What’s happening in Vegas this week?

So glad you asked. Let me tell you, and tell you why, despite the tried and true adage, it needs to not stay in Vegas.

Later this week the Association of Professional Responsibility Lawyers is having its mid-year meeting in Las Vegas, and we are dedicating our entire programming to a theme: The Future of Lawyering. Under the leadership of former APRL President, Art Lachman, and as I have mentioned in the past, we have launched a Future of Lawyering Committee that is taking a look at potential ways to overhaul certain aspects of the ethics rules.

We will have a day and a half of programming dedicated to that topic. There will be panels discussing each of the following topics:

  • The potential for reform in the 21st Century on issues of cross-border practice
  • How to address “nonlawyer” practice in this modern era.
  • What the practice of law might be like if there was no Model Rule 5.4.
  • The pros and cons of the notion of making having professional liability insurance mandatory for lawyers.
  • What ought to be done, if anything, about changing how law firms are regulated (or not) under the ethics rules
  • Exploring the impact of A.I. on ethical law practice

Oh, and there’s one I left out of that list.

I’m fortunate enough to be involved in one of the panel discussions: “Ethical ‘Evils’ of Referral Fees and For-Profit Referral Services: Time for a Change?” Our panel will be teeing up two possible ideas for things to consider in terms of the restrictions that exist on the ability of lawyers to compensate people and entities who, in one form or fashion or another, refer business to them.

One possibility will be the “radical” notion of what would the rules simply look like if there was no restriction at all in Model Rule 7.2 on providing such compensation? The other possibility will be to look at a proposed new Model Rule 7.7 that yours truly has drafted in the first instance that would seek to permit the wide variety of currently-existing (and recently shut down) on-line matching platforms, and dropping away any concerns about whether such arrangements involve unlawful payments for referrals, as long as the lawyers involved maintain their independent professional judgment, costs of the arrangement aren’t passed on to clients by the lawyer, and the arrangement is transparent to the client.

This combination of programs should make for a very invigorating and enlightening debate on a wide variety of important issues. And, for once, hopefully we will all manage to agree that what happens in Vegas does not just stay in Vegas this time.

Texas Two Steps Forward…One BIG Step Back

I have written in the past about the fact that I am fortunate to be the Chair of the Tennessee Bar Association’s Standing Committee on Ethics and Professional Responsibility. Because our committee is currently beginning a process of chewing over whether to try to recommend changes to the advertising rules in Tennessee, I’ve been trying to pay closer attention to developments in other states. Specifically, trying to pay closer attention to whether the revisions to the ABA Model Rules inspired by the work of APRL are moving the needle in the correct direction.

Long time readers of this space will know that my long-espoused view is that the only real rule needed in terms of lawyer advertising is a prohibition on false or misleading communication. The ABA Model Rules have moved closer – but not all the way of course — to that kind of approach.

Today’s post is about the fact that the Texas Committee on Disciplinary Rules and Referenda has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.

You can read the proposed revisions here.

The short version is that these proposed revisions seem like a very positive development in a few respects as to regulation on lawyer advertising. The biggest positive is that these changes would replace wholesale the kind of improper categorization of certain statements that can be made truthfully (like comparison of one lawyer’s services to another or discusses past results obtained for clients) currently housed in Texas’s Rule 7.02(a) with a revised Rule 7.01 that isn’t perfect in terms of just prohibiting actually false or misleading communications but is better.

Unfortunately, the other piece of the short version is that the Texas revisions would still perpetuate a very pernicious and unnecessary barrier to speech in the form of filing requirements and payments in the form of filing fees for any advertisements that are not limited to certain types of “pre-approved” information.

The Texas proposed revisions would do this by continuing to carry forward in a revised Rule 7.04 the following requirement:

A lawyer shall file with the staff of the Advertising Review Committee of the State Bar of Texas, no later than the date of dissemination of an advertisement of legal services via public media, or the date of a solicitation communication sent by any means, including social media, for the purpose of obtaining professional employment:

(1) a copy of the advertisement or solicitation (including packaging if applicable) in the form in which it appeared or will appear upon dissemination;

(2) a completed lawyer application advertising and solicitation communication application; and

(3) payment to the State Bar of Texas of a fee set by the Board of Directors.

For context, currently the fee is set at $100. You can review the relatively invasive application form that is required and all of its bells and whistles here. In reading it you will also learn the cute part where if more than one lawyer in separate firms is involved in the same advertisement they are still each required to separately submit applications and pay multiple $100 fees.

The proposed revision would also exempt certain limited types of communications from these requirements as long as they only contain the “vanilla” categories of information pre-approved by the regulators.

Such a regulatory regime does not exist for any reason other than to fundamentally discourage advertising., should not be tolerated, and pointlessly mars any progress the Texas proposal otherwise offers.

Friday follow up: Yesterday’s post

Well, this may be the most rapid Friday follow up in this blog’s history.

A wise and well-connected reader has been in touch to let me know why my analysis yesterday of NYSBA Op. 1160 was all wet. He was, of course, right as I somehow managed to blow past a very important piece of the puzzle regarding the situation NYSBA Op. 1160 was addressing. The inquiring lawyer was actually willing to put together an arrangement that would have made the out-of-state lawyer a part of his “firm.”

I wrote that was not the case prior to discussing the part of the opinion that sought to distinguish prior guidance from about 8 years earlier. Specifically, where I went awry was here:


New York’s 1.5(g) only lets lawyers not in the same law firm (and to be clear the inquirer’s desire to affiliate did not apparently involve actually forming a law firm together) share legal fees if, among other bells and whistles regarding consent and the existence of a writing, the amount of the division of the fee is either proportional to the service performed or (if it is going to be disproportionate in that respect) if both lawyers assume joint responsibility for the work.

The “facts” section of the opinion, however, makes clear that I got that wrong.

The inquirer, an attorney recently admitted to practice in New York, is acquainted with another lawyer. The other lawyer, like the inquirer, resides in New York, but the other attorney is admitted only in another state, not New York, though the latter is admitted to practice in federal courts located in New York. According to the inquirer, the other lawyer is capable of generating business, and the inquirer would like to affiliate with this other lawyer, listing the other lawyer as a partner, associate, counsel, or otherwise, on letterhead showing that the other lawyer is admitted solely in the other state and not New York. The inquirer anticipates that the other lawyer would attend initial meetings with the clients being produced by the other lawyer, but then would not deal with any of the legal work being performed.

I certainly regret my error.

I particularly regret my error because it was part of my thinking when I said at the outset of yesterday’s post that NYSBA Op. 1160 still got the answer right. Now that I actually am paying better attention to the facts, I realize that the opinion absolutely did not get to the correct answer. Instead it was flat wrong.

Rule 1.5(g) wouldn’t be in the mix since that is sharing of fees among lawyers not in the same firm. Likewise, the stated concerns in the opinion about Rule 7.2(a) are irrelevant because that rule surely is not intended to apply to arrangements among lawyers within the same law firm.

There are multi-state law firms all over this nation that have partners who do absolutely nothing on a particular client matter beyond what is described as the role the out-of-state lawyer would have had under the inquiry. Those lawyers most definitely share in the fees of the client when they make rain through something often called “origination credit” by law firms.

Some of those firms most certainly have offices in New York and I just about guarantee that no one would think twice about such internal compensation arrangements in terms of questioning whether they are ethical because all of those lawyers are in the same firm and the decisions they make about how to divide fees are treated as pure business questions of compensation.

The rules in that regard shouldn’t be any different for a firm of two lawyers than for a firm of 2,000.

Friday Follow Up: Despite “Full Stop,” lawyer still might not stop.

Last year, I wrote about the curious case of a Tennessee lawyer who demonstrated that while it is difficult to get disbarred over a conflict, it is not impossible. You do have to try really, really hard though.

Perhaps not surprisingly, the lawyer’s Quixotic continuing violation of the First Rule of Holes had at least one more wrinkle to it as the Tennessee Court of Appeals revealed in an opinion issued yesterday.

In addition to the all of the various activities that the lawyer in question continued to pursue, despite having been suspended from the practice of law, mentioned in the order of disbarment entered last year, there was one other pretty remarkable one that didn’t get discussed in that order.

In November 2017, the lawyer filed a petition for contempt against the receiver and a number of attorneys back in the original 2002 case at the trial court purporting to act as a pro se party. As disciplinary counsel across the country will gladly tell you, one frustrating fact of life even after disbarring a lawyer is that the lawyer can still file lawsuits representing themselves – and they often do against those that they believe wronged them in the disciplinary process. The problem for this lawyer though was that he wasn’t actually a party to the litigation, just prior counsel of record, and he didn’t undertake any sort of filing to seek to intervene and be made a party in the underlying litigation.

The relatively short appellate opinion issued yesterday details that the trial court astutely figured out that this was a problem and that the lawyer’s conduct was “subterfuge to circumvent his suspension from the practice of law.” It also succinctly addresses and rejects the “somewhat perplexing” arguments the lawyer continued to make on appeal to justify his conduct. Perhaps tellingly in trying to determine whether this will be the last of the efforts, the lawyer attempted in the appeal of that matter to argue that the orders of the Tennessee Supreme Court suspending him from practice were not valid.

The saddest part of that whole story still seems to be that, prior to this more than 15-year period of losing the plot over this one piece of litigation, the attorney had no prior disciplinary problems.

Tennessee, of course, is not alone in having these kinds of stories. In fact, you can go read about a very remarkable new one out of Pennsylvania here if you so desire.

That lawyer is a former state legislator with a clean prior disciplinary record over many years who has now been suspended from practice for 2 years over what the ABA Journal highlights was an inability “to take no for answer.” As the 46-page report that originally recommended a 5-year suspension explains pretty exhaustively, the underlying case that this lawyer refused to let die involved a client seeking less than $4,000 in damages who apparently was willing to ratify the litigiousness as a matter of “principle” but has now had to file bankruptcy.

There are many lessons that can be learned from the things that lawyer did wrong. While the most fundamentally important lesson might well be the need to have a sense of proportionality, I’d say (with all due apologies to Memphis’s own Justin Timberlake), that the story could be made more catchy if set to music and called “Can’t Stop Appealing.”

My favorite post of 2018

This post (which is not the post referred to in the title) is inspired entirely by something that is done by Nate DiMeo, the wonderful and talented force behind The Memory Palace podcast. (If you’ve never heard it, you are missing out and should grab a few episodes from wherever you download podcasts.)

At the end of the year, he rebroadcasts what is his favorite episode of his podcast performed in the prior year. He manages to do it in a way that is likely much less heavy-handed than I will and also manages to come across entirely self-effacing in evaluating his own content.

I wasn’t entirely sure I could pull something like that off – and still am not so sure — but thanks to the ABA Journal Web 100 recognition this year, there are undoubtedly some new eyeballs at this site that likely didn’t read everything I wrote before that development.

So, with many of the same caveats that Nate offers, here goes. This is not necessarily the best thing I wrote this year or even the thing that sparked the most views or interest, but it is (for a variety of reasons) my favorite post from 2018. It was written in June and was titled: “Time to choose: are you Illinois or New Jersey?” So, in case you missed it the first time, I’m putting it right down below these words without any further editing or re-writing [i.e. warts and all], which might be the hardest part of re-publishing it.

Blackhawks or Devils?

Bulls or Nets?

Barack Obama or Chris Christie?

Northwestern or Rutgers?

Kanye or Wu-Tang Clan?

Wilco or Bruce Springsteen?

Some of those are easy calls; some are harder decisions to make.  What they all have in common though is that one comes out of Illinois and the other comes out of New Jersey.

As to the future of legal ethics, we now face a similar decision that has to be made.  Are you down with what is coming out of Illinois or will you choose what New Jersey has to offer?

I’ll explain further.  Avid readers of this space will be well aware that I have devoted quite a few bits and bytes to discussions of the evolving market for legal services and the push/pull in place between companies that push the envelope of what lawyers can do under existing ethics rules and various ethics opinions that have been released explaining how lawyers can or cannot do business with such companies.  In order to avoid spamming this post with about 10-15 links to previous posts of mine, I’ll just say that if you are just getting here for the first time (welcome!), then look through the older posts for ones with the tag “Future of Legal Ethics” and you are sure to find one pretty quickly that discusses these topics.

Within the last couple of weeks, these have been the two developments that pretty nicely identify the choice that lawyers (and the legal profession) face.

First there is the Illinois development.  The Illinois ARDC — which is Illinois’s regulatory and disciplinary agency [Attorney Registration and Disciplinary Committee] — issued a more than 100-page report making the case for why the ethics rules need to be overhauled to permit lawyers to ethically participate in “lawyer-matching services” such as Avvo and other platforms but that, along with such changes, there need to be regulations adopted to impose certain requirements on such companies and platforms for lawyers to be able to participate.

In large part, much of what Illinois describes sounds a bit like a subtle variation on RPC 7.6 in Tennessee that I have written about in the past.  But it still also requires fundamental changes to other pieces of the ethics rules addressing financial arrangements between lawyers and those not licensed to practice law.

By way of juxtaposition, the New Jersey Supreme Court, asked to review a joint opinion issued by its legal ethics regulatory body, its advertising regulatory body, and its body focused on UPL aligned with other jurisdictions that have issued ethics opinions prohibiting lawyers from participating in programs like Avvo Legal Services, declined to review the opinion or otherwise disagree with its conclusions.

For my part, I think the choice is an easy one to make.

But, the most important thing for today (IMO) is for people to understand that there really is not a middle ground position here — you are going to have to make a choice and you are going to have to decide that you are either on board with the Illinois approach or the New Jersey approach to this topic.

Choose wisely.

A recipe for ethical lawyering?

Now that the Ethics Roadshow is complete in all of the cities where it was staged, I want to repackage the main idea from this year into a post and make a similar ask of my readers that I made of the attendees as to feedback on the point.

The title of the Roadshow this past year was “Back to Basics: Sailing the Five Cs of Ethical Lawyering,” but the main ultimate question or conceit when boiled down was whether the 5 Cs I had identified could provide not only a basic road map for being an ethical lawyer no matter the nature or setting of your practice but could also provide the ingredients of a recipe that can be used to justify the existence of those pieces of the ethics rules that are absolutely worth keeping moving forward in discussions about the future of legal ethics and lawyer regulation. 

The 5 Cs as put forth as the ingredients of the recipe were:

  • Be COMPETENT at what you do
  • Recognize and respect your obligations of CONFIDENTIALITY
  • COMMUNICATE appropriately with your clients (and others) both as to content and frequency
  • Employ CANDOR in all situations in your practice [If you absolutely cannot be 100% truthful, and can’t simply stay silent, then don’t be false.]
  • Avoid CONFLICTS for which you don’t have, or cannot get, consent.

Recognizing that some people might immediately think of another important “C,” avoiding commingling I then offered thoughts about how quite clearly rules about trust accounting could be readily reverse-engineered by combining ingredients.  I initially suggested that Competence + Candor + Communication could do the trick; some others suggested that particularly the requirement to avoid commingling could be described as Candor + Communication + Conflicts.

There are a number of different groups at work on trying to make progress on what the modern regulation of the practice of law should look like.  One of those is APRL’s Future of Lawyering Committee.

I’m fortunate to be a member of that committee and our mission is this:

[T]o explore the evolving nature of technology and its impact on the delivery of legal services and access to justice.  Our goal is to develop specific proposals for amending the legal ethics rules and reforming the lawyer regulatory process.

And so my ask of you is the same as my ask of attendees: Unless a rule is truly, and absolutely, required in order to protect consumers of legal services, shouldn’t the rules worth revisiting be the ones that are hard, if not impossible, to describe using a combination of ingredients from this recipe?

Friday Follow Up: TIKD off at the Wisconsin judicial system

Just two short items by way of follow up from pieces I’ve written about in the past here.

First, I’ve written several different posts about the saga down in Florida that appeared to be one of the first big disputes – post the U.S. Supreme Court decision in the North Carolina Board of Dentistry case –  in which the rise of technology and alternative methods of delivering legal services to consumers would be pitted against traditional bar regulation with antitrust law issues serving as the rules of engagement.  You can read each of those older posts at the links above and this one right here too.

If you haven’t read any of those earlier posts, or don’t know the reference to the Florida litigation, TIKD is an app that you can put on your phone to use to resolve speeding tickets and similar moving violations without ever having to go to court yourself.  It arranges the retention of a lawyer for you and even provides you with a financial guarantee on cost and a promise to pay court fines for you if unsuccessful.  The company behind the app filed an antitrust lawsuit against The Florida Bar and a Florida law firm (The Ticket Clinic) challenging allegedly conspiratorial conduct designed to damage TIKD’s business operations.  I’ve focused so much on the dispute and what its ramifications might be that it would be a pretty big cop out not to mention the fact that the federal district court in Florida issued a 1-page order earlier this month granting the Florida Bar’s motion to dismiss the antitrust claims against it.

It is a classically unsatisfying order for an outsider to litigation to read because it offers no insight into its rationale other than to say it ruled that way based on the “reasons stated at the motions hearing.”  Having followed the events, I would think the reasons have to be a belief that, despite the fact that the Florida Bar regulators include market participants, the regulations they are enforcing are clearly delineated and emanate directly from the Florida Supreme Court.  Assuming there will be an appeal, then there may be more discussion of how this shook out, but, for now, it appears that TIKD’s shot at the regulatory framework in Florida ended up being full of sound and fury but signifying nothing.

Going much back further into the archives, you will find a couple of posts expressing frustration and outrage with a particular Wisconsin lawyer who became infamous (at least for a while) with the release of Netflix’s Making a Murderer documentary.  You can read my original thoughts on the awfulness that was Len Kachinsky’s way of practicing law here and here.

His was a name I was never hoping to run across again so it was quite a roller coaster of emotions to simultaneously learn that Kachinsky had been arrested and charged with stalking but to simultaneously learn he had been acquitted of the charge.  The roller coaster ride went even lower though at the moment the words I was reading about his employment situation fully engulfed me … he had become a municipal judge in Wisconsin.

WT actual F Wisconsin?  Are y’all not even trying?  How can that guy have failed upward into a position in your judiciary?  How is he allowed to preside over any case about any thing?  That’s just a travesty.

Threats to the legal profession include threats by members of the profession

This post is coming late in the week because this week marked the first two stops on the Ethics Roadshow for 2018.  (If you are in or near Memphis and Nashville you can still register to come attend next week’s stops and hear about a potential recipe for ethical lawyering involving the 5 Cs of Competence, Communication, Candor, Confidentiality and Conflicts.)

This year’s Roadshow doesn’t focus much on threats to the legal profession from developing technologies and outside providers of legal services nearly in the way that last year’s Roadshow did, but today I want to discuss a slightly different kind of threat to the legal profession – threats made my members of our profession.

I’ve written in the recent past about the generalized problems of anger and violence given that we are living in angry times but two recent things I came across (one a full blown story and the other a Twitter thread) lead me to think that a bit of attention should be paid again to threats of violence particularly where the people engaged in the threatening conduct are attorneys.

The ABA Journal, working from a Louisville Courier Journal story, highlighted right at the end of November an arrest of a Kentucky criminal defense lawyer.  The lawyer who, it will come as no surprise, is male was arrested and charged with, among other things, terroristic threatening.  Perhaps in an effort to just let some irony simmer, the news articles point out that one of the lawyer’s own clients was convicted of terroristic threatening earlier in the same month.  The subject of his allegedly terroristic threats were two lawyers involved in the handling of his own child custody case – one was opposing counsel and the other had been appointed by a court to be the guardian ad litem.

The ABA Journal piece highlights the nature of the threats — which ranged from some aggressive voicemail messages to much more tangible examples of actually communicating to third parties an intention to kill the lawyers involved.  The article also discusses other recent problems the lawyer has been going through related to those proceedings and published reports of a positive drug test for meth.  Even though the lawyer’s conduct doesn’t involve representation of a client, this Kentucky lawyer will likely be at real risk of discipline (in addition to having to deal with the criminal law issues) under a variety of parts of RPC 8.4.

I also managed to stumble onto a thread involving similarly unprofessional and threatening behavior by a lawyer on Twitter.  You can peruse the thread here if you’d like to read it yourself.  It involves someone who appears to be a Texas lawyer and who, if the fact that he was willing to be a lawyer for (and apparently member of) The Proud Boys (a white supremacist group) in the past wasn’t already a pretty good indication of what kind of fellow he might be, decided to make his feelings plain by going on the attack against a journalist employing a homophobic epithet and a threat of violence sent by email.

As seems like a fairly good option, both for purposes of self-protection and as a way of possible shaming the lawyer involved, the reporter posted a screen shot of the email on Twitter.  The email the reporter received read as follows:

Now that I am no longer part of the Proud Boys and no longer representing them.  I want to let you know that you are a despicable and evil human being.  It is my hope that your duties as a HuffPo reporter bring you to the metroplex this holiday season so that I can give you the gift of a left hook.

Kiss my ass, faggot.

For what it is worth, this particular reporter has been focusing a good bit of time on trying, through reporting, to highlight the problem our country has involving the rise of violent extremists.  It appears that shedding some light on this particular lawyer only shows how deep some of those problems go.

Reading these kinds of exchanges also makes me continue to think through questions in my own head – written about in the past — about whether the willingness to be openly racist should simply be disqualifying for lawyers from a character and fitness standpoint.

(P.S. The Twitter thread itself tries to bring this conduct to the attention of Texas disciplinary authorities so it will be interesting to see what comes about.  With a little digging, this lawyer appears to have retired his Texas license but also appears to be licensed in Colorado, D.C., and Georgia and appears to have a clean disciplinary record in each of those states.)

(P.P.S. An entirely different reporter received death threats from the same Texas lawyer and also created a thread on Twitter about those exchanges as well.)

(P.P.P. S. BlacKkKlansman is a movie all should see, is germane to the above discussion of the problems of white supremacists in our nation, and I’m thrilled that it is getting some rightly deserved nominations.




Litigating your own work product – a tricky (at best) topic.

So, first things first, I am thoroughly surprised and incredibly honored to have made it into the ABA Journal’s 2018 Web 100.  If you are here for the first time because this happened, thanks for reading and feel free to look around as there is 3+ years of content you can read while you are on hold with customer support.  If you are a long-time reader here out of habit, I cherish you and you can rest easy knowing that you are still going to receive the same not-exactly-regularly-scheduled-mostly-maybe-twice-a-week-but-sometimes-only-once-a-week content you have come to expect.

Second things second:  I truly and profoundly recognize the irony that this post leads off crowing about the Web 100 honor after literally just talking about how lawyers shouldn’t blow their own horn online six days ago.  But I’m going to just blow past that irony and move on to today’s offering which comes up more than you might imagine in real-world consultations and that is on the radar screen for today because of two recent developments — a recent ethics opinion from the Texas Center for Legal Ethics and an order denying disqualification out of a Pittsburgh federal court.  If you are a Law360 subscriber you can read some about the Pennsylvania decision and even download the order now here.

Both the ethics opinion and the Pennsylvania decision grapple with what Bill Freivogel refers to on his site as the “Underlying Work” Problem. Bill has written a very good overview at that link of the problem for law firms when they decide to take on the litigation of a matter where its earlier work for the client involved will be at issue and, if history is any guide, will likely have a good summary of that case up relatively soon.

The short version of the order denying disqualification goes like this:  A visiting senior district judge denied a motion to disqualify the lawyer representing a company sued under the Americans with Disabilities Act.  The nature of the claim is that the employee was wrongfully denied extra breaks to deal with her anxiety issues.  The genesis of the disqualification dispute was that the lawyer in question was also the lawyer who gave the company the legal advice that it could deny the employee’s request for this accommodation.

The longer version of understanding how that might not be the outcome you’d expect is best laid out by discussing the recent, really-good, Texas opinion.

In Opinion 682, the Texas Committee explains how its version of the “advocate-witness” rule works under these facts:

A Texas lawyer assisted a client in drafting and negotiating a contract with another party represented by separate counsel.  A lawsuit arose concerning the meaning of certain provisions in the contract.  The lawyer drafted and negotiated those provisions.  The lawyer’s client wants the lawyer and a trial lawyer in the same firm to represent her in the lawsuit.  Both lawyers are attempting to ascertain whether they may do so, and if so, under what conditions, if any.

The opinion does a nice job of explaining the different analysis required for the individual attorney at the firm versus other attorneys at the same firm who were not actually involved in doing the underlying work.  The fundamental difference if it has to be cliff-noted is simply that the confusion involved in the dual role of witness and advocate is severely obviated when a different lawyer is doing the advocating.  The opinion also does a decent job of emphasizing a point that judges sometimes overlook when ruling on disqualification motions — that the disqualification for the witness-lawyer generally does not actually come into play until the trial – not during discovery or even pre-trial motion practice, just at the trial.

As Texas lawyers know, the numbering of the Texas ethics rules is a bit off from the ABA Model Rules even where the substance may be roughly the same.  So, while lawyers normally think of the ethics rule addressing lawyers as witnesses as being Rule 3.7, in Texas it is housed in Rule 3.08.  Although I think the Texas opinion provides the structural narrative for getting to the correct analysis even under the language of Model Rule 3.7, I think it is worth highlighting two pieces of Texas Rule 3.08 that likely are a real improvement on the Model Rule.

First, the rule includes an exception that seems obviously correct but is not actually addressed in the text of the Model Rule.  Texas’s rule makes plain that if the lawyer happens to be a party to the lawsuit and acting pro se, then the prohibition does not arise.  (I have a long history of trying [both for altruistic and pecuniary reasons]to discourage lawyers from acting pro se but it still happens and opposing counsel should not be able to try to use Model Rule 3.7 as a cudgel in such situations.)

Second, and more universally important, the Texas rule goes further in terms of requiring disclosure in two respects that I think are positive.  Like the Model Rule, the Texas rule acknowledges that “substantial hardship” for the client involved can provide an exception to the lawyer’s disqualification if they also have to be a witness.  Unlike the Model Rule, the Texas rule requires the lawyer who will be traveling under that exception to “promptly notif[y] opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.”  The Texas rule also requires more disclosure to the client when the lawyer’s firm intends to handle the case by taking advantage of imputation of the witness-lawyer’s conflict not working its way to other lawyers at the firm by explicitly conditioning the ability to have some other lawyer at the firm handle upon “the client’s informed consent.”  I think that is a vital piece of the puzzle from a loss prevention standpoint for any firm in such a situation as fully discussing with the client on the front end what the plan is and the risk associated with additional expense in the form of motions to disqualify goes a long way to avoiding grief.

 

 

 




Friday Follow-Up: Florida Finds Facebook Friendship Fine

You’ve probably heard this news by now.  But, it’s Friday and I wrote about this before, so … I feel a sense of obligation to follow-up.

The Florida Supreme Court ruled yesterday that the fact that a judge is Facebook friends with a lawyer appearing before her in a litigated matter is not alone sufficient to justify disqualification of the judge.  You can read lots of good articles providing summary treatment of this decision.  I’d recommend this one from the folks at Bloomberg/BNA.

The majority certainly got to what I strongly believe is the right result.  And, the core of the correctness of that result lies in these six sentences which I have admittedly spliced together from different parts of the majority opinion:

[T]he mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature. Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.”  Therefore, the mere existence of a Facebook “friendship” between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship.

I’m writing today about this more to make three points that I feel like have to be said out loud.

  1.  I can’t believe it was a 4-3 decision and that three justices of the Florida Supreme Court were willing to sign their names to the following position:  “The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted.”
  2. I’m even a bit more amazed that the concurring opinion (“I concur with the majority opinion. However, I write to strongly urge judges
    not to participate in Facebook.”) demonstrates a majority of the Court (4 justices) believes that judges simply shouldn’t be on Facebook at all.  There are legitimate reasons why maybe all of us should delete Facebook, but the reasons espoused by the dissent and concurrence aren’t among them.
  3. If you are in a band and aren’t actively considering naming it, or changing its existing name to,”Friends of an Indeterminate Nature,” then I don’t really think I can ever understand you.