The perils of letting your clients speak for themselves.

I’ve been known in the past when writing or speaking about Model Rule 4.2 and the restrictions it imposes to make the point that our ethics rule treats grown up adults as incapable of making decisions for themselves. Mostly jokingly I make that point. When elaborating it is merely to focus on the idea that in order to protect clients from overreaching by adverse counsel the rule does not allow the client to make the decision it wishes to communicate with the lawyer for their adversary. The consent to allow such a communication to occur has to come from the lawyer for that person.

But, what can happen when a represented client decides to freelance and talk about their legal issues without the input of their counsel? Well, as luck would have it during this extremely historic week in the United States, we have an example that can be taught and learned from.

An example where the client made a public communication that could be described by those who read it as “incoherent,” “utterly frivolous,” “chock-full of impenetrable arguments and unsupported assertions,” “organized in ways that escape our understanding,” and that “capitalizes words seemingly at random.”

You probably know exactly what I am referring to.

What? No, I didn’t see that the third President in U.S. history to ever be impeached sent a letter out earlier this week that his lawyers didn’t bless. I’ll have to check that out.

No, I’m referring to a brief that was filed in the Seventh Circuit Court of Appeals by a represented party but that wasn’t actually authored or approved by the lawyer for the party.

The ABA Journal has a story about it here. You can give the two opinions of the Court of Appeals that resulted a read if you’d like here and here.

Though as both the article and the opinion stress in their own ways, the true problem for the lawyer involved in this situation, and the reason for sanctioning, was the decision to let the client’s filing appear as if it had been the work-product of the lawyer and not a pro se filing by the client. The Seventh Circuit was particularly chapped when it first ruled at the notion that an attorney was responsible for a “monstrosity of an appellate brief.”

The patently frivolous nature of this appeal isn’t the only thing that troubles us. The hopelessness of McCurry’s cause didn’t deter her lawyer, Jordan Hoffman, from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law.

That, in and of itself, is a rare variation on a topic much-discussed, and likely much more common, when a lawyer offers behind-the-scenes assistance to a client but then has the client make the filing pro se and without disclosing that a lawyer’s assistance was provided. That is a set of circumstances that can also bring about ire from a court but for entirely different reasons.

As a reminder to my Tennessee-based readers, we have a Formal Ethics Opinion addressing that particular ghostwriting issue, which you can refresh your memory about at this link.

Stress, drinks, and folderol

Over the last several months there have been various iterations of stories and reports making the rounds about the susceptibility of our profession to depression and substance abuse, reports of 1 in 5 lawyers being problem drinkers, etc.  There are also always folks out there writing variations of pieces about the problems that are created by incivility among lawyers.  Here’s one rolled out earlier this month.  While I am a strong believer that vague and “eye of the beholder” concepts such as civility and professionalism should be kept separate from ethical codes that are enforceable through discipline, I’m also on record about the general, good advice of simply not being an ass.

I don’t know if it is true, as I’ve heard some say now or as some said in 1989 before I was ever even practicing for that matter, that things are worse/more vitriolic now than they have been in the past.  I don’t purport to know the answer to that last question but certainly have my own cynical views about nostalgia generally (and as to the practice of law particularly) where I end up agreeing almost wholeheartedly with John Hodgman’s view:

That’s the parlor trick of nostalgia, and it’s why nostalgia is the worst. It is a toxic impulse that leads to nothing good, honestly. The idea that things were better once and are terrible now and getting worse every minute is what fuels the worst, in my opinion, movements in contemporary culture.

But, at the same time I recognize in myself the additional stress in life that can come as a side effect to all of the wonderful benefits that technological advances do bring to life.  None of us are perfect and all of us are under pressure and all of us feel the need to provide rapid responses and take rapid action, a need that is inculcated with each passing day that we practice in the always-at-work world of smartphones, wearable tech, and whatever might have been invented just now.

A week from today I will be speaking in Memphis for attorneys who need an hour of ethics credit on the topic of “Ethics in Dealing With Opposing Counsel.  Ironically or not, the talk will be in connection with a Happy Hour event, and there will be adult drinks available afterwards.

All professions have aspects of what they do that induce stress; lawyers are not unique in that regard.  Yet, one thing that we do have to deal with that almost no other professionals have to endure are folks like the Connecticut gentleman who prompted this federal court order and who claims to have reopened the “federal postal court” and to have created his own language rife with strange syntax, mathematical formulas, and a core tenet that only nouns have legal meanings.

Ask any LAWYER YOU know and THEY’LL TELL YOU that they’ve HAD TO DEAL at least ONCE with one of THESE CHARACTERS that also MANAGES TO ALWAYS have to work in random BOUTS OF capitalization.  Having to deal with these folks and assist clients in attempting to unwind the crazy stuff these jokers attempt to do is a bonus stressor for the legal profession.

In this particular incident, as today’s ABA Journal online article explains, most of the heavy lifting in unwinding the nonsense was borne by a federal district judge.  Yet, the problem created was not insubstantial, and I would guess at least a lawyer or two spent some time stewing over the potential damage that was being caused to their client.  The gentleman had filed an $11.5 million “judgment” of the federal postal court for registration in Connecticut against Ocwen Financial Corp.

In ordering that the “judgment” be stricken, among other choice nuggets, an actual federal court had to write that that the gentleman claiming to be a judge of the postal court had explained during a telephonic hearing:

that the Federal Postal Court operates on the basis of a sophisticated mathematical understanding of language that proves that certain mortgage documents are fraudulent.

The story also notes that there were dozens of similar filings made recently in Connecticut purporting to be judgments of this “court” which, uniquely, has no physical fixed location but happens to have “transitory jurisdiction wherever the federal postal eagle symbol may be.”

Just writing about this issue kind of makes me interested in having a beer with lunch.  If I do (I won’t), it would be a Belgian beer as a reminder of real, and much more consequential, problems and stressors that are out there in the modern world.