Judicial elections are expensive in more ways than one.

There are lots of sources and stories about the escalation of dollars poured into, and spent in, judicial elections in various states.  Here’s an April 2016 article about Wisconsin; and here’s an October 2015 press release from a special-interest group made of folks including The Brennan Center.  But that isn’t the only thing that makes them expensive, state elections for judges also are expensive endeavors because they tend to breed litigation because of the regulatory structure that exists through state judicial ethics codes imposing restrictions on what judges and judicial candidates can and cannot say when running for office.  The stakes for all involved are high, not just because of the office sought but because judicial candidates who want to exercise First Amendment rights in campaigning also risk discipline against their law license for doing so given that most states, like Tennessee, have a rule like RPC 8.2(b) that makes lawyers who are campaigning for judicial office subject to discipline for violating applicable provisions of the state Code of Judicial Conduct.

The litigation being bred seems to be resulting in a slow, but steady, drip-drip-drip of rulings demonstrating that when a state makes the decision to allow their judges to stand for public election, there really is very, very little that can truly be regulated with respect to what they say in the furtherance of such campaigns.  The speech of candidates for office is core political speech and that means strict scrutiny is the standard that must be satisfied.  The U.S. Supreme Court decision in Williams-Yulee v. Florida Bar in 2015, upholding restrictions on personal solicitation of funds by judicial candidates, did offer some hope for existing state regulation on judicial campaign activity, as the majority opinion brushed away a number of concerns on the basis that what the First Amendment requires is that a restriction be “narrowly tailored” not “perfectly tailored,”  But the lasting legacy of Williams-Yulee is more likely to be found in the ramifications of these words:

In sum, we hold today what we assumed in White: A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.

It seems, with strict scrutiny as the standard, that beyond being able to prohibit promises or pledges about how a judge will rule as to a particular party or a particular lawsuit, the only other restriction on speech that will stand the test of time — because judges are recognized by the U.S. Supreme Court as being different than other politicians — is that judges can’t make false statements on the campaign trail.

The most recent expensive litigation decision over efforts to restrict the speech of judicial candidates comes from federal district court in Kentucky striking down several Kentucky restrictions as unconstitutional on various grounds under the First Amendment.  Several of the provisions struck down are ones that we also have in our Tennessee judicial ethics rules.

You can read the full 45-page opinion in  Winter v. Wolnitzek here, but I will give you what I hope you’ll find to be a pretty comprehensive summary in case you don’t want to add to your reading pile.

A little word about procedure and context, the case before the Kentucky federal court involved three judges/judicial candidates and involved, along the way, a certified question to the Kentucky Supreme Court.  In combination, the situations of the three judges teed up questions such as: (1) what did it mean to “campaign as a member of a political organization,” (2) what it took to be someone who acted “as a leader or officer in a political organization,” and (3) what constituted a “false statement.”  Those three questions were certified to the Kentucky Supreme Court for answers under state law.

Eventually, the Kentucky federal court issued this decision examining six canons of judicial ethics in Kentucky and striking down several of them as unconstitutional.  Specifically, it struck Kentucky’s provisions restricting candidates from judicial office from “campaigning as a member of a political organization,” struck part of the prohibition on making “speeches for or against a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office,” struck the prohibition on political donations, and struck the prohibition on engaging in “any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.  The Winter decision also struck Kentucky’s prohibition on judicial candidates making misleading statements.  Most importantly, because it is the issue that  really tends to be the “54/40 or fight line” when it comes to restrictions on judicial campaign speech, the federal district court found that — with respect to cases or controversies — Kentucky can prohibit pledges and promises, but as to issues, taking its lead from the Sixth Circuit’s analysis in Carey v. Wolnitzek, the federal district court said the restriction must fall.

Interestingly, as to the “campaigning as a member of a political organization,” provision, that was struck on void for vagueness grounds because the court treated the provision — in light of the ruling of the Kentucky Supreme Court on certification — as applying to any statement that said, or implied, that a person was a party’s official nominee.  (This is the context of my favorite quote from the opinion — if the Kentucky Supreme Court says that “arson” means “whale hunting,” then “whale hunting is what arson means.”  It also struck the “improve the law” provision on void for vagueness grounds as well – for more obvious reasons.  The other provision it found unconstitutionally vague was the prohibition on misleading statements.

It upheld, but only facially, the Kentucky prohibition on serving as a leader of a political organizations or holding any office in a political organization.  It also upheld the prohibition on judges making false statements while campaigning, but it did not provide an answer to whether one judge’s statement that she wanted to be “re-elected” was a false statement that could be constitutionally punished under that provision when she had been appointed and was not standing for election for the first time.

As to making speeches, the Kentucky court differentiated between political organizations and candidates, finding that, if as the Sixth Circuit indicates in Carey, you cannot stop a judge from self-identifying with a political party, then necessarily it means they can publicly speak in favor of their chosen party.  The court found endorsements, however, to be something altogether different causing it to venture off into a discussion of “high politics v. low politics.”  Yet, in hair-splitting fashion, the court does think it’s okay to give a speech favoring or opposing a particular candidate.  As to the pledges and promises issue, it found that changes that had been made to that provision in Kentucky, post-Carey didn’t change the outcome on constitutionality because the effort to limit application of the ban to pledges or promises that were  “inconsistent with the impartial performance of the adjudicative duties of judicial office” was really little more than question begging.

More challenges are almost certainly guaranteed.  In Tennessee, for example, our judicial ethics rules presently still seek to prohibit candidates for judicial office from “mak[ing] speeches on behalf of a political organization,” (Rule 10, RJC 4.1(A)(2)); “knowingly, or with reckless disregard for the truth, mak[ing] any false or misleading statement,” (Rule 10, RJC 4.1(A)(11)); and “in connection with cases, controversies, or issues that are likely to come before the court, mak[ing] pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” (Rule 10, RJC 4.1(A)(13)).

A word about B**chslaps

It’s a stupid and demeaning term.  In both contexts, whether you replace the asterisks with the original two letters, it, or the other two letters, en.  It is unfortunate that the second term was ever coined by this guy, and it is remarkable to think that this guy has included it for many years as a recognized and defined term in Black’s Law Dictionary.

My opinions on that front are what they are, and the reality is what it is.  As the once-prominent fictional lawyer Richard Fish would say, “Bygones.”

An associate professor at the Washburn School of Law has an article out, for now just available through SSRN, that you can read here.  It is an interesting read.  To me, the most interesting part of it was how I managed to agree pretty much completely with the central premise — judges should not issue opinions that include language that is designed to try to remedy a lawyer’s behavior (or deter other lawyers from engaging in the same behavior) through belittlement and, simultaneously, disagree with so much of the article itself.

Absolutely, judges should see the act of engaging in a “b**chslap” as beneath her/him, and it ought to be something that our profession, the loam from which judges grow, discourages for lots of different reasons.  The simplest basis for doing so would be the general principle I keep coming back to like something of a broken record . . . don’t be an ass.  Another pretty good concept from which to work to vigorously argue against the prevalance of the issuance of such rulings is an often articulated rule of satire…. always punch up, never punch down.

But, the article.  So many things with which to beg to differ.  Bullying?  Or even workplace bullying?  I get the instinct — frankly even the rule of satire I just reference speaks in terms of “punching down” as being an act of bullying — but, for some reason (n.b. it is probably fn. 1’s slightly over-the-top dedication of the piece “to all those who suffered under the thumb of a schoolyard or workplace bully”), the author’s decision to frame that as the issue in this article leaves me feeling like it diminishes the importance of the bullying topic in modern life.  Plus, if an author were truly insistent on taking that tack, then it is tough to justify deciding not to scrutinize the judge v. judge instances that are briefly discussed at page 11 and fn. 59 and then promptly cast aside.  Those instances, particularly in the context of reviewing courts, are (if anything in this arena is) actual workplace bullying.

As to the underlying questions of judicial ethics, I certainly agree that many of the examples referenced in the article raise serious questions of violations of provisions similar to Rule 2.8(b) of the ABA Model Code of Judicial Conduct.  Nonetheless, as to the notion that two new comments are needed to somehow empower judicial disciplinary authorities to take action, I again beg to differ.   The necessary judicial ethics provision is already there to remedy judicial conduct that crosses the line.  Adding explanatory comments won’t necessarily help things because, if there is a problem of enforcement flowing from the existing rules, it would seem to me to be a reluctance to use that provision because of the significant void-for-vagueness constitutional issue that also plagues those who would seek to make “professionalism” a discipline issue for lawyers.

I also disagree with the stated idea that taking the lawyer to task in a public opinion cannot be “other appropriate action” consistent with Rule 2.15 and the implied, if not actually stated, assertion that a judge should pursue such a communication about disappointment with a lawyer’s behavior through a private channel.

The author should acknowledge that any truly private communication from unhappy judge to poorly-performing lawyer while the case was ongoing would raise real ethical concerns for both parties over rules restricting ex parte communications between judges and lawyers.  Thus, presumably, the author would anticipate the court having to wait until the matter is concluded to reach out to the lawyer involved to privately chide them, but the timing of that would leave much to be desired in terms of likely effectiveness.  Although Rule 2.9 of the ABA Model Code permits otherwise prohibited ex parte communications when expressly authorized by law, the language of Rule 2.8 seems a far cry from providing clear cover for a private one-on-one chat session.

In fact, if there were to be any tinkering with the judicial code of ethics to address public belittling, I’d posit that undertaking to make crystal clear that rather than excoriate a lawyer in a published opinion for misconduct which the judge does not believes rises to the level of a required disciplinary report, the other appropriate action that the judge could take would include a truly private discussion with counsel notwithstanding the bar on ex parte communications under Rule 2.9.

I also am unconvinced by the author’s conclusion that judicial ethics rules must be insufficient because judges don’t seem to be punished for such writings.  Or, to quote from the author, “the current system of judicial ethical enforcement has proved either unwilling or unable to address the propriety of judges issuing benchslaps.”  The author appears to be  glossing over the fact that, disciplinary entities, for the most part are not in the business of commencing their own cases and instead react to the filing of complaints about judicial misconduct.  That can be one very likely reason  — no one ever complained to the appropriate authority — that none of the prominent examples the author focuses on in his article resulted in any punishment.

And, I’m going to presume the author is correct about that, as I don’t know (and suspect the author does not know either) whether any of those judges may well have received private discipline.  Another reason can be that where that line is, and when it has been crossed, is very much in the eye of the beholder.  One of the examples that the author uses of how a court can appropriately address something in a written opinion without turning into something that is a b**chslap is In re S.C., 138 Cal. App. 4th 396 (2006).  Yet, if you go back and reread the opening lines of that decision the author quotes from, and imagine the decision being issued in 2016 and not 2006, I suspect it too would get prominent attention at Above The Law as an example of the genre.

Finally, I fundamentally disagree with the idea that making it easier for lawyers to pursue appeal when attacked in this manner is not the answer.  In terms of workable, practical answers, it strikes me as the best, realistic answer.  There needs to be clarity that lawyers do so on their own dime and not at their client’s expense if the client otherwise has no interest in pursuing an appellate remedy, but clearer availability of obtaining appellate review could go a long way toward discouraging the belittling judicial conduct.

The best answer (though probably not at all realistic) would be for media coverage of such instances to adopt the critical tone of Judge Edith Jones’s email quoted in a footnote of the article.  If the judges who are prone to belittle with their rhetoric weren’t celebrated in the media for doing so, then they might be much less inclined to continue to crank out such writings.  In the meantime, perhaps the article and the public discussions of it and attendant publicity of the topic it is generating, will help such judges become more inclined to pursue the better angels of their nature and remove such items during the drafting process after they have had the private, cathartic benefit of having drafted the language in the first place.

Three updates for you on this election-year President’s Day.

Given that there isn’t a lot going on in the news that relates to legal issues, I feel obligated to offer lawyers something to read.  (I don’t think I’ve ever gone on record here about how badly I wish someone would create and implement a sarcasm font upon which all users could agree.  Maybe it would be a way to use comic sans where everyone would be ok with it?)

Back around Thanksgiving, I wrote about a Virginia federal court ruling that laid the framework for a future decision about whether a particular provision in a law firm operating agreement violated RPC 5.6.  Specifically, the provision required a departing shareholder who goes on to practice law in competition with the firm to forfeit half of their equity interest in the firm.  I concluded my original post by speculating that the outcome would ultimately hinge on how the court interpreted a paragraph in Comment [2] of D.C.’s version of the rule.  Sure enough, the court has now ruled, and its ruling did hinge to a significant extent upon application of that language as quoted in this piece from the ABA/BNA Lawyers’ Manual.  Interestingly though, much of the fight in the case actually came down to whether half of the shareholder’s equity interest was even a “substantial” financial penalty at all.

In the face of an argument from the firm that it wasn’t substantial because it was significantly less than the departing lawyer’s salary at his new destination, and expert testimony that the fragility of law firms should allow provisions forfeiting equity to avoid a “death spiral” when owners leave unexpectedly, the court looked only at the penalty in its own context:

Moreover, the practical effect of the Firm’s forfeiture clause is to penalize withdrawing members who wish to continue to represent even one of the Firm’s clients by depriving them of a previously accrued equity interest to which they otherwise would be entitled.  When Moskowitz left the Firm, he faced a choice: receive the full value of his [ownership interest] and turn down his clients who sought his continued representation, or forfeit fifty percent of his equity interest in the Firm and continue to represent his clients’ interests. There is a clear disincentive attached to the latter option.

Update part two & three – I’ve also tried to keep up with events in Pennsylvania and Texas as they unfold with respect to the fates of their top law enforcement officers, both of whom face criminal prosecution.

In Pennsylvania, the sitting Attorney General had something of a mixed bag of recent events.  Her effort to have her law license reinstated denied, but she managed on a first vote to survive being removed from office by the Pennsylvania Senate.

As to the Texas AG, you may recall that back when I first posted about any of this, I mentioned a disciplinary complaint that had nothing to do with, and predated in time, the indictment against him.  (Though unlike the events made the subject of the indictment, the disciplinary complaint actually related to the AG’s conduct in office.) Although there have not been any recent events regarding the indictment to catch my attention, there has now been news that the disciplinary complaint which originally was headed toward dismissal, has now been reinstated and will move forward over the AG’s advice to public officials that they could freely disregard the authority of the United States Supreme Court.

 

The Wisdom of Ferris Bueller. The reality of Machiavelli.

Life moves pretty fast.  If you don’t stop and look around once in a while, you could miss it. – Ferris Bueller

Back in December 2015, during my Ethics Roadshow I talked a little bit about one of the items that had been rolled out for public comment by the ABA Commission on the Future of Legal Services, model regulatory objectives that might be used by jurisdictions to examine both how they regulate lawyers and how they might go about regulating others who provide legal services.  The discussion I had about this topic with audiences was way too disjointed at the time. (It is a topic that itself could have had an hour’s worth of dedicated discussion, but it was just one of many topics covered during the three hours of my presentation repeated across several cities in Tennessee.)  Earlier this week, a version of those regulatory objectives was adopted by the ABA House of Delegates after heated arguments and over significant opposition.  The ABA is now hawking Resolution 105 as a way to move the needle forward in an effort to ensure that those who provide legal services to consumers but are not lawyers are appropriately regulated.  Time will tell whether that effort will gain traction.

It was slightly less than a month ago that the news started to roll out about the planned launch of Avvo Legal Services and I wrote about it here. At the time, it was being tested in five cities.  Presumably, such testing was positive (or the outcome of the testing never really mattered) because now the news comes along that Avvo Legal Services has officially launched in 18 states.  Which states?  Well you can go read the article at the link, or you can see the list at the end of this post.

I’ve always liked the Ferris Bueller and life does move pretty fast, but another quote somehow seems more appropriate in this moment, though it comes from someone much less lovable:

[F]or there is such a gap between how one lives and how one ought to live that anyone who abandons what is done for what ought to be done learns his ruin rather than his preservation. – Niccolo Machiavelli

Oh yeah, which states has Avvo Legal Services launched in and is looking to have lawyers participate:

  • Arizona (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may: 1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service, which may include, in addition to any membership fee, a fee calculated as a percentage of legal fees earned by the lawyer to whom the service or organization has referred a matter, provided that any such percentage fee shall not exceed ten percent, and shall be used only to help defray the reasonable operating expenses of the service or organization and to fund public service activities, including the delivery of pro bono legal services. The fees paid by a client referred by such service shall not exceed the total charges that the client would have paid had no such service been involved. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority….”)
  • California (Rule 1-600 (A) “A member shall not participate in a nongovernmental program, activity, or organization furnishing, recommending, or paying for legal services, which . . . allows any third person or organization to receive directly or indirectly any part of the consideration paid to the member except as permitted by these rules, or otherwise violates the State Bar Act or these rules.”)
  • Colorado (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a layer may (1) pay the reasonable costs of communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization….”)
  •  Florida (Rule 4-7.17(b) “A lawyer may not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising permitted by these rules, may pay the usual charges of a lawyer referral service, lawyer directory or other legal service organization….”)
  • Georgia (RPC 5.4(a)(5) “A lawyer or law firm shall not share legal fees with a nonlawyer, except that: . . . a lawyer may pay a referral fee to a bar-operated non-profit lawyer referral service where such fee is calculated as a percentage of legal fees earned by the lawyer to whom the service has referred a matter pursuant to Rule 7.3. Direct Contact with Prospective Clients.”)
  • Illinois (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service….”)
  • Massachusetts (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization….”)
  • Maryland (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may (1) pay the reasonable cost of advertising or written communication permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service….”)
  • Michigan (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may: Michigan Rules of Professional Conduct Last Updated 2/4/2015 (i) pay the reasonable cost of advertising or communication permitted by this rule; (ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral service or other legal service organization that satisfies the requirements of Rule 6.3(b)….”)
  • North Carolina (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service that complies with Rule 7.2(d), or a prepaid or group legal services plan that complies with Rule 7.3(d)….”
  • New Jersey (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that: (1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule; … (3) a lawyer may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.”)
  • New York (RPC 7.2(a) “A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that: . . . (2) a lawyer may pay the usual and reasonable fees or dues charged by a qualified legal assistance organization or referral fees to another lawyer as permitted by Rule 1.5(g).”)
  • Ohio (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may pay any of the following: (1) the reasonable costs of advertisements or communications permitted by this rule; (2) the usual charges of a legal service plan; (3) the usual charges for a nonprofit or lawyer referral service that complies with Rule XVI of the Supreme Court Rules for the Government of the Bar of Ohio ….”)
  • Pennsylvania (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay: … (2)  the usual charges of a lawyer referral service or other legal service organization….”) (RPC 7.7(b) “A ‘’lawyer referral service’’ is any person, group of persons, association, organization or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers.”)
  • Texas (Rule 7.03(b) “A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm, except that a lawyer may pay reasonable fees for advertising and public relations services rendered in accordance with this Rule and may pay the usual charges of a lawyer referral service that meets the requirements of Occupational Code Title 5, Subtitle B, Chapter 952.”)
  • Virginia (7.3(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may:(1) pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1; (2) pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service ….”)
  • Washington (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may (1) pay the reasonable cost of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service….”)
  • Wisconsin (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may: (1) pay the reasonable cost of advertisements or communications permitted by this rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority….”)

Revisiting things not to do in court – Friday edition

Being in between stops for the Roadshow until next week, but still having two more to do (Wednesday in Chattanooga and Thursday in Knoxville), this will again be a bit more of a short(ish), punchy offering.

A few months ago I wrote a post about things not to do in court that discussed two incidents.  One of the incidents was the lawyer who took a selfie with his client in court after a successful jury verdict and posted it to social media.  I explained by belief that it seemed wrong for the lawyer to have been scolded at all by the court for the incident given the age-old notion that courtrooms – unless sealed via a proper protective order – are supposed to be public, open proceedings, since they are where public business gets accomplished.  I happen to think the routine imposition of such restrictions by judges is antithetical to the First Amendment right of access to court proceedings and to the ideal that what happens in the courtroom is public property.  I certainly understand that some of the rules that are in place that seek to prohibit broadcasting are premised on the notion that traditional media reporting and video broadcasting can be disruptive or a distraction to the proceedings, but in 2015 when anyone with a smart phone can unobstrusively take photos and disseminate information to the public in real time about what is going on in their courtrooms (and could even use an app like Periscope to live-stream proceedings without actually being at all disruptive) should merit revisiting a lot of the rules in place in federal courts that chill public dissemination of information about court proceedings.

I had been avoiding writing anything about this more recent Illinois federal court incident where a partner with a prominent law firm was facing a show cause order over having taken photos of evidence, and tweeting about that evidence, during a criminal trial in which he was just acting as a spectator in the courtroom.  Because the obvious ethics and lawyering angle didn’t immediately dawn on me.

But, there is at least one ethics rule worth mentioning for discussion so, with this week’s development that the lawyer in question sort of proposed his own sanction for his conduct in the form of making a charitable donation and performing some additional CLE and the court essentially agreed with it yesterday although it quintupled the amount of the proposed donation to $5,000 — I’m reversing course and writing just a few words about this.

Under the ethics rules in many jurisdictions,  including the version of RPC 3.4(c) adopted in Tennessee and in Illinois, it is not unethical for a lawyer to “knowingly disobey an obligation under the rules of a tribunal,” if done through “an open refusal based on an assertion that no valid obligation exists.”  (And, strictly speaking, although that rule does not say it is limited to a lawyer representing a client, given its title as “Fairness to Opposing Party and Counsel,” that kind of limitation is pretty strongly implied.)   Of course, this lawyer was never going to be in a position to do that because he first quickly stated he hadn’t seen the sign and then relatively quickly apologized for and tried to mitigate the repercussions of the conduct.  The Show Cause order lays out all the various levels of court rule that were involved here, starting with Federal Rule of Criminal Procedure 53 and working all the way down to the posted sign.  So there would be quite a few rules that a lawyer wanting to make such a challenge would have to claim to be openly defying.  The only other rule it seems like could be used to come after a lawyer for this kind of conduct in their role as a citizen would be RPC 8.4(d), but it seems to me the policies that impose these kind of restrictions are more prejudicial to the administration of justice than what this lawyer did.

I do wish that one of these days there will be an appropriately high-profile vehicle that serves to spur a conversation about why our profession doesn’t do more to challenge these kind of restrictions in federal courts.  Of course, that it is easy for me to say sitting here on my laptop and not in this lawyer’s shoes.  And, it’s especially easy for me to say when I’m likely to merely comply with the same sort of rules here in the federal district courts in which I practice rather than attempting to personally make any such waves.

New “Brick and Mortar” column out this week (+ 2 other things you should read)

Unfortunately, it does not appear to be up and online as of yet at The Memphis Bar‘s website, but the latest issue of The Memphis Lawyer is out, and I have a column in it.  The column — The Revised RPC 7.3(b)(3): The Road to Constitutional Infirmity is Paved With Good Intentions — talks about a revision to the Tennessee ethics rules that has been in effect since May 1, 2015 and should be of particular relevance to family lawyers.  (Regular readers of this blog may recall reading a bit about that development in this earlier post.)  My latest column also talks a bit about one of the last U.S. Supreme Court cases from last term — Reed v. Town of Gilbert — that may lay the groundwork for all content-based restrictions on commercial speech (including most restrictions on attorney advertising) having to survive “strict scrutiny” analysis to pass constitutional muster.

Once it is eventually up online, I’ll post an update of some fashion, but if you happen to be a lawyer in Memphis and your issue is sitting in your reading pile … well consider yourself warned.

In the meantime, let me suggest two other things deserving of a read and well worth your time.  (And I see in advance the humor of me suggesting that the two items be read as I am confident they both have more readers than I do.)

Karen Rubin has a smart take on something I had no idea existed — prepackaged blog content for lawyers.  She gets the ethics analysis quite correct (of course) and avoids explicitly making the kind of snarky statement I would have made:  If you are buying prepackaged blog content to pass off as your own to assist with proving yourself to be a “thought leader,” you’re not showing much “thought” and you certainly aren’t “leading.”  The one question I still have about the whole scheme is whether Checkpoint Marketing intends to sell the same canned content to multiple lawyers?  It’s a business model that works in t.v. ads for lawyers (though admittedly it worked better before YouTube because you were less likely to ever see the same ad concept in the other markets).  If multiple lazy bloggers lawyers can each buy the same stuff, it would seem likely to lead to even a greater level of embarrassment when a simple Google search for some particular phrasing in a post would pretty quickly reveal multiple astroturfish posts from different lazy bloggers “authors.”

The second is this New York Times piece on the revelation that the human being who is serving as General Counsel of Al Jazeera America, and who has a quite impressive resume of places of employment before that might not actually have ever been a lawyer at all during the last three decades or so.  It’s a fascinating read, and the story has now triggered Al Jazeera America to suspend the gentlemen and pursue an investigation.

Coming to praise rather than to bury (Part 2 of 2)

Yesterday, I offered a positive review of a recent ethics opinion from the New York City Bar.  Today, I want to talk through this Order on the Merits striking down Florida’s restriction in its ethics rules on the ability of lawyers to refer to themselves as a specialist in the absence of a board certification from Florida or an ABA approved third-party certification entity.  I said yesterday that praising a development on legal ethics out of Florida would be a change of pace, but that’s a bit misleading as I’m really praising a federal judge for reining in Florida bar regulators and that has been a more common event recently.

Before actually delving into the Florida ruling, I’d like to offer a little background that helps explain why I am so interested in this development.  For pretty much as long as I have been licensed to practice law (17+ years now), Tennessee’s ethics rules on lawyer advertising have included provisions that significantly limit a lawyer’s ability to say that s/he is a specialist or that s/he specializes in a particular area or field of the law.

The current version of our rule, RPC 7.4, articulates this restriction as follows:

(b) Except as permitted by paragraphs (c) and (d), a lawyer shall not state that the lawyer is a specialist, specializes, or is certified or recognized as a specialist in a particular field of law.

(c)  A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation.

(d) A lawyer who has been certified as a specialist in a field of law by an organization accredited by the American Bar Association’s House of Delegates, and who has registered such certification with the Tennessee Commission on Continuing Legal Education, may state that the lawyer “is certified as a specialist in [field of law] by [accredited organization.]”

Up until January 1, 2015, (d) of our rule read quite differently, referencing the need to have been certified as a specialist by the Tennessee Commission on Continuing Legal Education and Specialization instead of directly pointing to the ABA.  As a result of a petition filed late in 2013 by the Commission the rule was changed because the Commission explained that it didn’t and wasn’t qualified to figure out how to certify anyone other than by simply relying upon whether the ABA had accredited a certifying organization and the “and Specialization” was dropped from the name of the Commission as part of it admitting that really wasn’t doing that part of its job.  I suspect there are likely still quite a few lawyers in Tennessee that are not aware of the change that resulted from this Tennessee Supreme Court order.

Florida’s Rule 7-14(a)(4) goes a bit farther than Tennessee’s as it imposes restrictions not only on claims of being a “specialist” but explicitly to claims of being an “expert” as well, treating such statements as “potentially misleading” and prohibited unless:

(A) the lawyer has been certified under the Florida Certification Plan… and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules.  A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification.  All such advertisements must include the area of certification and the name of the certifying organization; or

(C) the lawyer has been certified by another state bar of the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan … and the advertisement includes the area of certification and the name of the certifying organization.

A Florida personal-injury law firm, Searcy Denney Scarola Barnhart & Shipley PA, and each of its five-named partners individually, filed suit in the U.S. District Court for the Northern District of Florida challenging this restriction as unconstitutional.

On September 30, 2015, Judge Hinkle entered an order enjoining the Florida Bar from “enforcing Rule 7-14(a)(4), to prohibit the plaintiffs from making truthful statements on a website, blog, or social medium about their specialty or expertise.”  The opinion is succinct but very well done.  (NB: it also contains very good analysis of another challenged provision that should eventually fall but for which Searcy Denney’s claim was unripe – Florida’s rule banning statements in advertisements that are not “objectively verifiable.”)

The Court quickly states the crux of the problem with the rule’s application to the plaintiff law firm and its lawyers:

The application of this rule is clear: Searcy Denney cannot say it specializes or has expertise in mass-tort or unsafe product cases, or even in personal-injury cases, even though the firm undeniably has expertise in these areas.  Nor can any individual attorney claim to specialize or have expertise in mass-tort or unsafe-product cases, even if the attorney handles only cases of that kind, and even if the attorney has successfully handled many such cases.

The Court then works through an overview of U.S. Supreme Court and federal circuit decisions readily demonstrating that the three-pronged Central Hudson test applies to determine the constitutionality of any restrictions by a state on lawyer advertising.  Most importantly, for purposes of the issue before the Court, the second and third prongs of Central Hudson require that the restriction on speech must “directly advance[] the asserted government interest” and that the restriction on speech not be “more extensive than is necessary to serve that interest.”  Judge  Hinkle then recognizes that generally there has to be some “tangible evidence” offered to show that “the commercial speech in question is misleading and harmful to consumers” and that, as to the “fit” required between the ends and the means, it is a relevant consideration for the Court whether there are multiple, obvious alternatives that would be less burdensome than the challenged regulation.

Judge Hinkle then makes light work of the Florida Bar’s arguments in support of its rule.  The argument that a consumer “will be misled into believing that an attorney who ‘specializes’ or has ‘expertise’ in an area is board certified” gets brushed aside based on the lack of any evidence to support the assertion and the fact that a disclaimer would be a much narrower way to address the issue (as would educating people about what board certification means).  The Florida Bar’s second argument is rightly recognized by the Court as being a straw man of the “we have to be able to have some standards” variety.

The Court stresses that the Florida Bar can still prohibit untrue or misleading claims.  Thus, if a lawyer or law firm claims to have expertise in an area they do not or to specialize in something they do not, then the Florida Bar could still pursue them for discipline under other ethics rules.  But, as should be clear just in reading that it is within a collection of provisions entitled “Potentially Misleading Advertisements,” that is not the limit of this rule at all and, instead, the Florida Bar’s rule prohibits truthful speech.  A point easily underscored by reminding that there are many narrow fields where no certification is offered and the fact that law firms (unlike lawyers) cannot be board certified in Florida at all.

And, what is most praiseworthy, is that near the end of the Order, Judge Hinkle cites to Peel v. Attorney Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91,, 105 (1990), which should have been understood a quarter of a century ago by all states, including mine, that these kinds of restrictions on truthful speech cannot stand when supported, as they are, only on the basis of a “paternalistic assumption” that consumers of legal services “would automatically mistake a claim of specialization for a claim of formal recognition by the State.”

“Were you aware of it?” – Friday edition (A tale of two AGs)

Were you aware that 4% of the state attorneys general (attorney generals?) in the United States have been indicted already in August 2015?  Well, they were.  First, Texas’ Attorney General was indicted as we learned when his indictment was unsealed on August 3, 2015.  Then, Pennsylvania’s Attorney General was indicted on August 6, 2015.

For Pennsylvania’s AG, the indictment was a culmination of a slow drip of negative publicity and public accusations of wrongdoing.  In fact, back in December, a grand jury had recommended that Pennsylvania’s AG be criminally charged, so the specter of having to mount a defense to criminal charges has been looming over her head for all of 2015.

As to the Texas AG, the indictment seemingly came out of the blue.  Texas’s AG had been in the news, and under public scrutiny of late, because of his public reaction to the U.S. Supreme Court’s ruling on same sex marriage and his issuance of a legal opinion to county clerks in Texas about how they could refuse to issue licenses if doing so violated their religious beliefs.  A group of lawyers actually had filed a bar complaint against him over that opinion in July 2015, in no small part, likely because he went so far as to go on record calling the Supreme Court’s decision a “lawless ruling” and making disparaging statements about the Justices while also, as the complaining lawyers saw it, advocating for county clerks to violate their oath of office.  I found the willingness of a collection of lawyers to sign off on that bar complaint to be a fascinating development, but really before I could find the time to write about it the Texas AG found himself with bigger problems.

Pennsylvania’s AG is a Democrat; Texas’s AG is a Republican.  Like the two AGs, the two indictments differ pretty significantly, most importantly, the Texas AG was indicted for alleged conduct while in private practice before taking office — alleged securities fraud and failure to register with the proper regulatory board — while the Pennsylvania AG has been indicted for allegedly violating grand jury secrecy to get political payback and then lying about it under oath.  If you’d like to dig in more to the backstory and allegations about the Pennsylvania situation, here is the link to a pretty thorough Pittsburgh Post-Gazette story.

In addition to now being criminal defendants, there is one other thing these two AGs have in common and that is that they each agree that they can continue to do their job despite facing criminal charges.  From a common sense standpoint, that seems like a logical answer from their perspective.  And, even if you scrutinize the additional layer of ethical obligations imposed on prosecutors under ethics rules such as ABA Model Rule 3.8, there is nothing inherently impossible about the idea that they can diligently and competently perform their jobs despite their circumstances.

There are two final things though that I find interesting about the developments.  The first is that both of these AGs were elected in public elections; thankfully, at least for now, Tennessee does not have such a state of affairs as we have an unique approach where our AG is chosen by the our Tennessee Supreme Court.  Admittedly, I have no idea what role politics plays in either or both of these indictments, but I certainly worry about the prospect that Tennessee will open up the position of its state AG to popular vote.

The second is, I hope, an entirely human reaction to one detail in the story about the Texas AG’s indictment … why in the world would there be a system in place in a Texas county to usually have those arrested wear a towel in their mug shots?  What’s that about (was what I wondered as it seemed really arbitrary and weird).  Turns out though there is actually a method (I guess) to that madness, as this article explains that having a gray towel draped over the shoulders in every booking photo helps with witness identifications from mug shots to not be distracted by clothing in the photo.

 

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.

Prejudicial to the administration of justice? I’m going to say yes.

I tend to think my credentials as a fan of the First Amendment are pretty solid.  But I feel like I’m standing on pretty solid ground in saying that a lawyer’s effort to pursue a ballot initiative that calls for the murder of people, if it were going on in Tennessee, would justify discipline against their license under RPC 8.4(d) as “engag[ing] in conduct prejudicial to the administration of justice.”  All of the rest of the stuff pursued in the initiative would seem to be well-entitled to First Amendment protection – whether simply on the basis of the exercise of rights of political speech or petitioning the government for redress of grievances, or both.  Calling for executions — particularly through a provision that would “deputize” members of the public to do so — seems like the kind of thing lawyers ought to be able to agree is several bridges too far.

That said, I was surprised to see quotes from more than one California counsel taking the view that no discipline in California would likely be available.  I’m guessing though that has more to do with California still not having rules patterned after the ABA Model Rules and, thus, not having a rule such as RPC 8.4(d) on the books.