For attorney’s eyes only.

Okay. It helps to get into my mindset while writing this if you hear the title in the voice of the musical snippet “For British Eyes Only” from Arrested Development. If you can’t make the frame of reference, then so be it. We’ll have to work to find common ground all the same. (Actually, for the briefest of moments I forgot that we live in 2019 when everything is but a link away, so here is what you want the title of the post to sound like: clip.)

Ethics opinions are interesting creatures. They provide a group (usually) of people with law degrees with an opportunity to elaborate on otherwise potentially unsettled (or even unsettling) questions of application of the ethics rules. As a result, they can be used to set a trend in one direction or another toward either expanding or limiting the scope of a rule.

Usually, they are most influential when they involve an interpretation of the standard version of a particular ethics rule. In Tennessee, as I’ve written about a few times now, formal ethics opinions are being used (for better or worse) to severely expand the scope of what RPC 5.6 means in terms of when an agreement entered into in connection with the settlement of client’s matter will be deemed to involve an improper restriction on the attorney’s right to practice. Those opinions are potentially of particular moment because they are interpreting language that is pretty widespread in its uniformity: “A lawyer shall not participate in offering or making … (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” Over the course of a few opinions now, the Tennessee Board of Professional Responsibility has added layer upon layer of kinds of provisions that could be in a settlement agreement for a number of potentially legitimate reasons but that are being ruled out because they are being treated as an improper restriction under RPC 5.6.

A recent ethics opinion in Ohio addressing another variation of same seems to be rowing in the same direction as it concluded that a plaintiff’s lawyer could not be asked to commit to the fact that they did not actually have any other clients at the moment of settlement with similar claims against the settling defendant. You can read that one here.

So, I was briefly intrigued when I saw a tweet about a proposed ethics opinion in North Carolina that was concluding that a lawyer could ethically agree to an “attorney’s eyes only” restriction on the production of certain documents in a case without first getting their client’s consent to such an arrangement. That seemed like a very difficult position to justify and it seemed like it was something of a polar opposite of what is going on in the thread of Tennessee ethics opinions about RPC 5.6. The 5.6 series of opinions is almost going out of its way to find conflicts between an attorney’s interest and their client’s interest in order to shoehorn the situations into RPC 5.6. Yet, here was a nearby state proclaiming that something that seemed squarely like a real conflict for the lawyer would be kosher even in the absence of seeking client consent.

(Admittedly, my initial reaction also was to be skeptical about the conclusion. I’ve certainly encountered my fair share of AEO provisions in protective orders but I’ve never signed off on one without running it by the client so that they can decide in advance if they are going to have a problem with the arrangement. Seems like a pretty clear creation of a conflict of real importance to the attorney-client relationship where the client should be signing off on accepting such a situation before it transpires.)

But, in reading the proposed opinion, which you can access here,what I learned is that it leans heavily upon non-standard language in North Carolina’s rules that provides strong justification for the conclusion. Specifically, it relies upon the fact that North Carolina has divided its RPC 1.2 into a number of subparts, including an (a)(3) that gives the lawyer the ability to “exercise his or her professional judgment to waive or fail to assert a right or position of the client.”

On its face, the existence of such a rule could provide grounds to think this is a correct conclusion, but, if you really think about it, that provision if it is without limit is … I believe the technical, legal term would be BANANAS!

Surely, it was never intended to impact things that are vital to the representation and for which the client should have final say. Right? I mean, on its face, it would allow a lawyer to exercise professional judgment to waive the client in a criminal case’s right to choose not to testify.

To the extent the comments provide us with any insight about what was intended it seems pretty important to note that paragraph [1] of the Comment provides only one elaboration on the concept: “For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.” That is both an innocuous example of the use of the rule and one that seems pretty redundant for RPC 1.2(a)(3) given that North Carolina’s RPC 1.2(a)(2) also addresses that kind of situation by saying: “A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.”

Really good guidance, but not good enough for some.

While I’m catching up on things I should have managed to write about sooner, ABA Formal Ethics Op. 488 is deserving of a few words. That opinion was issued back in early September of this year. What particularly brought it to mind now was that it covers one of multiple topics I was lucky enough to get to talk about last weekend at that PilotLegis member meeting I mentioned in a post last week.

Opinion 488 is a very well written opinion covering the landscape of what the consequences for judges should be in situations where they have some sort of relationship with lawyers or parties appearing before them. The opinion addresses this question with an eye toward what folks online refer to as IRL situations.

It divides the world for judges into three categories of relationships: (1) acquaintances; (2) friendships; and (3) close personal relationships. Having done so, it proceeds on a pretty straightforward basis to explain that if a judge and a lawyer, or a judge and a litigant, are just acquaintances, then the judge has no obligation to even make disclosure of that fact and certainly no obligation to decide to recuse themselves because they are disqualified from presiding. The opinion offers a fairly succinct proffered definition of what it means by the term “acquaintances” — “A judge and lawyer should be considered acquaintances when their interactions outside of court are coincidental or relatively superficial, such as being members of the same place of worship, professional or civic organization, or the like.” The opinion also makes clear that a judge and a litigant should be considered acquaintances under the same kinds of circumstances as judges and lawyers. As to the third category, “close personal relationships” the opinion explains that those require disqualification outright only if the relationship is a romantic one or what I’m going to call “unilaterally, aspirationally romantic.” Where the judge wants to have a romantic relationship with the person. As for the rest of the world of friendships and other close personal but non-amorous relationships, the opinion candidly admits that they are all pretty much fact specific as to whether disqualification is required or merely a disclosure on the record is what is required accompanied by an explanation of the grounds for why the judge believes they can still preside is appropriate instead.

I can manage to have some real fun criticizing ethics opinions from time-to-time so I can’t really begrudge others when they do. But this is one that I think gets things correct.

Two other prominent legal ethics experts, Karen Rubin and Alberto Bernabe, criticized this opinion in slightly different ways. Karen expresses disappointment that is does not do enough to provide what she called “needed” guidance about the impact of judges’ use of social media and connections with lawyers and litigants on questions of disqualification. Professor Bernabe mentioned that omission but was a bit more critical of the nature of the opinion as being an “it depends” and is largely “up to the judge” in the first instance.

I disagree on Professor Bernabe’s point because I think that is the very nature of the beast. And, I appreciate the opinion being candid about the exercise. I disagree with Karen Rubin for what might be two reasons, but might really just be one overall reason.

First, treating social media as something so important or different as to be deserving of its own space and separate treatment (I think) misses the larger point. A social media connection simply is just one piece of the overall puzzle of determining whether or not the judge and the person have an actual relationship that is a friendship or something less. Second, the opinion does address the topic – and does so in a way that is entirely consistent with my first point. It does this in footnote 11:

Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.

By simply acknowledging that it matters, but that it is no more dispositive of the relevant question than any other piece of the puzzle, I think that Opinion 488 handles it exactly the correct way. Stated another way, given the widely varying state opinions that Karen addressed in her much more timely post about this, I think the guidance needed from the ABA on the social media front was pretty much exactly what was in the footnote and nothing more. If that guidance is heeded, then perhaps state entities can start to “chill out” a bit about the trees and focus on the forest.

Why can’t we (both) be friends (of the Court)?

So within the last few days the New York State Bar Association has issued an interesting new ethics opinion addressing a variation of an issue that is straightforward nearly everywhere.

Lawyers tend to know that conflicts questions can often be complicated but that there is at least one that is pretty straightforward: different lawyers in the same law firm cannot represent different clients who are on opposite sides of the “v” in the same lawsuit.

Can’t do it; can’t ask a client for consent; just a non-starter. (In Texas, your mileage may vary. But, otherwise pretty universal across the nation.)  NYSBA Ethics Op. 1174 evaluates a somewhat esoteric question that revolves around whether participation in litigation as counsel for an amicus curiae works the same way. Namely, whether amici on opposite sides of the same litigation matter can be represented by lawyers in the same firm.

I think that the NYSBA has gotten the answer on this correct though I’m not as certain about whether the escape valve they offered the inquiring firm is entirely correct. To get to bottom of both of those points, it strikes me as easiest to first analyze something that the NYSBA did not discuss because it should ease folks into the correct answer (if you aren’t there already).

If you were representing the plaintiff in a case, could another lawyer in your firm take on the representation of an amicus curiae seeking to persuade the Court to rule in favor of the defendant’s position in that case?  I think we’d all agree that the answer to that would be “no.” Maybe we’d argue over whether that was because that second matter would be “directly adverse” to the plaintiff client or whether it would just be a “material limitation” conflict. (FWIW, seems pretty directly adverse to my eyes.)

So, concluding that two different amici on opposite sides of the same litigation matter is a conflict seems like an entirely appropriate conclusion. It also seems fair to conclude, given the traditional language used in rules like Model Rule 1.7 (as does New York’s RPC 1.7(b)(3)) that it amounts to representing clients on both sides of the same litigation and, therefore, cannot be undertaken even with client consent. Those were the conclusions reached in Opinion 1174.

Because of the nature of the scenario that was presented to it, the NYSBA went a bit further to put together something of a “but you could do this” sweetener. The inquiring firm had surveyed its associates about interest in taking on an amicus matter on a pro bono basis and gotten mixed feedback because there were some folks who believed in the correctness of the opposite sides of the issue. The NYSBA indicated that lawyers in the same firm could appear for amici on opposite sides — if the lawyers were not representing a client but were acting pro se.

While that presents a potentially messy practical question for the firm, it seems like the correct result under the ethics rules if each side’s involvement is pro se. What is not clear to me is whether the NYSBA is intended to also address whether a firm lawyer could file a pro se amicus brief to take the adverse position to another amicus who is actually a client being represented by the law firm.

Certainly seems to me like some kind of additional conflict analysis would be required to evaluate that question because of the potential that the personal interest of one more lawyers that the firm could create a significant risk of materially limiting the firm’s ability to represent its client.
The opinion also does not address a much harder issue to both evaluate and to even “catch” in the first place … representing amici in different litigation matters who are on opposite sides of the same issue and advocating for outcomes that are markedly different on the same legal issue.

If a firm is fortunate enough to have built a conflicts system that would allow them to catch it, or if they otherwise figure it out ahead of time, that issue is one that should be run through the ringer as a “positional” or “issue” conflict and likely will turn on the relationship of the courts involved and whether one of the courts would be binding on the other when it decided the issue. At the very least, unlike the “same litigation” matter scenarios, that kind of conflict might be subject to waiver by the affected clients.

TN Supreme Court Vacates Formal Ethics Opinion.

I wrote a little bit about Formal Ethics Opinion 2017-F-163 a couple of years ago when it was first issued. I haven’t said anything here about it since then because I ended up being retained by the Tennessee District Attorneys General Conference to challenge the opinion.

Having obtained permission from my client to do so, I’m posting a copy for you of today’s Tennessee Supreme Court opinion vacating Formal Ethics Opinion 2017-F-163.

As the conclusion portion of the opinion sums up, the ruling not only vacates the FEO but weighs in on what RPC 3.8(d) means in Tennessee:

For the reasons stated above, we vacate the Board’s Formal Ethics Opinion 2017-F-163. We also hold that, except as provided otherwise in this opinion, the ethical obligations under Rule 3.8(d) of Tennessee’s Rules of Professional Conduct are coextensive in scope with the obligations of a prosecutor as provided by applicable statute, rules of criminal procedure, our state and federal constitutions, and case law.

You can download a copy of the opinion using the button below.

A modest proposal (about NYC Bar Op. 2019-5)

I have made a living (well not actually a living since no one compensates me in any form of currency, whether crypto or otherwise, for my writings here) writing about problematic ethics opinions. July 11, 2019 brings what might be the most practically useless ethics opinion ever released. If it were only just practically useless, then it might not be worth writing about. But it adds into the mix the fact that it appears, without discussion, to significantly expand the scope of the rule being interpreted as well.

It comes from the New York City Bar, and it addresses cryptocurrency. Well, that’s not fair exactly. Nebraska opinion 17-03 which I wrote about almost two years ago can be described as an ethics opinion that addresses cryptocurrency. This opinion from the New York City Bar addresses a highly speculative question related to cryptocurrency. It asks “what if…a lawyer entered into an agreement with a client that would require the client to pay the lawyer in cryptocurrency?” Not kidding. That is literally the overriding premise. Now, admittedly, Memphis is a long way from New York City, but is this really a potential fee contract provision with relevance to more than a handful of lawyers?

If it is relevant to you, then you could go read the full opinion at this link. Before you decide whether that is how you wish to spend your time though, here is an excerpt from the opinion that literally identifies the three variations of possible fee agreements it considers:

  1. The lawyer agrees to provide legal services for a flat fee of X units of cryptocurrency, or for an hourly fee of Y units of cryptocurrency.
  2. The lawyer agrees to provide legal services at an hourly rate of $X dollars to be paid in cryptocurrency.
  3. The lawyer agrees to provide legal services at an hourly rate of $X dollars, which the client may, but need not, pay in cryptocurrency in an amount equivalent to U.S. Dollars at the time of payment.

If those questions cry out to you as needing answers, then by all means do go read the full opinion.

But, if those questions don’t sound like they are relevant to you and your practice (and the opinion itself even acknowledges that the first scenario is “perhaps-unrealistic” and the second scenario is only “perhaps more realistic”), then here’s my modest proposal.

Let’s pretend that NYC Bar Op. 2019-5 starts at roughly p. 12 and just includes the rest…. because (1) those four pages of analysis are a pretty good overview of how you work through RPC 1.8 in most jurisdictions in order to evaluate the business transaction with a client issue, and (2) it reminds the reader of the two significant ways that New York’s version of RPC 1.8(a) differs from the ABA Model Rule.

New York’s version differs from the ABA Model by making the scope of its RPC 1.8(a) less broad in two different ways. It mandates that the rule only applies to transactions where the lawyer and client have “differing interests” in the transaction and where the client expects the lawyer to be exercising professional judgment on behalf of the client.

Nevertheless, the last four pages of the opinion give sound guidance of what a lawyer has to be concerned about with respect to a business transaction with a client:

First, the lawyer must ensure that the transaction is “fair and reasonable to the client” and must disclose the terms of the transaction in writing and “in a manner that can be reasonably understood by the client.”

[snip]

Second, the lawyer must advise the client, in writing, about the desirability of seeking separate counsel and must then give the client a reasonable opportunity to consult separate counsel.

[snip]

Third, the client must understand and agree 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.”

One added benefit of my modest proposal is that it will also avoid the Pandora’s Box this opinion appears to wish to open. As long as the full version of this opinion exists, then lawyers will need to pay very close attention to what happens on page 4. That is when the opinion blithely sticks the words “(or prospective client)” in without discussion. Given the text of the rule, this reference would appear to entirely transform RPC 1.8(a) from a rule that only applies to a business transaction with someone who has already become your client into a rule that now applies to contracts to form an attorney-client relationship.

While the NYC Bar Opinion does cite to Professor Simon’s annotated version of the New York Rules of Professional Conduct (not surprisingly in the four pages at the end which should stay), my admittedly quick review of what Professor Simon offers in the annotations to RPC 1.8(a) doesn’t appear to indicate that the rule is as expansive as this opinion seems to indicate. Many of those annotations certainly read like the transaction in question can’t be the one that creates the attorney-client relationship itself. That seems like a pretty big thing to parenthetically speak into existence in this ethics opinion.

Tennessee transparency update

Recently I wrote a bit about the latest Formal Ethics Opinion adopted in Tennessee including a bit of additional content focused on the enactment of this opinion as the maiden voyage of the new process involving the seeking of public comment on the FEO in draft form. If you missed those, you might want to read the two links above first in order to get up to speed.

One looming question was whether the BPR was going to be making the public comments it received before adopting the opinion actually public.

I learned today that the Board has addressed that question formally by adding a mechanism for doing so as part of its process and has posted the comments that were received regarding this particular proposed FEO here.

Having had the chance to read them, it did turn out that the only public comment received that criticized the draft opinion was the letter prepared by my colleagues. They also appear to be the only lawyers focused on the defense of products cases who submitted public comments at all. Many of the eight other comments received appear to have been submitted by plaintiffs’ lawyers.

The comments make for interesting reading as it appears that a recurring theme contained therein is how the Board got the answer correct from a public policy perspective. Making public policy, of course, is not exactly the role of the Board when it comes to issuing formal ethics opinions. At least one of the comments manages to heighten the point with respect to the conflicts presented by the interest of the lawyer and the client in ways that are not exactly addressed in the FEO. Not many of the comments make any real effort to address how it would be that destruction of the product would amount to a restriction on the lawyer’s right to practice.

Nevertheless, it is still heartening to know that (1) the Board’s approach to this new policy will include making public comments available publicly; and (2) this was not a situation where the Board received a significant amount of negative feedback and moved forward despite that fact.

New good, but not perfect, guidance from the ABA

The Standing Committee on Ethics and Professional Responsibility of the ABA has been on something of a bit of a “spree” when it comes to the issuance of ethics opinions. (At least, it feels like it.) In the last 18 months, it has issued 10 opinions.

The most recent one is ABA Formal Op. 487 which offers ethical guidance to lawyers who take cases on a contingent fee basis or, more precisely, lawyers who take cases on a contingent fee basis after some other lawyer in a different firm has previously taken on the same case on a contingent fee basis. The dynamic of what exactly happens in such situations if, ultimately, there is some sort of successful result is largely the stuff of state-specific case law driven by lien laws and the distinction between whether a lawyer ends up being able to seek fees under their contract or under quantum meruit. Despite that, and relegating reference to those issues to a footnote at the end of the opinion, SCEPR has decided this area needs to be filled with guidance.

In doing so, the opinion focuses its attention upon the obligations of the new lawyer to communicate to the client about the potential – as difficult to quantify as it admittedly is – that the first lawyer might still be entitled to an amount of fees in the event of a recovery in the matter.

In giving this guidance, the ABA Formal Opinion certainly isn’t wrong (although I think it is wrong in one particular statement), but it is not entirely helpful and it is certainly not very practical.

Where a client hires successor counsel to handle an existing contingency fee matter, it does not pose an unreasonable burden on the successor counsel to advise the client that the predecessor counsel may have a claim to a portion of the legal fee if there is a recovery. In many instances, precision on this issue may be difficult as successor counsel may need to review the predecessor counsel’s fee agreement and assess its enforceability. Similarly, successor counsel may not be fully familiar with the nature and extent of the prior lawyer’s work on the matter. Successor counsel also will not know the amount of the recovery, if any, at the beginning of the representation. Nevertheless, Rules 1.5(b) and (c) mandate that successor counsel provide written notice that a portion of the fee may be claimed by the predecessor counsel.

That reading of the requirements of Rules 1.5(b) and (c) is not really an obvious and straightforward one. Thus, I don’t think it gives a very compelling foundation for the opinion’s conclusion. The conclusion is still probably correct though. Because there is an ABA Model Rule that provides a pretty compelling rationale for the conclusion even though the opinion rather remarkably never once references it — Model Rule 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”)

As to the one particular statement that I think the opinion simply gets wrong, it is the statement that talks about clients not being able to be exposed to “more than one contingent fee when switching attorneys” and that ordinarily neither the first lawyer nor the second lawyer would ordinarily be entitled to a full contingent fee. I think both of those statements are offered with far too much certainty to comport with reality. It is not at all difficult to come up with scenarios where it is only the work of the second lawyer that provides the reasons for the successful outcome triggering the availability of a contingent fee.

One thing that the opinion does very well though is make clear the way in which the rules don’t work on this topic. The opinion spends a good bit of time explaining something that should have been obvious – but has not been for some courts — the rule on fee sharing between lawyers in different firms does not have any application to this situation.

The opinion adroitly walks through the ways in which ABA Model Rule 1.5(e) is entirely inapplicable to a situation in which the first lawyer on a case has been discharged and a second lawyer has taken over the representation of the client.

Friday follow up: undo the good and just leave the bad.

So, not quite six weeks ago, I wrote about a development from Tennessee that was something of a mixed bag.

Our Board of Professional Responsibility put out a proposed Formal Ethics Opinion for public comment that, in my opinion, was not a good opinion fraught with quite a number of significant flaws. (If you missed that post, you can check it out here.)

The substance of the draft was the bad part of the bag. But, for the first time under a new policy, the Board actually put a draft opinion out publicly for comment prior to formally adopting it. That, of course, was the good stuff in the bag.

Presumably, the Board’s rationale for putting the draft FEO out for comment was to give itself an opportunity to receive feedback before making a final decision about whether to issue the opinion as-is or at all or in some revised form. As the prior post indicated, the deadline for the submission of public comments was April 10.

Cut to earlier this week on April 23. That was the date that the Board put out the Spring 2019 edition of Board Notes. It is a semi-annual publication which is a collection of a lot of things, including reports on discipline, statistics about the handling and processing of cases, articles about rule changes or other items of interest, and occasionally formal ethics opinions that have been adopted since the prior issue of Board Notes.

But while Board Notes is a valuable resource, it is something that most folks only receive by way of an email and that a significant number of people pay no attention to whatsoever. (So, in a lot of ways, it is like this blog, except for the receiving it by email part.)

Without any fanfare or explanation, Formal Ethics Opinion 2019-F-167 was included in Board Notes. That was how Tennessee lawyers had the chance to first learn that the draft FEO put out for public comment had now been adopted. (Actually, if you received but have deleted the email, or if as is pretty statistically likely you are not a Tennessee lawyer, you can always go here at the Board’s website to read issues of Board Notes.)

If you are a diligent reader of all of the links, you will see that Formal Ethics Opinion 2019-F-167 has been adopted without change from its draft form.

Now, perhaps the Board received overwhelmingly positive feedback from the bar on the draft opinion and so felt confident that it got it right. Or maybe it received very little feedback about the draft opinion and decided it probably got it right and no one really cared either way.

At this point, it is impossible to know because there is nowhere on the BPR website or anywhere else that the bar (or the public) can go to presently to see what public comments were received about the opinion.

I happen to know that the Board received at least one comment – a negative one – and that it came from lawyers who actually do focus their practice on defending products liability cases because they shared a copy of the comment they sent in with me. The substance of their concerns made me feel a lot better about the thoughts I shared because they were able to more cogently point out the nature of the evidence that actually does matter in a products liability case. (They also happened to be lawyers who practice in other offices of my law firm, which I mention for the purposes of transparency.)

Perhaps, ultimately, the Board will make the comments received on the draft FEO publicly available somewhere. I hope so. Otherwise, if there won’t be transparency in terms of the bar’s reaction to proposed opinions, then there really isn’t much positive about even putting them out for comment in the first place.

In fact, there is real institutional downside for the Board in leaving members of the bar wondering whether the Board does not actually care about evaluating the feedback it receives on its proposed opinions.

If the Board isn’t going to make the comments it receives available for the bar to read, then it likely should not go to the trouble of putting drafts out for comment in the first place.

If the Board simply intends to plow forward with draft opinions regardless of perceived flaws, then it definitely should just scrap the whole endeavor.

You take the good, you take the bad…

You take them both and there you have … the news about Tenn. Formal Ethics Opinion 2019-F-167 (draft).

First, the good. I cannot give sincere and strong enough kudos to the Tennessee BPR for implementing a new policy to release draft Formal Ethics Opinions to the public for comment before deciding to actually adopt and issue them. That is a wonderful development for Tennessee lawyers and should ultimately lead to Tennessee having some of the best and most helpful ethics opinions of any state in the nation.

Now, the bad. 2019-F-167 in draft form ain’t one. This proposed FEO is yet another one seeking to weigh in on the topic of what kinds of provisions in settlement agreements might run afoul of a lawyer’s obligations under RPC 5.6 not to agree to restrictions on their practice as part of resolving a client matter. This time the underlying question is a provision in the settlement of an automobile products liability case that would require destruction of the allegedly defective vehicle.

The summary of the BPR’s conclusion is: “It is improper for an attorney to propose or accept a provision in a settlement agreement, in a products liability case, that requires destruction of the subject vehicle alleged to be defective if that action will restrict the attorney’s representation of other clients.”

Working from high-level problems first all the way down to problems at the level of details, here (for what it is worth) is what is wrong with this draft opinion:

  • The original intention of the rule, RPC 5.6, is to prevent an attorney from being put in a position where they have to agree that they will never again be adverse to someone as a condition for settling a particular client’s case. That is a policy decision made to try to protect the public’s general right to counsel despite the fact that the ethics rules (RPC 1.2) expressly provide that whether or not to settle a case is, and has to be, the ultimate decision of the client and not the lawyer. Every step down paths that are more remote from the original purpose of the restriction is one more step to making the rule tilt in the wrong direction of putting the lawyer’s future interests ahead of the current client’s right to settle their case.
  • Opinions that interpret a rule that says ” don’t do X” but that offer a conclusion of this other thing Y is wrong if Y also manages to “do X” aren’t all that helpful unless you provide really insightful guidance about when something would or would not also manage to “do X.” If you cannot articulate what things would or would not in a way that is, as a practical matter, helpful, then maybe you shouldn’t be issuing an opinion on the question.
  • The opinion goes to great lengths to explain how important the future possession of an arguably defective automobile is for the lawyer/firm making the inquiry and, in so doing, makes the following assertion as if it was the gospel truth: “The most compelling evidence when establishing the existence of a defect in a vehicle is the existence of other similar incidents.” But, it’s not. I’m not an expert in products liability litigation, though I have handled some cases over the years (admittedly, always on the defense side). If I need to prove that a particular vehicle that caused some particular person harm, then I need to prove that particular vehicle was defective. I don’t have to prove that any other vehicle at any other time was defective. Just that one. But also… that one. If I prove that other vehicles in other situations were defective and caused harm to other people, that isn’t actually going to correlate in any direct fashion to whether this particular vehicle that caused this particular harm was defective.
  • After doing that, the opinion explains a lot about the ways that the firm goes about purchasing the vehicle to have possession of it and talks about how “[i]t is the firm’s practice at the end of the case to request from the client that the firm be allowed to retain ownership and possession of the vehicle.” It does not, at any point in the opinion, provide any guidance on whether the firm has to comply with RPC 1.8(a) – business transaction with a client – in doing so; nor does it discuss whether such a policy on that firm’s part is a problem under RPC 1.8(i) – not acquiring a proprietary interest in a cause of action or subject matter of litigation that the lawyer is handling for a client.
  • The opinion does contain a discussion of RPC 3.4(a) and concerns of spoliation but makes another statement as if it were gospel truth that is actually simply not even close to 100% correct: “Clearly, in the context of a product liability case, the alleged defective product is key evidence in other current or subsequent cases of a similar defect.” It is bordering on irresponsible to put the imprimatur of the BPR on a position that the destruction of a particular physical piece of evidence at the conclusion of a particular piece of litigation would clearly put a lawyer at risk of being accused of spoliation of evidence in some future piece of litigation that does not yet even exist.
  • The opinion includes a discussion about the firm’s right to retain file materials and how that is important in terms of the ability to defend themselves in a subsequent legal malpractice action. That is a good issue to address. However, the sentence: “Without the ability to review the most important piece of evidence in the underlying products liability suit, the law firm would be left essentially defenseless if a former client brought a professional malpractice claim.” is another one of those bridge-too-far moments. The firm will have and retain copies of its expert reports from inspections of the vehicle and can even have and retain copious photographic and video evidence of the vehicle. There are many ways that it can satisfy its need to protect itself without having to have possession of the actual vehicle.
  • The opinion then ends with the BPR taking it upon itself to declare that the “ability for plaintiffs’ firms to act as industry watchdogs is both good public policy and was specifically addressed as a vested responsibility during Congress’s enactment of the Federal Motor Vehicle Safety Standards. It doesn’t seem wise to me for the BPR to be in the business of taking positions on public policy issues that are not absolutely necessary in order to provide guidance under the ethics rules. This doesn’t seem like that kind of situation, but, as the opinion cross-references, the BPR already did that with this exact same language in Formal Ethics Op. 2018-F-166, so the horse is already out of that particular barn.

So, I would say that this one needs to go back into the shop for some much needed repairs if not taken off the street altogether.

Speaking of which, the opinion’s reference to the firm’s willingness to assure the settling defendant that the vehicle will not be placed back on the road is actually the key point of all of this. The only real reason – to my knowledge – that a defendant ever seeks to include a destruction provision in settlement is a matter of safety in terms of making certain that the same vehicle does not go back in use to put anyone else at risk of harm and, of course, to put the defendant at risk of not having to get sued again over the same defective item injuring a different person. If the assurance that is offered to be provided by the firm can be done in a manner that is actually enforceable, then that should always likely suffice to resolve the situation. An re-drafted opinion that puts more emphasis on that and that spots other issues that could create problems with an eye toward getting to the right practical result would certainly seem more like helpful guidance than this draft.

The deadline for submitting public comments to the BPR on this opinion, should you be so inclined, is April 10, 2019. The document immediately below provides instructions on how you can do that.

Crowdfunding for attorney fees? Yes, but no.

So, since about early December of last year I’ve been trying to find a way to write about a really good, quite practical (albeit practical about a very niche situation) D.C. ethics from November 2018. The D.C. Opinion, Ethics Opinion 375, addresses the idea of using crowdfunding platforms as an ethical way for a client to afford otherwise unaffordable attorney fees.

It is easy to get in the right mindset to elaborate on why an ethics opinion is bad. I have had a hard time getting into writing about Opinion 375 because, truth be told, it is hard to write something that feels useful and interesting about a well-done ethics opinion.

But I’m writing about it today because, thankfully, along came a West Virginia disciplinary case with a development that makes this so much easier to discuss.

First, let’s get you up to speed on the D.C. opinion — “Ethical Considerations of Crowdfunding.” Now, of the various mechanisms that exist online for crowdfunding, the D.C. opinion focuses only on donation-based crowdfunding platforms — things like Go Fund Me rather than other kinds of platforms that bring large groups together to fund things in exchange for an equity stake or something similar.

The summary that starts out the opinion is largely all you really need to know about it:

Lawyers are generally free to represent clients who pay for legal services through crowdfunding. The ethical implications of crowdfunding a legal representation vary depending on the lawyer’s level of involvement in the crowdfunding. When the client directs the crowdfunding and the lawyer is merely aware of it, the lawyer incurs no specific ethical obligations although the lawyer should consider the potential risks associated with receipt of such funds and may counsel the client on the wisdom of publicly sharing confidential information. When the lawyer directs the crowdfunding, the lawyer must comply with the Rules governing a lawyer’s receipt of money from third parties. Further, a lawyer who directs the crowdfunding should be cognizant of ethical obligations regarding fee agreements, communications with donors, and the management of the funds raised.

Now, if you want to troll the depths (the D.C. Bar managed to list off 11 different ethical rules that were applicable to the situation), there is more than five pages of analysis to be had in the full opinion.

All in all, it’s well done and practical advice to address what is a particularly modern variation on the question of third parties paying a client’s fees.

So, crowdfunding is a viable option for clients to pay a lawyer … but … there are certain ways it can’t. be. used. For one thing, it can’t be used by a lawyer to get clients in the first place.

And that point brings us to West Virginia. Were I more of a delusional sort, I’d think this story was fabricated into existence Truman Show style just for my benefit. In terms of trying to appeal to me, this story has everything … (and you have to say this next part in the voice of Bill Hader’s “Stefon” character from SNL): it has a lawyer with the same name as a lawyer at a prominent firm in Memphis; the West Virginia lawyer started practicing law essentially exactly when I did [1999]; the West Virginia lawyer was serving as a treasurer [I’m the treasurer for two organizations at the moment] for a local soccer organization [ask me about soccer, I dare you, I won’t stop talking], and West Virginia’s Chief Disciplinary Counsel actually recused from the case because they are a soccer official.

Now, this West Virginia lawyer’s story isn’t really a story about Go Fund Me. Where the lawyer really went afoul of his ethical obligations was something he did long before he tried to use Go Fund Me in exactly the wrong sort of way, but that piece was the headline grabber for at least one West Virginia media outlet that wrote: “Charleston attorney suspended for 3.5 years after offering legal advice for Go Fund Me money.”

This lawyer’s original – and much more significant — transgression was that the lawyer embezzled about $12,000 from the soccer organization’s account by transferring those funds to his personal checking account. After he was confronted about his theft, he resigned from the treasurer position and repaid the money in three installment payments.

He self-reported his violation [which would have been, at minimum, a violation of West Virginia’s RPC 8.4(c) and probably (b)) and then was fired from his employment when his employer learned about the theft from the soccer organization.

After that, he tried setting up a Go Fund Me page to raise money to help him transition from being a lawyer employed at a firm to being a sole practitioner. What he offered, however, was that those who donated to the Go Fund Me would receive free legal services in exchange.

The West Virginia bar cited that conduct as being a violation of the rules against soliciting clients. The lawyer denied ever receiving any funds as a result of the Go Fund Me account in question and contended that he did not realize he had actually made it publicly-viewable.

An article in The ABA Journal online also emphasizes some of the aspects in which the Go Fund Me appeal itself was supported with false and misleading statements:

The fundraising appeal said the move was based on a decision to help children.
“After nearly 20 years of practicing law, I have finally found what I was meant to be doing,” the appeal said. “I have transitioned from an insurance defense practice to becoming a sole practitioner representing individuals and families. My primary focus is helping children who have been abused and/or neglected.”
Glover went on to say that his employer asked him to leave immediately after learning of his plans to go solo. “Given the short notice, I was not able to build up my savings, and I am now struggling to meet my personal expenses,” he wrote.
“It is my intention to return any gifts once my income become steady, and I will be happy to offer free legal advice (if I can) to my benefactors as well.”

That piece of this story is a very good reminder that, no matter the platform, rules patterned after ABA Model Rule 7.1 make it a disciplinary infraction for a lawyer to make statements about themselves or their services that are false or misleading.