Brooding about ethics.

So, it’s been a minute or so since my last content. You’ve probably moved on and found a new favorite ethics blog. It’s probably Michael Kennedy’s actually, he’s been relentless with content in March 2021.

You might be wondering what has happened to keep me from writing over these last 20 or so days. First, it’s definitely not workload or client issues. Second, it’s definitely not a lack of things out there worth commenting on these last three weeks. Third, it’s definitely not the guy who’s been attacking my site trying to hack it. That just results in mildly annoying little emails telling me the person is hopelessly trying. (I know with about 99% certainty exactly who it is, but he’ll have to keep trying a bit more so that I can have exactly what I need to help his friendly local law enforcement officers confirm it’s him.)

No, it’s because of the cicadas. You might have read something about how, over the next few weeks, billions of Brood X cicadas will emerge after 17 years of hiding away. It’s always weird to see yourself talked about in the media – that’s been going on over the last few weeks as well in some other settings – but it’s really weird when an article refuses to acknowledge you by name. The Vox article linked above, and a few others, speak in terms of these billions of cicadas hearing “the call of Spring” and deciding to wake up.

I think this is the first time I’ve ever been called “the call of Spring.” If you think that billions of cicadas just all decide to wake up at roughly the same time on their own, you are pretty gullible. Somebody has to travel around and wake them up. And, let me tell you, it’s exhausting.

But anyway… it’s done now. So, for the sounds you are about to experience and cherish, you are welcome. Along the way, I’ve also managed to get two doses of Pfizer vaccine in me, so we should be well on our way to resuming normal, intermittent posting.

For today, let’s ease our way into it and offer some content about a topic that (of course) that Kennedy fellow has already managed to write about. A new proposed ethics opinion in Florida (a place I fortunately did not have to go to for any Brood X cicada wake-up calls) addressing the ethics of accepting client payments through various popular digital platforms like Venmo and others.

The proposed opinion issued by the Florida State Bar’s Professional Ethics Committee appears to be a largely commonsense approach to an inevitable development as such apps have arisen and that focuses, for the most part, on the same kinds of ethical issues that were looked at and resolved in the days when lawyers were “struggling” to figure out whether they could ethically accept payment of fees using credit cards — confidentiality issues and Rule 1.15 safeguarding of funds/trust accounting/commingling issues.

The confidentiality issues are certainly more complex than was true about credit cards because of some of the more social media style angles of certain payment apps, which is another point that Kennedy makes well in his post today that focused on the confidentiality issues in the opinion.

The opinion also addresses in detail what lawyers will have to do to ensure that payments received through such an app that are earned when received go to one type of account and payments to be held in trust go to another kind of account. Likewise, the opinion addresses the need to make sure that any “costs” of using the service – like transaction fees – do not get paid out of any trust funds being held by the lawyer.

You can get the full Proposed Advisory Opinion 21-2 here. Among the most valuable pieces of advice offered in the opinion though comes at the end in the form of something of a disclaimer:

Note: The discussion about specific applications in this opinion is based on the technology as it exists when this opinion is authored and does not purport to address all such available technology. Web-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.

Truer words and all of that, right? For example, the UI I had to deal with on the Cicada app? Don’t get me started.

More seriously, the forthcoming nature of this opinion was already on my radar screen, and the radar screen of all who attended the APRL mid-year meeting because we were fortunate enough to hear a “Fred” talk” from the Chair of the Florida Bar Professional Ethics Committee, Culver “Skip” Smith.

Interspersing our meeting with these “focused, rapid, ethics discussions” was something new APRL is trying. Skip’s “Fred” talk has been eclipsed by the release of the actual proposed opinion but let me end my return from a long slumber by offering you a link to another “Fred” talk that was given at our APRL mid-year meeting that I thought was excellent and that demonstrated some of the possible cool approaches these kinds of short talks can offer.

Give yourself 10 minutes or so this weekend and watch Joanna Storey of Hinshaw talk to you about whether miscommunication is inevitable.

Is Miscommunication Inevitable? Lessons Learned from Misunderstandings in Literature and Sitcoms – YouTube

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?

“Here’s a new post.” (cleaned up)

I have tried for the better part of a week to convince myself that I needed to write something about the most recent ABA Formal Ethics Opinion which was released in February 2021 and which attempts to explain what “materially adverse” means in the context of ABA Model Rule 1.9 (and Model Rule 1.18). I really have. But – and I’m probably wrong – I just can’t manage to feel like Formal Opinion 497 merits an entire post as it all just reads like an effort to continue to try to justify something that was just a mistake – an easily understandable mistake to have made but a mistake all the same.

Model Rule 1.9 really shouldn’t say “materially adverse” if what it means is just the same thing as directly adverse. As the opinion explains in footnote 8, during a past process of revising the rules, someone figured this out but that only ended up with a sentence or two being deleted that the ABA had relied upon in the past instead of some affirmative effort to explain in the comment what it actually means in terms of things in addition to direct adversity. This opinion offers up a lot of words but never really manages to identify some way of truly understanding what would be materially adverse but that wouldn’t also be directly adverse. Worse yet, the opinion is even more frustrating for me in Tennessee because our rules define “material or materially” to mean something specific and something that specifically doesn’t work so well as a modifier for the word “adverse.” RPC 1.0(o) in Tennessee reads:

“Material” or “materially” denotes something that a reasonable person would consider important in assessing or determining how to act in a matter.

So, instead of trying to make a whole post about that, let’s add an entirely different topic into the mix. A topic that speaks to a version of me that died a long time ago, the citation format nerd. (1995-2005. RIP)

You may have heard a little bit of discussion among lawyers of the big news coming out of a recent United States Supreme Court opinion authored by Justice Thomas. No, it wasn’t who won and who lost the case which involved aspects of the Federal Tort Claims Act. The big news was that the Court embraced an upstart approach to parenthetical citation, the use of “(cleaned up)” to replace the tedious combination of items such as internal citations omitted and emphasis added or similar items required to be said when you are quoting language from a case that is also quoting language from one or more other cases and also possibly citing to some other authority and that prior authority might also have been referring to some other precedent. [If you really want more insight into the history of the “(cleaned up)” movement you can go here.]

Justice Thomas cemented his legacy as decidedly not an originalist when it comes to legal citation by writing the following in the unanimous opinion issued by the Court in Brownback v. King:

Under that doctrine as it existed in 1946, a judgment is “on
the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the
court.” Id., at 501–502 (cleaned up).

So why do I even think this works at all as fodder for ethical discussion? Well, ellipses have long been recognized as an appropriate way of omitting words from a quote in terms of citations. And, at some point, a lawyer thought it was okay to manipulate a quotation in a case cite to make the citation seem favorable when it wasn’t by omitting one or more words that changed the meaning and using ellipses. Bad idea all the time. And the kind of thing you will get admonished or disciplined for when you get caught.

So, you know it is going to happen, right?

A lawyer is going to try to use (cleaned up) to make a quote seem different and more favorable for their position than is the reality of the quoted authority.

Please don’t be that lawyer.

(P.S. I’m just a week or so away from the Sixth Anniversary of this here blog and about 10 days away from my quarantineversary. As to the blog, I’m looking forward to many more years. As to the pandemic, I’m really ready for this to be over.)

Lawyers and publicity. Two related but unrelated stories.

This space has focused on a number of occasions on the difficulties for lawyers in dealing with certain forms of negative publicity. I won’t link to all of those past stories for a variety of reasons. (If you are stuck at home both because of the pandemic and winter weather and are looking for things to read, you can find them by searching for the “public relations” tag on this blog.) I will, however and for obvious reasons, offer a link to an article I had the opportunity to provide a number of quotes for that discusses the most recent ABA Ethics Opinion about the difficulties for lawyers in responding to a negative online review posted by a client. You can go read that piece here.

But lawyers can also be the harbingers of their own negative publicity online. The simplest way they can do that can also involve violating their obligations of confidentiality to their clients or former clients.

The opportunity to segue from the little bit of shameless self-publicity above to what I’m about to write below falls short of true hubris, I think, but also feels salient because one of the distinct memories I have of my interview with the reporter for the story linked above was demurring on her inquiries for me to offer an anecdote of a story where I actually helped a lawyer try to deal with negative online publicity because I couldn’t do so without violating my obligations of confidentiality.

An extremely high-profile version of one or more lawyers dunking on themselves occurred this week when the lawyers that made up the “team” that represented Donald Trump in his impeachment trial before the United States Senate appear to have cooperated with prominent peddlers of village gossip at The New York Times by speaking at length about the dysfunction among the attorneys for the former President.

The story certainly makes for a fascinating read and you can digest it here, but is a story that should never have been available because the lawyer who is repeatedly quoted in the piece, Schoen, had no business talking to the media about his representation of his client. (Lest it be unclear, he also would have had no business speaking to the media about any of his co-counsel’s representation of the client if he had left it at that because that still would have been information protected from disclosure by RPC 1.6.)

Now, I’m assuming that Schoen didn’t have permission from the client to have done so, but I feel I’m on pretty safe ground about that assumption.

Ironically, the only lawyer involved in the Senate representation that actually appears to respect his obligations of confidentiality is the lawyer who provided the worst substantive representation during the actual proceedings, Castor.

There are, of course, lots of side lessons that could be learned from all of the machinations involved and described in the article. But let’s just stick with a lesson that can have universal applicability.

RPC 1.6 – nearly everywhere – imposes an obligation of confidentiality on a lawyer as to any information related to the representation of a client. A lawyer can disclose such information if the client gives consent or if doing so is impliedly authorized in order to carry out the representation. The rule does not have any clear provision in it that would waive its requirements for publicly disclosed information. Rather, its commentary guidance indicates that it still applies even to matters of public record. Discussing internal quarrels after a representation is over will never fit the implied authorization requirement. Also, the same analysis that explains why none of the discretionary exceptions work to allow a lawyer to respond to a negative client review online applies pretty squarely to explain why “unhappy with public perception of my competence” isn’t a sufficient justification to speak publicly about work done for a client.

ABA SCEPR Increases Lifetime Batting Average.

Look at me with the super seasonally timely sports reference. Baseball. In January.

I have written on quite a few occasions in the past about the perils for lawyers in responding to criticism posted about them online. Well, the ABA has issued its latest ethics opinion to address the same topic. Behold ABA Formal Ethics Opinion 496 396 – Responding to Online Criticism.

Let’s have a double-header of untimely cultural references.

Issued January 13, 2021, ABA Formal Ethics Opinion 496 is the hottest ABA ethics opinion regarding online criticism ever.

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This opinion has everything. Sound rule interpretation. Meaty footnotes chock-full of research material for disciplinary cases and state ethics opinions. Acknowledgement of the important role that Barbara Streisand plays on this topic. Good practical guidance for what a lawyer might do.

Seriously, go read it.

The only quibble I have with it is its initial conclusion that online criticism alone from a client does not qualify as a “controversy” under Model Rule 1.6(b)(5). I think that is wrong, but the opinion goes on to even make my quibble pointless because they acknowledge that even if they are wrong about that, the lawyer wouldn’t need to respond online in kind to “establish a claim or defense on behalf of the lawyer” with respect to the controversy. I’d prefer that the opinion just rely upon that point rather than arguing that an online dust-up could not constitute a controversy.

To me, the point that is unassailable is that whether or not it is a “controversy” isn’t dispositive, the issue is whether an online response would be necessary to establish a claim or defense. Given how the internet works currently, the answer to that question with respect to the Model Rule, and any state that has adopted the same language, is obviously “no.”

You can access the full opinion here.

(Edited to fix my embarrassing mistake on the opinion number.)

Protecting lawyers and law firms from themselves.

Let’s talk about something coming out of D.C. but entirely unrelated to politics for a change. If you know, you know. And, if you know, then based on the post title you’ve guessed we are going to talk about the D.C. Bar Rules of Professional Conduct Review Committee’s draft Report on proposing changes to the ethics rules to address outside counsel guidelines and client-generated engagement letters.

A long time ago in Internet time, I wrote a bit about how problematic the calls in certain segments of our profession for protection against outside counsel guidelines are. Even back then I made a tie-in to politics by comparing the arguments in favor of trying to change the rules to stop clients from being able to get what they want through outside counsel guidelines to demands for term limits. For those that don’t want to go back and refresh, they both suffer from a similar Achilles heel – they both are solutions to problems that have a more organic solution.

Term limits. Just stop electing the incumbent when they are awful.

Outside counsel guidelines. Don’t agree to them.

Rather than offering that solution, the D.C. bar draft report runs 26 pages, proposes revisions to RPC 1.6, 1.7, 5.6, and 1.16 in D.C., and asks for public comments on the proposed revisions by February 11, 2021. (For those keeping track, this is actually the second go-round for D.C. in asking for public comment, they previously requested public comment in 2019 with respect to issues raised by outside counsel guidelines. This report is generated in response to that feedback.)

Now, to repeat myself on the overriding issue associated with proposed changes to RPC 5.6 and 1.7 that are designed to make it unethical for clients to propose certain approaches to conflicts under an engagement letter, I fail to see how any such effort is at all consistent with the idea that lawyers can also ask clients to waive situations that would otherwise be conflicts. It is very, very difficult to find a path where it seems fair to allow lawyers to ask clients to waive conflicts but also say that clients cannot ask lawyers to agree to very broad definitions of what constitutes a conflict in a matter.

Having repeated myself on that, let me say that the D.C. report does a pretty admirable job of trying to find that path. I’ll let you go read the report for the full treatment of that issue, but the rationale offered is rooted in the notion of not allowing one client to improperly limit a lawyer from being available to represent other clients. I still don’t find it sufficiently persuasive, but they’ve laid it out as well as can be managed, I think.

The report, and the proposed revisions, also address some other issues. Some of them are a bit unique to D.C. given D.C.’s variations on aspects of the Model Rules, but at least one other topic of note has more universal applicability.

Agreements between lawyers/firms and clients involving indemnification. This again is wrapped within the mantle of provisions included by clients in engagement letters or outside counsel guidelines, but this one feels like a more appropriate topic for pushback through rulemaking, at least to me.

Specifically, the D.C. report proposes revising D.C.’s current rules to add a provision to RPC 1.8 that would prohibit a lawyer from agreeing to any conditions that would impose liability on the lawyer under circumstances where liability wouldn’t flow from either existing common law or existing statutory law.

And, I don’t think it is hypocritical for me to take this position because I think it fundamentally avoids the hypocrisy of the conflicts issue. Of course, I might only think that because I practice in Tennessee where we have a rule that restricts lawyers’ ability to ask clients, in advance, to waive any liability for malpractice. Given that RPC 1.8 deals with that issue in that fashion, I see nothing unfair – or otherwise in violation of any goose/gander protocols – with protecting lawyers from agreeing to indemnify clients for things that the lawyers otherwise could never be held responsible for.

Oh, also, there is one other topic that the report addresses on which I cannot control myself to avoid weighing in. In terms of overall importance, it might not be the most important issue, but in terms of ham-handedness it might be the most egregious piece of the report. This is so because it addresses an issue a lawyer can simply avoid on the front end and proposes a poorly-drafted rule revision as a solution.

The topic addressed is outside counsel guidelines that give the client the right to unilaterally change the guidelines/change the terms of engagement. This is another thing that lawyers could protect themselves against simply by refusing to agree to such a term. Nevertheless, the D.C. proposal would revise RPC 1.16 to provide for a new subsection on when a lawyer has the discretion to seek to withdraw reading as follows:

(5) a lawyer has agreed that a client may make unilateral changes in the
conditions of engagement or other terms of the representation, and the
client unilaterally makes a material change to which the lawyer is
unwilling to assent;

Now, if you absolutely believe there needs to be a rule revision to protect lawyers from this, why would you want to offer the protection only if a lawyer has already agreed that a client can make unilateral changes? Wouldn’t the better course of action simply be to have the rule say: “the client unilaterally makes a material change in the conditions of engagement or other terms of the representation to which the lawyer is unwilling to assent” ?

An open letter to State Bar of Texas

Dear Sir or Ma’am:

It’s been a tough year, but I hope this email finds you staying safe. I’m writing to urge you to give some real thought to whether your rule on the ability to impose an “interim” suspension on a Texas lawyer goes as far as it needs to in order to be able to protect the public.

As I understand it, the current Texas rules provide the following as what is required in order to be able to obtain an immediate interim suspension of an attorney:

PART XIV. INTERIM SUSPENSION

14.01. Irreparable Harm to Clients: Should the Chief Disciplinary Counsel reasonably believe based upon investigation of a Complaint that an attorney poses a substantial threat of irreparable harm to clients or prospective clients and be authorized or directed to do so by the Commission, the Chief Disciplinary Counsel shall seek the immediate interim suspension of the attorney. The Commission shall file a petition with a district court of proper venue alleging substantial threat
of irreparable harm, and the district court shall, if the petition alleges facts that meet the evidentiary standard in Rule 14.02, set a hearing within ten days. If the Commission, at the hearing, meets the evidentiary standard and burden of proof as established in Rule 14.02, the court shall enter an order without requiring bond, immediately suspending the attorney pending the final disposition of the Disciplinary Proceedings or the Disciplinary Action based on the conduct causing the harm. The matter shall thereafter proceed in the district court as in matters involving temporary injunctions under the Texas Rules of Civil Procedure. If a temporary injunction is entered, the court may appoint a custodian under Part XIII. If, at the conclusion of all Disciplinary Proceedings and Disciplinary Actions, the Respondent is not found to have committed Professional Misconduct, the immediate interim suspension may not be deemed a “Sanction” for purposes of insurance applications or any other purpose.


14.02. Burden of Proof and Evidentiary Standard: The Commission has the burden to prove the case for an interim suspension by a preponderance of the evidence. If proved by a preponderance of the evidence, any one of the following elements establishes conclusively that the attorney poses a substantial threat of irreparable harm to clients or prospective clients:

A. Conduct by an attorney that includes all of the elements of a Serious Crime as defined in these rules.
B. Three or more acts of Professional Misconduct, as defined in subsections (a) (2) (3) (4) (6) (7) (8) or (10) of Rule 8.04 of the Texas Disciplinary Rules of
Professional Conduct, whether or not actual harm or threatened harm is
demonstrated.
C. Any other conduct by an attorney that, if continued, will probably cause harm to clients or prospective clients.

Under this rule, your power is limited to issues that pose a threat of harm to clients or prospective clients. Normally, I’d agree that makes a certain amount of sense.

But here in Tennessee, our Board of Professional Responsibility is imbued with a broader power in this regard. Our rule reads as follows:

12.3.  Temporary Suspension. 
      (a) On petition of  Disciplinary Counsel and supported by an affidavit or declaration under penalty of perjury demonstrating facts personally known to affiant showing that an attorney has misappropriated funds to the attorney’s own use, has failed to respond to the Board or Disciplinary Counsel concerning a complaint of misconduct, has failed to substantially comply with a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel pursuant to Section 36.1, or otherwise poses a threat of substantial harm to the public, the Court may issue an order with such notice as the Court may prescribe imposing temporary conditions of probation on said attorney or temporarily suspending said attorney, or both.
     (b) Any order of temporary suspension which restricts the attorney maintaining a trust account shall, when served on any bank maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent said bank from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the Court. 
     (c) Any order of temporary suspension issued under this Rule shall preclude the attorney from accepting any new cases, unless otherwise provided in the order. An order of temporary suspension shall not preclude the attorney from continuing to represent existing clients during the first thirty days after the effective date of the order of temporary suspension, unless otherwise provided in the order; however, any fees tendered to such attorney during such thirty day period shall be deposited in a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.
     (d) The attorney may for good cause request dissolution or amendment of any such order of temporary suspension by filing in the Nashville office of the Clerk of the Supreme Court and serving on Disciplinary Counsel a Petition for Dissolution or Amendment.  Such petition for dissolution shall be set for immediate hearing before the Board or a panel.  The Board or panel shall hear such petition forthwith and file its report and recommendation to the Supreme Court with the utmost speed consistent with due process. There shall be no petition for rehearing.  Upon receipt of the foregoing report, the Court may modify its order if appropriate or continue such provision of the order as may be appropriate until final disposition of all pending disciplinary charges against said attorney.

In terms of the triggering events, the big differences it seems to me are that, in Tennessee, the Disciplinary Counsel does not have to wait on a complaint to act and can act if an attorney “otherwise poses a threat of substantial harm to the public.” Now, I readily admit that this power is one that I have taken issue with when used in Tennessee in some circumstances, but I’m still writing you this letter you will never read to suggest you might want to look into getting something like this power conferred upon you in Texas.

Why?

Well, you’ve got a couple of really big problems on your hands. I know Texas is known for bandying about that “everything is bigger in Texas” line of bragging, but this time it might really be true.

Problem #1 is named Sidney Powell. She’s on something of a crusade to demonstrate over this last month or so just how much of a threat of substantial harm to the public a Texas attorney can pose and not have the threat be directed at clients or potential clients. If you aren’t familiar with what she’s been up to lately, just try Googling her name (or, and I know this will sound silly at first, but you could also try Googling “Kraken”). I’ll give you a few minutes…

See? Between gaslighting thousands of people and scamming them into sending her cash, filing repeated meritless lawsuits, including plaintiffs in those lawsuits that she doesn’t actually represent and who haven’t consented to being included, engaging in rhetoric designed to stir up “militias” and vigilante acts of violence, and (well to be blunt) seeking to undermine democracy in our country itself, if she were a Tennessee lawyer …. I think we’d be at the substantial threat of harm to the public phase of things.

Problem #2 is … well admittedly this is going to be a bit awkward but … Ken Paxton, your current Texas Attorney General. Now, you might already be aware of his having been under a long-time Securities and Exchange Commission investigation (that’s now been dismissed) as well as some related state criminal charges, and you might even have caught the news that he is under FBI investigation for corruption because some of his former subordinates turned him in, but you might not have had a moment yet to hear of the fact that he took it upon himself today, in the name of the State of Texas, to file an original petition with the U.S. Supreme Court against multiple other states (Pennsylvania, Georgia, Wisconsin, and Michigan) to seek to have the votes of literally millions of voters in those states thrown out as a way of trying to prevent the President-Elect from taking office.

Yeah, kind of staggering, right?

Technically, he’s at least doing better than Ms. Powell on competence as he’s also filed a bill asking the U.S. Supreme Court for leave to proceed with the Petition, but still … doing better than Ms. Powell on competence is a really low bar.

You can get access to all of the Texas Supreme Court filings here. But, for convenience, here’s the Conclusion paragraph of the petition:

This Court should first administratively stay or temporarily restrain the Defendant States from voting in the electoral college until further order of this Court and then issue a preliminary injunction or stay against their doing so until the conclusion of this case on the merits. Alternatively, the Court should reach the merits, vacate the Defendant States’ elector
certifications from the unconstitutional 2020 election results, and remand to the Defendant States’ legislatures pursuant to 3 U.S.C. § 2 to appoint electors.

So, oh also, many reports are speculating (because of the aforementioned SEC and FBI investigations) that Mr. Paxton is doing this not because of any belief that the claim is anything other than a frivolous one, but to see if he can get one of those pardons the outgoing President is throwing around these days.

Theoretically, your existing rule might get you there with respect to the Attorney General since this kind of buffoonery does threaten his client – the State of Texas — but it sure would be easier if you only had to show that he poses a threat of substantial harm to the public.

Also, the suspension of a state law license wouldn’t be pardonable by the President, so that’d be a bit of a nice bonus too.

Following up after shouting into a void.

This is not really a “new content” post. With luck, I will have one of those later this week. This, however, is a follow up about something from last month. It is the best sort of follow up because it is prompted by the process of sifting back through the past year to prepare for my annual end-of-year presentation for the TBA.

It is also the best sort of follow up because it will allow me to shamelessly self-promote two undertakings while simultaneously acknowledging just how small and unimportant I actually am in the grand scheme of things.

(Prepare to watch the magic and behold.)

This year, for obvious reasons, there will be no Ethics Roadshow. Instead, there will be an Ethics RoadHomeshow. (It will happen on Zoom on December 9. If you are worried that you are too late to sign up, you’re definitely not since I haven’t even finalized the program itself yet.) In trying to put together exactly what that will look like, I was reviewing items of interest. That brought me to re-reading this post from November. The last line of that post was a cry out to readers to let me know if there was an ethics opinion out there that did what I thought the Nebraska ethics opinion did.

I received a tremendous amount of feedback in response to that invitation. Ha. Just kidding. Absolute crickets. But that’s not because there isn’t such an opinion out there, there certainly is. The lack of feedback is much more indicative of the lack of readers.

Even better, an example of such an opinion is something I should not have been so frail as to forget – because I’ve pointed it out to other people in providing advice and because it is going to be part of some new material that will be in a book I co-author and for which the Third Edition is scheduled to come out in the Summer of 2021. If you’d like to pick up the Second Edition before the Third Edition comes out, you know, to make sure you can follow the plot of the new book, you can still buy it from the ABA.

The opinion that I should have remembered when I wrote that Nebraska post is New York City Bar Formal Opinion 2016-2. It hits almost all of the topics mentioned by me earlier this month. And, if you’ve never read it or if, like me, you forgot about it for a bit, I commend it to your reading.

Three short burst updates

In case you haven’t yet “checked out” for the week to have what I hope is a makeshift, stay-at-home Thanksgiving banquet to kick-off your holiday weekend, here are four very short but, mostly timely, updates on topics of prior posts.

First, the Tennessee Supreme Court has put the TBA advertising rule revisions proposal out for public comment. You can access the order here. The deadline for public comments is March 12, 2021, so you can anticipate that if these revisions are adopted, they likely will not be going into effect prior to May or, more likely, June 2021 at the earliest.

Second, despite the fact that most if not all of the “battleground” states have certified their results, the outgoing, impeached, one-term President’s lawyers do not seem to be relenting on their insistence on court filings and out-of-court false statements. The ongoing behavior has spurred quite a few prominent voices in legal ethics to speak out on the issues, but that there appear to be clear violations and also the reasons that there will quite likely never be any discipline imposed. You can read a couple of different articles surveying the landscape here, and here. Also, as a slightly more direct follow up to my post from late last week, you can read this article from Reuters that includes some interactions with yours truly.

Third, and technically not what would typically qualify as an “update,” nor possibly even a “short burst,” lawyers continue to have difficulty navigating protecting client confidences when seeking to withdraw from representations. I haven’t written about any instances of lawyers getting disciplined for such missteps in a long time, but there now is an extremely recent example of a lawyer being publicly censured for exactly that, and it arises from my home state. You can read the press release about the public censure here.

The press release, unsurprisingly, does not contain much in the way of details beyond indicating that the problematic conduct was “negligently disclosing confidential client information in an affidavit filed with [a] Motion to Withdraw from representation.” In fact, it would be horrible if too many details were included in such a press release when the underlying problem was the lawyer disclosing too much information in connection with seeking withdrawal.

What is a little surprising is that this discipline came about only have a full trial before a hearing panel. If you’d really like to know more of the full story, you can read the Hearing Panel judgment after the trial at the link below. (Bad link replaced with PDF download.)

For those readers who may be thinking to themselves, sure but I would never make that kind of error, the lawyer in question has been licensed in Tennessee for nearly 50 years. So maybe you shouldn’t be so confident?

But, for the benefit of those same readers, the lawyer in question also made clear in his efforts to defend himself in the proceedings (a fact that likely explains the need for the trial) that he did not comprehend (even after 50 years of practice) that the ethics rules impose an obligation of confidentiality that is much broader than the attorney-client privilege.

So, maybe you can be confident?

Increasing access to information about legal services – TN Edition

This will be a mostly short entry for this week because the most important item to put into your reading pile is what I’m writing about rather than the post itself. (Admittedly, I’m certain many of you are thinking … “well, that’s kind of always true Einstein.”)

I have written over the years here about a number of cutting-edge undertakings occurring in various states to try to address re-regulating the practice of law. I will not repeat that content here, but I will confess that I’ve fallen behind as there are some that have happened that have avoided my attention.

Many of those endeavors involve changes to the rules on legal advertising as a secondary-level improvement to other, bolder regulatory reforms. Here in Tennessee I don’t think we are very close to launching any sort of task force aimed at re-regulating the practice of law in the immediate future, but I am pleased to report that the wheels are beginning to turn on the topic of seeking reform of the rules on lawyer advertising.

Earlier this week, the Tennessee Bar Association filed a petition with the Tennessee Supreme Court asking it to adopt proposed revisions to the current ethics rules in Tennessee located at RPCs 7.1 through 7.6.

As the petition indicates, the rules revision proposal involves a blend of what APRL proposed back in 2015 and 2016 and what the ABA ultimately adopted as revisions to the Model Rules in 2018 regarding advertising matters. Like those reforms, the TBA petition would delete three rule provisions (RPC 7.2, 7.4., and 7.5) and move remaining comment guidance from those rules into the Comment to RPC 7.1. Tennessee would retain an RPC 7.3 addressing solicitation and some other issues.

The TBA also retains some existing Tennessee-specific approaches to issues, but, on the whole, the revisions would be significant progress toward two goals as explained in the petition itself:

(1) winnowing down restrictions imposed on lawyer advertising to the core requirement that lawyers not make false or misleading statements about themselves or their services, and (2) removing restrictions on communications by lawyers where the types of communications now barred are not likely to cause consumer harm.

As the petition was only filed this week, the Court has not taken any action on it such as putting it out for public comment.

Because I know a guy, if you’d like to read the petition and review its proposed changes, you can download those documents at the links below.