Two smart, practical ABA Ethics Opinions in a row. (And a bonus “beg to differ”.)

So, this week the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Op. 476 addressing the need to protect client confidentiality when a lawyer seeks to withdraw for reasons involving the client’s failure to pay.  As explained below, it is a solid, practical opinion touching on a subject often overlooked by lawyers who are just trying to get out of a case with as little additional wasted time and expense.

It comes on the heels of an opinion from earlier this month about a lawyer’s obligation to hold fees to be shared with a lawyer from another firm separate from the lawyer’s own funds, ABA Formal Op. 475, which — despite what this solo and small-firm centric blogger wrote recently — is also a practical, well-constructed, and correct opinion.  I have to beg to differ with the My Shingle piece because it misses the boat on the primary type of situation the ABA Formal Op. 475 is vital to addressing — where lawyers in different firms are sharing fees in a contingency case.  When you come at the question from that perspective as a starting point, the answer offered in the opinion is clearly the only answer that can be correctly offered.  The My Shingle complaints are readily resolved by simply working out a better front-end arrangement with a client about payment to multiple lawyers.

(N.B. – it can’t just be coincidence that these two opinions appear to be the first two in which my friend, Doug Richmond, shows up as a member of the committee involved in the issuance.  Doug is an excellent lawyer – as of course are all the lawyers on the committee — but Doug also has a flair for delivering practical advice through clear, straightforward written work product that leaves the reader with an abiding sense that the conclusion reached was inescapable.)

ABA Formal Op. 476 also does a nice job in tackling and acknowledging the interplay between trial court and lawyer in these circumstances.  The opinion truly can be well summed up if you lack the time or wherewithal to read it in full by simply quoting its “Conclusion,” section:

In moving to withdraw as counsel in a civil proceeding based on a client’s failure to pay fees, a lawyer must consider the duty of confidentiality under Rule 1.6 and seek to reconcile that duty with the court’s need for sufficient information upon which to rule on the motion.  Similarly, in entertaining such a motion, a judge should consider the right of the movant’s client to confidentiality.  This requires cooperation between lawyers and judges.  If required by the court to support the motion with facts relating to the representation, a lawyer may, pursuant to Rule 1.6(b)(5), disclose only such confidential information as is reasonably necessary for the court to make an informed decision on the motion.

As it stands, I really only have one item of criticism regarding Formal Op. 476 at all.  Yet it feels almost like nitpickery … in that I would have liked to see the opinion manage more clearly to stress that the need for protecting client confidences and discretion in any disclosure to a court regarding withdrawal applies to more withdrawal situations than merely not being paid.  Far too many times than I care to count have I been sitting in a courtroom and listened to a lawyer in the context of seeking withdrawal in some matter on the docket ahead of my case say too much, unprompted about their communications (or lack thereof) with the client.  The opinion says it is limiting itself to the deadbeat client situation because in other situations other rules and principles may apply, but I think there would have been value in exploring the commonalities.

The only other thing I’d like to use ABA Formal Op. 476 as a springboard to say involves highlighting an aspect of the rule we have here in Tennessee and how it provides a very helpful, practical mechanism for doing what the ABA Opinion actually encourages when it says:  “Of course, where practicable, a lawyer should first seek to persuade the client to take suitable action to remove the need for the lawyer’s disclosure.”  In the context of the ABA Formal Op. that would appear to be either: (1) pay the lawyer; (2) hire other counsel that can substitute in lieu of withdrawal, or perhaps (3) fire the lawyer so that withdrawal becomes mandatory.

In Tennessee, we offer another option as our RPC 1.16(b) also lists as a trigger for discretionary ability to withdraw merely that the client has provided informed consent confirmed in writing to withdrawal by the lawyer.  Such a clear escape valve in the rule permits a lawyer – even in a situation in which the client has become a deadbeat – to be able to counsel the client and explain that if the client will go ahead and provide informed consent to withdrawal, and show that consent by signing the motion itself, it can go an exceedingly long way in eliminating the risk that the lawyer will have to say anything about the client’s failure to pay in response to an inquiry from the court.

DC Ethics Opinion 370 – Y’all knew I wouldn’t be able to resist

So, the D.C. Bar has come out with a far-reaching, sort of two-part ethics opinion addressing lawyers and social media usage.  Opinion 370 (Part 1) can be grabbed here.  Opinion 371 (Part 2) from here.  Opinion 370 has lots of really good parts, but much of the publicity it has received to date revolves around something it throws out for lawyers to bear in mind and be wary of that hasn’t really been said by opinion-writing entities before.

Here’s how the ABA Journal online headline treated it – “beware” of “social media statements on legal issues.”  Other aspects of the reporting I have seen described it as warning lawyers who offer opinions online of the potential for creating an “issue” conflict.  There’s a reason, I think, this topic hasn’t been explored much by other opinion-writing bodies:  it is a relatively silly and irresponsible take.  Regardless, given the minimal treatment of the issue that the opinion offers, even if you think there were merit to flagging the issue for consideration, the portion of Opinion 370 that “addresses” it still would be better left on the cutting room floor.

Here, in its entirety, is the analysis of this issue as a risk for lawyers from the DC Opinion:

Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer’s own financial, business, property or personal interests,” unless the conflict is resolved in accordance with Rule 1.7(c). Content of social media posts made by attorneys may contain evidence of such conflicts.

Now, to help get your bearings straight if you aren’t a D.C. lawyer, D.C.’s Rule 1.7(b)(4) is different from what is set out in the ABA Model Rules and, thus, different from what we have here in Tennessee (for example) in the closest equivalent rule, RPC 1.7(a)(2).  Our RPC 1.7(a)(2), just like the ABA Model, establishes a conflict of interest — albeit a potentially consentable one — where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

In a (stop-me-if-you-heard-this-one-before) well-done story by Samson Habte with the ABA/BNA Lawyers’ Manual on Professional Conduct, some quotes are gathered from folks pointing out that the concept of an “issue” or “positional” conflict of interest necessarily involves or requires taking contrasting positions in front of one or more tribunals and, thus, a lawyer’s public statements of opinion about a legal question couldn’t create a positional or issue conflict.

In Tennessee, for example, we address issue/positional conflicts of interests in Paragraph [24] of our Comment to RPC 1.7.  While incapable of being that kind of conflict, supporters of the D.C. Opinion warning might argue that it is still a risky endeavor to express opinions about a legal issue because the lawyer might then have a “personal interest” in how something is resolved that would materially limit the ability to represent a client.

To me, that kind of approach to the topic not only misunderstands what it means to be a lawyer representing a client but also what the rules say in a variety of places it means to be a lawyer at all.  I’ll stick for now to just the Tennessee rules though I’d venture a guess that similar principals are laid out in D.C.’s rules.

In the Preamble to our Rules, in the second paragraph, we lay out a list of things that a “lawyer” is and, included among them, is “a public citizen having special responsibility for the quality of justice.”  In the seventh paragraph of the Preamble to the Rules we say:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession.  As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law; and work to strengthen legal education.

Further, we have a rule, RPC 6.4, patterned after ABA Model Rule 6.4, that specifically makes the point that lawyers can ethically undertake service in connection with entities that seek to reform the law or its administration even though such efforts could detrimentally affect the interests of a client of the lawyer.  If a Tennessee lawyer can engage in organized efforts to reform the law even though those efforts, if successful, might detrimentally affect the interests of one of the lawyer’s clients, then absolutely they can make public statements about what the law should be without violating the ethics rules.

Now, might a client decide not to hire a lawyer who has already indicated a personal belief contrary to the client’s position.  Sure, and they’d have every right to make that decision.  But they might also make a different decision and think that, if the lawyer is willing to take on and argue their position despite past public statements to the contrary, it would make their arguments stronger.

To my knowledge. opinion-writing entities have never warned lawyers about writing learned treatises or books on legal subjects or discouraged lawyers from speaking at Continuing Legal Education events or seminars (which are these days often videotaped and archived) because of some notion that expressing an opinion about a legal issue could create an ethical conflict for the lawyer.  Seems to me that the same “logic” that drove the almost offhand reference by the DC Bar in the Ethics Opinion could be applied to tell lawyers to “beware” of such other activities as well.

One thing I hope everyone could agree upon though is: if you are going to go to the trouble of injecting this issue into what is otherwise an extremely lengthy ethics opinion, then you should have done a better job of tackling the issue comprehensively rather than simply throwing out a half-baked statement that could serve to dissuade lawyers from speaking out.

Alaska you a question about read receipts.

Sorry, bad and lazy pun for a title.  As loyal readers of the site know, I like to write from time-to-time about formal ethics opinions issued by state regulatory bodies.  A recent one caught my attention at first for its — “I cannot believe someone even had to ask feel.”  But, ultimately after I read it all the way through, it intrigued me as a gateway to raise another, related and I happen to think a bit more interesting question.

With that as prologue, on October 26, 2016, the Alaska Bar Association Board of Governors approved Ethics Opinion 2016-1 for release.  The opinion tackles the following question:

Is it ethically permissible for a lawyer to use a “web bug” or other tracking device to track the location and use of emails and documents sent to opposing counsel?

The opinion gets the answer to that question undoubtedly correct by saying that, no, it isn’t and that doing something like that violates Alaska’s RPC 8.4 on generally deceptive conduct and is also problematic because it can undercut the receiving lawyer’s ability to comply with her own obligations under RPC 1.6 to attempt to protect information related to her representation of her client as confidential.

To give a better sense of the kind of technology being discussed, the Opinion explains:

One commercial provider of this web bug service advertises that users may track emails “invisibly” (i.e., without the recipient’s knowledge) and may also track, among other details:

  • when the email was opened;
  • how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities);
  • how many times the email was opened;
  • whether the recipient opened attachments to the email;
  • how long the attachment (or a page of the attachment) was reviewed;
  • whether and when the subject email or attachment was forwarded; and
  • the rough geographical location of the recipient.

Yikes, right.  That’s a pretty dogged little bug and one that would provide a significant, surreptitious window into the work of the lawyer on the other side.  When I saw the headlines at places like the ABA Journal online about the issuance of this opinion, I jumped to the incorrect conclusion that the lawyer requesting the opinion was a lawyer looking to use this kind of software feature.  At that point, I was surprised anyone would need to ask to know that you couldn’t do this, but the Opinion explains that the request actually came from someone who received an email with one of these “web bugs.”  Thus, the request for a definitive opinion of the wrongful nature of the conduct makes more sense.  (And, for those immediately wondering, apparently some email providers do have countermeasures in place that notify you about some of these “webbugs” and that has to be how the receiving lawyer knew what had transpired.)

I think the opinion is pretty well done and reaches the obvious and correct solution.  It offers some interesting discussion about how, even if the webbug were not surreptitious but actually announced itself, the use of it by the sending lawyer could still be problematic as invasive on the attorney-client relationship through, among other things, potentially revealing otherwise work-product protected information and even endangering the whereabouts of clients who are trying to stay hidden.

What intrigued me enough to write this piece though was a tangential topic that is raised a bit in a footnote to the Opinion, the ethical issues surrounding generic “read receipts” on emails.  Specifically, in footnote 6, the Opinion says:

The use of “delivery receipts” and “read receipts” through Outlook and similar email services does not intrude upon the attorney’s work product or track the use of a document, and therefore is not at issue here.  Those types of receipts are functionally comparable to the receipt one may receive from the use of certified mail.

That last part may well be true — that these are digitally the functional equivalents of a return receipts on certified mail — but I have a slightly different view on this topic.  I certainly do not contend it is unethical for attorneys to send emails to other attorneys that include a request for a “read receipt,” but I uniformly refuse to comply when I get such “read receipt” requests, and I do so because of my obligations under the ethics rules.

If I’m getting an email only because I am an attorney representing a client, then information about when I read that email – how close to when you sent it to me or how far away from when you sent it to me – is “information related to the representation of my client,” and I see no need to do anything other than act to reasonably safeguard that information and decline the read receipt request.

I doubt anyone would ever get disciplined for doing otherwise as a violation of RPC 1.6, but I’m curious as to whether there are others reading this who conduct themselves the same way and have the same view of the “read receipt” issue.

 

Texas Ethics Opinion Offers Stellar Example of Why You Ought to Have a Rule About This.

I’ve mentioned in the past the fact that Tennessee has a version of RPC 4.4(b) that directly addresses, and provides what I happen to think is the correct outcome, for what a lawyer is supposed to do about the receipt of someone else’s confidential information either inadvertently or via someone who isn’t authorized to have it in the first place.  Our RPC 4.4(b) goes further than the ABA Model Rule in two respects on this front in that: (1) it doesn’t just require notice as to inadvertently received information but makes clear that the lawyer has to either abide by any instructions as to what to do with the information or has to refrain from doing anything further with it until a court ruling can be obtained; and (2) we apply the same standard to information received unauthorizedly, e.g. a purloined document.  (Of course, I’ve also mentioned … repeatedly I admit … that the ABA Model Rules ought to be construed via Model Rule 1.15 to fill the gap on that second point, but … leading horses… and drinking water… and all that.

Earlier this month the State Bar of Texas Professional Ethics Committee issued Opinion 664 which “addresses” the following two questions:

1. Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they are in possession of confidential information taken from the opposing party without the opposing party’s knowledge or consent?

2.  Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they have inadvertently received confidential information of the opposing party?

In a relatively short opinion that discusses almost exclusively the first question, the Texas Committee ultimately says, “hey look, we don’t have a rule on any of this… so you are kind of on your own.”  That’s not really a quote from the opinion, of course.  The real quote from the opinion is longer but the gist is pretty much exactly the same as my fake quote.

The opinion then goes on to hold out the possibility that if you have this fact scenario plus something more than maybe one or more other rules could be violated — like Texas’s equivalents of Model Rule 1.2(d) or or Model Rule 3.3(a) or Model Rule 4.1 or Model Rule 8.4(d).  Quoting the opinion this time for real:

It is possible that under some circumstances the failure to provide notice to opposing counsel, or take other action upon receipt of an opponent’s confidential information, might violate one or more of the Texas Disciplinary Rules requiring lawyers to be truthful and to avoid assisting or condoning criminal or fraudulent acts or denigrating the justice system or subverting the litigation process.

The opinion also reminds readers that the lawyer’s course of conduct in such circumstances must be well thought through because the risk of disqualification still lurks, but in the end the opinion largely concludes with something that is mostly a restatement of the problem for Texas lawyers (and of my general inability to get horses standing so close to water to drink since Texas does have a version of ABA Model Rule 1.15  and confidential information certainly is “property”):

The Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party’s confidential information outside the normal course of discovery.

The insistence on referencing discovery and, thus, making it seem like this is solely a problem for litigators rather than all lawyers is also a bit unfortunate.

Everything’s bigger in Texas, including rule problems sometimes.

First, no argument from me that I’ve been a bad blogger this week.  I’d offer excuses, but no one likes to hear excuses.

Second, how about some actual substantive content … I’ve written in the past about ethical issues surrounding the verein structure of some of the largest law firms in the world.  Those prior discussions involved conflicts issues stemming from treatment of the verein as one firm for purposes of the ethics rules.

Within the last few weeks the State Bar of Texas Professional Ethics Committee issued Opinion 663 which reveals a new problem for lawyers practicing in a verein but a problem that is relatively specific to Texas given that it involves a pretty antiquated approach to law firm names — an approach that bars “trade names” altogether but that also gets very particular about whether a law firm name can have the name of someone who doesn’t actually practice law in that firm.

Texas still has in place a very persnickety rule about what law firm names, Rule 7.01 which reads:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that … if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.

So, what particularly was the issue – and the opinion does genericize the firm names involved but you can read this TexasLawyer article if you want to know the real details — well, the issue is a law firm, previously known as Smith, Johnson wants to operate under the name of the verein it has joined – Brown, Jones, Smith — as explained by the Committee is that there has never been a lawyer at the Smith, Johnson firm named Brown or Jones.  Kind of silly, right?  They also say it is misleading because it would make people think that all the lawyers in the firms in the verein are all lawyers in the same law firm when they aren’t really.

The outcome of the opinion also raises an interesting question of larger impact which is why did the Texas committee make the assumption it made in the first place? Everything about the opinion flows from the assumption that the Committee explains to open the “Discussion” portion:

This opinion is based on the Committee’s assumption that the lawyers in the law firms that become members of an organization that includes other law firms (in this instance a verein) are not legally determined to be members of one law firm as defined in the Terminology section of the Texas Disciplinary Rules of Professional Conduct.

The word “firm” in that Terminology section, by the way, defines a firm in an entirely circular fashion as being “a lawyer or lawyers in a private firm; or a lawyer or lawyers employed in the legal department of a corporation, legal services organization, or other organization, or in a unit of government.”

The opinion explains that the facts it had been provided about the verein’s role in a way that would seem to support the conclusion that it was not one firm:

The verein provides some administrative services to each of the member firms and coordinates certain activities of the firms, but it does not provide legal services to clients. The lawyers who are members of the Texas law firm and who are licensed in Texas are not partners or members of the other law firms in the verein. The lawyers in the Texas law firm do not share profits, losses, or liabilities with the lawyers in the other law firms in the verein. The lawyers in the Texas law firm have no authority or vote in the actions of the other law firms in the verein. The law firms who joined the verein are not merged as a result of joining the verein.

So, in an interesting way, this Texas opinion truly is the flipside to the disqualification ruling involving Dentons that I wrote about so long ago.  That judge decided that because Dentons held itself out to the world as one firm, it should be treated that way under the ethics rules as to conflicts.  The Texas opinion says that you can’t hold yourself out to the world as one firm because you aren’t really one.

And, if you happen to be in the Murfreesboro area today and happen to be a legal professional, you could come hear me speak about the “12 Commandments of Social Media for Legal Professionals.”

 

Bad ethics opinion or the worst ethics opinion? Tenn. FEO 2016-F-161 edition

I haven’t rolled a post out with this title in a while, but the more truthful title when it comes to an ethics opinion, issued here in Tennessee on September 9, 2016 would be: “More bad than worthless or more worthless than bad?”

First, the good news.  Tenn. Formal Ethics Op. 2016-F-161 is short.  It won’t take you but maybe five minutes to read it in full.  You’ll never get those 5 minutes back, but…

Now, the not-so-good news … Formal Ethics Opinion 2016-F-161 could have been a whole lot shorter, maybe only a paragraph — in fact, the first paragraph with the heading “OPINION” probably would have sufficed.  It states a premise that isn’t necessarily incorrect — a settlement agreement that would require an attorney to return work product violates RPC 5.6(b) if it restricts the lawyers ability to represent other clients– but it doesn’t do anything more than that.

To the extent it does, it isn’t exactly helpful because it works from a premise that doesn’t involve something that clearly involves work-product, and not surprisingly (given that it treats something as if it were work-product when that is less than clear) it doesn’t really explain why one thing might be okay and the other not.

If you were looking for a jumping off point to make the point that a demand for relinquishing work-product as part of a settlement agreement could violate RPC 5.6, I’m not sure this is the premise to pick:

Plaintiff’s counsel received from Defendant 541,927 pages in image form and had to electronically covert every single page to a pdf document.  Plaintiff’s counsel then processed the 541,927 pages with optical character recognition to make each document searchable.  The documents were then organized by relevant subtopics and incorporated into demonstrative exhibits.  Creating this work product was the only way to understand the complex issues in the case, articulated the product defects, depose experts, present claims, and ultimately reach a successful settlement for the client.  Plaintiff’s counsel relied on the produced materials to cut a full-size vehicle into parts for use in explaining complex engineering, vehicle dynamics, and safety mechanisms to the jury.  This demonstrative evidence is useless without the underlying work product.

In addition to the way in which that description reads like the inquiring attorney wrote it, did you catch the part there where things went askew?  Of course, you did.  It was that moment where they wrote “Creating this work product…” despite not having referenced any creation of work product.

What they described was the production of materials by the other side in discovery.  Converting TIFFs to PDFs doesn’t turn the other side’s document production into your work product.  OCR’ing those PDFs doesn’t do that either.  The incorporation of certain aspects of the discovery into demonstrative exhibits might rise to the level of the creation of work product, but the demonstrative exhibits would be the work product not the source material that was added to them as a component part.  But even giving the Board the benefit of doubt, the opinion doesn’t exactly tackle whether (or how) the request to return discovery materials also requires the return of additional things — work product — that incorporate parts of the discovery materials.

The opinion also doesn’t clearly indicate that the settlement agreement being examined requires anything to be returned besides discovery documents produced.  What is says is this: “The parties agreed on a settlement amount, and as a condition precedent to signing the settlement agreement Defendant demanded return of all documents produced….”  Now the opinion then says “… which included Plaintiff’s counsel’s work product,” but I don’t know how to take that because “documents produced” on its own wouldn’t support a reading that work-product must be returned.

Otherwise, the TN opinion to bolster the premise that requiring return of work product could be a problem spends a bit of time trying to (sort of) adopt the rationale of a North Dakota ethics opinion from 1997.  This part of that North Dakota opinion is fine: “Whether providing the opposing side access to or losing his or her own access to work product materials would restrict the attorney’s representation of other clients is a factual question the attorney must decide based on the documents involved and the facts and circumstances of the case.”

But, there is a key deficiency in the North Dakota opinion too , at least as described by the TN opinion, there is a seeming failure to recognize that if a client pays an attorney for work product the attorney creates, that work product also belongs to the client.  Remember, in this context RPC 1.16(d), which only provides the slimmest of windows for a lawyer to refuse to turn over work-product that a client hasn’t paid for, upon the termination of the representation.

So, when the Tennessee opinion quotes the North Dakota opinion to say: “Under 5.6(b) an attorney may not agree — even at a client’s request: To turn over to opposing party or counsel documents protected by the attorney work product doctrine if that action would restrict the attorney’s representation of other clients….,” it overlooks the fundamental concept that the client, not the attorney, makes the decision whether to settle a matter.  (RPC 1.2)  And, if the condition on settlement is that the attorney relinquish work product that now would belong to the client because the attorney’s fee will be paid, then… well, it’s pretty dangerous for an attorney to seek to blow up that settlement on the basis that the work product is the attorney’s alone to do with as she sees fit.

 

Friday follow-up: Puff, puff, PA’s overreach

Couple of quick hits (pun wasn’t really intended but just sort of happened) for this Friday.

A little more than a month ago, I wrote about an ethics opinion out of Ohio that created a real dilemma for lawyers looking to advise businesses related to the medical marijuana industry that was going to become legal in Ohio on September 8, 2016.  Under the analysis in the ethics opinion, Ohio’s RPC 1.2(d) prohibited lawyers from assisting people with such business endeavors.

Moving with what seemed like an unusual amount of speed when it comes to rule-making endeavors (and entirely contrary to the conventional wisdom that pot slows things down), the Ohio Supreme Court has adopted a revision to its RPC 1.2(d) to specifically address the situation and permit Ohio attorneys to assist clients in this industry.  The new rule language reads:

(d)(1)  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent.  A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law.

(2)  A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act.  In these circumstances, the lawyer shall advise the client regarding related federal law.

Now, I totally understand the addition of (d)(2), though it is the kind of hyper-specific revision to the language of a rule that makes me cringe on the inside.  But, I don’t quite understand why the Ohio court changed the language of (d)(1) to replace “criminal” with “illegal.”  Wonder what that is all about exactly and what they would articulate to be the difference in those two terms?

About a week before I wrote about the Ohio marijuana opinion, I wrote at length about a South Carolina ethics opinion that served as an exemplar of the kind of ethics opinion I anticipated a number of other states might write about the problems with  Avvo Legal Services.  Well, this month another state has added its voice with an ethics opinion pointing out ethical dilemmas for lawyers that might look to do business with that service and similar services. Pennsylvania has issued Formal Op. 2016-200: Ethical Considerations Relating to Participation in Fixed Fee Limited Scope Legal Services Referral Programs.  Ironically though, I can’t help reading the Pennsylvania opinion as being a bit more of an indictment of certain kinds of thinking in our profession than it is an indictment of the ethics problems with Avvo Legal Services.

I plan to write about this Pennsylvania opinion in more detail later — and can’t give you a link to go read it yourself because Pennsylvania still tries to keep its ethics opinions limited to members-eyes only in the online world.  (That is, in and of itself, a weird and outdated way of thinking altogether but that too would be a topic for another day.)

For today, I’ll simply preview that the fundamental problem I currently have with the Pennsylvania opinion is that it overreaches and comes across as indicative of a line of inflexible thinking that seems to be entirely out of touch with what is actually going on in the marketplace and that is mostly antithetical to innovation altogether.

Let me offer one example to hopefully pique your curiosity if not whet your appetite, it comes from Section IX of the opinion, titled “Access to Legal Services” —

Operators of FFLS programs argue that “unbundling” legal services reduces the cost to clients, thereby making legal services more accessible.  Expanding access to legal services is, of course, an important goal that all lawyers, and the organized Bar, should support.  However, the manner in which these FFLS programs currently operate raises concerns about whether they advance the goal of expanding access to legal services.  Further, compliance with the RPCs should not be considered inconsistent with the goal of facilitating greater access to legal services.  Any lawyer can offer “unbundled” or “limited scope” legal services at, or even below, the rates described by an FFLS program, provided the lawyer can do so in a manner that complies with his or her professional and ethical obligations, including the obligation of competence (see RPC 1.1) and full disclosure of and informed consent to any limitations on the scope of the legal services rendered.  If a lawyer cannot fulfill those obligations working outside the scope of an FFLS program, he or she almost certainly would not be able to do so working within such a program.

Really?

Lawyers and client confidentiality. Death does not part us.

It has been a while since I’ve written about a good ethics opinion.  There is a Maine opinion from a few months ago that fits the bill (and interestingly was actually posed by bar counsel in Maine apparently) but before I spend a little bit of time discussing it, I want to give context behind why it interested me enough to write about at this point when it actually came out in April.

Quite recently in Memphis, a very well-known lawyer with some involvement in pretty historic litigation in Memphis passed away.  While he had lived a long and storied life, the end came quickly as it does for many folks in that a stroke was followed within weeks by his passing.  The local daily paper here in Memphis did a very nice piece about the attorney’s passing (behind a modified sort of paywall) which, unfortunately, was marred just a little bit by a piece of misinformation that was included as a result of a quote from the deceased lawyer’s son (not a lawyer).

The quote in question was this:

“Attorney-client privilege no longer exists after the client passes away,” Mr. Caywood’s son said. “So Dad was able to testify for the prosecution. He was able to admit in court that Holly feared for her life.”

A tough spot for the reporter, of course.  It’s a good quote even if the first part is not true, but it is a shame for the paper of record in our city to put that information out there.  In Tennessee, as with most U.S. jurisdictions, the attorney-client privilege does survive the death of the client.  There is assuredly another explanation for why the lawyer was able to testify in the particular matter about the client after the client’s death even though the son may not have been aware of it.

With that now as context, let’s talk about that Maine ethics opinion — Opinion #213 from the Professional Ethics Commission of the Board of Overseers of the Bar in Maine, which makes the correct point that the ethical obligation of client confidentiality also survives death – whether that is the client’s death or the lawyer’s death.  It also makes for an interesting opinion to write about it from the perspective of my state, Tennessee, because Maine has a version of RPC 1.6 that is something of a blend between the older version of the rule on client confidentiality — under the Code of Professional Responsibility — that spoke in terms of protection for “confidences” and “secrets,” and the current version of the rule under the Model Rules of Professional Conduct approach that we have in Tennessee that extends more broadly to “information related to the representation of the client.”  Specifically, unlike Tennessee’s version of RPC 1.6(a) which reads like the ABA Model Rule, the Maine version provides that:

A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b).

The Maine version of the rule on confidentiality also defines the terms “confidence” and “secret:”

As used in Rule 1.6, “confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information relating to the representation if there is a reasonable prospect that revealing the information will adversely affect a material interest of the client or if the client has instructed the lawyer not to reveal such information.

So the question being answered by the Maine opinion is: can a law firm, in possession of really, really, really old client files with documents of arguably historical value, donate those files to a library or an educational institution?  The short answer, if you don’t want to read any further, is “no,” not without client consent.  Given that the clients are long dead, then the opinion explains likely not without the lawyer slogging through files on a document-by-document basis.

In fact, if you do want to read further, you should probably just go read the Maine opinion because it has some eloquent bits, but if you don’t then I can’t come up with a better way to end this post then with the Conclusion of the Maine opinion:

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

Another for the annals of ethics opinions of questionable origin

I want to quickly discuss an ethics opinion out of New York state.  No, not that one.  I’m not going to delve into the brouhaha over the one from March 2016 that only got publicity in August 2016 that involves saying it is ethical for a firm to charge clients for work performed by unpaid interns as long as it is all disclosed to the client.

Not going to delve into it to discuss it because of course it is ethical as long as the amount that is being charged isn’t so high as to be unreasonable under RPC 1.5.  After all, say a firm fires an associate for cause and doesn’t ever end up paying the associate any of the last month of their salary.  Does that mean the firm can’t bill the clients for which that associate worked at the agreed upon hourly rates for that same time period?  Of course not.

Whether it is moral or right to take on unpaid interns and then bill clients for the time those unpaid interns spend on client matters is another question altogether, and it is also an interesting federal labor law question but., in my opinion, it isn’t a very difficult legal ethics question.  It is an ethics question that I can understand why someone would ask for guidance because doing it might make a lawyer feel queasy, but it isn’t all that difficult an ethics question in the end.

That is not at all true about the New York state ethics opinion I do want to discuss, NYSBA Op. 1103 from July 2016 that answered the following inquiry:

May a lawyer undertake to represent a client, Corporation B, in litigation with Corporation X, where it is in the economic interest of a former client, Corporation A, for Corporation B to lose the litigation?

Seriously?  There are some truly difficult conflicts questions that lawyers have to navigate, but this one ought not make it into a top 50 list.  And, the reason the answer is easy isn’t at all counter-intuitive, so why ask?  If this kind of thing were even a close call, then there would be no difference in treatment under the ethics rules between clients and former clients.

The more fleshed out facts that the opinion leads off with are as follows:

Corporation A and Corporation B are competitors.  They are engaged in the same industry, in the same geographic area, providing similar services to the same customer base.  The inquirer previously represented Corporation A in a matter than has been concluded (“Matter 1”).  The inquirer now proposes to represent Corporation B in litigation with Corporation X (“Matter 2”).  The inquirer states, and we assume for purposes of this opinion, that Matter 1 and Matter 2 are not factually related.  However, if Corporation B is unsuccessful in this suit, it might be forced to cease operations, which would benefit Corporation A.

In case the point passes by in quick reading, here is a less generic version of the same inquiry with a fun, familiar fictional scenario.  (At least fun for me.)

Mr. Plow and Plow King both provide snow removal services to the town of Springfield.  Lionel Hutz represented Mr. Plow in the past in connection with a piece of employment litigation.   (Maybe a former employee, Bart, sued Mr. Plow for failing to pay him overtime and Mr. Plow defended by explaining that you can’t employ children and, therefore, it would be illegal to pay him.)  That matter concluded and Hutz no longer represents Mr. Plow.  Now Hutz is being asked to represent Plow King in connection with litigation being brought by Moe’s Tavern.  Moe’s Tavern contends that Plow King failed to properly remove snow from their parking lot and the result was that Nick Riviera crashed his car into the building wiping out the taps at Moe’s Tavern for a month and is suing Plow King for $2 million dollars.  If Plow King loses the suit, it likely will go bankrupt and go out of business.

So the question would be whether, since Mr. Plow would love it for Plow King to go out of business,  does that mean that it would be unethical for Hutz to represent Plow King?  This again falls into that category for me of — how did anyone decide that this was a question that needed to be asked?

Of course it wouldn’t be unethical for Hutz to take on the Plow King representation.  Mr. Plow is just a former client.  It wouldn’t even truly be ethically prohibited if Mr. Plow were still a current client.  Might be a representation his firm wouldn’t undertake for business reasons, but it wouldn’t be an ethical issue in terms of an RPC 1.7 conflict.  So when Mr. Plow is but a former client, this isn’t something that ought to take more than five seconds of analysis in terms of working through RPC 1.9 to get to the right result.

Thankfully the opinion gets the analysis on this issue absolutely correct.  It makes the point that — perhaps in other circumstances would be crucial to get right, that “market rivalry” doesn’t rise to the level of causing a matter for a new client to be considered materially adverse to a former client.  But it also drives home the other overriding point – when we’re talking about a former client after all — that makes this such an unnecessarily posed question in the first place.  The scenario being inquired about isn’t one where the two matters are at all the same or substantially related, so it wouldn’t be precluded by RPC 1.9 even if it did involve doing something “materially adverse” to the former client.

So, in the end, it is a fine opinion as far as the analysis goes, it is just a bit silly that this kind of question was posed at all.  But, it did give me the chance to write a little Simpsons fan fiction so… a festive Labor Day to all.

Ohio ethics opinion is concrete example of “Tis better to ask forgiveness than permission.”

“It’s easier to ask for forgiveness rather than permission.”

Those words, or words of similar effect, make up a pretty widely recognized adage.  Depending on the details of any situation, the adage can serve as a proxy for pretty decent advice for a lawyer to give a client, but often less so if the lawyer’s client is also a lawyer.  The message itself, however, can be a pretty decent mantra to offer to lawyers who might be contemplating posing a question to a regulatory body that issues advisory ethics opinions.

I’ve previously written a few words on my love/hate relationship with ethics opinions issued by entities.  A lot of the time I find myself surprised that a lawyer would ask the question that a regulatory body says has been posed to it.  Occasionally, I am very glad that some lawyer did because the result is a helpful opinion that I and others can point to as guidance when advising other lawyers or can rely upon as arguably persuasive authority in one context or another.  Some times I really wish the question had never been asked because the opinion that gets produced really screws up the answer.

From time-to-time, I read an ethics opinion and reach a conclusion that the lawyer would have been better off just doing the thing and seeking forgiveness later rather than even asking the question.  Hello Opinion 2016-6 from the Board of Professional Conduct of the Supreme Court of Ohio.  It tackles the role lawyers in Ohio can or cannot play in that state with respect to the legalization of medical marijuana which is set to take effect next month in Ohio.

It has been more than a year ago now, but I wrote one time in the past about the thorny issues that can arise for lawyers from the growing trend at the state and local level of moving toward the legalization of marijuana while it continues to be illegal to grow, distribute, or use under federal law.  Thus, I can’t really take too much issue with the opinion writers who issued the Ohio opinion because I recognize the constraints they consider themselves to be laboring under to some extent, but the work product they have spun out is still unfortunate… if for no other reason than that it is counterproductive.

People trying to operate in this new business sphere in Ohio will have many land mines to navigate and desperately need lawyers to help.  They are going to do a whole lot better at avoiding unexpected difficulties or legal missteps if they have lawyers assisting them along the way.  By telling Ohio lawyers that this kind of work is off-limits, other people who are not constrained by lawyer regulatory issues will likely step in to fill the void.  Though I learned this morning from Karen Rubin over at her firm’s top-notch blog that the Ohio Supreme Court has already announced an effort to revise RPC 1.2 to address this issue, so maybe there will never be a gap created.

But the real problem here is that this is exactly the kind of question that should never have been posed this to the Board of Professional Conduct.  Perhaps there is no better way of showing why this is true than in highlighting how the Ohio Board addressed the fact that the Ohio legislature passed a statute immunizing professionals from liability for undertaking actions in compliance with Ohio state law on medical marijuana.  The Ohio Board offers no solace on that front:

The law immunizes professional license holders, including lawyers, from any professional disciplinary action for engaging in professional or occupational activities related to medical marijuana.  Notwithstanding this provision, this advisory opinion analyzes the questions presented in light of rules promulgated by the Supreme Court pursuant to Oh. Const. Art. IV, Section 2(B)(1)(g).

The Board dropped a footnote from that second sentence to quote the relevant provision — “The supreme court shall have original jurisdiction in * * * [a]dmission to the practice of law, the discipline of persons so admitted, and all other matters related to the practice of law.” — and raise the specter for a lawyer interested in helping a medical marijuana business of an intercine war between government branches with his/her license trapped in the middle.

The clearest lesson here for Ohio lawyers ought to be that when you really want helpful, practical, legal and ethical advice about a tough question, you ought to hire someone in Ohio — someone like Karen or like many of the other very good lawyers licensed in Ohio who are members of APRL for example.  Those folks could give them candid advice about the risks of their proposed endeavor and offer advice informed by comprehensive knowledge of the Ohio ethics rules but also advice informed by knowledge of other aspects of the law as well.    I suspect good Ohio ethics lawyers would have told them some version of the following — yes, you might get in trouble if someone ever makes an issue out of it, but not entirely clear that you would get punished given the lay of the land, if you did it would probably be relatively minor, but it isn’t an area that anyone can give you a clear blessing in advance.

That kind of practical advice is something that a body like the Ohio Board simply isn’t in a position to give.  As a result, you get Ohio Opinion 2016-6.  And, the analysis in Ohio Opinion 2016-6 seems all the more frustrating when just a few days later a federal appeals court ruled that the Department of Justice could never actually prosecute someone who was fully complying with a state’s medical marijuana laws because of a funding bill restriction passed by Congress.  You can read about that opinion here.