California proposes an ethics opinion that needs further workshopping.

Let’s talk for a bit today about a proposed California ethics opinion for which public comment is being accepted until June 8, 2021.

The general topic when you hear about the proposed opinion is immediately of interest — can a lawyer help a client obtain a contractual agreement including a provision that is against the law? It is a topic that I did a seminar on – unrelated to California law — back in the before times. (I think it is still available for listening if anyone is of interest here.)

In jurisdictions that have a version of RPC 1.2 that tracks the Model Rules, it can be a bit easier of a question to parse through because what ABA Model Rule 1.2(d) prohibits is limited to not counseling “a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. . . .” Thus, tricky questions about whether a contract provision might be unenforceable under current law become a bit easier to deal with in terms of a bright-line at least because it is only problematic for the lawyer to be involved if the client’s path involves criminal conduct or the commission of a fraud on the other contracting party.

Although California has relatively recently (and finally) adopted a version of ethics rules that are patterned on the Model Rules, their version of RPC 1.2(d) deviates significantly from the Model Rule approach by expanding the lawyer’s obligation to include not just something that is criminal or fraudulent but anything that the lawyer knows is “a violation of any law, rule, or ruling of a tribunal.”

Thus, this proposed formal opinion (Interim No. 19-00003) addresses a much broader question than might be evaluated in most jurisdictions. Now, perhaps as a way of making the outcome more palatable, the opinion tees up the following as the fact pattern it decides to evaluate:

Lawyer works for a large California corporation providing employment law advice to the Human Resources department (“HR”) responsible for all non-executive hiring. Employees hired through HR are presented with a standard form written employment agreement (“Agreement”). This Agreement is presented by HR to new hires as a non-negotiable agreement that must be signed as a condition of employment. Lawyer is tasked with reviewing and updating the Agreement, which contains a provision that has been found to be illegal under California law.

Factual Scenarios

1. Lawyer knows that the provision has been found to be illegal, but advises HR to use the Agreement anyway, without further advice or analysis.

2. Same facts, except that Lawyer does not know that the provision is illegal.

3. Same facts, except that Lawyer advises that the contract provision has been found to be illegal under California law, but does not recommend against including the provision.

4. Same facts, except that Lawyer advises that the contract provision has been found to be illegal under California law and recommends against including the provision. HR advises Lawyer that it understands the provision is illegal but would still like to include it in the Agreement for its chilling effect. HR has asked the Lawyer to assist in enforcing the provision.

Offering up that scenario makes it a lot easier to offer conclusions such as:

A California lawyer has a duty not to counsel or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal. That conduct includes the use of a contract provision in a transaction with a third party that has been found to be illegal under the law of the jurisdiction applicable to the transaction. If the lawyer knows that the provision is illegal, the lawyer: (1) should advise the client accordingly; (2) may not recommend the use of the provision; and (3) must counsel the client not to use it.

If the client insists on the use of the illegal provision against the lawyer’s advice, the lawyer may not participate in presenting the illegal provision to the third party and may not assist the client in enforcing the provision. In that event, the lawyer may withdraw from the representation but is not required to do so.

If the lawyer concludes that the conduct is a violation of law reasonably imputable to the organization and likely to result in substantial injury to the organization, the lawyer for an organization must report the actions of the client constituent to a higher authority, unless the lawyer reasonably concludes that it is not in the best lawful interest of the organization to do so

Confined to the facts evaluated in the opinion, it would feel hard to get worked up about the conclusions because who wants to openly advocate for a corporation being able to knowingly put an unenforceable noncompete or nondisparagement provision in an employee contract merely for “its chilling effect”? Right?

But, work with me here for a minute. RPC 3.1 in most places, including California, expressly permits lawyer to advocate in court proceedings for extensions, modifications, or reversals of existing law. Court matters don’t happen without cases or controversies and, thus, cases arguing that aspects of existing state law, whether contract law or otherwise, should be modified or reversed unless people take actions that are “illegal” until litigated and the existing law reversed.

So, how in the world does that ever get to happen in California, if this ethics opinion moves forward? How does a lawyer help someone who is willing to seek to change a bad law to do so? Is California really going to say that the only way to do that is through lobbying legislative bodies? What if California had a law on the books that made it “illegal” to rent any house greater than 2,000 square feet in size to anyone other than Caucasians? And I’m not talking about something where the law in question makes it a crime, but just a statute that prohibits it without imposing any criminal penalties. Are California’s ethics rules going to prevent a lawyer from assisting a willing landlord in crafting a lease agreement that violates that law?

And, look, I get that the opinion is constrained in that it has to interpret California’s rule, and that it might well be that the problem is the rule itself, but, sometimes the process of putting together an ethics opinion reveals a bad rule and instead of issuing the opinion, someone should spend their time fixing the rule.

If you agree, and you have any sway in California, you can send a comment in on the proposal in the next 45 days or so.

Brooding about ethics.

So, it’s been a minute or so since my last content. You’ve probably moved on and found a new favorite ethics blog. It’s probably Michael Kennedy’s actually, he’s been relentless with content in March 2021.

You might be wondering what has happened to keep me from writing over these last 20 or so days. First, it’s definitely not workload or client issues. Second, it’s definitely not a lack of things out there worth commenting on these last three weeks. Third, it’s definitely not the guy who’s been attacking my site trying to hack it. That just results in mildly annoying little emails telling me the person is hopelessly trying. (I know with about 99% certainty exactly who it is, but he’ll have to keep trying a bit more so that I can have exactly what I need to help his friendly local law enforcement officers confirm it’s him.)

No, it’s because of the cicadas. You might have read something about how, over the next few weeks, billions of Brood X cicadas will emerge after 17 years of hiding away. It’s always weird to see yourself talked about in the media – that’s been going on over the last few weeks as well in some other settings – but it’s really weird when an article refuses to acknowledge you by name. The Vox article linked above, and a few others, speak in terms of these billions of cicadas hearing “the call of Spring” and deciding to wake up.

I think this is the first time I’ve ever been called “the call of Spring.” If you think that billions of cicadas just all decide to wake up at roughly the same time on their own, you are pretty gullible. Somebody has to travel around and wake them up. And, let me tell you, it’s exhausting.

But anyway… it’s done now. So, for the sounds you are about to experience and cherish, you are welcome. Along the way, I’ve also managed to get two doses of Pfizer vaccine in me, so we should be well on our way to resuming normal, intermittent posting.

For today, let’s ease our way into it and offer some content about a topic that (of course) that Kennedy fellow has already managed to write about. A new proposed ethics opinion in Florida (a place I fortunately did not have to go to for any Brood X cicada wake-up calls) addressing the ethics of accepting client payments through various popular digital platforms like Venmo and others.

The proposed opinion issued by the Florida State Bar’s Professional Ethics Committee appears to be a largely commonsense approach to an inevitable development as such apps have arisen and that focuses, for the most part, on the same kinds of ethical issues that were looked at and resolved in the days when lawyers were “struggling” to figure out whether they could ethically accept payment of fees using credit cards — confidentiality issues and Rule 1.15 safeguarding of funds/trust accounting/commingling issues.

The confidentiality issues are certainly more complex than was true about credit cards because of some of the more social media style angles of certain payment apps, which is another point that Kennedy makes well in his post today that focused on the confidentiality issues in the opinion.

The opinion also addresses in detail what lawyers will have to do to ensure that payments received through such an app that are earned when received go to one type of account and payments to be held in trust go to another kind of account. Likewise, the opinion addresses the need to make sure that any “costs” of using the service – like transaction fees – do not get paid out of any trust funds being held by the lawyer.

You can get the full Proposed Advisory Opinion 21-2 here. Among the most valuable pieces of advice offered in the opinion though comes at the end in the form of something of a disclaimer:

Note: The discussion about specific applications in this opinion is based on the technology as it exists when this opinion is authored and does not purport to address all such available technology. Web-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.

Truer words and all of that, right? For example, the UI I had to deal with on the Cicada app? Don’t get me started.

More seriously, the forthcoming nature of this opinion was already on my radar screen, and the radar screen of all who attended the APRL mid-year meeting because we were fortunate enough to hear a “Fred” talk” from the Chair of the Florida Bar Professional Ethics Committee, Culver “Skip” Smith.

Interspersing our meeting with these “focused, rapid, ethics discussions” was something new APRL is trying. Skip’s “Fred” talk has been eclipsed by the release of the actual proposed opinion but let me end my return from a long slumber by offering you a link to another “Fred” talk that was given at our APRL mid-year meeting that I thought was excellent and that demonstrated some of the possible cool approaches these kinds of short talks can offer.

Give yourself 10 minutes or so this weekend and watch Joanna Storey of Hinshaw talk to you about whether miscommunication is inevitable.

Is Miscommunication Inevitable? Lessons Learned from Misunderstandings in Literature and Sitcoms – YouTube

“Here’s a new post.” (cleaned up)

I have tried for the better part of a week to convince myself that I needed to write something about the most recent ABA Formal Ethics Opinion which was released in February 2021 and which attempts to explain what “materially adverse” means in the context of ABA Model Rule 1.9 (and Model Rule 1.18). I really have. But – and I’m probably wrong – I just can’t manage to feel like Formal Opinion 497 merits an entire post as it all just reads like an effort to continue to try to justify something that was just a mistake – an easily understandable mistake to have made but a mistake all the same.

Model Rule 1.9 really shouldn’t say “materially adverse” if what it means is just the same thing as directly adverse. As the opinion explains in footnote 8, during a past process of revising the rules, someone figured this out but that only ended up with a sentence or two being deleted that the ABA had relied upon in the past instead of some affirmative effort to explain in the comment what it actually means in terms of things in addition to direct adversity. This opinion offers up a lot of words but never really manages to identify some way of truly understanding what would be materially adverse but that wouldn’t also be directly adverse. Worse yet, the opinion is even more frustrating for me in Tennessee because our rules define “material or materially” to mean something specific and something that specifically doesn’t work so well as a modifier for the word “adverse.” RPC 1.0(o) in Tennessee reads:

“Material” or “materially” denotes something that a reasonable person would consider important in assessing or determining how to act in a matter.

So, instead of trying to make a whole post about that, let’s add an entirely different topic into the mix. A topic that speaks to a version of me that died a long time ago, the citation format nerd. (1995-2005. RIP)

You may have heard a little bit of discussion among lawyers of the big news coming out of a recent United States Supreme Court opinion authored by Justice Thomas. No, it wasn’t who won and who lost the case which involved aspects of the Federal Tort Claims Act. The big news was that the Court embraced an upstart approach to parenthetical citation, the use of “(cleaned up)” to replace the tedious combination of items such as internal citations omitted and emphasis added or similar items required to be said when you are quoting language from a case that is also quoting language from one or more other cases and also possibly citing to some other authority and that prior authority might also have been referring to some other precedent. [If you really want more insight into the history of the “(cleaned up)” movement you can go here.]

Justice Thomas cemented his legacy as decidedly not an originalist when it comes to legal citation by writing the following in the unanimous opinion issued by the Court in Brownback v. King:

Under that doctrine as it existed in 1946, a judgment is “on
the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the
court.” Id., at 501–502 (cleaned up).

So why do I even think this works at all as fodder for ethical discussion? Well, ellipses have long been recognized as an appropriate way of omitting words from a quote in terms of citations. And, at some point, a lawyer thought it was okay to manipulate a quotation in a case cite to make the citation seem favorable when it wasn’t by omitting one or more words that changed the meaning and using ellipses. Bad idea all the time. And the kind of thing you will get admonished or disciplined for when you get caught.

So, you know it is going to happen, right?

A lawyer is going to try to use (cleaned up) to make a quote seem different and more favorable for their position than is the reality of the quoted authority.

Please don’t be that lawyer.

(P.S. I’m just a week or so away from the Sixth Anniversary of this here blog and about 10 days away from my quarantineversary. As to the blog, I’m looking forward to many more years. As to the pandemic, I’m really ready for this to be over.)

ABA SCEPR Increases Lifetime Batting Average.

Look at me with the super seasonally timely sports reference. Baseball. In January.

I have written on quite a few occasions in the past about the perils for lawyers in responding to criticism posted about them online. Well, the ABA has issued its latest ethics opinion to address the same topic. Behold ABA Formal Ethics Opinion 496 396 – Responding to Online Criticism.

Let’s have a double-header of untimely cultural references.

Issued January 13, 2021, ABA Formal Ethics Opinion 496 is the hottest ABA ethics opinion regarding online criticism ever.

Watch Stefon's Best Weekend Update Moments on SNL | POPSUGAR Entertainment

This opinion has everything. Sound rule interpretation. Meaty footnotes chock-full of research material for disciplinary cases and state ethics opinions. Acknowledgement of the important role that Barbara Streisand plays on this topic. Good practical guidance for what a lawyer might do.

Seriously, go read it.

The only quibble I have with it is its initial conclusion that online criticism alone from a client does not qualify as a “controversy” under Model Rule 1.6(b)(5). I think that is wrong, but the opinion goes on to even make my quibble pointless because they acknowledge that even if they are wrong about that, the lawyer wouldn’t need to respond online in kind to “establish a claim or defense on behalf of the lawyer” with respect to the controversy. I’d prefer that the opinion just rely upon that point rather than arguing that an online dust-up could not constitute a controversy.

To me, the point that is unassailable is that whether or not it is a “controversy” isn’t dispositive, the issue is whether an online response would be necessary to establish a claim or defense. Given how the internet works currently, the answer to that question with respect to the Model Rule, and any state that has adopted the same language, is obviously “no.”

You can access the full opinion here.

(Edited to fix my embarrassing mistake on the opinion number.)

Following up after shouting into a void.

This is not really a “new content” post. With luck, I will have one of those later this week. This, however, is a follow up about something from last month. It is the best sort of follow up because it is prompted by the process of sifting back through the past year to prepare for my annual end-of-year presentation for the TBA.

It is also the best sort of follow up because it will allow me to shamelessly self-promote two undertakings while simultaneously acknowledging just how small and unimportant I actually am in the grand scheme of things.

(Prepare to watch the magic and behold.)

This year, for obvious reasons, there will be no Ethics Roadshow. Instead, there will be an Ethics RoadHomeshow. (It will happen on Zoom on December 9. If you are worried that you are too late to sign up, you’re definitely not since I haven’t even finalized the program itself yet.) In trying to put together exactly what that will look like, I was reviewing items of interest. That brought me to re-reading this post from November. The last line of that post was a cry out to readers to let me know if there was an ethics opinion out there that did what I thought the Nebraska ethics opinion did.

I received a tremendous amount of feedback in response to that invitation. Ha. Just kidding. Absolute crickets. But that’s not because there isn’t such an opinion out there, there certainly is. The lack of feedback is much more indicative of the lack of readers.

Even better, an example of such an opinion is something I should not have been so frail as to forget – because I’ve pointed it out to other people in providing advice and because it is going to be part of some new material that will be in a book I co-author and for which the Third Edition is scheduled to come out in the Summer of 2021. If you’d like to pick up the Second Edition before the Third Edition comes out, you know, to make sure you can follow the plot of the new book, you can still buy it from the ABA.

The opinion that I should have remembered when I wrote that Nebraska post is New York City Bar Formal Opinion 2016-2. It hits almost all of the topics mentioned by me earlier this month. And, if you’ve never read it or if, like me, you forgot about it for a bit, I commend it to your reading.

Nebraska brings us … this.

It’s been something of a big month for Nebraska. First, thanks to its divided approach to providing electoral votes, it is contributing one of the electors totaling up to President-Elect Joe Biden’s 306 electoral votes. Second, like everywhere else in the United States (my state is doing just as bad if not worse) unfortunately, it has seen its COVID-19 numbers surge in November.

Third, and relevant to this space, it has issued an ethics opinion of note. It deserves a bit of discussion because it takes what could be a very interesting topic – one I have counseled people through in the past – and manages to make it not interesting at all. Moreover, it effectively avoids addressing the core issue on which lawyers actually need guidance.

The opinion in question – Nebraska Ethics Advisory Opinion for Lawyers 20-02 – offers an answer to the following question:

May a person/entity or group of defendants who are parties to pending litigation in a district court lawsuit brought by a plaintiff who is a trustee of a trust recommend a list of attorneys and pay for the non-party trust beneficiaries’ legal services needed to bring a county court action to
remove the trustee?

Ultimately, it only sort of answers that question because it points out that it can only give advice to lawyers and not litigants and so, instead, really just provides a refresher on the ethical obligations that a lawyer generally is going to have when they get retained to represent one person, but some other person is paying their bills.

Which is fine. But the world has a pretty good amount of guidance on that topic already. Given the actual question, this kind of ethics opinion would have been a tailor-made opportunity to address the ethics of being a lawyer who has a client who wants you the lawyer to help them secure a lawyer for someone else because the client thinks it is in the client’s best interest for that person to be represented by a lawyer.

One way the issue can come up is when a company wants to hook up a former employee with counsel. Wrestling through the ethics issues for the lawyer in that situation can be tricky as much of the analysis can turn on who came up with the idea and why they want to pursue it.

The closest that the Nebraska opinion comes to providing any sort of pointer toward guidance relevant to those questions is where it explains:

To the extent the question presented can be framed as whether the lawyer representing the litigants can recommend the hiring of another
lawyer, the Committee believes §3-508.4 applies. “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” As long as the lawyer representing the
defendants in the lawsuit brought by the trustee does not induce another lawyer to violate the ethics rules, the defendants’ lawyer has not committed an ethics violation.

Nebraska’s version of RPC 8.4(a) is patterned after the ABA Model Rule version and, thus, that can be a generally helpful pointer. But there are other risks floating around for the lawyer, even if it is their client who truly, independently came up with the idea of trying to hire a lawyer for their former employee.

One risk for the lawyer is if what is motivating the client is a desire to make the former employee “off limits” from informal communications with the opposing party because of the application of RPC 4.2. If that is in the mix, the lawyer may have to be concerned about whether the client is trying to get the lawyer to circumvent the prohibition in RPC 3.4(f) regarding requesting someone to voluntarily refrain from giving relevant information to another party. Lining up and paying for counsel for a former employee is always a safer proposition if what has prompted the idea is that the deposition of the former employee has been noticed.

Another risk for the lawyer (actually two different risks) is if the client wants the lawyer to also take on the former employee as a client rather than hire a different lawyer for that former employee. In addition to the conflicts issues the lawyer has to muddle through about that idea, if the lawyer is the one that is going to be foisted upon the former employee as a proffered free-of-charge counsel, then the lawyer also has to worry about application of the jurisdiction’s rules on solicitation of potential clients. Navigating that path very much drives home the point of the risk associated with RPC 8.4(a) – and not with respect to inducing some other lawyer to violate the ethics rules as the Nebraska opinion briefly mentions – but with respect to violating the rules “through the acts of another.”

And, at each stage, an additional ethics rule lurks in the background – RPC 1.2(d). That’s the rule that simultaneously prohibits lawyers from assisting clients in criminal or fraudulent conduct while attempting to make clear that lawyers are entitled to advise clients about all of their legal rights and the consequences of certain actions. In this context, it is the rule that means that if the client is the one that comes up with the idea, then the client may well be entitled to hear from their lawyer whether they have the right to try to make counsel available at no charge to a former employee and have a “discuss[ion of] the legal consequences” of that proposed course of conduct.

An ethics opinion offering guidance to lawyers navigating that kind of situation would be something that – if done right – lawyers in Nebraska and elsewhere would likely have found to be very helpful.

So, my question, dear readers, is this: does anyone out there know if a state has issued any kind of guidance like that? Hit me up and let me know if there is.

Conflicts in large law firms.

The title of this post is extremely boring. No getting around that fact. The topic though is not boring at all. Managing conflict issues in large law firms can be described in a number of different ways, but the adjective “boring” never fits the bill.

The topic is front of mind for me this week – in addition to all of the normal reasons — because of two recent developments arising in vastly different settings. One is an ethics opinion issued out of Ohio addressing the inability of a firm to cure a variety of conflict in the transactional world through the use of nonconsensual screening. The other is an appellate court decision in my state reversing a defense ruling involving evaluating of an advance waiver.

The ethics opinion undoubtedly gets the answer wrong. The appellate decision … I’m not so sure.

Let’s go with the problematic ethics opinion first.

Earlier this month the Ohio Board of Professional Conduct issued Opinion 2020-10, which addressed the following question:

Whether lawyers in a law firm may represent two directly adverse clients in the same transaction by screening separately assigned groups of firm lawyers and with the informed, written consent of the affected clients.

For the record, the answer should be “yes.” The answer should be yes even before you learn that the two clients in question are each sophisticated entities, with long-term relationships with the firm, and that each has their own in-house counsel. Yet, the Ohio Board cannot manage to get to “yes.” Instead, the Ohio opinion essentially exalts the existence of imputation principles for conflicts of interest in a firm to a higher level of importance than client autonomy. I will not offer a very extended analysis of the ways that the opinion goes wrong – in part, because the Ohio opinion doesn’t really offer much of an extended analysis either.

Essentially, the Ohio opinion wants to be capable of being read as being based on the conclusion that the arrangement is not consentable because the lawyers could not competently handle the representations adequately, but it really is more of an exercise of trying to pretend something is such a square peg that it can’t be made to fit into a round hole.

Where the opinion goes wrong the furthest is by taking rules that address the use of nonconsensual screens (RPC 1.10) to cure conflicts and acting like the fact that the rule does not address consensual screens means that consensual screens cannot be used to avoid imputation or as a condition of obtaining client consent. To call that highly flawed logic is probably being too nice.

While it is easy for me to shrug off the Ohio opinion since I do not practice in Ohio, a more recent appellate opinion from the Tennessee Court of Appeals is not something that can just be shrugged off. Thus, the struggle of whether it has offered the correct conclusion on the conflict issues hits much closer to home.

On October 16, 2020, the Tennessee Court of Appeals issued an opinion reversing a grant of judgment on the pleadings in a legal malpractice case against the largest law firm in Tennessee. The claims of legal malpractice stem from allegations of a conflict of interest. Interestingly, it involves litigation where not only is the plaintiff proceeding pro se but so is the defendant as the opinion indicates the defense side representation was handled by in-house lawyers for the law firm. You can read the full opinion in Culpepper v. Baker Donelson here.

The decision was overturned on two grounds. One involved the commencement of the statute of limitations not fit for today’s discussion. The other ground involved a conclusion that the trial court was wrong when it decided that the conflict waiver that the client in question signed was not enforceable.

I’ll turn it over to Bill Freivogel who offers a very to-the-point summation of the decision for you over at his site:

Joint Representation; Advance Waiver (posted October 19, 2020) Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No E2019-01932-COA-R3-CV (Tenn. App. Oct. 16, 2020). Plaintiff is suing Law Firm for malpractice, arising out of Law Firm’s representing Plaintiff and Plaintiff’s former employer in an SEC investigation. The trial court granted Law Firm a judgment on the pleadings. Plaintiff claimed Law Firm had a conflict of interest. The trial court ruled that Plaintiff had waived any conflict by signing Law Firm’s “engagement, waiver and consent letter.” In this opinion the appellate court reversed and remanded the case to the trial court. [Our note: Law Firm’s waiver letter was carefully drafted for a joint representation of an employer and employee. It covers the usual subjects of sharing confidences (or not), withdrawal from one client and continuing with the other, and so forth. The issue, as we see it, is whether, given the facts of this case (including Law Firm’s conduct) the letter could have adequately protected the employee. Too early to tell.]

To give just a little more helpful background, Bill isn’t kidding when he says that the language of the client waiver covers all of the ground you might expect. The portion of the engagement letter addressing the joint representation of Culpepper, his company, and two other individuals spans six paragraphs. Here are some excerpts:

In a situation where our firm represents multiple clients jointly in the same matter, we are free to share confidential information
communicated to us by one client with the other joint clients in the course of and in furtherance of the joint representation. We would expect to share information we receive from you with the Company, but we will not necessarily share with you information that we receive from other clients, and you will not be entitled to obtain any confidential information provided to us by any other joint client either during the joint representation or thereafter. Please contact me immediately if you have any objections or concerns regarding this approach.

[snip]

If a conflict should arise between you and the Company, we will be
required to withdraw from representing you, and you may need to engage another attorney to represent you. You agree that, should this occur, we would be free to continue to represent the Company and other joint clients (except in litigation directly adverse to you in this or a substantially related matter) and that we and they may use any information we have obtained during our representation of you, including any confidential information you may provide to us.

[snip]

You should be aware that joint representation of multiple clients
may result in significant benefits for each client, but it may also result in
certain risks that might not arise if each client had his or its own separate counsel. . . . In addition, the Company has decided as a condition of this joint representation, that confidential or privileged information disclosed to Baker Donelson by individual clients will be shared with the Company and that confidential or privileged information of the Company will not necessarily be shared with individual clients, including yourself. The Company may disclose, or direct us to disclose, to the SEC, or other federal or state regulatory agencies or other third parties confidential or privileged information provided by you and could decide to use such information in a manner that could be disadvantageous to you.

So, in the end, the plaintiff’s argument is fundamentally that the situation was one in which he could never have voluntarily and knowingly waived the conflict under any circumstances. That argument is made despite the fact that the conclusion of the engagement letter, preceding his signature read as follows:

I have carefully read the foregoing letter, considered all information
necessary and useful in determining whether or not to consent to the
representations outlined above. I have been encouraged to consult with
independent counsel regarding this consent to representation, and I am fully aware of my legal rights in this regard. Upon reasoned reflection, I hereby voluntarily consent to the representations by Baker Donelson as outlined above.

As an outsider to the proceedings, I could potentially be convinced that somehow the very nature of the matter involved – the SEC investigation – could have been so fraught with peril that it was not the kind of particular conflict that the firm could ever be able to handle for all involved competently and diligently. But the opinion that has been issued – albeit only resolving things at a judgment on the pleadings stage – certainly isn’t convincing on that front.

What is most disappointing about the opinion though is that, despite the portions of RPC 1.7 and accompanying Comment that are discussed, the Court does not address at all the language in our Comment that specifically addresses the waiver of conflicts in advance, Comment [22].

It would have been helpful for the Court to at least attempt to offer thoughts of its analysis through the lens of this Comment because it would have helped many lawyers and firms attempt to glean some guidance about whether there was something about the disclosures that was not sufficiently specific and detailed or if the problem truly amounts to nothing more than an application of the final sentence of that comment:

In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

The ABA comes through with another quality ethics opinion.

So, nearly everything is awful these days. Finding something interesting enough to avoid highlighting the awfulness around us is not altogether easy. This is pretty much too traumatic and damning to write about. Dwelling on this would just be petty at this point.

Coming through as a light at the end of the tunnel today is ABA Formal Ethics Opinion 494 released by the ABA Standing Committee on Ethics and Professional Responsibility addressing a decent topic.

The topic – what are an attorney’s obligations that can arise from personal relationships with opposing counsel? Patterned a bit, as it explicitly acknowledges, on a recent Formal Ethics Opinion regarding judicial personal relationships with lawyers (Formal Opinion 488), Formal Opinion 494 hits all of the correct notes for dealing with this issue.

Most importantly, it appropriately centers the analysis where it fits in the Model Rules: it is an issue involving RPC 1.7(a)(2) – material limitation conflicts arising from a lawyer’s own personal interests. The opinion stresses that ordinarily such conflicts are not imputed to others at the firm. And it lays out reasonable categories to help guide lawyers in their thinking about these issues.

It also makes the point that while, most of the time, the obligation on the lawyer is disclosure to the client and moving forward only if the client is willing to waive the conflict, there can be situations where the conflict is, itself, not waivable.

The opinion posits a relationship between two lawyers that is so close that the lawyer could never get comfortable filing a well-founded motion for sanctions against the other lawyer on behalf of a client as an example of a situation where the conflict may not even be waivable.

And that entire genre of thought has, over the years, been very helpful to me in talking lawyers through situations, both in their real practice, and just as an educational tool at seminars. I, like many other ethics CLE speakers, have used lots of hypotheticals to tease out ethics issues and one that has always been fun to discuss involves something like this scenario:

You are at lunch with opposing counsel on an appellate matter who is a close friend and former colleague. Unprompted, he says, “I bet you can’t wait to see what I’ve got in store for you in my response brief. Well, you’ll have to wait a bit because I’m going to take every day allowed for me before filing so you won’t get your hands on it until a week from tomorrow.” You know, because you just checked it before coming here, that his deadline for his brief is actually tomorrow. What do you say?

This scenario usually prompts a good discussion and there is always someone in the crowd willing to say that they would tell their friend to, at least, go back and double check their math on the deadline. The problem, of course, is that doing that without first talking to your client to get approval would be extremely ethically dicey. The easiest way to drive that point home to lawyers is to ask them if, since the personal relationship with opposing counsel is so important to them, they secured informed consent from their client at the outset with respect to how the lawyer’s personal interest in their close friendship with opposing counsel could materially limit the representation.

Formal Opinion 494 is a well-done explanation of this same concept as well as something that offers a more formal set of guiding principles for determining whether disclosure to a client may be required. The full opinion is worth a read.

Is it perfect? No. It is infuriating in one respect. It is dated July 29, 2020 but was only released today, October 7, 2020.

We are all struggling with linear time these days. The last thing we need is the ABA trying to gaslight us about what month it is. Plus, if they are going to do that, you might as well go full bore and date Formal Opinion 494 as having been issued on the 221st day of March 2020.

Two ethics opinions: one good, one bad, but both reveal systemic problems.

So, New York and Florida. Interestingly, those states have been bookends of our nation’s problems with COVID-19 and with fighting it. New York got hit very badly early, given the concentrated nature of its population centers, but then engaged in a very serious effort of taking the virus very seriously and managed to significantly flatten its curve. Florida’s government ignored and downplayed the situation, and now is experiencing horrible daily numbers and now has overall numbers of cases and deaths that are worse than New York’s. The two states contrasting efforts though still combine to tell a large part of the problem plaguing the United States when it comes to the pandemic — the lack of a coordinated national strategy because we have an incompetent and dysfunctional federal executive.

Two recent developments in ethics opinions from each state also offer contrasting approaches to issuing ethics opinions, contrasting results, and combine to tell part of the larger story of issues plaguing the profession as a whole.

First, let’s start with New York State Bar Association Op. 1200 which is good on procedure but bad on outcome. This opinion addresses application of New York’s RPC 5.7 and the combination of legal services and wealth management services. It was issued after what would appear to be the traditional, efficient, process of receiving a written request for an opinion, having a committee meet and deliberate, and then issuing a written opinion.

The answer it gives to the question whether the same lawyer can render legal services to a client and, through another entity, provide wealth management services to the same person is baffling. Despite the clear rationale for a why a rule like RPC 5.7 exists and, despite the fact that RPC 1.7 should provide for the ability for a waiver of such a conflict, the answer provided is that the conflict is so severe as to be unwaivable. And the only real explanation that is proffered for why is that the lawyer is simply going to be making too much more money from the provision of the wealth management services than from the provision of legal services. Maddening because of all that implies about not only evaluating the conflict rules but how it can justify other assumptions raising questions about a number of other ethics rules that operate under the assumption that lawyers can do the right thing in terms of representing their clients ethically even when it is in conflict with their own financial interests.

Next comes Florida where there exists a proposed ethics opinion waiting on action by the Florida Supreme Court. Technically, it isn’t an ethics opinion as it comes from the Florida Bar Standing Committee on the Unauthorized Practice of Law, but given the relationship to RPC 5.5, that’s a bit of a tomato/tomahto situation.

Now, procedurally it is nightmarish. To get to the point of even issuing the opinion, they held what for all intents and purposes looks like the equivalent of a trial. Sworn witnesses and all. Even after that, it still has to be approved by someone else. Substantively, proposed Florida Advisory Op. 2019-4, would be good because it would conclude that a New Jersey-licensed lawyer who had retired from his job, moved to Florida, and then took a new job for a New Jersey company would not be engaged in UPL if he continued to reside and work in Florida (where he was not licensed) and advised the New Jersey employer about federal law issues.

Now, it is an opinion that shouldn’t be necessary at all for a few reasons, including that if all that is occurring is advising about federal law issues, then Model Rule 5.5(d)’s language should pretty straightforwardly and clearly allow that activity. Unfortunately, Florida curiously does not have that language in its rules and does not appear willing to facially admit the underpinnings of federalism and the Supremacy Clause that require that result. And, even if the question had been about general work for the New Jersey company remotely, it shouldn’t take the equivalent of a trial to figure out that the answer should be that no UPL takes place.

This may all have been less clear to the profession before the pandemic, but during (and if we ever get to a point of “post”) the pandemic it should be painfully clear that the physical presence alone of a lawyer in a particular location should not be dispositive of whether UPL is occurring.

For what it is worth, my proposal for a practical solution to the question of UPL in modern practice that would still allow for things that truly should be regulated to be regulated would be as follows:

There should be a uniformly used “totality of the circumstances/most substantial connection”-style test that evaluates:

  1. where the lawyer is located
  2. where the client is located
  3. if there is a contemplated legal proceeding (or other matter involved such as commercial transaction or closing) where that is located or expected to be located; and
  4. what state’s law would govern in such a proceeding (or other matter).

And, unless the majority of those factors involve a state where the lawyer is not licensed then it simply isn’t UPL.

If my math is correct that would mean that as long as any 2 of the factors touched the lawyer’s state of licensure, then the lawyer is free and clear (or stated differently, unless 3 of the 4 involve a state where the lawyer isn’t licensed, then the lawyer is free and clear).

And, there would still have to be a continued exception acknowledged for purely federal law situations.

Ethics opinion about a business conflict goes wrong.

It is very tempting to stay on the topic of bar examinations today, given recent absurdist developments. Arkansas has declared it simply has to have its in-person bar exam in July 2020 because things are likely to get worse as the year goes on. Oklahoma has attempted to reassure everyone about the safety of their in-person planned exam in a message that simultaneously demands that all test takers self-quarantine for 14 days before the exam. Virginia, trying to take the cake apparently, is insisting on a courtroom attire dress code for their in-person exam but is doing away with having to wear a tie as a concession to COVID-19. It is tempting, but it’s all too frustrating, so…

Instead, let’s go back to some of our roots and discuss a recent ethics opinion. It comes out of Ohio and it addresses a conflict issue, but is noteworthy for at least two reasons: (1) it addresses a conflict of interest issue involving representation of a government entity and (2) it sort of addresses something that is more a business conflict issue rather than a true ethical conflict. If you’d rather just read the opinion, you can access it here.

Ohio Board of Professional Conduct Adv. Op. 2020-04 weighs in on whether a firm has a problem representing a group of landowners who are opposing a zoning variance sought by an agency seeking to establish a shelter for domestic violence victims. The agency is not a client of the firm in other matters, but the firm does represent a community mental health board that contracts with the agency. The firm has a one-year contract to perform legal services on an “as needed” basis to the board but has not been asked to do any work related to the zoning variance matter. The firm does know though that the board supports the agency’s effort to obtain the variance and wants the agency to succeed.

Now, most lawyers would hear that scenario and see a likely “business” conflict but no ethical conflict. By business conflict, I simply mean that the firm might not have wanted to take on the landowners because it might displease the institutional client – which might be a better source of ongoing and continued business to the firm.

The Ohio opinion, however, finds a way to treat the situation as an ethical conflict but, at its heart, it does so only by turning the business conflict into a material limitation conflict using the idea of “personal interest” of the lawyer as something that could be expanded to be the firm’s “personal” financial interests.

I am far from convinced that such an analysis actually works.

The opinion spends only a paragraph explaining something that should be obvious – this is not a representation involving direct adversity between firm clients. After that, the opinion lays out its argument for the existence of a “material limitation” problem for the firm. The opinion begins on the right foot by explaining how there does not appear at first to be any conflict because “the law firm’s provision of legal services to the board and its representation of the landowners are wholly separate and unrelated.” The opinion though pivots to a required “closer examination” leading it to the idea that “it would be reasonable to conclude that the board’s overall interest in supporting the agency’s zoning variance may compromise the firm’s
representation of the landowners opposing the variance.”

Delving into more explanation, the opinion speculates that the firm might be limited in pursuing legal alternatives for the landowners because of the overall interests of the other firm client. All of that is well and good, as it is true that sometimes material limitation conflicts require some digging to understand, but the opinion then moves fully into rhetoric that sounds as an analysis of a business conflict.

Specifically, the opinion points to the firm’s “inherent financial interest in maintaining its standing client-lawyer relationship with the board” as one of the factors leading to a conclusion that there is a material limitation conflict requiring waivers from both the landowners and the board in order for the firm to continue both representations.

The opinion further undercuts any claim to be purely addressing an ethical conflict question by explaining that, if the clients won’t provide consent, then the firm only has to withdraw from one of the two engagements. That remedy is most assuredly the stuff of business conflicts. Traditionally, a firm that needs to extract itself from conflicting representations that run afoul of the ethics rules cannot simply drop one of the two clients like a “hot potato,” but have to withdraw from both client representations. There are exceptions, but none of those exceptions are identified in this opinion.

The opinion also suffers from at least one more flaw. Even under its own premise, it does not follow that both the board and the landowners would need to provide consent. The only representation that the opinion discusses as being potentially harmed by the conflict is the representation of the landowners. Thus, the landowners can be said to be the only clients “affected” by the material limitation conflict. Notably, the opinion never actually quotes the language of the rule it is purporting to apply and never reminds the reader that RPC 1.7(b) only requires informed consent from “each affected client.” Thus, as long as the landowners in the zoning variance proceeding were willing to provide informed consent to the firm’s representation despite the fact that the firm’s relationship with the board could limit available options and approaches, then the rule would still be satisfied.