Things You Stone Kolb Can’t Do.

So, today’s post involves an ongoing (recently initiated in fact) disciplinary matter. Accordingly, the details available are based entirely on the one-sided positions set out in the disciplinary complaint.

The ABA Journal has run a story about it, but once again, it first got on my radar screen because of discussion over at The Legal Profession Blog. Regardless of whether there is more to the story available so far, however, the details on offer are true-to-life as far as my own experiences in that the story clearly offers a tale of something that a lawyer can never do but, in fact, is done by lawyers all the same (not routinely but with some frequency).

The base level teaching point the story raises for lawyers is a reminder of how limited your options are if tragedy befalls a client and they pass away at a time when you are representing them? If defending litigation against a client, the lawyer likely does not hesitate in their desire to provide the required notice to the Court and opposing counsel because, depending on the nature of the causes of action being litigated, they may or may not even survive the death of the defendant/client. But even if for some strange reason, the lawyer does not want to make known what has happened, they have an obligation to do so. If representing the plaintiff in litigation and the plaintiff passes away, the lawyer may have some initial reluctance about people finding out about the development, but they also must alert the Court and opposing counsel if they are going to be able to move forward.

Why is this true when you work your way through the ethical obligations of the lawyers involved? In part, it is because once a litigant passes away then, unless certain additional things happen, there likely will no longer be any “case or controversy” that would allow the court you are in to issue anything other than an advisory opinion. But, to a much more significant degree, it is because if you do not do so then inevitably you are going to end up engaged in conduct that violates RPC 3.3, 4.1, or 8.4 or perhaps all three at the same time.

The new disciplinary matter that inspires this post offers a crystal-clear example (if the allegations are true) of a lawyer doing what they absolutely cannot when confronted with the death of a client and underscores that the problems for a lawyer can be significant even if litigation hasn’t already been initiated (and by implication then even when the underlying matter has nothing to do with litigation).

According to the complaint, an Illinois lawyer was representing a passenger in a taxi ride who was in an accident when the driver of another automobile crashed into the taxicab. Thereafter, the passenger hired the lawyer to represent him in pursuing claims for injuries sustained in the accident.

Months later, but before the lawyer had filed any lawsuit, the client died from a cause unrelated to the motor vehicle accident. Within two days of the death, a parent of the client notified the lawyer. Another more than nine months went by before the lawyer did anything further. That further step was to send a demand letter to the insurance company for the potentially at-fault driver making a settlement demand. In describing the demand, the lawyer indicated that his (actually dead) client would have “future pain and physical limitations” and sustained injuries “which will likely result in significant arthritis.”

Isn’t rigor mortis really the most significant arthritis of all? No, no it’s not. (And, yes, I acknowledge that Mike Frisch also offered something of a joke along these lines in the title of his write up of the situation, but, respectfully, I think my joke is better.)

The insurance company responded with a counteroffer for roughly 1/5 of what was demanded, the lawyer countered by asking for an additional $10,000, and then the insurance company communicated it agreed to the settlement. Thereafter, and in what is likely the clearest sign that the lawyer somehow did not know that he couldn’t do what he was doing, the lawyer made a record in the file indicating that the settlement occurred with the adjustor not being aware of the death of the client.

After that, some steps were made to try to un-ring these bells by having an estate opened and the court presiding over the estate approved the settlement, but once the insurance company learned of the timing of the death, all the consequences flowed freely therefrom.

In addition to specifically alleging violations of RPC 4.1 and RPC 8.4, the complaint against this lawyer also makes the point that deciding to settle the claim of a client who was dead also amounts to a violation of RPC 1.2(a) because the decision whether to settle a case is that of the client and not a lawyer. You can read the entire complaint here.

Of the disciplinary charges, that one may be the hardest one to actually prove given that, to some extent, it bumps up against the reality of the fact that while attorney-client privilege survives death, the attorney-client relationship does not. It seems difficult to simultaneously acknowledge that the death of the client meant that the lawyer no longer had any client and claim that the effort to settle violates RPC 1.2(a). The conduct is unethical for a number of other reasons, but I’m not sure that allegation can truly be proven as it involves violating a duty defined as being owed to a client. Of course, arguments that there is also no violation of RPC 4.1 can be down the same path in such a situation since that rule applies only to a lawyer “representing a client.” Any lawyer in the situation though is going to end up squarely facing the consequences of a violation of RPC 8.4 for conduct involving dishonesty, misrepresentation, and perhaps even fraud.

N.B: My next post will be my 500th post. Feels like a lot of pressure. Stay tuned.

Some different COVID news.

It is safe to say, at this point, that most of the United States, and particularly southern states such as mine, are treating the pandemic as being over. Whether it actually is or is not remains to be seen. If it is over, its lasting effects will certainly live on.

This post isn’t exactly about any of that though. A few months ago, I recall doing a telephone interview with a reporter that was focused on trends in discipline. I recall discussing my best guesses for what we might start seeing and how the pandemic would likely be central to that. A different part of my conversation fed into the actual article, so I’m now having to work from the most ephemeral of sources — pandemic memory (pandemory?) but my recollection is that I talked about two possible things likely to occur. One was an increase in disciplinary complaints of the potentially legitimate variety given the strains experienced by lawyers in trying to pivot to living at work, coping with the stress of navigating a pandemic, and potential for missing deadlines and other failures that could coalesce around the struggle. The other was an increase in potential disciplinary complaints of a less legitimate variety where clients try to blame their lawyers for things that were actually being caused by the pandemic itself, including delays in court proceedings, court rulings, and other similar delays in transactional settings. I also mentioned, of course, that even those less legitimate complaints could take hold if the lawyers involved had been less than diligent in communicating with their clients along the way.

What I didn’t say anything about in that conversation was whether lawyers might catch any breaks with respect to errors that they make during the pandemic simply because the errors occurred, you know, while trying to get through a pandemic.

With this post, I’d just like to highlight the surprising fact that there are at least two such incidents that have made it onto my radar screen. Two is certainly an insufficient sample size to claim any sort of trend but discussing them together is still worthwhile.

The first involves a clear example of a disciplinary body using the pandemic itself as a mitigating factor in determining an appropriate level of discipline for a D.C. lawyer. Because it came to my attention through Mike Frisch’s site, and because I have been awful in the past of saying that out loud when it is true, I will simply point you to his post and excerpt it below:

We recognize that much of 2020 was a particularly challenging time when COVID related deaths, illnesses, lockdowns, and social restrictions were at their peak without an end in sight. Therefore, we also considered your reaction to the pandemic as a mitigating factor in the context of your misconduct. Our consideration of this factor is heavily influenced by the timing and nature of your misconduct, coupled with the proactive remedial measures you took to cope better with the pandemic. 

The other involves something that seems much more extraordinary… a Rhode Island court forgiving a lawyer for missing a statute of limitations by a couple of days. The possibility of lawyers missing deadlines because of COVID was something I discussed with the reporter; particularity issues associated with trying to keep track of when time was running or tolled in states like Tennessee where our Supreme Court entered and then extended emergency orders that tolled certain deadlines but did not toll others. The possibility that courts might just exercise judicial power to simply give a free pass for missing a statute of limitations though was not something I envisioned as possible.

In an attempt to try to avoid the doghouse I’ve placed myself in as to Mike Frisch, I will clearly state that I only heard about the Rhode Island ruling because of an email alert from the Hinshaw law firm. You can read their content about that decision here.

“In representing a client …”

I’ve written in this space in the past before about how there are many ethics rules that limit their application to lawyers such that they do not kick in unless a lawyer is representing a client.

Perhaps, most prominently, this point has been dwelt upon when talking about the efforts to convince jurisdictions to enact a version of ABA Model Rule 8.4(g) because prohibitions on harassment and discrimination by lawyers otherwise imposed in jurisdictions under Comment language to RPC 8.4(d) about “conduct prejudicial to the administration of justice” are limited to when an attorney is acting as a lawyer for a client. (Of course, those who pay particular attention to the ethics rules know that situation is itself convoluted given that the actual language of the rule does not limit itself to applying only when a lawyer is representing a client, but, whatever.)

Now, there are a few of these rules in which legitimate questions can be raised about whether they should apply to a lawyer who is representing themselves in something – for example, if litigation, acting as a pro se litigant. For some rules, it isn’t impossible to make a good faith argument that the rule might not apply to a lawyer if the only client they have is themselves. For example, Model Rule 4.2 which prevents a lawyer from communicating with a person who is represented by counsel about the matter in which they are represented. Traditionally, parties have every right to cut their counsel out of conversations (whether it is wise or not) and communicate directly with each other. If a lawyer is pro se in their own case, one can argue that they are being unfairly limited from doing what any other litigant could do if they could not communicate directly with the opposing party. Yet, given the purpose behind Rule 4.2 — to protect people who are not lawyers from being importuned by a lawyer outside the presence of their own lawyer – the better side of the argument is that Rule 4.2 applies to a lawyer representing themselves just as it would in a normal situation.

Model Rule 4.4, however, doesn’t seem to be a rule for which there would be much of a colorable argument for it not applying to a lawyer simply because they are litigating their own case pro se.

In the past two weeks, there has been a disciplinary decision out of Illinois confirming this view and recommending that a lawyer be suspended for three years for violating Illinois RPC 4.4 in their time as a pro se litigant.

For context and a bit of a reminder, RPC 4.4(a) is the rule that a lawyer “in representing a client” from “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden a third person.” [Coincidentally, this is a rule that can be used rather than RPC 8.4(d) to get to a lot of toxic harassment and discriminatory conduct by lawyers when they are representing a client.]

The Illinois lawyer in question was litigating two separate matters as pro se plaintiff and, according to the opinion, repeatedly insulted, disparaged, and threatened opposing counsel. At the time of the events, the lawyer had been practicing law for more than 30 years. Based on the names involved, and the language used, there appears to have likely been at least an undercurrent of perceived anti-Semitism going on in the nature of the disparagements in one of the cases as well.

You can read the full opinion with all of the various emails here, but just a few examples should be sufficient for our purposes.

In the first litigation matter, after issuing a subpoena to a third-party bank, and after opposing counsel took the position that the subpoena was premature because the parties had not yet had a discovery conference, the lawyer sent an email on Easter Sunday morning to opposing counsel that said:

Happy Easter, Schmatlz [sic] you are being referred to the FBI today. You are insane to have done this, clear attempted obstruction.

Maybe you should watch the news, obstruction is a big topic. I will also motion this up for her Honor to weigh in re [sic] protective order.

What country do you live in? Here, a subpoena is inviolate and you violated the authority of the Court. You sir are despicable and unfit to practice law and I pledge to bring the full weight of Justice down on you.

Disgusting

There were several more similar, but escalating emails, all sent on the same day and that started to copy prosecutors as well.

In the second matter, the lawyer had filed a lawsuit in federal court against a storage facility. After he was made the subject of a motion for sanctions, he began sending multiple emails that threatened discipline against the opposing counsel, threatened RICO actions, caused at least one of the lawyers on the other side to fear for her safety, and was rife with a variety of attacks and accusations. Ironically, they also included implications that the lawyers on the other side were somehow violating the ethics rules by communicating with him directly.

Now, I have no real idea whether a three-year suspension as recommended is too harsh or just right, but several other aspects of the proceedings unsurprisingly would have played a role in that outcome. First, not shocking in the least given that the underlying cases were ones where the lawyer acted pro se, the lawyer represented himself in the disciplinary proceedings. Almost always the wrong call. Second, as should be obvious from the context of this post, the lawyer tried to argue that RPC 4.4(a) didn’t apply to him as a pro se party. (As to one of the two matters, it certainly wasn’t helpful that the lawyer was also representing his son in the same lawsuit.) Third, during the disciplinary proceeding, the lawyer took the Fifth Amendment rather than testify. While disciplinary proceedings are often spoken of as being “quasi-criminal,” the “quasi” part goes a long way in making it problematic for a lawyer to take the Fifth in a disciplinary case as that invariably is held against them.

Sorry to “ghost” on everybody

Life remains crazy for many, and the pandemic just doesn’t seem to have any intention of ending before it can have an extended Season 3 storyline. I almost hate to write these words and “jinx” it but my wife, my children, and I have continued to be able to avoid contracting Covid-19, but that doesn’t mean that life — personal life or work life — has continued in any form of normal fashion.

Events continue to be unsettling and mental bandwidth for many is a constant battle. I’ve managed – yet again – to neglect the blog and continue to play with fire of losing the interest of readers.

So, here I am, at least trying to make a bit of an effort. I was fortunate enough this week to spend some time on the telephone with a journalist who was doing a story about a Washington lawyer who was disbarred for “cheating” on his law firm by representing about 150 or so clients off the books of his firm.

I have seen situations in the past where lawyers have these kinds of “ghost” clients, but certainly never at the volume of this instance. When I first started digging into the underlying story, I was convinced it was going to be a more recent tale and that, at its heart, was going to be that the lawyer got away with it for a while at the volume in question because it was happening during the pandemic when firms have been struggling to wrestle to ground how to supervise lawyers who are away from the office, working from home, and otherwise feeling more autonomous. That case did not involve recent conduct, however, as that lawyer was undertaking this work from 2010 to 2019.

My contribution to the article focused on the potential that more lawyers might be trying things like this during the past two years but also highlighting just how much risk there is for a lawyer in doing so. Even though the underlying conduct wouldn’t even arguably be unethical in the absence of a contractual obligation to only work for the firm in question, any lawyer who starts trying to do “off the books” work likely heads down a path that inherently requires dishonesty and misrepresentation triggering violations of RPC 8.4 if nothing else. Plus, given that it becomes easy for a law firm to allege that what is occurring is theft, the lawyer can find themselves facing criminal exposure – and further ethical infractions. And, if the lawyer as part of trying to keep the conduct quiet, is also not paying taxes on the work involved there becomes federal criminal liability in the form of tax evasion to boot.

You can read the article here with a subscription (or just by registering if you are willing to burn your one free monthly article on it): Lack of Law Firm Oversight During Pandemic Could Make ‘Ghost Clients’ a More Common Problem | Law.com

Florida is a hopeless place.

No, I’m not going to have to get into talking about that it has a joke of a governor and has been actively trying to not make decisions in the best interest of public health during a crisis.

I’m just going to focus on two developments in the legal ethics space that have occurred in the last 24-48 hours.

First, in something that will be given short shrift because of the second development, the Florida Bar has advanced a proposal to revise its rules to establish that disciplinary complaints filed by judges against lawyers should be entitled to greater weight than other complaints. I have defended many lawyers in disciplinary proceedings. I have defended lawyers when complaints were filed against them by judges. The fact that a judge has filed a complaint against a lawyer does not inherently mean that the complaint should be entitled to more weight nor that it should be harder to convince disciplinary counsel to drop the complaint. This kind of proposal is problematic on at least two levels – One is that it becomes ripe for abuse by judges. But the other is that it inherently indicates an existing flawed process must exist already. Either you have a mechanism for enforcing discipline that can appropriately investigate and evaluate a complaint to determine if it should be pursued or you don’t. If you tell the public that complaints from certain categories of people need to get special treatment, then you don’t.

Second, you might recall many years ago I wrote a series of posts about the TIKD app down in Florida and its fight with regulatory authorities. What you might find crazy is that up until today the Florida Supreme Court had not gotten around to ruling on the question of whether TIKD was engaged in UPL. Well, the Florida Supreme Court ruled today and what you might find even crazier is that they concluded that the TIKD app was UPL and entered an order permanently enjoining it from operation. The Florida Supreme Court did this even though that the referee that initially heard the matter granted summary judgment in favor of TIKD. Madness.

Three justices attempted to stave off this madness in their well-done dissent. That part of the opinion starts at p. 21 of the link above.

If you don’t have the time to read that part, the following two snippets would tell you what you need to know:

TIKD formulated no legal strategy. It gathered no evidence. It filed no court papers. It made no court appearances, no arguments to a judge or jury. Other than in explaining its offerings on its website, it answered no questions. It did not, because it could not, promise its customers that their communications would be privileged. In short, if you had hired TIKD to solve your legal problem and received only what the company offered—without the
services of the member of The Florida Bar it helped you find—you probably would have wanted your money back.

That is because TIKD offered not legal services, but a business proposition: hire a lawyer we introduce, at a fee we set, and you will not bear the risk that the lawyer’s services, or indeed your ticket, will cost you more than our fee. Offering that bargain does not constitute the practice of law, and thus cannot have constituted the unauthorized practice of law. Because today’s decision reaches well beyond our constitutional mandate to “regulate the admission of persons to the practice of law and the discipline of persons admitted[,]” art. V, § 15, Fla. Const., and into the business arrangements of people trying to solve their legal problems, I respectfully dissent.

If you ever wanted to think about just how difficult the task of regulating the practice of law will be and how entrenched some mindsets are within the bar and the judiciary, today is the kind of day to mull it over.

It is, very often, anti-social media.

You may recall that not too long ago I wrote a bit about a Tennessee Supreme Court opinion that I thought was a bit wrongly-framed from its opening sentence. It was the one that was really about why lawyers shouldn’t help people try to plan and cover up crimes but started:

“This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

To drive my point about the wrongness of the Tennessee court framing that situation that way, here is a development out of South Carolina that more rightly would deserve that kind of dramatic introduction in the opinion. Instead, the South Carolina Supreme Court opens its opinion issued today in In re Traywick in a more prosaic fashion:

Beginning in June 2020, ODC received complaints from forty-six separate individuals regarding statements Respondent made on his Facebook page. At that time, Respondent maintained a personal Facebook account with a privacy setting of “public,” meaning his posts were visible to anyone, not just his Facebook “friends,” and even if the person did not have a Facebook account. In his Facebook profile, Respondent identified himself as a lawyer and referenced his law firm.

For the conduct that the Court goes on to describe in this opinion, the lawyer was placed pretty immediately on an interim suspension on June 12, 2020. So, as of this month, he’s essentially already been suspended for a year. That becomes important to know because the opinion details that the lawyer was consenting to a six-month suspension to resolve the matter. Thus, with the suspension being made retroactive, the lawyer appears to be immediately available to resume practicing.

But the Court also imposed a number of additional requirements on the lawyer that will continue for up to a year from the issuance of the opinion. Before exploring those, let’s address what it was that the lawyer posted on Facebook that led to this result.

Apparently there were 12 instances of writing really offensive and inflammatory stuff. A reader of the opinion though will only learn about 2 of them because the Court announces that the two instances alone sufficiently justify the 6-month suspension.

I’m not going to post what the lawyer actually wrote because… well, life’s too short and the internet is filled with enough toxic stuff to have to read already.

The two instances range from apparently a very strong opinion about what it means if people have a tattoo to writing insensitive, inhumane, and pretty-hard-to-see-as-anything-other-than-racist thoughts about the value of George Floyd’s life. You can go read the opinion if you really want to know, but, while it isn’t near the worst stuff you can go read on the internet, it’s still bad.

The opinion also stresses that the respondent disclaimed any interest in making a First Amendment defense to the disciplinary proceedings, which I know will have lots of folks asking questions about why someone in that position would do that. I don’t have any real insight, but one guess would be that if you were trying to distance yourself from what you said – perhaps attempting to chalk it up to being in altered state of mind and saying the views aren’t ones you actually hold – then trying to argue these were protected expressions of your opinion wouldn’t actually be something that would interest you.

As mentioned at the outset, whether this lawyer actually is this kind of person or was this kind of person or only plays at being so offensive of a fellow online, his suspension is purely an “own goal.” Not only because the lawyer was weighing in on things that nobody really was looking for him to tell them about (of course, that is sort of the sine qua non of social media participation…) but also because he didn’t have the minimum level of commonsense to use some privacy settings on his Facebook page so that only his “friends” would see what he wrote.

In addition to having been suspended, the lawyer’s self-inflicted wounds now include the following:

  • complete at least an hour of diversity education by June 2022
  • complete “a comprehensive anger management assessment with a licensed mental health doctor or therapists” within the next 3 months
  • be evaluated by South Carolina’s LAP-type program within the next 3 months and comply until June 2022 with whatever that organization recommends he do based on the assessment
  • provide the Court with periodic reports confirming he’s doing these things as well as a final report from his providers with assessments by June 2022

The last point worth mentioning is that the opinion does not discuss any ethics rule at all and, instead, the discipline is imposed for violating the Lawyer’s Oath in South Carolina as well as a disciplinary enforcement rule that allows discipline for “conduct tending to bring the courts or the legal profession into disrepute.”

Bad judgment leads to bad judgment.

A Tennessee disciplinary matter has made some national news this past week, so what I am writing about might be something you’ve heard about already.

It involves a Tennessee lawyer who has been given a 4-year suspension from practice, with one-year of active suspension for providing advice over Facebook to a woman about how she could potentially kill someone but make it appear to be self-defense and who advised that woman to delete the evidence from Facebook if she was serious.

Incredibly bad decision-making, obviously unethical conduct, and something that certainly is very deserving of punishment. I want to make all of that clear up front because I’m here otherwise to offer a pretty contrarian take on the opinion that the Tennessee Supreme Court put out explaining the outcome.

Before I do that though, and in case you hadn’t read anything at all about the case elsewhere, here is the gist of the relevant facts of the conduct itself taken from the Court’s very good summary, starting with its second sentence:

The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she
should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.”

I started with the second sentence and not the first because the first sentence says: “This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

Well, it is now because the Tennessee Supreme Court decided to make it into one and to make that the most important thing that they have decided to emphasize. Why that was how the Court decided to frame this eludes me a bit.

This lawyer’s situation wasn’t one where he was merely interacting with people on social media without touting himself as a lawyer and without wading into the explicit giving of legal advice. That’s important to note at this moment in our nation’s history in particular as lots of robust debates are being had about where one might draw the line on the intersection of attorney ethics rules and First Amendment rights of lawyers. The Court’s opinion — as a result of its overall focus — offers some words that likely will only be capable of being read as having a very chilling effect on online speech. (More about that in a minute.)

The Court could have focused on what this situation fundamentally was – an instance of a lawyer doing at least two things that are absolutely antithetical to what it means to be a lawyer: (1) giving legal advice to people designed to help them commit crimes and get away with it; and (2) giving legal advice to people about how to destroy evidence.

Instead, the Court puts an exceedingly high amount of emphasis on the fact that this interaction occurred on social media because these posts, made publicly, “fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process.” The Court even almost exclusively justifies its decision to change the original outcome of the disciplinary proceedings from a 60-day suspension to a 4-year suspension on treating the lawyer’s having done this on public social media as an aggravating factor. In so doing though, the Court drops a footnote to say that it didn’t know, and it didn’t matter, whether the person being given the advice had made their Facebook page public or private. (If it was going to go down this path, it should have gotten an answer to that question because it does in fact matter.) In so doing, the Court also avoids acknowledging that, on some level, if the lawyer had sent the legal advice to the person via a private Facebook direct message then that conduct actually might have been worse on the whole.

Admittedly, the lawyer’s self-representation before the Court in these proceedings did not help much. He continued to struggle with admitting the gravity of his errors, persisted in trying to say he was fundamentally joking in his statements, and only made the point about the distinction between a private message and a public “wall” post in trying to claim that he couldn’t have really been serious or he wouldn’t have made the statements so publicly. But still, in the end, there is something deserving of real thought about whether a lawyer who does something like this in daylight where others can see is actually doing something worse — in the way that the Court views it — then a lawyer who does something like this but better covers their tracks.

And, in having this laser-like focus on the social media component of this galling conduct, the Court also ends up – at least in the opinion of one Justice — issuing an opinion that is more dicta than opinion. Justice Lee filed a separate opinion, concurring in the judgment and concurring in the section that evaluated why the 60-day punishment was insufficient – but not joining the rest of the opinion. In it, Justice Lee explains that in the posture the case arrived — not appealed by the lawyer or by the Board of Professional Responsibility — the Court could only evaluate the appropriateness of the level of discipline. Thus, all of the Court’s discussion about other matters, including all the reasons why the lawyer’s communications did violate RPC 8.4(d) was, in Justice Lee’s view, just dicta.

If all of those sections are dicta, that does help tamp down concerns that the Court analyzed this situation so thoroughly and never referenced the need for lawyers to understand that this likely was not just a violation of RPC 8.4(d), but truly likely was a violation of RPC 1.2(d) [“A lawyer shall not counsel a client to engage … in conduct that the lawyer knows or reasonably should know is criminal…] as well as a violation of RPC 1.6 because the lawyer essentially disregarded all notions of concern for confidentiality by having the entire interaction with this client on a Facebook wall. Not to mention, of course, a violation of RPC 3.4(a) for counseling someone to destroy or conceal potential evidence. (The lawyer was not charged in the disciplinary proceedings themselves with any violation of anything other than RPC 8.4(d) and the ubiquitous bootstrap charge of RPC 8.4(a)).

Whether or not Justice Lee is correct about the dicta issue does not help me any as to the piece of the opinion that I believe could have the most chilling effect on speech of any sort because it appears in the portion of the opinion addressing the appropriate disciplinary sanction which Justice Lee joined. Again, before quoting the problematic passage a reminder of the context, this was a situation in which the lawyer in question expressly touted the fact that they were a lawyer in their online postings and were clearly engaged in giving direct legal advice to a person, including advice to attempt to conceal or destroy evidence.

It was in that context that the Court chose to say this:

“[A]ttorneys in any setting — including on social media platforms — remain bound by our Rules of Professional Conduct. See In re Vogel, 482 S.W.3d at 545 (All attorneys licensed to practice law in this state have a duty to “act at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.”). Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment. Social media posts are widely disseminated, and the damage from a single ill-advised comment is compounded and magnified.

That is not say that the passage is not good, practical advice. The problem is that coming out of the mouth of the Tennessee Supreme Court it must be given greater weight than being just good, practical advice. Attorneys in Tennessee now have to be greatly concerned that the Court does not believe that there can be any separation in terms of online speech between the personal lives of lawyers and their professional lives.

For reference, the Vogel case cited by the Court was not a disciplinary proceeding involving anything that a lawyer was doing personally rather than in their role as a lawyer. Vogel involved a lawyer who improperly disclosed confidential information of a former client and engaged in a sexual relationship with a client during the representation.

To use what was – with all appropriate respect — a throwaway line at the end of the Vogel opinion to appear to signal now that simply being a lawyer means that there can be no “purely personal” interactions online, nor any ability to comment on politics in a capacity outside of one’s law license, is an exceedingly troubling development.

Three short burst updates

In case you haven’t yet “checked out” for the week to have what I hope is a makeshift, stay-at-home Thanksgiving banquet to kick-off your holiday weekend, here are four very short but, mostly timely, updates on topics of prior posts.

First, the Tennessee Supreme Court has put the TBA advertising rule revisions proposal out for public comment. You can access the order here. The deadline for public comments is March 12, 2021, so you can anticipate that if these revisions are adopted, they likely will not be going into effect prior to May or, more likely, June 2021 at the earliest.

Second, despite the fact that most if not all of the “battleground” states have certified their results, the outgoing, impeached, one-term President’s lawyers do not seem to be relenting on their insistence on court filings and out-of-court false statements. The ongoing behavior has spurred quite a few prominent voices in legal ethics to speak out on the issues, but that there appear to be clear violations and also the reasons that there will quite likely never be any discipline imposed. You can read a couple of different articles surveying the landscape here, and here. Also, as a slightly more direct follow up to my post from late last week, you can read this article from Reuters that includes some interactions with yours truly.

Third, and technically not what would typically qualify as an “update,” nor possibly even a “short burst,” lawyers continue to have difficulty navigating protecting client confidences when seeking to withdraw from representations. I haven’t written about any instances of lawyers getting disciplined for such missteps in a long time, but there now is an extremely recent example of a lawyer being publicly censured for exactly that, and it arises from my home state. You can read the press release about the public censure here.

The press release, unsurprisingly, does not contain much in the way of details beyond indicating that the problematic conduct was “negligently disclosing confidential client information in an affidavit filed with [a] Motion to Withdraw from representation.” In fact, it would be horrible if too many details were included in such a press release when the underlying problem was the lawyer disclosing too much information in connection with seeking withdrawal.

What is a little surprising is that this discipline came about only have a full trial before a hearing panel. If you’d really like to know more of the full story, you can read the Hearing Panel judgment after the trial at the link below. (Bad link replaced with PDF download.)

For those readers who may be thinking to themselves, sure but I would never make that kind of error, the lawyer in question has been licensed in Tennessee for nearly 50 years. So maybe you shouldn’t be so confident?

But, for the benefit of those same readers, the lawyer in question also made clear in his efforts to defend himself in the proceedings (a fact that likely explains the need for the trial) that he did not comprehend (even after 50 years of practice) that the ethics rules impose an obligation of confidentiality that is much broader than the attorney-client privilege.

So, maybe you can be confident?

The era of permanent disbarment in TN has begun.

What now seems like an eternity ago, because it was written in the before-times, I wrote about Tennessee’s change to its disciplinary procedural rules resulting in implementation of permanent disbarment. I questioned exactly why the change was needed and what it would mean given that it was being paired with changes to extend the maximum length of suspensions from 5 years to 10 years.

As with a lot of things I have written, it amounted to nothing more than screaming into the void as the changes went forward and became effective as disbarments entered on or after July 1, 2020. (Also, “Screaming into the Void” sounds like a very good high school yearbook theme for 2020-2021.)

Earlier this month, the first two permanent disbarments were entered in Tennessee under the new procedural rules. An attorney practicing in middle Tennessee was disbarred forever on September 10, 2020. The charges against him stemmed from having pled guilty in federal court in 2019 to wire fraud, identity theft, and tax fraud. The underlying conduct involved misappropriations of funds in trust belonging to a minor and misappropriating other funds in a probate case.

The second permanent disbarment order was entered a day later involving a Tennessee lawyer based in Alabama. Her case has few similarities to the first beyond the ultimate outcome. She essentially took on clients in immigration matters (6) and failed to provide services despite being paid, dumped the clients, and retained the fees. She apparently did this in the process of abandoning her practice. Once a disciplinary investigation began, she did not respond to the Board, was then temporarily suspended (did not comply with the requirements for providing clients notice after such a suspension), and then consented to the permanent disbarment ruling against her.

So, what we can learn from this with respect to how permanent disbarment might be used? Not much, I guess. Neither of these lawyers have very sympathetic stories, one of the two consented to being disbarred forever and the other is likely in federal prison for essentially stealing money. That doesn’t mean that neither might have been able to trod a path to redemption under the prior procedure, but neither presents the kind of case that would make anyone want to even online browse for, much less go to, any mattresses.

But there are two things still worth thinking about.

The first is the capriciousness of timing. As mentioned in my ancient posts, the rule change implementation was not one that was going to apply only to new cases arising after a certain date but to orders of disbarment entered after a certain date. To drive that point home, on June 26, 2020, a lawyer in Washington County, Tennessee consented to disbarment over conduct that is not publicly clarified in any respect other than with reference to rules (RPC 8.4(a)(b)(c)(d) and (e), which would imply the situation would have involved some sort of criminal conduct and some sort of dishonesty. But, because the order was entered before July 1, 2020, that lawyer has the glimmer of hope for redemption because they can apply for readmission to the bar on or after June 27, 2025.

The second is an administrative issue that probably does not matter in the two permanent disbarments so far but that might be worth some further scrutiny in the future. Both of the September 2020 permanent disbarment orders end with the statement that the former lawyers must also comply with the portions of the rules applying to disbarred attorneys with respect to notifying clients and others of the disbarment. Now that disbarments are permanent in Tennessee, that’s a pretty pointless requirement. There is no hammer to force compliance and now no longer any carrot to incentivize compliance. In the past, whether a lawyer complied with those notice requirements would play a role in any future efforts to be reinstated.

But now? If not a purely aspirational requirement to maintain, it is practically, entirely toothless.

Abuse of “Iowa nice” leads to rare Dubuque rebuke.

Readers of this space know that a large part of my practice involves representing lawyers in disciplinary proceedings. Disciplinary proceedings are difficult for all that are involved, but rarely can anyone involved question that they don’t know the stakes. They are what they are and they have their own rules and procedures.

Today’s post involves a story of a lawyer getting actual discipline in Iowa, in the form of a public reprimand, not through Iowa’s disciplinary system, but imposed by a federal district judge in Iowa through a sanctions-style set of proceedings deemed “informal disciplinary proceedings.”

And, as a lawyer who does a great deal of disciplinary defense but who also does still have a “normal” litigation practice as well, I’m quite torn. Based on the story that the federal court opinion tells, the Los Angeles lawyer absolutely deserves to be on the receiving end of discipline. And the court is a bit kind when it refers to the situation as being a “he said/he said” sort of dispute when, in fact, it was a “he said/he said and this other he said and then this other he said and this she said and this other he said” dispute.

The toxic approach to litigation the Los Angeles lawyer seems to embrace is something that a handful of lawyers in my state do as well, and they almost always manage to skate through without ever being sanctioned for their conduct because, when you are dealing with them, it’s always in your client’s best interest to just try to limit the amount of time you have to deal with them rather than increase it by pursuing discipline against them for their conduct. I’m confident Tennessee is not exceptional and that there are a handful or two of these folks in just about every state. Yet, given that there exists a system for pursuing discipline rather than monetary sanctions in Iowa, no matter how bad the conduct was it feels like the federal judge should have just made a referral to the Iowa disciplinary authorities instead of imposing discipline directly.

I’m also a bit torn that the only ethics rule upon which the court premised its punishment was RPC 8.4(d) – the notion that the conduct of the lawyer was prejudicial to the administration of justice. And, throughout, the extent of the analysis is not far from saying that just about anything improper that multiples or complicates litigation proceedings to make them unnecessarily protracted or unpleasant is the same thing as being prejudicial to the administration of justice. That is something of a slippery slope under normal circumstances but also problematic when there exists a separate remedy in federal court, under 28 U.S.C. 1927, for handling litigation tactics that unreasonably and vexatiously multiply proceedings.

Yet, here, all of the misconduct found to have happened would also have run afoul of RPC 4.4(a) — ” In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….” — so part of me thinks, at least as to the particular situation, that this falls into a “much harm, no foul” category. But the idea that the “wrong” ethics rule was also used to get to what was likely the right outcome is just further fuel for the fire that the better path would have been to refer the matter to disciplinary authorities.

You can go read the full opinion and draw your own conclusions about whether it was the right manner for imposing discipline by clicking on the download button below.

And a word of thanks to Todd Presnell for spotting this case and sending it my way as fodder for discussion. If you aren’t reading Presnell on Privileges, well, under normal circumstances I’d chide you and say you should, but we’re all doing what we can to hold things together these days so … what I’ll say instead is, if you’ve got the mental bandwidth to add it to your reading list, it’s really good.