Another ethics opinion that wouldn’t be required if all lawyers were good (or at least chaotic-neutral) lawyers.

There has been A LOT of stuff going on this week in the world of legal ethics. I will refrain from dedicating an entire post to try to tie this plea I made in a post back in December 2020 to these two developments, here and here.

Instead, I want to talk a little bit about a recent ethics opinion that comes out of Washington state and that address an unfortunately recurring issue that has unfortunately been made the subject matter of multiple ethics opinions which unfortunately also conflict with each other.

The Washington State Bar Association has issued Advisory Opinion 202201 that addresses a question regarding whether a lawyer’s communication with a represented opposing party violated RPC 4.2 when the communication occurs through using “reply all” on an email thread where the opposing party’s lawyer cc’d their client on a communication to the lawyer.

The opinion gets to, what I continue to believe is the absolute correct answer, it depends. But the factors on which it depends help demonstrate why this is not something lawyers should be doing unless they have reached a prior understanding with the opposing lawyer in question. The opinion offers helpful bullet points listing these kinds of factors, including the prior course of conduct of the parties and counsel and the nature and subject matter of the communication at issue.

The conclusion of the opinion essentially involves offering “best practice” guidance:

To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.

What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion. Of course, not all jurisdictions take the same view as Washington. Last year, New Jersey issued an ethics opinion on the topic that concludes that implied consent is always present when the sending lawyer includes their client as a cc in the communication with the other lawyer.

Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.)

Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.

And, in reference to the title of this post, the unfortunate reasons opinions like this continue to be necessary in no small part comes from the fact that there are lawyers out there that will purposefully cc a client on a communication in hopes of trapping the other lawyer into allegedly unethical conduct by replying without removing the client from the thread and, likewise, there are lawyers out there that will take advantage of a reply all with the other lawyer’s client to talk about subject matter other than what the thread involves.

Don’t be those lawyers.

An ethics opinion for Valentine’s Day?

Roses are red.

Violets are blue.

California has a new ethics opinion about what to do when your client no longer remembers you.

I’m no Langston Hughes or Emily Dickinson. I’m not even at the level of say … Spike Milligan. And since it isn’t dated from what I can tell, I cannot be certain that this ethics opinion was actually issued on February 14, 2022, but it’s close enough to make it a little more fun to write about.

California is a large state. It has many, many, many lawyers. It has many aspects of its rules regulating the practice of law that are if not entirely bespoke, then certainly unusual to lawyers in other jurisdictions that hew more closely to ABA Model Rules. In some ways, that situation has changed a bit given that California adopted new ethics rules as of November 1, 2018, that attempt to, at least, track the numbering and format of the ABA Model Rules and, in many instances, the substance of those rules.

One rule that California did not adopt, however, was a version of ABA Model Rule 1.14 that addresses a lawyer’s obligations when dealing with a client with diminished capacity. Given the problems that can arise in such circumstances, having an actual rule to govern the lawyer’s obligations is critically important. The text of the Model Rule is not unwieldy and spans only three relatively svelte paragraphs. At its core, it stresses three things — (1) the lawyer’s duty is to “as far as reasonably possible” try to “maintain a normal client-lawyer relationship;” (2) when the lawyer has such a client and believes that the client is facing substantial risk of harm, physical, financial or otherwise, or can’t act in their own interest, then the lawyer is empowered to take certain steps to try to protect that client; and (3) if doing what is authorized to protect the client requires disclosing Rule 1.6 confidential information, then the lawyer can do so “but only to the extent reasonably necessary to protect the client’s interests.”

Even with that sort of streamlined guidance, navigating situations with clients when capacity questions exist, particularly when the client’s capacity appears to have declined since the beginning of the representation, can be very, very difficult.

One reason that California may have found it unpalatable to adopt Model Rule 1.14 (or something like it) might have been California’s historical willingness to go so far to protect client confidentiality and privilege that it can be difficult for lawyers sometimes to even confidently defend themselves against allegations that might easily be parried away if only they could disclose what they know about their client’s matter. I have not undertaken a “deep dive” of any sort into the deliberations in California over Model Rule 1.14, so I presume there are a variety of other reasons in play.

Nevertheless, because California didn’t adopt such a rule, the ethics opinion it has now issued to try to provide helpful, and definitive, guidance to California attorneys on this issue spans 20 pages and includes 31 footnotes. You can read the full opinion here.

For those who don’t mind being spoiled about the opinion, the short version of the guidance is nearly identical to what you would get out of Model Rule 1.14 except that instead of authorizing lawyers to disclose confidential information if necessary to help the client, the opinion appears to only let that happen if the lawyer has obtained advanced, informed consent from the client at a time the client still had the capacity to give consent.

ABA Formal Op. 499: A consumer review

So, are you a lawyer in the market for an ethics opinion that largely gets to the right answer but has to do so in such a convoluted fashion that it makes you question just how badly your profession has lost the plot on what we should be doing when it comes to regulation and the like? Would you like it even better if the ethics opinion is both technically correct but pretty clunky on what turns out to be a relatively important issue in a way that might accidentally be a bit chilling for your future conduct?

If so, then ABA Formal Op. 499: Passive Investment in Alternative Business Structures is going to be just the sort of thing you are looking for. If not, then keep shopping.

Now, if you’re the type that wants to get more into the weeds in evaluating someone’s review, here goes.

So, first in the interest of total transparency: I only even started reading this thing because I misunderstood what it was about at first. I really thought it was going to clue me into the secret of how to passively get abs, but I should have known something like that would be too good to be true. Once I figured out my original error, me and my beer gut settled in to really get a better understanding of this thing.

This ethics opinion addresses a relatively straightforward question about whether someone who is a lawyer can make a “passive” investment in a business that is allowed to operate in some other state but not in the state where the lawyer is licensed to practice law. Now, they don’t really say that clearly but that clearly is the question. The authors seem to think the question is more complicated than that because the business is something called an “Alternative Business Structure” and can apparently compete with lawyers and law firms. But, not in the lawyer’s state.

[Which, by the way, reading through this thing tells me that only a couple of states are letting more competition take place for delivering legal services at all through these ABS things. Like just Arizona, Utah, and Washington, D.C. Huh? That seems a crazy low number of places to me.]

Now, the opinion gets to what sure sounds like the correct answer – of course they can. But, man, you won’t believe how complicated the opinion makes answering the question. Wait, maybe I can give you just a snippet to show how bonkers lawyers must be in terms of being all up in their own heads about straightforward stuff. Okay, this is literally the first paragraph of the “Analysis” part of the opinion:

In general, a lawyer may own a business or an investment interest that is separate from and
unrelated to the lawyer’s practice of law. For instance, a lawyer may have an ownership interest in a restaurant, be a partner in a consulting business, invest in a mutual fund, or buy stock in a publicly traded company (collectively “unrelated personal investments”).

Goodness me. I mean … no wonder this opinion goes round and round and round the bend some more.

While it got the big answer right, it then went into all of this stuff about how even though a lawyer could invest some money in an ABS in some other state, it would probably be a conflict for the lawyer if the ABS was then involved somehow in handling something that was adverse to one of the lawyer’s clients. I had to read that part a couple of times. Still sounds pretty crazy to me.

Like, as the world works now, if a lawyer gets hired to represent the company that makes like Snickers bars then the lawyer can’t own shares of stock in Nestle? Or would it be that they can’t own shares of stock in like a company that makes weight loss products? Or would that only matter if say Snickers was suing Nestle over something? Or like if a lawyer represents Microsoft on something, they can’t own any shares of stock in Apple because those two companies are suing each other some times?

And the opinion doesn’t even mention that somehow the size of the investment would make a difference. Surely there’s got to be a different way of looking at things if a lawyer puts $100,000 into an ABS as opposed to $100, right? I bet there are lots of lawyers out there that own small amounts of stock in companies and no one ever spends a minute caring about whether those companies are on the other side of some of their clients.

Anyway, super weird to think that getting an answer to such a straightforward question is so complicated. I guess that’s why lawyers cost so much these days. LOL.

On a final note, probably would have given the opinion three stars but the copy I had to read was a bit mutilated and had some coffee stains on it.

Foundations of a … misunderstanding about what an ethics opinion is supposed to be?

So, I will admit from the jump that I am seriously torn about this post. I am a strident believer that the best ethics opinions are practical in a number of respects and that they have to be to be realistic in terms of helpfulness. An ethics opinion that does little more than offer a technical and limited answer to a complicated question of ethics can often be less helpful than silence on the issue involved.

But, at the same time, an ethics opinion really ought to be an opinion that focuses on answering an actual question posed by a lawyer about a situation in which navigating the bounds of what to do, or not do, is circumscribed by the ethics rules of a particular jurisdiction.

An ethics opinion issued by a state bar, or similar group, shouldn’t try to be a law school case book nor should it try to be an exercise in giving comprehensive legal advice to lawyers that goes well beyond discussion of the ethics rules and into the realm of pure law, including contract law.

But, torn as I am about it, I can’t manage to not turn my attention to “Foundations of a Fee Agreement” which the Colorado Bar Association Ethics Committee put out as CBA Ethics Opinion 143. This 26-page treatise, accompanied by 6 pages of appendices with checklists and resources, is not an ethics opinion in any realistic sense of those words.

It doesn’t even pretend to answer a question posed by anyone. Instead, in its “Introduction and Scope” section, it simply starts things off by saying:

This opinion examines a lawyer’s ethical obligations and best practices for fee agreements.
For purposes of this opinion, best practices are those practices which may be beneficial to the lawyer and client, and which the Committee encourages lawyers to consider, but are not ethical obligations pursuant to the Colorado Rules of Professional Conduct, nor are these best practices intended to establish the standard of care. This opinion addresses the foundational components of a fee agreement. Depending on the lawyer’s practice area and facts of the legal matter, additional provisions in a fee agreement may be beneficial, but are beyond the scope of the foundational focus of this opinion.

This kind of opening should prompt an editor with a good red pen to make a margin note along the lines of “Really, then why are we doing this? What are we doing this for?”

The opinion then includes a “Syllabus” section. Literally. That word is traditionally defined to mean “an outline of the subjects in a course of study or teaching,” It then proceeds to not exactly offer that in the section in question. Instead, this section further undermines the notion that the guidance being offered should be coming in the form of an ethics opinion at all:

The Colorado Rules of Professional Conduct (Colo. RPCs or the Rules) “are rules of
reason.” While some Rules are cast as imperatives, others are permissive and define areas where the lawyer has discretion. Fee agreements are one area where a lawyer has discretion because the Rules only require a written communication under certain circumstances, but do not specifically require a fee agreement. The Committee encourages lawyers to use a written fee agreement, however, because such a document is an opportunity for a lawyer to establish client expectations regarding the representation, including: client identity, the scope of the representation, communication, other professionals who may work on the case, file maintenance and return, issues unique to the representation, termination of the lawyer-client relationship, and of course, the terms of the fee arrangement.

I mean, rev up that red pen again, right? Now, in fairness, where this document discusses what Colorado’s rules require, it certainly provides a bucket load of accurate information.

It points out that Colorado 1.5(b) requires a lawyer who hasn’t regularly represented a client previously to communicate the basis or rate of the fees and expenses to the client in writing within a reasonable time of the commencement of the representation. It also accurately explains what 1.5(c) requires for contingent fee agreements and what Colorado’s RPC 1.5(h) requires of flat fee agreements. It even remembers to emphasize that all fee agreements still have to comply with the reasonableness requirement of RPC 1.5(a). It accurately explains that RPC 1.2(c) allows a lawyer to limit the scope of the representation and mentions what a fee agreement can say to comply with one aspect of RPC 1.15’s requirements for depositing unearned fees into trust. It also discusses ways an engagement letter can be used to be helpful in potential compliance with several other rules.

But, in the end, the Conclusion of the document once more undercuts the idea that what this thing is is an ethics opinion.

Many clients have never worked with a lawyer before. The written fee agreement can be
an integral part of establishing a strong lawyer-client relationship. Best practices are to go beyond addressing the basic fee arrangement with the client and to include the foundational elements discussed in this opinion.

There is quite literally nothing to disagree with in the three sentences just quoted above. But I don’t think I’m only being pedantic in saying this document should be called something else and issued by some other committee or section of the Colorado Bar Association. Just not its ethics committee. A short-ish review of the CBA website tells me there are an array of bodies that could have put this treatise out as a “white paper” or other practice resource, like the CBA Lawyer’s Professional Liability committee, or the CBA Modern Law Practice Initiative, or the CBA Solo and Small Firm Practice section.

In fact, if it’s not too late and you are reading this with any influence at the Colorado Bar Association, give this some second thought and rescind it as an ethics opinion and, instead, have it put up as a member resource promulgated by one of those other more appropriate bodies of the CBA.

The Greening of New York

As promised, though just under the wire, I am following up to write more about one of the stories I didn’t write about in July, the issuance of N.Y. State Bar Ass’n Committee on Prof’l Ethics Op. 1225.

One of the downsides of publicly announcing you will write about something in the future is the risk that other folks will do it sooner and better. I understand that two of my favorite legal ethics sites have done so, but I’ve made the personal sacrifice to not read any of those folks until I can manage to commit my own thoughts into the ether.

So, let’s start with where we left off… Op. 1225 gives the ethical “green”light to lawyers both to advise businesses on how to comply with New York’s new law legalizing marijuana for recreational use and to personally use marijuana and grow the limited amounts authorized for personal use.

In getting to that conclusion, the NY Committee wasn’t starting from scratch but building on a foundation it had established in earlier opinions addressing a lawyer’s ability to provide advice to clients at an earlier time when New York only had legalized marijuana for medical use.

This opinion is noteworthy still, however, for several reasons.

First, I believe this to be the first ethics opinion clearly stating that a lawyer in a jurisdiction where recreational marijuana has been made legal can partake just as any other citizen of the state and that prohibitions in the ethics rules on personal conduct that is illegal should not change the outcome despite the fact that use of marijuana remains illegal under federal law. (I could be wrong about it being the first, but my memory is that other jurisdictions that have been willing to say that a lawyer can advise a client about the kind of business have still been unwilling to take the next logical step and say that the lawyer can partake.) It also makes the point that the now near full decade of federal forbearance on attempting to enforce federal law prohibiting marijuana use in states where it has been legalized could provide a lawyer with a good faith argument that no valid obligation exists to comply with the federal law in the face of the state legislative action.

On that front, however, it is worth knowing that the persuasiveness of the rationale likely could turn on what is the exact language of any particular jurisdiction’s version of Rule 8.4(b), the language of its accompanying comments, and what the ruling body considers to impact a lawyer’s “fitness.” For that matter, opening the door to the defiance of federal law by lawyers based on a claimed good faith belief of no valid obligation can itself be the stuff of slippery slopes.

Second, this opinion offers a very thorough explanation of why Rule 1.2(d) simply should not be interpreted in a fashion that would prohibit lawyers from offering businesses the assistance they would need to navigate the commercial endeavors that will be allowed. And it does so without feeling like any revision to the rule or comment is needed unlike some other jurisdictions have approached matters. A fundamental truth about the modern United States is that it is difficult, if not impossible, to navigate any regulated business without the assistance of lawyers.

More generally, in a complex regulatory system where cultivation, distribution, possession, sale and use of a product are tightly regulated, legal advice and guidance has immense value. Without the aid of lawyers, the recreational marijuana regulatory system would, in our view, likely break down or grind to a halt. The participation of attorneys thus secures the benefits of the Recreational Marijuana Law for the public at large, as well promotes the interests of the private and public sector clients more directly involved in the law’s implementation.

Unlike New York’s common sense acknowledgement of the overall public good, the Georgia Supreme Court just issued guidance turning a blind-eye to those concepts and declaring that lawyers that help clients do business in selling medical marijuana oil, despite that being legal, can be sanction for violations of the disciplinary rules because of the illegality under federal law.

Third, in delving into the attorney’s other question about accepting an equity interest in a marijuana business client, the committee opinion provides excellent guidance that would be useful for any attorney addressing the question with respect to any business client — an analysis of Rule 1.8 regarding business transactions and Rule 1.7 regarding conflicts of interest– which is a nice change of pace.

Now, off to go read the other folks, possibly better takes…

An ode (of sorts) to RPC 1.18 (but only as an example)

Today’s entry is something of a dodge in a way (I sort of wanted to pile on about this and make the point that it is a much sounder development than this was) and something of knocking down a hastily-created strawman in another respect. But what it mostly amounts to is pursuing a not-yet-fully-formed thesis that has been kicking around my brain for a bit.

The quick and dirty description of the thesis is: Ethics rules are tools; having the right one for the right situation saves a lot of time and effort, but it also protects lawyers and clients alike by providing certainty.

I keep coming back to this thesis of late because of a few instances of things arising in my practice (about which I can’t elaborate of course) as well as discussions I’ve been privy to at ethics conferences and presentations that have particularly focused on issues of civility in the practice of law and whether more should be done to establish rules to punish lawyers for conduct many (perhaps most) but certainly not all lawyers would view as uncivil.

In the discussions of civility, I keep returning to the notion that we already have certain specific rules that prohibit conduct of an uncivil nature and ought to focus on enforcing those rather than layering on other proposed solutions outside of the rules. Those rules are Model Rule 4.4(a) and Model Rule 8.4(d). Admittedly, 4.4(a) is much more supportive of my thesis as it is very clear about what it prohibits: a lawyer, who is representing a client, cannot “use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” I am usually hard-pressed to hear of a situation that a lawyer is complaining of under the category of “incivility” that is both clearly deserving of punishment and not already prohibited by 4.4(a).

Offering even stronger support for exploring my thesis though is this recent ethics opinion from the Texas Center for Legal Ethics. Opinion 691 addresses this question: “Under the Texas Disciplinary Rules of Professional Conduct, when may a lawyer represent a client adverse to a former prospective client of the lawyer or another lawyer in the lawyer’s firm.” Examining that question, the opinion spends almost 5 pages to get to its four-paragraph conclusion.

Many of you reading this, likely are asking yourselves the same question I did when I saw news about the issuance of the opinion: Why is this a live question in Texas and why does it take so many pages to answer?

Because Texas has not adopted Model Rule 1.18, or any other specific rule, addressing a lawyer’s duties owed to prospective clients.

Fascinatingly, this Texas opinion ultimately offers an analysis that can still be distilled down to look a good bit like Model Rule 1.18 with really only one important difference: no non-consensual screening to avoid imputed disqualification. If this opinion is correct about how things should work in Texas, then Texas could just have adopted (and now could adopt) a rule that if I understand their fun numbering would be 1.17:

Duties to Prospective Client.

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information except as Rule 1.05 would permit.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter.

And if Texas had just done that, then lawyers and prospective clients would be able to know clearly what is to be expected. Instead, lawyers and prospective clients (and others) will be left to wonder whether this opinion accurately describes what the other rules mean.

NFT = No From Tennessee

I am about to write a series of statements that are each fairly described as, if you will allow me to use the technical, legal term, “bananas.”

  1. People with way too much money on their hands are spending actual money on things called Non-Fungible Tokens (“NFTs”). NFTs are – in laymen’s terms – unique electronic-only items ranging from the category of – at least somewhat understandable though overpriced – fan paraphernalia like the NBA’s Top Shot product to digital-only recreations of works of art that people are paying literally millions of dollars for.

2. The Tennessee Judicial Ethics Committee has issued an ethics opinion (Advisory Opinion 21-01) for Tennessee judges to advise that a judge cannot ethically agree to have their likeness used in an NFT that would be sold to raise money for a for-profit organization even if part of the funds raised would then be contributed to not-for-profit entities engaged in efforts to help provide better access to justice.

3. An actual company was proposing to create an NFT of the image of one or more Tennessee judges to auction off to the highest bidder under the premise that this would raise money and that some of the proceeds would then be able to be donated to Legal Aid entities and other charitable entities.

4. One of the reasons that the judicial ethics committee pointed to in explaining that it would be unethical for a judge in Tennessee to participate in the arrangement was the concern that members of the general public might perceive that the person who purchased the NFT of the judge’s image might have a position of influence over the judge.

Now, for the non “bananas” content, other than that last little bit that almost is more grounded in voodoo orthodoxy than the judicial ethics rules, the opinion reaches the correct result and gives the correct guidance that a judge cannot participate because they cannot lend their image to such a fundraising endeavor because of ethical prohibitions on abusing the prestige of judicial office to advance the economic interests of others.

So, in the end, this is good advice to Tennessee judges but, sakes alive, I can’t believe the question even came up.

I guess now the only thing left to know is how for how exactly much can I sell this NFT of Opinion 21-01 I’m about to create?

Main(e)ly an excuse for book promotion.

So, before offering up the actual ethics content, if like me you know you’re not quite hitting on all cylinders but you are functional and you haven’t already read that New York Times article that made the rounds about “languishing.” I’d recommend it. You can still get to the article at this link. You might read through it and walk away very much saying “It Me.” If so, samesies. Unfortunately, I haven’t yet figured out yet what the recipe is for moving on from languishing to something more like – if not thriving then … well something.

Now, on to something with an actual clear solution, the answer to an ethics question. More specifically, I wanted to give a nod to a recent ethics opinion put out into the world that actually is a really good one. Really good in that it does the kind of thing that an ethics opinion can do to be really valuable — gives the correct answer to a practical question that can really matter to a lawyer and involving a situation that (while it doesn’t arise with abundant frequency) can still arise more frequently than once in a blue moon.

What we are discussing is Opinion #224 issued by the Professional Ethics Commission of the Board of Overseers of the Bar, State of Maine. But henceforth we’re just going to call it Maine Op. 224. Maine Op. 224 answers the question:

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?

Now, I know from experience dealing with lawyers that, when posed this sort of issue in real life, many lawyers immediate, visceral reaction is that surely this must be verboten. If they are able to draw a rule to mind to give shape to their reaction, they will point to RPC 3.4 and its prohibition on a lawyer offering inducements to witnesses that are prohibited by law.

In Tennessee, we’ve written our rules to be exceedingly clear about how this can be done rather than rely only on the ABA Model Rule language. Our RPC 3.4(h) has this additional language:

A lawyer may advance, guarantee, or acquiesce in the payment of

(1) expenses reasonably incurred by a witness in attending or testifying;

(2) reasonable compensation to a witness for that witness’s loss of time in attending or testifying; or

(3) a reasonable fee for the professional services of an expert witness.

But such compensation is not verboten even in jurisdictions that just have Model Rule language. As long as the amounts provided as compensation are reasonable with respect to the value of the witness’s time and the compensation is not at all dependent on the content of the testimony, then the answer is that a lawyer may do this.

And Maine Op. 224 gets that right.

A lawyer may advance court costs and litigation expenses without running afoul of the Maine Rules of Professional Conduct, including paying a non–expert witness’s lost wages, expenses, and other costs related to preparing and providing testimony or otherwise assisting counsel, so long as the payment is reasonable and not conditioned on the content of the witness’s testimony.

Moreover, Maine Op. 224 provides a number of helpful points of elaboration. It manages to stress that the fundamental reason that the lawyer can do so is because the client has the right to do so and, thus, a lawyer can, acting on behalf of the client, advance those litigation expenses similar to other litigation expenses. It also, albeit in a footnote, gives practical guidance that the lawyer also has to be very careful about the likely need for the arrangement to be fully disclosed during discovery in the litigation itself. It also, again in a footnote, acknowledges that there could well be disputes over whether a particular amount of compensation is, in fact, reasonable and opines that the place for litigating such a question should be in the litigation itself.

Now, we are heaping a bit of praise on Maine for getting it right, but reaching the right conclusion on this question is not a Herculean task as the ABA, almost a full 25 years ago now, already gave this similar correct guidance in ABA Formal Op. 96-402 and Maine Op. 224 cribs from that opinion liberally.

What Maine Op. 224 does not do is go beyond the guidance the ABA Opinion offered about how to figure out whether requested compensation for a fact witness is reasonable. One good place to look for such guidance is in Chapter 5 of the Second Edition of Professional Responsibility in Litigation where Doug Richmond, Mike Matula, and I offer eight practical tips to litigators when addressing this issue. Respecting the adages of cows and free milk, I’ll offer you only three of those practical tips here: (a) lawyers ought to wait for a witness to ask for compensation rather than offering it; (b) the closer the lawyer can come to providing an amount that approximates the witness’s direct loss of income the safe the arrangement; and (c) lawyers should refrain from ever providing such compensation to someone who is a former employee of the litigation adversary.

Oh, and by the way, speaking of Professional Responsibility in Litigation, the Third Edition is going to be coming out very, very soon. So, stay tuned.

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