – again explicitly premised on assuming that it might ever be necessary – is this:

If a former client asks an attorney to delete the information needed to manage conflicts of interest, and the GDPR requires the attorney do so, we believe that the client’s request can act as a waiver of conflicts that could have been discovered had the data been retained if: (1) the firm provides written advice to the former client that fully informs the former client that deleting the information could result in a conflict and that by requiring such deletion the client consents to the firm’s potential future representation of other clients with conflicts that might have otherwise have been discovered, and (2) none of the attorneys who handle the matter for the firm have any retained knowledge of the former client’s information.

That’s pretty good guidance, actually.

It probably would have been better though if they hadn’t imposed quite so large a burden of communication and advice to the firm in response to the former client.  I think that simply saying that any such request from a former client can be treated by the firm as equivalent to a waiver on the basis that a former client cannot demand that s/he be forgotten and then try to later claim the “forgotten” relationship presents a conflict.

You can read the full Maryland opinion here.

And, if you are interested in more opportunities to hear me try to talk intelligently about what the GDPR does actually mean for U.S. lawyers, I’ll be participating in a panel discussion in Washington, D.C. on November 9 as part of a joint program presented by APRL and the Law Society of England and Wales.  If you’re interested, you can register at this link.

Utahlking Ethics Opinions to Me? (Also Texas)

I’m interested in writing today about two recent ethics opinions that manage to go together quite nicely.  Utah Ethics Adv. Op. 18-04 and Texas Professional Ethics Committee Op. 679.  Both involve RPC 1.8 (or at least both should).  And, not only does neither opinion do a very good job with the subject matter it tackles but both tackle subjects where lawyers need to tread very carefully and could use really good advice.

But, as just a quick aside before doing so, I wanted to express some gratitude from last week and point you to a very important story worth reading.  As the culmination of a many-months-long project, I had the chance to share the stage last week at the ABA Forum on Franchising with two excellent lawyers – Shannon McCarthy Associate General Counsel for Chihuly, Inc. and Kevin Kennedy, General Counsel of Wiggin and Dana in Connecticut — and talk about a tricky and delicate topic – lawyers and obligations to report other lawyers with a particular emphasis on issues involving harassment and other toxic behavior.  I was really fortunate to get to work with them both.  For a story that offers something of a how-not-to manual offered by the experience of one of the world’s largest law firms, you can go read up here.

Now, back to regularly-scheduled programming…

While I missed it around the time it came out, the Utah State Bar put out an interesting ethics opinion explaining to lawyers a way they might be able ethically to mitigate their risk exposure in the event of third-party claims against the lawyer based on the client’s conduct.

The opinion declares that “[a]n attorney may include an indemnification provision in a retainer agreement at the commencement of representation that requires the client to indemnify the attorney and related entities against claims that arise from the client’s behavior or negligence.”

In explaining this outcome, the Utah opinion points out that nothing about RPC 1.8(h) directly prohibits it.  However, it doesn’t just stop there, it goes on to explain … just kidding actually.  It stops there on that issue.

As a practical matter, that is sort of a shame because lawyers ought to be cautioned a bit about the problems associated with starting the relationship with a client off with that sort of provision — particularly because if you are that concerned about that risk of liability from the client’s conduct, then maybe a rethink about whether to take them on is in order.  But, if one is going to do it, the beginning of the relationship is certainly more viable than mid-stream.

Speaking of which, that brings me to the Texas opinion, which tasked itself with answering this question:

May a lawyer renegotiate his fixed, flat fee for representing a client in litigation after the litigation is underway if the matter turns out to be greater in scope and complexity than the lawyer and client contemplated?

If Texas was interested in doing this right, it would recognize that the answer lies in application of its version of Model Rule 1.8(a) because that situation is a business transaction between lawyer and client.  Instead, Texas actually announced that its version of that rule does not apply to a mid-stream renegotiation of a fee.

Instead, the opinion points out that Texas courts have considered the issue and have said that it can occur but that there is a “presumption of unfairness.”  Rejecting the opportunity to apply Rule 1.8 to these circumstances is all the more baffling because — providing guidance to interpret ethics rules is the kind of thing ethics opinion writing bodies are supposed to do, rather than providing guidance about what court decisions mean.

In the end though, I’m likely being too harsh on the Texas opinion because it, at least, summarizes pretty nicely the analysis of the dynamic from the lawyer side of things and why, in most situations, effectuating an enforceable renegotiation will be unlikely:

The fundamental nature of a flat or fixed fee is that there is risk to the lawyer that the legal work and time required may exceed what the lawyer might have earned if the lawyer instead billed by the hour.  The client knows with certain that the total fee charged, no matter how much lawyer time or effort is involved, will not exceed the fixed amount.  The client’s risk in a flat or fixed fee agreement is the possibility of paying more than the client would have paid under an hourly billing agreement if the lawyer is able to complete the representation is [sic] less time than originally expected.  Because the lawyer is better able to anticipate the time and legal work required, the lawyer should be mindful that he knowingly assumed the risk — and should not unreasonably seek to change the fee agreement simply because the lawyer agreed to a fixed fee that, in hindsight, is no longer adequate.

(emphasis added).  And, also, amen to that.

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Another good opinion from the ABA SCEPR

This was not what I originally planned to write about today, but … here we are all the same.

Today, the ABA Standing Committee on Ethics and Professional Responsibility released a new opinion and, because it relates to social media, it is generating a good deal of discussion online.  It is being rolled out and discussed as being of interest to lawyers who blog or tweet or otherwise participate in social media, but it actually is yet another opinion sending a message that all lawyers need to remember.  That is because it is another opinion from this body – in a relatively short period of time – emphasizing how broad the scope of client confidentiality is under Model Rule 1.6.

The key piece of the opinion worth knowing (mostly because it applies to lawyer communications in just about any forum or medium of any sort ranging from cocktail parties, to CLEs, to social media) is this:

The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a). Rule 1.6 does not provide an exception for information that is “generally known” or
contained in a “public record.” Accordingly, if a lawyer wants to publicly reveal client information, the lawyer must comply with Rule 1.6(a).

From my experience, this is a point about which lawyers cannot be reminded nearly enough.  And, it most certainly is not just a social media issue.  Though I have, in the past and far-too-snarkily written about the problem as it crops up on social media.

Interestingly, I spent most of my day today sitting through CLE programming and, perhaps coincidentally, it was the first time in a long time that I actually heard a presenter acknowledge before telling a story about a case that they had actually obtained their client’s permission to talk about the case.

Far too often, I hear lawyer presenters relate information about something they are working on at a CLE by providing so much detail about a situation that it would not take much effort at all to immediately figure out who they are actually talking about.  This latest ABA Formal Opinion also offers a helpful refresher on the problem with doing that:

A violation of Rule 1.6(a) is not avoided by describing public commentary as a“hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.

Idaho why lawyers are so often tripped up on this.

I’m writing from Boise where tomorrow I’m delighted to have the chance to speak on legal ethics for the Idaho Prosecuting Attorneys Association.  (I’m also delighted that the weather is unseasonably warm at the moment.)  Last year I had the chance to do a similar presentation for the Tennessee District Attorneys General Conference.  Prosecuting attorneys throughout the country are finding themselves more frequently in the cross-hairs of disciplinary proceedings.

But today’s post isn’t really about that, but it does help explain the selection process.  As I find myself drawn to write about a recent instance of discipline imposed on a private attorney in Idaho that involves behavior that I’ve counseled lawyers about so I know it happens to be relevant beyond just the Idaho Bar.

The case involves the issuance of a suspension order against Attorney Beckett issued at the end of January 2018, but for which the 28-day active suspension period will run during the month of February.  You can read the press release put out by Idaho State Bar Counsel here.

The underlying case was a personal injury lawsuit, and Beckett was able to get the case successfully settled for his client.  His client, though, wanted immediate access to parts of what would be forthcoming from the settlement.  Perhaps simply motivated by an effort to be accommodating, or more likely because of a failure to properly communicate with the client and manage expectations regarding how long such things take, Beckett agreed to provide two advances of the forthcoming settlement funds to the client out of his own money and from money belonging to a separate company Beckett owned.

As the press release explains, he didn’t do that in a way that was at all proper because she didn’t manage to keep the funds properly segregated to avoid commingling them with money in other accounts and also didn’t communicate to the client the available alternatives.  Despite the fact that, as the press release makes clear, Beckett didn’t charge any interest or fees for the transaction and that no other clients were harmed in any way, the conduct violated Rule 1.15 and 1.4 of the Idaho Rules and merited a 60-day suspension, with 28 days of active suspension, and a six-month probationary period.

What is interesting is that the press release makes no mention of Rule 1.8(a) governing business transactions with clients.  When I have had to counsel lawyers about inquiries from clients along these lines, that is the Rule most pertinent to the discussion for a path to actually doing what the client wants if the lawyer is insistent on providing an accommodation.

Idaho, like Tennessee, has a Rule 1.8(a) patterned after the ABA Model Rule.  Tennessee’s, for example, provides that a business transaction with a client – which is what a loan like what Beckett did would be — cannot happen unless

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Now, working through that rule is not 100% of the battle altogether, because the risk still exists that a bar counsel would argue that other provisions in the same rule, RPC 1.8(e) and (i) in Tennessee for example, would still work to prohibit such a business transaction altogether if the case has been settled but no order of dismissal ending the litigation has been entered.

Those provisions provide:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

and

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

RPC 1.8(i) has always struck me as a prohibition that can be drafted around in the transaction documents to sever any connection between the litigation and the loan, but (e) is trickier if the litigation, despite being settled is technically still “pending” at the time of the client’s inquiry.

Advocating for attorney advertising.

So, back in August, I mentioned that I was going to have the opportunity to debate issues of lawyer advertising before an audience of top-notch Canadian lawyers in November.  This post is something of a coda to that post as I want to, very briefly, say a word or two about that talk.

It was, as I anticipated, a highly rewarding experience and all of the attorneys affiliated with The Advocates’ Society with whom I had the opportunity to meet and speak were delightful.

During the presentation, my job was to be the one to give voice to things that those assembled might not want to hear.  So, to start things off, I broke the news to them all that we don’t pronounce Hermitage, as in The Hermitage Hotel, in the fancy manner they were wont to do.  After having dealt that disappointing blow, I gave my pitch about what regulation of lawyer advertising should be, and what it shouldn’t be.

I tried to do so with a focus on things beyond just the protections afforded under our First Amendment for commercial speech because they don’t have anything quite the same under their nation’s law.

Those points – which I will happily repeat as many times as anyone ever gives me the chance to do so — are:

  • Ethical restrictions on lawyer advertising ought to pretty much start and end with prohibiting statements that are false or actually misleading.
  • It is pretty much a universal truth that the only people who complain about lawyer advertisements are other lawyers.
  • Those tasked with regulating attorney conduct don’t particularly like spending time adjudicating squabbles between lawyers about ads.
  • Consumers don’t get worked up about lawyer advertising at least in part because they get it.  If you are paying to advertise something, you are going to emphasize its good points.
  • But consumers also don’t get worked up about it because they don’t view it the way lawyers do.  There are still people out there who simply did not know they could hire a lawyer without having to pay money or who don’t know their problem might be something a lawyer could even help them with at all.
  • Some times the way those people learn this information is because they see some kind of lawyer advertisement in one place or another and, when they do, they don’t particularly think about whether or not it is something that you would think is “dignified.”
  • If you are motivated to want to impose stricter regulations on lawyer advertisements because of a concern that there is not enough public respect for our profession and advertisements that you think should be “beneath” lawyers fosters such disrespect, then I have a suggestion of how you could better direct your energies.
  • Imagine how much more could be done to foster better respect for our profession and what we do if we all focused our energies on encouraging communication of what it is that lawyers do, the role we play in society, and what we bring to the table that can help people in times of need for legal services, including helping educate them that their problem is one that could be helped by the work of a lawyer?

Coming to praise rather than bury: NYC Bar Op. 2017-6

About two weeks ago, I had the opportunity to speak to the Tennessee Defense Lawyers Association for an hour on ethics issues, using a “hot topic” format.

One of the topics I covered was the many things there are beyond just being parties on opposite sides of the “v” in litigation that present conflicts to be managed, avoided, and addressed in handling lawsuits.

I mentioned the difficult situations that can arise as a case evolves and someone shows up on the radar screen as an important witness — particularly an expert witness — and the importance of running supplemental conflicts checks to make sure that a lawyer or her firm doesn’t first figure out the problem when learning during the deposition that the witness claims to be a client of the lawyer’s firm.  That is a scenario that lawyers sometimes don’t always think about in advance but for which there is little, if any, push back on the idea that it is a conflict about which to be concerned.

I pivoted from that topic to a similar topic — issuing subpoenas for documents to witnesses — that lawyers are more inclined to want to try to intellectualize as not creating a conflict situation because it can have the feel of a “routine” act and it also “feels” like an administrative hassle.

At the time of that presentation, I somehow had not yet seen a recent Formal Ethics Opinion out of the New York City Bar on that very topic – if I had seen it I certainly would have pointed to it — because it is a very well done treatment of the issue.  The question addressed in NYC 2017-6 is:

What ethical restrictions apply when a party’s lawyer in a civil lawsuit issues a subpoena to another current client or may need to do so?

Now, a word before delving into the insight that can be gleaned by all lawyers in all jurisdictions from this opinion about an important, but not dispositive, difference in the language of New York’s Rule 1.7(a).

In Tennessee, and many other jurisdictions with rules patterned after the ABA Model Rules, RPC 1.7(a) reads so as to address two types of conflicts as being “concurrent conflicts of interest.” One where the lawyer would be required to represent one client in matter directly adverse to the interests of another client, and one where the lawyer’s duties to someone else (or the lawyer’s own personal interests) will impose a “material limitation” on the lawyer’s ability to represent the client.

The NY version of Rule 1.7(a) has slightly different language on each of those two fronts.  NY’s 1.7(a) indicates that a lawyer has a conflict:

if a reasonable lawyer would conclude that either (1) the representation will involve the lawyer in representing differing interests; or (2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.

And, “differing interests” is specifically defined in NY’s rules to mean “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.”  Now those NY variations on the language make it a bit easier and cleaner to see the issues created when a lawyer pursues a subpoena for records from one client for another client but so much of the opinion that explains the analysis is written not just well, but in a practical fashion that, in my opinion, allows it to resonate for lawyers in jurisdictions with the ABA Model Rule language on conflicts as well.

After surveying the landscape of earlier opinions on these subjects, the NYC opinion laid out a number of helpful conclusions:

First, issuing a subpoena to a current client to obtain testimony from that client will ordinarily give rise to a conflict of interest.  Obtaining testimony typically inconveniences the witness, involves probing a witness’ recollection, and at times may involve challenging and confronting the witness, any of which a current client may reasonably perceive to be disloyal.

[snip]

Second, it will ordinarily be a conflict of interest for a lawyer to seek to obtain documents via a subpoena to a current client.  The production of documents in response to a subpoena very often requires an allocation of resources (time and money) which the subpoenaed party would prefer not to expend.  This is all the more so when outside counsel needs to be retained, and the scope of production needs to be negotiated.

[snip]

The opinion then goes on to offer some further practical advice for lawyers to keep in mind because of their ethical obligations which the opinions lays out as:

(a) the necessity for lawyers to run conflict checks prior to serving a subpoena; (b) the potential need to decline or limit a representation, or to obtain informed consent, if a lawyer knows before being retained that subpoenaing a current client may be necessary; and (c) the retention of “conflicts counsel” to avoid the need to withdraw, or the risk of disqualification, when a lawyer learns during the course of a litigation of the need to subpoena another current client.

The opinion does go on to provide helpful explanatory details for each of those topics, and you can go read the opinion in full at this link.

 

More fuel for the advertising rule reform fire.

So, I’m getting a very wonderful opportunity to participate in a debate about lawyer advertising in November in Nashville at The Advocates’ Society annual meeting.  A throng of lovely Canadian attorneys will be traveling to our state capital for a two-day meeting.

I say all of this for two reasons:

Reason the first – today I had the chance to meet the other folks involved (albeit by telephone) to generally lay out what we might talk about.  It was a fascinating experience leaving me with the impression that just as our neighbors to the north were about 15 years behind us in allowing lawyers to advertise, they are still about 15 years behind us on the “what to do about the scourge of lawyer advertising timeline?”

In Canada, particularly Ontario, rules revisions have been recently adopted to impose more regulations on lawyer advertising with worries aimed at things like advertising second opinion services, and undignified locations or contents of advertisements including awards received, and whether lawyers can advertise for cases where they plan to then refer the matter out because they aren’t licensed in the jurisdiction or not capable of handling the matter.

Here in the United States though, the trend is hopefully now moving toward relaxing the marginalia of the restrictions and to streamlining regulations to simply, but strongly, prohibit actually false and misleading advertisements.

Reason the second — not everywhere in the United States is that necessarily the trend.  I was reminded of that fact when reading about this lawsuit filed in Utah over an application of Utah’s approach to prohibiting celebrity endorsements of a lawyer or law firm.  You can read the lawsuit filed by the firm, coincidentally doing business as “The Advocates,” here.

The short version of the story, laid out with a level of incredible politeness that would make even a Canadian law firm proud, is set out in the “Nature of the Action” paragraph of the lawsuit:

Plaintiffs advertise their legal services by way of live and sometimes pre-recorded interviews including statements of lawyers of the firm, radio personalities and others occurring and read during the course of regular programming of certain radio broadcasts, and during regular programming breaks (collectively, “Live Ads”).  Based on obiter dicta contained in an opinion issued November 12, 2014 by the Utah Bar’s Ethics Advisory Opinion Committee, the Utah Bar Office of Professional Conduct (“OPC”) has interpreted and applied Rule 7.2 of the Utah Rules of Professional Conduct to proscribe Plaintiffs’ Live Ads.  With respect and gratitude for the Utah Bar and its Commissioners’ service to the members of the Bar, and with deference to their discretion, Plaintiffs courteously bring this Complaint seeking this Court’s interpretation and declaration of the parties’ rights and obligations under the First Amendment’s protection of commercial speech and other implicated constitutional protections.  Plaintiffs fully intend to abide by the Utah Rules of Professional Conduct as well as the high ethical standards they have set for themselves.  While they believe that their Live Ads at issue in this Complaint are protected speech and fall within the Rules, Plaintiffs will yield to the courts’ final decision, regardless of the outcome.

Setting aside the general silliness of being worried that modern consumers will somehow be tricked by a celebrity endorsement in a lawyer advertisement, and setting aside the additional general silliness that such a concept would extend to radio hosts/DJs reading live advertisements of lawyers and law firms, the whole genesis of Utah’s position that a celebrity endorsement is prohibited by the ethics rules is a pretty interesting example of writers of an ethics opinion losing the plot.

The lawsuit doesn’t explicitly say it, but Utah RPC 7.2 does not contain any direct prohibition on a celebrity endorsement.  The closest that rule would get to such a result is either to misread and expand subsection (b) of its rule which declares:

(b) If the advertisement uses any actors to portray a lawyer, members of the law firm, or clients or utilizes depictions of fictionalized events or scenes, the same must be disclosed.

or to conclude that subsection (f) of the rule doesn’t permit paying a celebrity as being a reasonable expense of an advertisement.

What the lawsuit does explain is that the notion that Utah Rule 7.2 prohibits a celebrity endorsement in an advertisement only comes about because a total non-sequitur was thrown into a Utah ethics opinion that was issued to address the question: “What are the ethical limits to participating in attorney rating systems, especially those that identify ‘the Best Lawyer’ or ‘Super Lawyer’?”

You can go read Utah Bar Ethics Advisory Committee Opinion 14-04 for yourself here, but it truly does bizarrely just add a last sentence in an otherwise unrelated paragraph that says “a lawyer who pays a celebrity or public figure to recommend the lawyer violates Rule 7.2.”  That foray down a rabbit trail actually drew a dissent from a member of that committee to the ethics opinion which is itself not something you see every day.

Efforts to restrict lawyer ads really do cloud the minds of otherwise reasonable and intelligent folks.