Don’t be an ass.

Quite a few years ago now, I did a seminar titled something like “The Golden Rule of Litigation” or “Litigation and the Golden Rule.”  One of the fun aspects of putting it together was finding confirmation that some version of The Golden Rule – the “do unto others as you would have them do unto you concept” – is espoused in some form or fashion by every world religion I could dig up.  The goal of the seminar was trying to drive home the point that if you applied some variation of that concept to litigation to construct such a rule, it would be along the lines of “Litigate against others as you would have them litigate against you.”  And, my overriding point was that if we all managed to adhere to that tenet, lawyers wouldn’t have to spend much of their time worrying if their conduct violated the rules of ethics, at least in the litigation context.

The title of today’s post is a more negative (and certainly crasser) variation on that message, but one that readily applies to all aspects of the practice of law, whether litigation, transactions, negotiations, etc.

Don’t.  Be.  An.  Ass.

Two gentlemen in the news this week have pretty egregiously violated this rule.  The result is that one of them is losing his law license permanently and the other one looks like he is never going to be issued one in the first place.

A Florida lawyer who was showcased in my 2013 Ethics Roadshow when he received a two-year suspension for what the Florida Supreme Court called “appalling and unprofessional behavior” is now back in the news.  He is getting disbarred after not complying with Florida’s rules regarding the giving of notice to clients and others once you have been suspended and for continuing to practice law after being suspended   An ABA Journal story back at the time of his suspension highlighted many of the troubling ways this lawyer would disparage his opposing counsel (and even the court), but the part that was most offensive about the whole thing was that the primary target of his wrath (or at least the primary target in proceedings that actually got adjudicated in the disciplinary process)was a 71-year old lawyer who had a long, unblemished career and who, at the time he was on the other end of the Florida lawyers vituperative rhetoric was suffering from both Parkinson’s and kidney cancer.  The now-disbarred lawyer tried to take his two-year suspension to the U.S. Supreme Court to get it reversed, but the Court denied his cert petition in October 2014.  Yesterday, the Florida Supreme Court entered an order permanently disbarring him that also makes mention of the fact that this lawyer continued, even in those proceedings, to undertake the kind of conduct for which he was disciplined before, including referring to bar counsel as evil and despicable and engaging in a smirk and stare down session with each of the justices of the Florida Supreme Court.

Another character has made it onto the radar screen for having his application to be admitted to practice law after passing the bar exam in Massachusetts denied on character and fitness grounds three days ago.  I saw the first news story about this and was prepared to be on the side of the applicant given the headline’s reference to past litigation conduct and my own experience with seeing that bar admission authorities can often manage to hold applicants to what seems like a higher standard than the standards to which already licensed attorneys are held.  But, on closer read of both the article (particularly the email that the guy thought it made sense to send the ABA Journal about his situation), and the Massachusetts opinion itself, this looks very much like an example of Massachusetts managing to avoid giving a license to someone in the first place who probably would have ended up practicing law like the Florida lawyer mentioned above.

So, as you wrap up your office day today and head into your weekend, don’t be an ass.  I promise I’ll do my best to take my own advice.

Two updates and a (hidden) microphone.

A few items for your consideration over this coming long, Labor Day weekend.

The first is an update on a proposed ethics opinion made the subject of an earlier post.  The Florida Bar’s Board of Governors has now ultimately decided to reject the approach that had been recommended by its advertising subcommittee, which proposed that would have treated text message communications to prospective clients as being the same as in-person, real time communications and, instead, will treat them similar to email and other written communications.  You can read the ABA Journal’s story on the ultimate outcome here.  As I wrote back at the time, while I disagreed with the interpretation of the particular rule they seemed to be trying use to ban text message solicitations, I actually would tend to conclude that these days text messages are the kind of real-time communication that makes sense to regulate the same way as telephone calls.  That being said, I really don’t have a problem with where Florida finally shook out on this issue.  And, frankly, if you go read the Florida rule that folks trying to send text message solicitations are going to have to comply with … it is hard to figure out an efficient way to do so where the substance of your message is not going to be drowned out by all of the required prophylactic language for written solicitations in Florida.  I mean, just focusing on two of the requirements, means that any such text message would have to start something like this … “Advertisement:  If you have already retained a lawyer for this matter, please disregard …. ”  I mean good luck getting anybody to actually open up and read that text.

The second is a further update on my 2015 Ethics Roadshow, the registration links for Nashville, Chattanooga, and Knoxville are now all up and available as well.  Like with the Memphis link, these links also tell you about my The Hitchhiker’s Guide to the Galaxy inspired theme for this year and give you the options for how you can submit topics or questions you’d like to see covered at the seminar.

If you are a lawyer in Tennessee, then one question you might have is what in the world to do if you begin to suspect that a conversation that you had with a client that you thought was private actually may have been recorded by a hidden microphone set up outside of the courthouse.  While that sounds like a fun, somewhat outlandish, hypothetical, my third item for your consideration is the news that this was reality in Knoxville, Tennessee for about two weeks.  The good news is that it is a question that, for now, would only be germane for that two week period and it sounds like (no pun intended) the equipment wasn’t really all that good and so not much was actually picked up in a fashion that could be comprehended.  You can read the story here.

There are real repercussions to the fact that there seems to be no place where one can venture outside your house or office and not be picked up on camera.  Some of those repercussions are good ones, some bad.  For lawyers, while I agree completely with the sentiment expressed in one of the first stories that broke the news of this situation that it would be reasonable for lawyers to expect there would be some significant advance warning and publicity efforts to alert the bar to the fact that this kind of audio surveillance equipment had been put into place, I also think that we have no choice but to assume that any conversation with our clients, about their cases, in public settings is risky.  That being said, we can’t guard against everything.  All we can do is think through whether, in any particular setting, we and our client can demonstrate that our expectation that we were having a communications that was private was reasonable.

2015 Ethics Roadshow = The Answers to Life, the Universe & the Ethics Rules

I am excited to formally announce that I will be doing the Ethics Roadshow for the Tennessee Bar Association again in 2015.  I am also really excited about this year’s theme and the prospect of putting together an entire 3-hour presentation that offers up answers to actual questions on the minds of those in the audience.

Stealing the blurb that is now up at the TBA website, here’s the deal:


The Ethics Roadshow is back again for 2015 for what may be its most interactive and audience friendly version to date.  This year’s presenter is neither as tall nor as witty as the late author of The Hitchhiker’s Guide to the Galaxy but he did turn 42 earlier this year and figures that if there was ever a year to work a reference to that wonderful series of books into the roadshow, this is the year.

To mix things up a bit from the formula used for the last couple of years, however; the Roadshow is opening up this year’s content to the desires of attendees in order to give you answers to your questions about the ethics rules.  If you are planning to attend (or if you are even thinking of attending), you are invited to send us a question you want to hear answered or a topic you want to see covered in this year’s Roadshow.  You can make your suggestion as broad (client confidentiality?) or as narrowly focused (how do I withdraw from a matter when I cannot track my client down to communicate?) as you want to make it.

The registration page for the Memphis stop on the Roadshow,which will be December 9, 2015, is active and you can access it here.  The dates and registration pages for the other cities will be added at the TBA site soon.  And please do send your questions in either to the email address offered through the TBA site or by hitting me up on Twitter @bsfaughnan using #Roadshow2015 or, of course, sending your question as a comment through this site.

And if you decide you don’t want to attend, well … so long and thanks for all the fish!

A couple of updates, both involving Florida attorneys

Just about a month ago, I wrote a bit about an effort by a Florida attorney to get a Washington state court to unmask the identity of someone who posted an anonymous Avvo review claiming to be the Florida attorney’s unhappy former client.  This week the news has come out that the Washington Court of Appeals (full opinion here) rejected the Florida attorney’s effort.  Other than feeling the need to offer this update, I do think this lends further support for my earlier point about The Streisand Effect.  With the ruling, this is another round of further publicity for the situation involving articles quoting from the unfavorable review.  You can get caught up on that development here.

The other update involves a lawyer who was discussed in my 2014 Ethics Roadshow and who is back in the news this month.  Christina Kitterman was one of several Florida lawyers whose career ended up in ruins over the last few years in the wake of proximity to, and involvement with, Scott Rothstein.  Unlike some others though who were actually in the know about Rothstein’s Ponzi scheme, Kitterman has claimed to not have been aware of what Rothstein was up to and, if memory serves, even Rothstein testified at her criminal trial that she did not know what was going on.  Nevertheless, she caused her career flame-out by being willing to lie for Rothstein in a seriously bad way – claiming on a telephone call to be a state official, a Florida bar counsel.  That transgression led to her disbarment, and this past week the 11th Circuit also upheld her criminal conviction and five-year prison sentence for wire fraud.  I will admit that the “why” as to her willingness to pretend to be disciplinary counsel on a conference call for Rothstein never made much sense if she truly was not aware of Rothstein’s scheme, but the 11th Circuit (full opinion here) was able to conclude that her intent could be inferred and that the underlying conduct – the impersonation – happened to be criminal itself.

Professional death penalty meted out to former DA over death penalty case misconduct

During my 2013 Ethics Roadshow, I had a rare opportunity to highlight three instances of former government prosecutors receiving public discipline over past misconduct.  Such events are so rare that for three high-profile ones to happen in the same year seemed quite remarkable.  One of those three involved a Texas prosecutor who was disbarred for his conduct in putting a man in jail for almost a quarter of a century for a crime he didn’t commit.  Those kinds of stories are awful to hear and, while knowing that the lawyer is ultimately made to suffer for the wrongdoing, it doesn’t ever constitute anything of a happy ending as the stripping of a law license from someone long after the fact does little to offset the abject awfulness of what the wrongfully-imprisoned individual is made to endure.

You never actually want to hear history repeating itself in such a fashion but chalk another one up for Texas.  The events described in this piece discussing the disbarment of another former Texas district attorney are of a nature to simply erode faith in the judicial system even if the end result now is disbarment for the prosecutor’s role in putting a man, later freed and declared innocent by a special prosecutor on death row.  Given that the underlying case received a high-level of publicity though so that the public was already in-the-know about the breakdown of the system, it is another step in the right direction for the public to at least see the disciplinary system get to the right end result.

And, while when you hear the headline version of events that the lawyer is now being disbarred for misconduct committed in connection with a 1992 trial flowing from six murders committed in 1986, it makes it seem like the wheels of justice turn quite slowly to say the least.  But, on the disciplinary side, things moved quite swiftly as the wrongly-imprisoned gentlemen filed the disciplinary complaint against the former prosecutor (who had left office was back in 2000) only in 2014.

Ethics Roadshow 2014 update … in-house counsel edition

This week a former in-house counsel whose travails were discussed at last years Ethics Roadshow finds himself back in the news this week as he is testifying at his boss’s trial.  At the Roadshow we discussed that the former GC for PetroTiger Ltd. had been disbarred in late November of last year as a result of being convicted for his part in bribing a Colombian official in order to land a nearly $40 million oil services contract.

In January of this year, the former GC was back in the news when it came out that he visited Joseph Seigelman, who had been the CEO of PetroTiger, while equipped with a tiny sound-activated camera at the FBI’s behest.  In March 2015, the news came out that six current and former officers of the state-controlled oil company on the alleged receiving end of the bribes were arrested in Colombia.

This week, Seigelman’s Foreign Corrupt Practices Act trial has commenced with the former GC serving as the star witness against the defendant, and the trial is making news with a focus on the aggressive nature of how the Department of Justice pursues its undercover investigations in such cases.  Bloomberg has done some excellent reporting on this case, and I commend the linked articles for some fascinating reading.

Ethics issues for in-house counsel can be complicated at times under RPC 1.13 but this looks like a situation in which only one of two things can be true.  Neither of them leave this now-disbarred former in-house counsel looking very good.

Another 2014 Ethics Roadshow update – microchip, macro suspension

Another of the lawyers I spoke about some at last year’s Ethics Roadshow is back in the news.  As an example of the power of disciplinary authorities to pursue emergency suspensions on an indefinite basis when a lawyer is perceived to be a threat to the public, we highlighted the travails of a Florida lawyer who had gone on the record in federal court accusing opposing counsel of having embedded a microchip in her brain.  Apparently, she had been making similar accusations in the state court system for many years but the federal district court hearing such an accusation did not take a laissez-faire attitude.

This week we have learned that her temporary suspension has now been transformed into a 91 day suspension plus an indefinite period thereafter until she can comply with some conditions to demonstrate rehabilitation.  It appears pretty clear that her refusal to do as the bar requested and allow a mental health evaluation to take place served to trigger the transformation of the suspension from a temporary one into the indefinite one now in place.

A 2014 Ethics Roadshow update

For those of you who may have watched my 2014 Ethics Roadshow in person or online, you may recall that one of the lawyers whose plight we discussed was the former General Counsel for South Carolina State University.  He had been indefinitely suspended from practice after pleading guilty to misprision of a felony arising from a kickback scheme over hiring of the entertainment for a homecoming event.  Within the last month, the South Carolina Supreme Court has ruled on the final discipline for this lawyer,determining that the suspension should be for nine months, dating back to the May 2014 interim suspension.

Given the facts of this one, especially the lack of any personal financial benefit (this lawyer donated his $500 from the kickback to the University’s foundation), and that the criminal punishment for the offense involved probation only, this end result where the gentlemen can now return to practice comes as no real surprise.

And, if you didn’t catch last year’s Roadshow, which was titled “50 Shades of (Not) Gray,” you can still register to catch the online video versions:  Part 1  & Part 2.