2020 too?

This past year has certainly been … something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice versa, and being bolstered along the way by a surprisingly large number of attorneys willing to file politically-motivated lawsuits that in normal circumstances I’d like to think wouldn’t pass muster under Rule 11 or RPC 3.1.

These anti-democracy lawsuits continue relentlessly with a parade of lawyers who don’t seem at all deterred by sanctions imposed against other lawyers.

So what will 2022 bring? Other than hopefully the end of the pandemic. Surely we will get that. Surely.

Here is where I go out on a limb and make a prediction or too about the world of legal ethics over the next year.

First, given the focus of media attention on lawyers who continue to help high-profile clients pursue questionable legal objectives — not all of which involve subverting democracy of course — I think there will be significant attention and action taken on further defining prohibitions on lawyers assisting unworthy clients in illegal endeavors.

Along those lines, with a particular focus on combatting lawyer-involvement in money-laundering activities, the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Regulation circulated thoughts on potential ways to address that issue better in the ethics rules in a memo put out seeking public input on December 15, 2021. The memo previews a number of possible ways that the comments to the rules could be amended to better define obligations of lawyers in doing due diligence on clients and toward having lawyers have obligations to report suspicious activity.

Interestingly, the memo floats no proposed changes to any rules but only in the guidance offered in comments to rules. Thus, for example, there would be no effort under such a proposal to remove any ethical barriers that currently exist to forcing attorneys to support suspicious transactions beyond what already would be required by law. The potential revisions include:

  • Addition of a new Comment [11] to RPC 1.0 indicating that, as to a lawyer’s knowledge, that it “may be derived from the lawyer’s direct observation, credible information provided by others, reasonable factual inferences, or other circumstances.” And that a lawyer “who ignores or consciously avoids obvious relevant facts may be found to have knowledge of those facts.”
  • Adding several new sentences of guidance to Comment [5] to RPC 1.1 including: “In some circumstances, competent representation may require verifying, or inquiring into, facts provided by the client. Ignoring or consciously avoiding obvious relevant facts, or failure to inquire when warranted, may violate the duty of competence.”
  • Adding significant new language to the Comment to RPC 1.2 including: “To determine whether further inquiry is warranted regarding whether a client is seeking the lawyer’s assistance in criminal or fraudulent activity, including money-laundering or terrorist financing, relevant considerations include: (i) the identity of the client; (ii) the lawyer’s familiarity with the client; (iii) the nature of the requested legal services; and (iv) the relevant jurisdictions involved in the representation (when a jurisdiction is classified by credible sources as high risk for criminal or fraudulent activity).”

You can read the entire memo here and, if you happen to be planning to be in Seattle in February, you can plan to participate in a public roundtable discussion about the potential proposals.

Another area that I predict will be the subject of significant attention in 2022 is whether changes to RPC 5.5 are needed to better address modern legal practice. The restrictions imposed on the ability of a lawyer duly licensed in one state to represent clients in other states or to handle matters because they involve laws of a different state have been questioned, off-and-on, over the years, but the last almost two years of practice in a pandemic has helped push things to a potential boiling point. Perhaps never before has it been easier to make people see the relative-absurdity that RPC 5.5 can prohibit a lawyer with 20 years of business law experience licensed in South Dakota from representing a client in North Dakota who needs a contract drafted but would not prohibit a lawyer licensed in South Dakota who has never handled a tax matter in 20 years of litigation experience from representing a South Dakota client in a tax dispute. I anticipate that 2022 will bring efforts from a number of different groups to seek to modify RPC 5.5 to better offer “full faith and credit” to a lawyer’s law license.

In the meantime, thank you ever so much for your readership, stay safe, and I will see you again in January 2022.

This for Thursday.

Originally, I had plans to do another of those three-in-one posts for today, but we have some news from Tennessee, so we are pivoting to just focus on that development.

I’ve written previously about the Court’s proposal to improve upon the approach to intermediary organizations in Tennessee. Well, yesterday, the Court entered an order adopting those proposed rule revisions effective January 1, 2022.

This means that, starting next year, this better, but not perfect, approach to addressing entities that offer “matching” and similar services between lawyers and consumers of legal services will come into existence.

No longer will such entities have to register in any fashion with the Board of Professional Responsibility because Tenn. Sup. Ct. R. 44 is being deleted. As a result, it will no longer be inherently unethical for a lawyer to accept fees from a client who found their way to the lawyer through an unregistered service.

Instead, whether it is ethical for a lawyer to do business with such an entity will turn significantly more on how transparent the arrangements are and the lawyer will be charged with doing the due diligence about any such entity.

Now, I mention that the new rules approach isn’t perfect — because it is not — but also as a way of justifying highlighting what I anticipate will remain as the “thorniest” issues for lawyers who want to work with such entities.

First, what will we mean when we say, “such entities?” As revised, Tennessee’s RPC 7.6 will apply to lawyer-advertising cooperatives, lawyer referral services, lawyer matching services, online marketing platforms, prepaid legal insurance providers, and “other similar organization[s] that engage[] in referring consumers of legal services to lawyers or facilitating the creation of lawyer-client relationships between consumers of legal services and lawyers willing to provide assistance for which the organization does not bear ultimate responsibility.”

Now, this still has a “catch all” concept, but it might be “better” than the previous catch all in terms of likely to snag fewer companies in its net. Regardless though, it constitutes an improvement in terms of the perspective of both lawyers and consumers, as well as servicer providers, because even if swept into the net, these entities will not have to go through any registration process with the Board.

Second, what will be the easy issues for lawyers to navigate. I think that it will be pretty easy for a lawyer to know whether the organization is trying to direct or regulate the lawyer’s professional judgment, and whether the organization is owned or controlled by the lawyer or their law firm. It will also be easy, perhaps not as easy, but still easy for the lawyer to ensure that the function of the referral arrangement is fully disclosed to the client at the beginning of the interactions with the lawyer and whether the organization “makes the criteria for inclusion available to prospective clients” including payments and fees at the beginning of the client’s interactions with the organization.

Finally, the sticking points. What will be significantly more difficult for the lawyer to determine will be whether the organization, including its agents or employees, are doing anything that involves improper solicitation under RPC 7.3 in Tennessee and whether the organization is only requiring the lawyer to pay “a reasonable sum representing a proportional share of the organization’s administrative and advertising costs.”

And, candidly, this last piece is where the need for further reform exists — it shouldn’t matter what the organization and the lawyer agree is going to be paid in terms of compensation as long as that deal is made fully transparent to the client.

Until then, this rule also at least provides some further protection for lawyers if they end up struggling with being able to figure out these two tougher sticking points because if they discover a problem after they get involved, they don’t have to immediately stop participating. Instead, they can first seek to get the organization to correct the noncompliance. Only if they cannot convince the entity to correct things do they have to withdraw from participation. Importantly, withdrawal from participation in the arrangement is what is required and not withdrawal from representing any client that may have found their way to the lawyer through the program.

Florida again. Sigh.

It has only been a little over a month at this point since I wrote about how Florida was a hopeless place.

Well, here we are again. The Florida Bar Board of Governors has unanimously rejected a few proposals aimed toward progress in the re-regulation of the practice of law in the last week or so. Now, I want to be realistic in both my outrage and disappointment.

So, let’s talk first about the much less surprising piece of this development because it is just Florida rejecting something that, to date, most every state has rejected and only two states and the District of Columbia have been willing to consider or enact.

The Florida Bar Board of Governors rejected a proposal that had been submitted to it by a Special Committee to Improve the Delivery of Legal Services established by the Florida Supreme Court. That proposal would have involved amending Florida’s ethics rules to allow some nonlawyer ownership in law firms as long as the majority ownership interest was still in the hands of lawyers and to allow fee-sharing to occur between lawyers and nonlawyers. The proposal involved the notion of giving these kinds of items a try in a regulatory sandbox approach rather than simply throwing doors open wide.

Given that, to date, only Arizona and Utah have joined D.C. in allowing for people without law licenses to have an ownership interest in a law firm, the fact that the Florida Bar rejected this proposal is really not surprising. It is maybe a little bit surprising that the vote was 46-0 and 45-0, but ….

Now, the other aspect of the Special Committee’s suggestions that was rejected at the same time really is a cause for outrage and disappointment. These suggested revisions targeted Florida’s regime for regulating lawyer advertising.

Florida has long been an embarrassment to the profession when it comes to its approach to restricting advertising by lawyers. And while reasonable lawyers can disagree about whether revisions to ownership regimes and fee-sharing are an inherently good direction for the profession to pursue, the notion that Florida can continue to insist that it’s approach to lawyer advertising makes sense is beyond the pale at this point.

The Special Committee had suggested revisions to the Florida advertising rules that were intended to streamline the rules — in large part this was proposed to be done by moving some of the more detailed rules into comments — if this sounds familiar to readers of this blog that would be because it should be. This kind of revision was recently enacted in Tennessee, and the Tennessee endeavor was inspired by the same things that inspired the proposal of the Florida Special Committee, the work of APRL in encouraging these kinds of revisions and the adoption by the ABA of more streamline advertising rules. The Florida Special Committee also proposed ending Florida’s mandatory review process of lawyer advertisements that offer more than just basic information or are not law firm websites.

The notion that a prominent member of the Florida Bar Board of Governors could explain opposition to such proposals by saying:

“While well intentioned, I think both of them are ahead of their time,” Sellers said.

That is the stuff of farce if not outright gaslighting. Ahead of their time? I guess if Florida wants to insist that it is the 1990s down there in terms of the refusal to streamline, and I guess the 1970s down there in refusing to stop imposing a prior restraint on constitutional speech, then, sure.

The notion that the vote on that was also unanimous (43-0) is extremely unsettling.

To be clear about what we are talking about when we talk about Florida’s advertising rules, these are rules that still, in 2021, have an entire separate rule prohibiting certain forms of advertisements as being somehow “unduly manipulative” because they contain the image or a voice of a celebrity. This is a state that has rule that also makes it improper to advertise using “an image, sound, video or dramatization in a manner that is designed to solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client.” This is a state that still has an entire separate rule that purports to tell lawyers what content for their advertisement will be “presumptively valid content.”

All of that is bad enough, but the notion that Florida still imposes a pre-publication review requirement for commercial speech — a concept that is anathema to any reasonable understanding of the First Amendment — and that its governing body of lawyers just reaffirmed unanimously that this should continue is just … sad.

It’s another fine day to abolish the bar exam.

Now is another of the various times of year throughout the nation when law school graduates finish waiting anxiously for bar results and find out whether they passed and get the opportunity to start digging their way out of the debt they amassed in law school or failed and, thus, have to wrestle with the “sunk cost” fallacy and decide whether to amass some more debt to take another shot at passing the exam.

I’ve written a little bit before about how I’ve come to conclude that the bar exam needs to be abolished. I have admittedly not always felt this way but have come to the position over time and (I happen to think) because of growth and a better appreciation for the fact that it is a test that does not measure in any meaningful respect whether the examinee has the skills to be a competent attorney.

That was true even before the pandemic and the “pivot” from in-person exams to online undertakings but has become even more undeniable over these last 18 months.

Very, very little of the work of an attorney involves memorizing things and knowing answers off the top of one’s head. Success during a law school career spread out over three years is a much more reliable indicator of whether someone should be issued a law license. Now that states have had to partner up with software companies to administer the bar exam remotely — an opportunity that could have been used as a perfect vehicle for shifting what is tested to an open-book format that might better test the skills that an actual lawyer would have to use going forward has instead become a test of resources and sometimes just endurance.

Over the pandemic there have been a variety of news articles about the plight endured by folks taking the bar exam online. To the extent those stories ever mentioned litigation it involved efforts before an exam occurred to try to stop it from happening under certain terms and conditions or various kinds of petitions under state procedures to try to convince courts to grant a diploma privilege in lieu of requiring the exam take place.

What you do not hear a lot about is any efforts to sue by someone who fails the bar exam to seek a court ruling that they should be considered to have passed instead. There is a very good reason for that. Most states strictly circumscribe the grounds upon which the outcome of the grading of a bar exam can be challenged.

As an example, here in Tennessee, Tenn. Sup. Ct. R. 7 takes great pains in explaining the various mechanisms for seeking to have the Tennessee Supreme Court review actions of our Board of Law Examiners that are believed to have aggrieved someone seeking their license to make clear that the decision about whether you obtained a passing score is not reviewable.

Sec. 13.02. Petitions to Board.

(a) Any person who is aggrieved by any action of the Board involving or arising from the enforcement of this Rule, other than failure to pass the bar examination or a determination that an applicant has not completed the application process for an examination, may petition the Board for such relief as is within the jurisdiction of the Board to grant.

(emphasis added)

ARTICLE XIV. REVIEW OF BOARD DECISIONS

Sec. 14.01. Petition for Review.

Any person aggrieved by any action of the Board may petition the Supreme Court for a review thereof as under the common law writ of certiorari, unless otherwise expressly precluded from doing so under this Rule. 

Sec. 14.04. No Review of Failure to Pass Bar Examination.

The only remedy afforded for a grievance for failure to pass the bar examination shall be the right to re-examination as herein provided.

Now, at a surface level, this makes perfect sense because absent such a restriction you could foresee graduates seeking a redo of a subjective process – grading – in court. But, given the kinds of technological failures that are coming to light from the less-than-ideal approaches being taken to online examinations and approaches to remote proctoring when the exam is administered online, the notion that asking courts to step-in and change unfair failing grades to passing grades is verboten seems worthy of some reconsideration.

And with all of that as a pretty lengthy prologue, that brings me around to what prompted these thoughts today — this story about a graduate who missed a passing score on the remote bar exam by 5 points and has filed a petition in Arizona seeking a law license because, while he was taking the exam, the software crashed, costing him the time it took to reboot his computer and that caused him to have to redo the portion of an answer he was working on. Importantly, the graduate’s score on the portion of the exam being worked on at the time of the crash was significantly lower than the score obtained on the other portions.

This kind of lawsuit can potentially be filed in any state – even in the face of a Court’s own rules seeking to handcuff itself – in reliance upon the inherent authority that the highest court of any jurisdiction has to determine who should, or should not, receive a law license. But interestingly in Arizona at least, the relevant rule appears to provide some wiggle room for directly challenging whether a passing grade was obtained.

As the Petition itself explains, Arizona Sup. Ct. R. 35(d) provides that “the Committee on Examination’s decision regarding any applicant’s grade score is final and will not be reviewed by the Court absent extraordinary circumstances.”

Hopefully, before there become enough instances of this type of outcome becoming “ordinary” circumstances, this applicant’s challenge will be successful and other jurisdictions will thoughtfully tackle the entire question of what purpose does the bar exam actually serve.

Florida is a hopeless place.

No, I’m not going to have to get into talking about that it has a joke of a governor and has been actively trying to not make decisions in the best interest of public health during a crisis.

I’m just going to focus on two developments in the legal ethics space that have occurred in the last 24-48 hours.

First, in something that will be given short shrift because of the second development, the Florida Bar has advanced a proposal to revise its rules to establish that disciplinary complaints filed by judges against lawyers should be entitled to greater weight than other complaints. I have defended many lawyers in disciplinary proceedings. I have defended lawyers when complaints were filed against them by judges. The fact that a judge has filed a complaint against a lawyer does not inherently mean that the complaint should be entitled to more weight nor that it should be harder to convince disciplinary counsel to drop the complaint. This kind of proposal is problematic on at least two levels – One is that it becomes ripe for abuse by judges. But the other is that it inherently indicates an existing flawed process must exist already. Either you have a mechanism for enforcing discipline that can appropriately investigate and evaluate a complaint to determine if it should be pursued or you don’t. If you tell the public that complaints from certain categories of people need to get special treatment, then you don’t.

Second, you might recall many years ago I wrote a series of posts about the TIKD app down in Florida and its fight with regulatory authorities. What you might find crazy is that up until today the Florida Supreme Court had not gotten around to ruling on the question of whether TIKD was engaged in UPL. Well, the Florida Supreme Court ruled today and what you might find even crazier is that they concluded that the TIKD app was UPL and entered an order permanently enjoining it from operation. The Florida Supreme Court did this even though that the referee that initially heard the matter granted summary judgment in favor of TIKD. Madness.

Three justices attempted to stave off this madness in their well-done dissent. That part of the opinion starts at p. 21 of the link above.

If you don’t have the time to read that part, the following two snippets would tell you what you need to know:

TIKD formulated no legal strategy. It gathered no evidence. It filed no court papers. It made no court appearances, no arguments to a judge or jury. Other than in explaining its offerings on its website, it answered no questions. It did not, because it could not, promise its customers that their communications would be privileged. In short, if you had hired TIKD to solve your legal problem and received only what the company offered—without the
services of the member of The Florida Bar it helped you find—you probably would have wanted your money back.

That is because TIKD offered not legal services, but a business proposition: hire a lawyer we introduce, at a fee we set, and you will not bear the risk that the lawyer’s services, or indeed your ticket, will cost you more than our fee. Offering that bargain does not constitute the practice of law, and thus cannot have constituted the unauthorized practice of law. Because today’s decision reaches well beyond our constitutional mandate to “regulate the admission of persons to the practice of law and the discipline of persons admitted[,]” art. V, § 15, Fla. Const., and into the business arrangements of people trying to solve their legal problems, I respectfully dissent.

If you ever wanted to think about just how difficult the task of regulating the practice of law will be and how entrenched some mindsets are within the bar and the judiciary, today is the kind of day to mull it over.

ABA Formal Op. 499: A consumer review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following up despite it not being Friday – Tennessee advertising changes

So, sort of as promised, or at least in substantial compliance with a prior promise, I wanted to elaborate a bit more on the news out of Tennessee that we have adopted revisions to our lawyer advertising rules and talk a bit about what is now a new, pending proposal put out directly by the Tennessee Supreme Court.

As to the changes that were adopted, I scooped my own blog by articulating most of those more detailed thoughts in this piece for Bloomberg Law put together by Melissa Heelan.

The one topic I didn’t really mention in that interaction was the fact that the revisions also create a new exception to allow in-person solicitation directed at “a person who routinely uses for business purposes the type of legal services offered by the lawyer.” This is a category slightly different than what the TBA had proposed to the Court but still an improvement on the existing rule.

As to the Court’s new, separate proposal for how to revise Tennessee’s treatment of “intermediary organizations,” the TBA had proposed a “surgical” revision that simply would have removed a “catch all” category from how the concept of an “intermediary organization” is defined. The TBA did not seek to propose any changes to any other aspect of the regulatory structure that requires such organizations to register with the Court.

The Court now has. It has proposed for public comment a revision that would delete Tenn. Sup. Ct. R. 44 in its entirety and that would make some significant revisions to RPC 7.6 itself but that would still leave something of a “catch all” in the definition, though not as broad as the current rule and a few other revisions to the ethics rule portions. Importantly, because the proposal removes the requirements of registration and some other obstacles, what it leaves is a rule that largely places the burden on individual lawyers to make certain they are only doing business with entities that conduct themselves in a fashion that is consistent with the lawyer’s own ethical obligations. The proposed revised rule also requires transparency from the intermediary organization in terms of the furnishing of information to those who might use its services to find a lawyer. Speaking of transparency, the proposal is transparently inspired by a similar proposal recently adopted in North Carolina. You can read the full court proposal at the link below.

Given the removal of the more onerous requirements of Rule 44, this proposal seems worthy of public support as it would seem to make it much more likely that entities that can offer “matching” services that Tennessee lawyers and consumers of legal services alike are interested in using will do so in an open, above-board fashion.

In sum, the proposed revised version of RPC 7.6, paired with the deletion of Rule 44, would appear to be a rule more likely to be complied with rather than ignored.

If you are interested in submitting any public comment to the Court, you have until November 30, 2021 to do so.

10 Things I Thought I Would Write About This July, But Didn’t.

So, anyone I might have hooked into caring about this site in May and June 2021 likely stopped checking for July content 1 or 2 weeks ago. Longer-term, repeatedly neglected, readers are likely still hanging in there (and forever earning my esteem).

There have been a bunch of times that I thought I was going to bust something out on here this month, but life, and work, and doom-scrolling, and an honest-to-goodness vacation have gotten in the way. On the doom-scrolling front, we’re back to having to do a bunch of that because the people out there with access to the vaccine but who are refusing to take it are really doing all they can to ruin this for everyone else. In states like Tennessee, the problematic Republicans that run things are actively trying to stop young teenagers from getting this vaccine by going so far as to try to stop the dissemination of information to teenagers about any vaccines of any sort. Sigh.

So, this won’t quite make up for the dry spell, but here are quick entries on the 10 things I thought I would write about this July, but didn’t.

(1) The Florida Supreme Court earlier this year did some rule-making that has resulted in Florida lawyers being unable to get CLE credit for any CLE sponsored by the ABA. Sounds absurd, right? It is. I am very proud to say that, among the many public comments filed by lawyers and groups of lawyers attempting to explain to the Florida Supreme Court why it should rescind its new rule, is one from the Association of Professional Responsibility Lawyers. . You can read that comment here. If you are interested in reading all of the comments – which are overwhelmingly opposed to the Court’s actions, you can get access to them here.

(2) Speaking of Florida, backwards as it can be in a number of respects (looking mostly at you Governor DeSantis), it has dipped its toe in the water of joining the ranks of Utah and Arizona in potentially bringing about drastic change in the legal landscape by allowing for nonlawyer ownership of providers of legal services to operate through a “sandbox” approach. You can read more here.

(3) Speaking of Utah and Arizona, we have statistics about the kinds of entities that have been approved in those states for performing legal services either through Utah’s sandbox or just generally in Arizona. A very good article providing an overview of the happenings in those two states can be found here.

(4) Staying out West, but angling a bit northward, the Oregon Supreme Court has issued a good new opinion on whether a lawyer can rely upon RPC 1.6 to attempt to disclose client confidential information to respond to online criticism. Spoiler alert: still a no-no.

(5) One of the things that we’ve discussed here before that a lawyer can do in response to unfair online criticism is to file a lawsuit about it. I’ve pretty steadfastly made the point that doing so likely will only make things worse. Speaking of making things worse by filing a lawsuit because you are mad about how you are being treated online, the twice-impeached former President of the United States filed a class action lawsuit against each of Facebook and Twitter claiming that their decision to ban him from their platforms was unconstitutional. Remarkably, Trump found even more lawyers to be willing to debase themselves and threaten any reputation that might have otherwise established to make highly frivolous arguments in a lawsuit – this time trying to argue that Facebook and Twitter are essentially the government and should have to comply with the First Amendment.

(6) Speaking of lawyers debasing themselves for Donald Trump of all people (and that’s still at many times the most staggering part of all of this, him? This is the guy that so many people are so willing to burn it all down for?), a raft full of lawyers involved in the “Kraken” lawsuits in Michigan had their sanctions evidentiary hearing and, based on all the reports you can go read, it went about as well for them as everything else has gone in the Kraken lawsuit. Then, of all things, one of the most prominent of the lawyers in the cross-hairs went and posted a portion of the video pf the proceedings in violation of the court’s explicit order not to do so. This has led to a follow-up show cause order regarding contempt. Most recently, the judge issued an order declining to find contempt but asking for an explanation for why discipline should not be imposed. I’ve written in the past about why we shouldn’t just be okay with the notion that courts are saying these public proceedings cannot be taped and re-broadcast but there’s a time and a place for most things. When you are already staring down the barrel of the kind of sanctions these lawyers might get, that certainly wasn’t the time.

(7) Sticking to stories with a political twist, President Biden has signed an omnibus Executive Order that attempts to do an awful lot of things.. One of the things it does is impose some prohibitions on requiring employees to sign non-compete agreements. I was among several lawyers quoted in a Law360 Pulse story about how that portion of the EO could impact the legal profession. Here is a link to the article itself, but you have to be a subscriber to see it. For the rest of you, I’ll just say that, for my part, I said the following:

The direct and immediate impact seems to be minimal because, as you already know, lawyers are ethically restricted from agreeing to noncompetes, and even prohibited from trying to ask a lawyer-hire to agree to them.

When President Biden says something like “the era of it being difficult for someone licensed to do something in one state to get a license in another state needs to come to an end,” why shouldn’t that apply to lawyers too? There are significant discussions going on in the profession about how to better connect willing lawyers and interested potential clients when consumers are going unrepresented and lawyers are out there who don’t have enough work.

(8) A month or two ago, I wrote a bit on how New York and D.C. were putting out some proposed revised approaches to a rule that would help address harassment and discrimination by lawyers, but that are trying to be designed to avoid the “alleged” problems of ABA Model Rule 8.4(g). I neglected at the time to say anything about the fact that Connecticut was working on something in that regard as well. In June 2021, the Connecticut Supreme Court has adopted the proposed revision, and a new Rule 8.4(7) will go into effect in the Nutmeg State on January 1, 2022. You can check out the full language of the rule here.

(9) Big news was made recently in Texas with a decision from the Fifth Circuit Court of Appeals finding that mandatory bar membership in Texas was unconstitutional, in the current form of the Texas Bar, because of how the Texas Bar uses some of the dues of members to undertake political activity. I’ve written a few times over the years about the important distinctions that exist between states with unified bars, where membership is mandatory, and states where the bar association is just a voluntary membership organization. More recently, the Sixth Circuit wasn’t as friendly to an Ohio lawyer’s attempt to challenge mandatory membership in the Ohio bar. An ultimate ruling on the issue from the U.S. Supreme Court seems inevitable at this point. Given the current make-up of the Court, the era of mandatory bar associations is likely coming to an end.

(10) Remember three paragraphs ago when I said there was a time and a place for most things? When it comes to lawyers and using marijuana, the New York State Bar Association has released a new opinion that says the time is now and the place is New York.

So, those were 10 things I thought I was going to write about in July but I didn’t. Or did I?

(N.B. I will return before the month ends, and I will write a little bit more about that last item.)

Honestly, transparency is all that we need.

This week I was fortunate enough to be included as part of a presentation on debating issues of regulatory reform in a Plenary at the ABA National Conference on Professional Responsibility

I recorded my 3-minute presentation a couple of months ago and spent a lot of time looking forward to how it would be received. Unfortunately, it went down in a way that “felt” less than ideal. There were some communications problems with a shift in online platforms from the prior day to the day of this content and I was lucky enough to both have mine get teed up first when people were still trying to figure out how to make things work and was one of two presenters that never managed to actually get introduced so, unless you recognized my face (if so, I’m so sorry for that) you didn’t know it was me.

So, in the interest of self-care and to possibly double the number of people who ever hear what I had to say on my subject matter, I’m taking the liberty of repackaging it here into a blogpost.

Without further dwelling in this quagmire of self-pity, here were my remarks in their entirety:

I’ve been given the opportunity to be the “pro” side of the argument on why many of the current ethics rules restricting business development should be jettisoned.

I think I can do it in 5-10 seconds, “Honestly, transparency is all that we need.”  But since I get 3 minutes, let me elaborate.

Our rules, in Rule 2.1, already require us to “exercise independent professional judgement” in representing a client.  Our rules, in Rule 7.1 already require us not to make any false statements about ourselves or our services.  Our rules, in Rule 7.3, already prohibit any solicitation that “involves coercion, duress, or harassment.”  Our rules in Rule 8.4(a) already prohibit lawyers from doing any of those things through the acts of another. 

So, given that we have consumers who aren’t finding lawyers for assistance at a price point they are willing to pay, and we have lots of lawyers without enough to do … why do we need rules – under the guise of prohibiting fee sharing or prohibiting paying people for referrals to protect consumers?

Honestly, transparency is all that we need.

Consumers care about what the total cost of a lawyer is to them.  They don’t care who the lawyer shares that money with.  If they do, transparency about the situation will let them say “no”

Honestly, transparency is all that we need.

Consumers care about whether they can find a lawyer who is willing to handle their matter.  They don’t care about the fact that a particular matching service might only be offering 3 lawyers out of 20 that might be out there and willing.  They’re happy to know about the 3.  And if they do care, then transparency about the situation and the business arrangements will let them say “no.”

If you’re with me, say it with me … Honestly, transparency is all that we need.

And, if you disagree because you are convinced that no matter what the other rules say, you believe that if we let third-parties with financial interests direct clients to particular lawyers based on a relationship rather than their qualification, then the lawyer’s exercise of independent professional judgment will be impacted … wait until you learn about insurance companies and panel counsel arrangements and billing and reporting guidelines.

What decade is it again?

So, the experience of the last year of pandemic life has messed with a lot of people’s ability to remember when certain things happened. For some people, remembering events of the last year are not the problem as much as remembering when certain things happened in the before times. For others, short term memory of events has been impacted a bit in a way that is more akin to briefly failing to grasp what day of the week it is when everything seems like the same day.

The nostalgia-based wave of reboots/updates/re-releases of older content isn’t exactly helping with the feeling of temporal displacement. A Frasier reboot is apparently now in the works. Saved by the Bell has been relaunched and out there on streaming services for months now. A new version of Walker Texas Ranger has given one of the actors from Supernatural something to do. Punky Brewster is apparently back but now my age, and indications are that Dexter and even The Fresh Prince of Bel Air are going to be freshened up and back on our television screens.

So, for someone who already refuses to believe that the 90s were 30 years ago, bringing back all of the 90s entertainment can make for further confusion.

A quick look this week at legal news didn’t exactly help with temporal awareness:

Florida lawyer faces ethics complaint over pit bull ads.

Seriously, are we doing this again too? My immediate recollection was that Florida went after a lawyer for a similar ad in the 90s, but the article confirms that the decision that came down and was subject to discussion was actually in 2005.

Florida’s prior effort to punish a lawyer for colorful advertising was wrong then, and, if it actually leads to some form of discipline in 2021, it would be even more wrong now.

The Florida opinion referenced in the article which imposed discipline on an attorney named (of all the 90s things) Chandler didn’t turn on the idea that using an image of a pit bull in an advertisement or trying to self-proclaim a pit bull as a moniker was misleading, but instead scolded on the basis of the idea that the pit bull references in marketing was not the kind of speech that would help consumers make an informed decision about how to choose a lawyer.

One would have hoped in the intervening 15 or so years that regulators in our profession have had plenty of time to recognize that the commercial speech of lawyers in marketing their services shouldn’t be regulated on the basis of taste or regulators’ subjective views on what is or isn’t appropriate but instead should only be pursued if the communications are actually false and misleading to the consumer.

Kudos to my APRL colleague Brian Tannebaum for trying to be the voice of reason in the above-referenced ABA Journal online article.

Also though, given the passage of time and the fact that there is much more to the story of pit bulls in the nature versus nurture realm and whether they have been unfairly given a reputation for being a certain type of animal, how about lawyers do a bit better in also recognizing what decade this is? I too wouldn’t ever choose that approach to advertising, but, at this point, why not explore the Cerberus instead of a pit bull?