Fettered is almost always better for lawyers.

Fettered is a fun word on a number of levels. It is a word lawyers are usually familiar with when it has a prefix attached to it and gets used when we talk about disclosures or access as being “unfettered.” But, it is also a word that literally means “to be restrained with chains,” so it would not be an entirely incorrect usage of “fettered” to describe being physically handcuffed … although it usually involves chains or manacles around the ankles rather than handcuffs.

The connection created by that word and its meanings is truly the only thing that prompted me to link the following two stories of interest for lawyers.

One involves a very thoughtful court ruling that provides a road map for the way lawyers should go about avoiding unfettered disclosure of client confidences even when they have the right to defend themselves.

The other involves a lawyer who so flagrantly went about things the wrong way that her lateral move ended with her in actual handcuffs for a couple of days, not to mention likely financial handcuffs for many years to come.

I’ve often spoken with lawyers about how the right to disclose confidential client information to defend your conduct is clearly acknowledged by the ethics rules, but also still an endeavor not entirely free of risk given the limits imposed under those same ethics rules. Model Rule 1.6(b) and its accompanying paragraphs of Comment actually combine to do a very good job of explaining to lawyers how they still have to go to some pains to try to protect information, even in the face of unreasonable conduct by clients (or former clients) behaving incredibly unfairly.

The two biggest components of those “pains” are: (1) that you cannot simply unleash and disclose everything you know that might be damaging to your former client but have to make measured disclosures that are only what is reasonably necessary to defeat the allegations against you, and (2) that you likely also must make some effort to see if the Court will allow you to file what you have to say under seal or under some other form of protective order to prevent far and wide dissemination of the information you are disclosing. But, what happens a fair percentage of the time is that lawyers read the rule but not necessarily the explanatory comments.

In connection with a criminal case in federal court in West Virginia involving accusations of ineffective assistance, a U.S. Magistrate Judge issued a very well structured and thoughtful opinion that essentially follows the guidance of the rule and its comment in a way that provides a good model for letting a lawyer defend their conduct while properly imposing safeguards to avoid unfettered disclosures. Thus, the full opinion is now another place to point lawyers to beyond just the Comments where they can read the preferred way this needs to work. As a bonus, it also provides an excellent gloss on a now-decade-old ABA Formal Ethics Opinion that some folks believed went a bit too far.

As to the lawyer who likely thought she was seeking greener pastures but ended up in handcuffs, the easiest place to succinctly describe Chelsea Merta’s conduct is a paragraph or two of the Confession of Judgment and Consent Permanent Injunction Ms. Merta entered in state court in St. Louis, Missouri around 10 days ago:

3. On or about February 2, 2018, seven days prior to her resignation, Merta transferred approximately 22,000 data files from SLF [her then firm] onto a portable USB flash drive without authorization from SLF. The data files that were transferred to the portable USB flash drive included files from SLF’s clients and SLF. Merta took the flash drive containing these files and, upon her resignation (despite representations to the contrary during her exit interview with SLF), retained the files. Many of those files were later found to be contained on [her and her new firm’s] MacBook Pro computers and cloud storage accounts.

4. Prior to her resignation and without authorization from SLF, Merta tampered with, deleted, and wiped her SLF computer, her SLF-issued smart phone, and other storage locations of all data, including data related to SLF’s clients and SLF, and also informed three clients of her imminent departure from SLF. Thereafter, following the submission of her notice of resignation, but prior to it becoming effective, Merta contacted a number of clients to inform them of her resignation and inform them that they could transfer their file to her new law firm.

In that confession of judgment, Merta agreed that the damages caused to her former firm were in excess of $550,000. The consent judgment also references the Court having already awarded damages against her for more than $200,000 over conduct involving contempt of court.

It was the contemptuous conduct – which itself at heart was continued refusal to relinquish the improperly taken files and continued misrepresentations to the Court about those facts – that also resulted in her spending two nights in jail until she purged the contempt. You can read all about the contemptuous conduct in this earlier order here.

Merta’s behavior when leaving to start a new firm, I sadly believe, happens a lot more often than you might think. It usually does not come to light for a variety of reasons, such as the dynamic associated with the pros and cons for the firm that has been wronged of ever pursuing the wrongdoing because of potential adverse effects for the firm and for continued discomfort on the part of its current and former clients. The reason that lawyers can tend to get away with this kind of conduct though is not that the departing conduct can’t be proven as the order lays bare. Technology these days makes it very difficult to not leave behind the kind of digital trail that Merta left.

Nevertheless, the tendency to engage in the conduct on the way out the door is fundamentally puzzling because it is antithetical to what lawyers usually are — risk adverse. It will likely come as no surprise to hear that this particular lawyer also has been pursuing bankruptcy proceedings. Thus, this case demonstrates just how significant the financial and professional risk of doing this can be in those cases where the firm that is wronged does make the decision to plow forward with proving it.


A lawsuit about a lawsuit that touches on everything about 2019?

If time capsules were still a thing (are they still a thing?), and someone wanted to capture issues facing the legal profession in 2019 for a time capsule to be buried… what sort of topics would you choose to include?

Outside of the legal dynamics at play in the political landscape of the nation (which I’m excluding for today just for purposes of sanity), a quick effort to sketch things out on scratch paper might find you listing:

  • Risks of the flow of information involving modern technology
  • Financial pressures placed on lawyers and law firms
  • Continuing difficulties in achieving and maintaining diversity in law firms
  • How #metoo and problems of power and sexual misconduct in the workplace play out in law firms.
  • The role of businesses other than law firms in the delivery of legal services and what that means for the profession.

I’m probably leaving something out, but those bullet points comprise a pretty good overview of the legal landscape, right? Surely, you couldn’t find one document that would touch all of that to throw into the time capsule?

Well, thanks to a new lawsuit filed in California in May about another lawsuit filed in New York in May, you can now fill your time capsule with just one complaint plus its Exhibit A.

You may already have read any of the stories about this lawsuit that have run at the ABA Journal or in Bloomberg Law or even this Harvard Law School and snark-centric one at Above the Law.

If you want to read the entirety of what would go in the time capsule, you can read the lawsuit filed by Pierce Bainbridge against Donald Lewis (which attaches the suit Lewis filed against Pierce Bainbridge as an exhibit) by downloading the PDF below.

The two documents combined span more than 110 pages, so here’s a summary.

Lewis joined Pierce Bainbridge as a partner in June of 2018 but ended up working there for only 4 or 5 months. He was terminated by the firm in November 2018. Both sides agree that during the five months he was there A LOT happened. They disagree pretty vehemently on exactly what though.

Lewis filed a lawsuit in New York on May 15, 2019 alleging that he was wrongly terminated as a retaliatory matter because Lewis had become aware of financial wrongdoing by Pierce Bainbridge involving misrepresentations about the value of cases to a third-party litigation funding company. Lewis’s lawsuit sought $65 million in total damages with $50 million of those being claimed punitive damages.

In support of his allegations against the firm and his claims that it is a toxic environment for those who work there, Lewis’s lawsuit publicly discloses a litany of internal Pierce Bainbridge communications including what would appear to be not just emails and text messages but some that are indicated as being from the firm’s use of the Slack messaging platform.

That same day, May 15, 2019, Pierce Bainbridge filed a lawsuit against Lewis in California alleging that pre-suit sharing of a draft of the lawsuit with certain people was actionable defamation by Lewis and that by seeking a multi-million settlement to avoid filing the lawsuit, Lewis was engaged in extortion. The firm’s lawsuit also pursues claims of negligent and intentional interference with contractual relations and prospective economic advantage on the theory that Lewis’s effort to spread false information about the firm and its partners is an effort to damage the firm’s relationship with the third-party funding company and its clients and potential future clients.

Pierce Bainbridge contends that Lewis was the subject of credible allegations of sexual assault, harassment, and retaliation leveled against him by an employee of the law firm and that he attempted to obstruct the firm’s internal investigation of those allegations and was terminated on that basis. The firm’s lawsuit paints a portrait of a lateral hire alleged to have “immediately bec[ome] a corrosive presence” at the firm.

The firm alleges that on the same day Lewis was appointed to be an “assigning partner” a legal assistant made a report about an alleged event that would have occurred in June, fewer than 2 months after Lewis arrived, and that involves Lewis doing his best impression of what might happen if Louis C.K. and Matt Lauer were collaborators on a workplace project. In response to the allegations, the firm put Lewis on administrative leave and hired an outside law firm to investigate. While on leave, the firm alleges that Lewis sent an email to many at the firm airing his allegations (many of which apparently ended up the subject of his lawsuit). For that, the firm says they terminated his employment. The firm contends that their outside counsel concluded that the allegations against Lewis were credible.

Lewis, for his part in his lawsuit which spans 486 numbered paragraphs and was not filed pro se, takes issue with the propriety of that investigation as well and alleges that another partner at the firm was terminated after voicing an opinion that Lewis had gotten “a raw deal” from the firm

Using history as a guide, I’m prepared to declare that neither side will win this lawsuit. As a teaching tool, this lawsuit of course is an easy opportunity to repeat a point I’ve made many times before (here and elsewhere) about why so many law firm disputes and lawyer departures ultimately shouldn’t end up in litigation if there is any way to avoid it. The likelihood almost always is that no one “wins.” Everyone loses. And most prominently among the losers are the clients of the law firms/lawyers who don’t want to directly or even indirectly be harmed by the battle and, if they are at all risk averse, have to find themselves wondering whether they want anything to do with any of the players.

When is a phone not a phone?

In a world where people use their smart phones for seemingly everything, including actually talking to other people on the phone from time-to-time, an interesting ethics issue has been percolating in the world of attorney advertising.  Namely, for purposes of the ethics rules that exist to restrict how lawyers can go out about actively soliciting clients, are text messages supposed to be treated more like email or more like a telephone conversation?  Depending on the nature of your practice, it can be an important question because most lawyers are well aware that phone calls to solicit business from someone with whom you don’t have the kind of prior professional, or close personal, relationship to create an exception are a no-no.  But e-mailing someone to do the same thing tends to be generally understood to be more like a letter and, while not outright prohibited in most jurisdictions, just have to make sure to comply with whatever requirements a jurisdiction has for solicitation letters.

Unfortunately (or fortunately I guess depending on your point of view), it looks like it will be Florida that weighs in with the first ethics opinion addressing the question.  And I say “will be,” because weirdly though I am blogging about this on May 28, the news item put out by the Florida Bar on the website is dated 4 days from now on June 1.

Florida is notoriously restrictive when it comes to its approach to the regulation of lawyer advertising issues so, in a way, this is not a surprise even though an article from earlier in May made it appear that they were struggling a bit with what to decide.  It is interesting to hear that at least part of the rationale appears to be tied to an interpretation of Florida’s advertising Rule 4-7.18(a) as prohibiting the use of telephones to make direct solicitations rather than telephone “calls.”

I’m not sure I agree with that interpretation after a quick review of their language (which for goodness sakes also treats facsimiles and telegraphs as outright prohibited direct solicitation), and I also wonder whether that opens up the question of whether a Florida lawyer now would have to be worried about sending an email if they happen to believe it likely that the recipient will view the email on the telephone or, perhaps of more concern, whether they can use their own phone to send the email to the recipient.

I tend to think that the answer turns on the language of any particular rule being examined.  As an example, I think that the answer to the question in Tennessee has to be that a text message solicitation to someone you don’t know (i.e. doesn’t fall within the group of unprotected folks described in (a)(1)-(3)) is prohibited by RPC 7.3(a) because it is a “real-time electronic contact.”  Our RPC 7.3(a) reads:  “A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a potential client ….”

In that regard, the answer to the question in Tennessee shouldn’t turn on some strained interpretation of the words “live telephone” as meaning something broader than “calls.”  Thus, the point isn’t that the person is physically seeing the message on their phone (after all, as noted above, they likely would be viewing your email on their phone as well) or that the lawyer is using a phone to send the text.  Instead, it turns on the notion that texts, unlike emails, have become “real-time electronic contact.”  These days, if a question can wait then you can ask it by email but if you are looking for an immediate response, you need to send a text.

But, in a state like Tennessee that has the “real-time electronic contact” language, the underlying talking points relied upon by the Florida Bar would be highly relevant.  For most users, texts like phone calls, are set up to interrupt what you are doing with a noise or sound that prompts you in an almost-primal fashion to have to go read it.  Further, the most used text services also transmit real time information about whether the recipient has read the message and, with the dreaded ellipses, can even show you if they are in the middle of composing a response.

Now, whether that is good public policy or bad public policy… I’ll save that discussion for some other time.