RPC 8.4(g) – Tennessee is in play

I’m pleased to report that, yesterday, a joint petition was filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility asking the Tennessee Supreme Court to adopt an RPC 8.4(g) patterned after the ABA Model Rule.

As I’ve written here in the past, I’ve long been hopeful (not necessarily optimistic but certainly hopeful) that states like mine would take action to enshrine a prohibition on harassment and discrimination into our ethics rules.

You can read the petition filed yesterday by clicking on this link: (filed_tsc_rule_8_rpc_8.4_g .)  As you’ll see, in my capacity as Chair of the TBA Standing Committee on Ethics and Professional Responsibility, I am one of the signatories on the petition.  I am certain that there will be some public comments filed in opposition to the petition, but I’d like to think that the fact that both the TBA and the BPR are behind this effort will make it more viable for the Court to grant the petition even in the face of some opposition.

More importantly, as a matter of principle, I think the petition is one that should be gratned because the proposed rule is a good and necessary one.

We’ve made some very good additional revisions to the ABA Model Rule in our drafting process — additional revisions that even more clearly help delineate that the kind of conduct prohibited by this proposed rule is conduct that has no place in our profession but does not go so far as to infringe on important First Amendment rights of lawyers.

We made two prominent, and I think important, revisions in the new comment paragraphs that would elaborate on the new (g) provision.  Exhibit B to the petition offers a redline showing how what we have proposed differs from the language of the ABA Model Rule, but I will lay them out here because of the significance.

First, we have added the following final sentence to Comment [4]:

Legitimate advocacy protected by Section (g) includes advocacy in any conduct related to the practice of the law, including circumstances where a lawyer is not representing a client and outside traditional settings where a lawyer act as an advocate, such as litigation.

Second,  we have added a Comment [4a] not found in the Model Rule, that provides:

Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment.  Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section.

I anticipate that our Court will likely put this proposed rule change out for public comment before the end of the year.

“Boies will be boys was never a good response” or “Advance waivers are still better than unwanted advances”

(I’ve apologized once before for a Bullwinkle-style title and here I am doing it again.  The underlying societal issues are not funny in the least but it’s been a hard week for many folks and a little bit of levity can help you make it through.)

If you are inclined to read this blog from time to time, then you likely already have read or heard something about the mess David Boies has found himself in related to his firm’s simultaneous representation of The New York Times and his efforts to assist another client Harvey Weinstein in working with a black-ops style investigation outfit to try to stop an NYT story about Weinstein.

If you haven’t read anything about it, there is a wave of reporting to catch up on.  You can start with this ABA Journal article which gives easy jumping off points to this article in The Atlantic, and this The New York Times article, and this further ABA Journal article addressing additional issues after the NYT fired Boies’s firm.

The whole situation weaves a tale more than worthy of a law school essay exam question.  I could likely manage to spend the full three hours of the Ethics Roadshow talking about the ethics issues raised in the scenario.  (I probably won’t, but you’ll never know for sure unless you attend in one of the six cities where it will be taking place.)

While there are quite a few angles ripe for discussion, I just want to talk a bit today about the advanced waiver angle involved.  As most of the articles discuss, in addition to minimizing his role in assisting Weinstein, Boies pointed to language in his firm’s engagement letter with the NYT as authorizing certain conflicts in advance.

The topic of whether and when a lawyer can obtain an advanced waiver from a client to a future conflict is still a surprisingly controversial one in ethics and lawyering circles.  There are some who ardently fight for the position that no conflict can be waived in advance, even by sophisticated clients.  I don’t count myself among their number and, instead, believe that the availability of advance conflicts waivers is an important part of modern law practice from an ethics standpoint.  Along those lines, I believe that Tennessee, and other states that have language in a Comment to RPC 1.7 patterned after the Model Rules get the ethical guidance on the situation correct.

Tennessee’s Comment [22] to RPC 1.7, for example, explains how things generally should work when a lawyer requests a client to waive conflicts that might arise in the future:

The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.  The more comprehensive the explanation provided to the client of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding.  Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict.  If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.  Nevertheless, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent to a future conflict is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject matter of the representation.

This Boies/Weinstein/NYT saga, however, isn’t particularly all that helpful in terms of providing guidance into the question of whether any advance conflict waiver obtained by Boies complied with New York’s ethics rules, but it is extremely helpful in reminding that whether or not an advance conflict waiver passes muster under the ethics rules is just one aspect of the situation that lawyers and law firms need to keep in mind (and though it is a bit sacrilegious to say it might not always be the most weighty aspect of the situation).

The Boies/Weinstein/NYT saga is extremely helpful as a reminder that whether to take on a representation that can only be justified to another client on the basis of an advance waiver is extremely tricky as a business decision.

Boies’s firm included an advance waiver in its engagement letter with the NYT undoubtedly to try to maximize the number of clients it could have has now managed to lose both the NYT and Weinstein as clients.

The loss of Weinstein under all the circumstances might be a net positive, but the loss of the NYT likely stings and would have stung even if it hadn’t ended up managing to say this publicly in the process of cutting ties with Boies:

We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.

Whether or not an advance waiver is consistent with the ethics rules, an offended client can always still decide to drop the lawyer or his firm and what that mess might looks like if or when that comes to pass might be the most practical way for lawyers to think through these issues.

 

Advocating for attorney advertising.

So, back in August, I mentioned that I was going to have the opportunity to debate issues of lawyer advertising before an audience of top-notch Canadian lawyers in November.  This post is something of a coda to that post as I want to, very briefly, say a word or two about that talk.

It was, as I anticipated, a highly rewarding experience and all of the attorneys affiliated with The Advocates’ Society with whom I had the opportunity to meet and speak were delightful.

During the presentation, my job was to be the one to give voice to things that those assembled might not want to hear.  So, to start things off, I broke the news to them all that we don’t pronounce Hermitage, as in The Hermitage Hotel, in the fancy manner they were wont to do.  After having dealt that disappointing blow, I gave my pitch about what regulation of lawyer advertising should be, and what it shouldn’t be.

I tried to do so with a focus on things beyond just the protections afforded under our First Amendment for commercial speech because they don’t have anything quite the same under their nation’s law.

Those points – which I will happily repeat as many times as anyone ever gives me the chance to do so — are:

  • Ethical restrictions on lawyer advertising ought to pretty much start and end with prohibiting statements that are false or actually misleading.
  • It is pretty much a universal truth that the only people who complain about lawyer advertisements are other lawyers.
  • Those tasked with regulating attorney conduct don’t particularly like spending time adjudicating squabbles between lawyers about ads.
  • Consumers don’t get worked up about lawyer advertising at least in part because they get it.  If you are paying to advertise something, you are going to emphasize its good points.
  • But consumers also don’t get worked up about it because they don’t view it the way lawyers do.  There are still people out there who simply did not know they could hire a lawyer without having to pay money or who don’t know their problem might be something a lawyer could even help them with at all.
  • Some times the way those people learn this information is because they see some kind of lawyer advertisement in one place or another and, when they do, they don’t particularly think about whether or not it is something that you would think is “dignified.”
  • If you are motivated to want to impose stricter regulations on lawyer advertisements because of a concern that there is not enough public respect for our profession and advertisements that you think should be “beneath” lawyers fosters such disrespect, then I have a suggestion of how you could better direct your energies.
  • Imagine how much more could be done to foster better respect for our profession and what we do if we all focused our energies on encouraging communication of what it is that lawyers do, the role we play in society, and what we bring to the table that can help people in times of need for legal services, including helping educate them that their problem is one that could be helped by the work of a lawyer?

An open letter to Avvo

Dear Mark or Josh or Dan (or others at Avvo):

I am a lawyer of little relative influence but I know you are likely familiar with me because I have, time and time again here on my small platform written about the travails your business model is enduring as state after state issues ethics opinions warning lawyers who do business with you that they are acting unethically.  (And Josh has been kind enough to post comments here from time to time as well.)

It, of course, has happened again with the latest Virginia ethics opinion that has just been put out.  I won’t belabor anyone reading this with the breakdown of that opinion other than to say that it hits on many of the same problems that have been hit on by other states over the last couple of years (and a couple that come up less frequently as well).  I also know that you were actively engaged in trying to convince the powers-that-be in Virginia to not issue that opinion.  I’ve even read Dan’s oral remarks published online.

I also won’t do as I normally do and break down the analysis offered in this latest ethics opinion other than to say that this one – yet again – is correct in its interpretation and application of Virginia’s rules.  (At least it is correct as to the big, universally applicable rules impacting your current business model related to fee-sharing, payments for referrals, and the like.)  Of course it is.  These opinions keep coming out because the existing rules are pretty clear about the problems and why lawyers are prohibited from participating.

I’m also writing this as an open letter to urge Avvo – if it really is interested at heart in doing the things for the profession and consumers that it says it is interested in doing – to change its focus from trying to fight the issuance of ethics opinions in states or to then engage in criticism of those opinions as somehow incorrect or “part of the problem.”  Instead, your time and money should be shifted — if those are your real goals — to pursuing efforts to have the rules that currently prohibit lawyers from being involved with your business model changed.

You are fighting a losing battle in trying to change the outcomes of ethics opinions.  You could, however, be fighting a winning battle if you made active efforts to file petitions with the appropriate bodies in various states to propose revisions to the ethics rules that would permit participation with your service and other companies doing similar things.

For example, just about anyone who wants to in my state could file a Petition with the Tennessee Supreme Court and propose changes to the ethics rules which here are housed in Supreme Court Rule 8.  There are pretty similar processes in many jurisdictions.  (I would have thought y’all might have worked this notion out by now given how differently you’ve watched things appear to go in North Carolina where you’ve been participating in efforts to change the rules rather than efforts to try to get someone to issue an opinion that would pretend the rules don’ say what they say.)

I can’t guarantee how successful you would be in obtaining satisfactory rule revisions in jurisdictions but I’d bet a shiny quarter or two that your batting average will be greatly improved upon how you are doing in terms of favorable ethics opinions versus unfavorable ethics opinions.

I reckon that this open letter will likely have the same effect of most open letters written by human beings, but . . . at least I’ll still feel better for having said it.

About last week… (and some actual content too)

So, I didn’t manage to post last week and this is something of an apology to those of you loyal readers who kept coming to the site last week each day looking for content.  (Rest assured, there’s also some substantive discussion of a live ethics issue in the post as well.)

I don’t have any real great excuse as there is always work, sometimes travel, and other commitments to overcome to keep this blog going, but the only new piece of the puzzle last week that played a role in my failure to come through was my 44th birthday last Tuesday.

It was a weird one as thinking about it caught me up and resulted in more melancholy than joy.  Thinking about it statistically, 44 signaled that was likely through 2/3 of my life and only had 1/3 to go.  In that context, and I’m certain likely many others in the legal profession, I kept ruminating on my belief that I haven’t been as successful professionally as I would have hoped I’d be at this stage of my life.  I know this sounds like one of those Facebook posts from people pursuing an indirect “woe is me” cry for attention but it isn’t meant that way at all, just an explanation for last week’s radio silence.

Speaking of Facebook, Florida continues to dedicate far too may judicial resources to the resolution of a question that — if you set technology aside ought to be easily answerable — can judges and lawyers be “friends” on Facebook.

Karen Rubin over at The Law For Lawyers Today provided a good run down last week of the history of the Florida case, so I won’t retread that ground and instead am going to take the opportunity to repeat (though I don’t believe I’ve ever stated them here on my blog) my views on the absurdity of the underlying “debate” about the issue.

Judges are human beings.  Human beings, even awful ones, are still going to manage to have a few friends.  The judicial ethics rules do not prohibit judges from having friends who are lawyers.  Thus, there is no rational way the judicial ethics rules can be said to prohibit judges from being friends with lawyers on Facebook.  The judicial ethics rules do contemplate that a friendship between a judge and a lawyer can, if close enough, result in a judge needing to recuse herself from a case involving the lawyer.  Thus, whether a judge and a lawyer are friends on Facebook should simply be one factor in evaluating whether the nature of the friendship is close enough that the judge needs to recuse.  Actual real-world interactions between the lawyer and the judge though should be a more important factor.  The analysis of this issue in any jurisdiction, including Florida, should be as simple as that.

In fact, I believe that judges using Facebook and being friends with lawyers actually does the public a service because it provides litigants and their counsel with a level of transparency they might not otherwise obtain to evaluate whether a judge has a real-world friendship with a lawyer that merits the bringing of a motion to disqualify the judge.  On Facebook, even if a judge has all of her privacy settings as locked down as possible, you can still view a list of the judge’s friends.  Armed with that information, a litigant or a lawyer can then raise the issue and may come to learn of a true, deep friendship between lawyer and judge that might not have otherwise been discovered.

This Florida lawyer should not have “Went for It”

I had it in mind that I might write a little something about the Pennsylvania lawsuit against the Morgan & Morgan firm over lawyer advertising issues, but Karen Rubin and the fine folks at The Law for Lawyers Today beat me to that punch with a nice piece at their site that you can read at this link.

So, instead, but still staying on the general theme of lawyer advertising issues, I’m going to focus just a bit on a story coming out of what is often thought of as “ground-zero” in the U.S. when it comes to the battle over lawyer advertising issues — Florida.  It is a tale of a lawyer who is being suspended for one year over conduct involving solicitation of a client.  (Should you want to, you can read the full per curiam opinion of the Florida Supreme Court in Florida Bar v. Dopazo here.)

The opinion mostly focuses on the question of what was the right amount of punishment, deciding to increase the suspension from the 60 days that was recommended to a full one-year suspension.  That isn’t my interest for today.  My interest for today is to use this case as a reminder of a few things in the context of larger issues that are going on in the world of lawyer advertising (and, in particular, the APRL effort to persuade the ABA to revise the Model Rules to streamline the restrictions on both general advertising and solicitation).

Those who study questions of legal ethics or attorney advertising or both will remember that the only U.S. Supreme Court case to uphold a restriction on attorney advertising efforts as constitutional is Florida Bar v. Went For It.  The restriction upheld there was the 30-day off limits concept for soliciting representation by mail from folks affected by disaster or traumatic personal injury in any fashion.

Dopazo’s conduct not only ran afoul of prohibitions on in-person solicitation but was well within that kind of 30-day off-limits period and would have been prohibited in any form or fashion.

In March 2007, days after her son suffered traumatic brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center  by Dopazo, who successfully solicited her to become a client of his for a fee.  There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf.

No one who is out there actively advocating for revisions to the ethics rules addressing lawyer advertising and solicitation is pushing a rule revision that would permit this kind of in-person solicitation in a hospital even if a jurisdiction did not also have some version of a 30-day off-limits period.  Even those of us who question the fairness of 30-day off limits provisions because they only prohibit communications from one side of things -_ the side seeking to provide representation — are in favor of restrictions on in-person solicitation by lawyers of strangers.

Those of us who are actively advocating for changes though are very much in favor of trying to not have these sort of situations — which can be adequately addressed by simple prohibitions — drive the discourse to try to justify more expansive restrictions on commercial speech.  Among the many reasons for that are the kinds of unnecessary and unneeded restrictions that can come to pass because of expansions of such concepts.

Using my own state as an example, over time our rule imposing a version of the 30-day off limits provision has now been expanded to prevent lawyers from sending letters to strangers offering to provide representation in a divorce matter within 30 days of the filing of a divorce.  I’ve written in the past about the problems I have with that concept (if you click through that link which gives you an electronic/pdf-ish version of The Memphis Lawyer magazine from 2015, you’ll need to go to pages 14-15 to read the column).

So, unquestionably, this Florida lawyer’s situation is one that the ethics rules ought to prohibit.  But the fact that such conduct was engaged in does not provide a basis for saying that the rules aren’t in need of reform.

(N.B. You might be asking yourself why in the world a lawyer is being disciplined in 2017 for misconduct that happened in 2007.  The opinion elaborates that it was not the target of the solicitation who complained about Dopazo but rather that the Florida Bar only learned of the incident in 2011 as a result of the findings of an FBI investigation of this lawyer over alleged payments to non-lawyers for a client recruitment scheme involving medical clinics.  Interestingly, the delay in the prosecution of the case from 2011 to 2015 was, in fact, taken into account as a mitigating factor when concluding that the appropriate discipline was a one-year suspension.)

A patchwork post for your Friday

Today’s content will be an original recipe of (1) part shameless self-promotion; (2) two parts serious recommendations to read the writings of others; and (3) pop culture recommendations for your downtime this weekend.

First, the shameless.  I am pleased to announce the plan for this year’s Ethics Roadshow.  Here’s the promotional piece you will soon see making the rounds to explain this year’s endeavor.

This is the 13th year that Brian Faughnan is performing the Ethics Roadshow for the TBA, but that is NOT actually the reason for the “13 Reasons Why” title.  This year’s program “Ethics Roadshow 2017 The Mixtape:  Thirteen Reasons Why Ethics Issues are More Complicated Than Ever.” is so-titled because of the presenter’s slavish devotion to being influenced by pop culture.

This past year, a highly controversial show largely about teen suicide and its consequences aired on Netflix.  “13 Reasons Why,” was based on a much less controversial book but the series was heavily criticized for – among other things – violating the “rules” in the world of television for how (and how not) suicide is to be depicted.  Questions, of course, exist about whether such rules are outdated in a day and age when it is as easy as surfing the Web for someone, even a teenager, to find such information.

Questions also exist in modern law practice about whether certain ethics rules are outdated, and we will spend some time talking about that issue and related topics.  We will also discuss the problems with substance abuse, stress, and mental health issues that plague our profession and put our members at risk of self-harm at rates much higher than the general population and other professions.)  The outdated technology of audiotape also plays a significant role in the Netflix series.  (It is also making something of a comeback in the music industry.)  We will spend time talking about the ethical obligations of lawyers when it comes to use of technology and whether some of those obligations and the risks of modern technology might create an incentive for lawyers to make use of some outdated technology in the future as a way of better protecting client information.

And, we will cover it all in a format that had its heyday when cassette tapes were king – the “mixtape.”  Your presenter will curate the order of topics for you with any eye toward your three-hour listening experience.

If you are a Tennessee lawyer (or a lawyer who practices in a nearby state) interested in attending, all of the stops will take place in December 2017 and you can find them and register for them at these links: Memphis, Nashville, Knoxville, and Chattanooga. You can also register for video broadcasts of the program in Jackson and Johnson City.

In terms of reading recommendations, go check out yesterday’s post from Karen Rubin over at The Law for Lawyers Today on a follow up to an issue I’ve written about – the problems with protecting client confidentiality in a world in which border agents are demanding access to electronic devices and their contents.  Karen writes about a lawsuit filed by an organization near and dear to me that is challenging the practice.  Also go check out the latest blogpost from Avvo’s General Counsel, Josh King, about the intersection of First Amendment issues and the issuance of ethics opinions.  While I don’t know the details of the discussion at a New York event he references, I do know some of the players that were there and I can’t help but wonder if what Josh is interpreting as a bad take on the issue of constitutional challenges and certain concepts being settled actually stems from a more fundamental disagreement about whether saying lawyers cannot pay referral fees to non-lawyers is actually a restriction on commercial speech at all.  If not, then it doesn’t require intermediate scrutiny in terms of any First Amendment challenge but is merely reviewed on a rational review basis.  And, I’m guessing the point someone was trying to make was that others have tried and readily failed to say that states don’t have a sufficient interest in regulating the practice of law to prevent letting lawyers pay non-lawyers for making referrals.

Finally, recommendations for a more pleasurable way to spend your weekend. If you happen to have Netflix, I actually do (albeit sheepishly) recommend checking out the 13 Reasons Why series.  Less sheepishly, as to the efforts to bring the mixtape concept back, I wholeheartedly recommend exploring some of the online mixtapes that Lin Manuel Miranda, the creator of Hamilton has curated.  You can grab one of them at this link.

“DoNotPay” Becomes HelpYouSue

I had another idea for a blogpost in mind at this stage of the week, but between travel and this story, this was the thing that had to be acknowledged today.  Yesterday’s big technology news for lawyers (sort of lost in the Apple event revealing a brand new version of what will likely become Ted Cruz’s new favorite device for viewing images he likes) is this story.

I’ve written a little bit in the past about the leading chatbot – DoNotPay.  This story  at The Washington Post details what will (I’m guessing) be something of a watershed moment in the development of the functionality of chatbots and what they can, and truly will, mean for lawyering in the near future.

In the wake of the Equifax data breach, the makers of DoNotPay launched a chatbot yesterday to allow people with just a few simple clicks to file suit in the small claims court in their home jurisdiction against Equifax over the data breach.

I usually like to think that I can add my own profound insight on an issue to make it worth reading over and above the underlying story.  Today though I’m going to primarily just point readers to the source material and then ask you to allow your own minds to ponder the possibilities this raises.  The Washington Post story was written at a time when the chatbot would only be available for suits in California and New York, but it was quickly modified to render availability nationwide, as explained in this Yahoo! article.

Once you’ve done that, check back in with me for just a moment or two.  I’ll wait right here.

Ok.  First, undoubtedly a lot of the people that will use this chatbot to file this suit would otherwise never take on this kind of matter at all.  For many others, if they pursued it at all, they wouldn’t ever hire a lawyer and would try to handle it themselves .  To that end, this is a net win in terms of access to justice (at least for everyone except Equifax).  (To the extent that these kinds of cases might get resolved before any class action suits that have already been filed and will be filed, they certainly might not be a net win for such class action lawyers.)

Second, the continuing development of chatbots in this direction will still leave plenty of work for lawyers (and create some work for lawyers that might not otherwise exist) – and not just in the form of lawyers who, for example, will show up to represent Equifax in thousands of small claims suits.

Part of this is because of the inherent differences that still exist from jurisdiction to jurisdiction over access to and proceedings in small claims court.

As one example, here in Tennessee our civil small claims court is called General Sessions Court.  There are a number of ways that it works differently from the general features described in the articles as to other states small claims courts.  We have a jurisdictional limit of under $25,000.  In our general sessions courts, you certainly are entitled to have a lawyer represent you in that court and, in fact, if you are a corporate or business entity of any kind seeking to pursue suit or defend suit, you have to be represented by an attorney.  Further, both parties to a general sessions judgment (even the prevailing party) have an absolute right to appeal the outcome and, if they do, it goes up to our regular state trial level court for de novo proceedings.  Thus, in a way, nothing that happens in our General Sessions court matters unless everyone involved agrees it mattered.

In addition to simply demonstrating how fast things are moving on these fronts, this evolution of the use of the DoNotPay bot also adds another wrinkle about how an attorney could at some point co-opt such technologies in situations where they may have a potential client with a looming timing issue in the form of a statute of limitations about to expire.  Specifically, it is not difficult to imagine a near future in which this kind of chatbot could permit the filing of suits involving other issues where a lawyer could point a brand new client -with a time sensitive matter- toward such a chatbot to get a suit filed before a statute expires and then come in, take over, and amend pleadings once the lawyer has more time to get involved.

A rare example of the perfect application of RPC 8.4(c)

I’ve written in the past about issues associated with RPC 8.4(c) and how its potential application to any act of dishonesty on the part of a lawyer — no matter how trivial or unrelated to the practice of law it might be — makes it a problematic ethics rule.  A disciplinary proceeding presently being pursued against an Illinois lawyer offers an example of a situation to which RPC 8.4(c) applies perfectly.

The Illinois lawyer has been in the news within the last few weeks for the repercussions of his harassment of a fellow Illinois lawyer.  The primary focus of the media coverage has been on the creation of a fake Match.com profile for the purpose of embarrassing and disparaging a female lawyer.  It was that conduct that got the lawyer — Drew Quitschau — fired from the law firm in Illinois where he had been a partner since 2012.  A Law.com story dipped its toe into the waters of some of the other online misconduct involved, mentioning that he signed the other lawyer up for a membership in the Obesity Action Coalition and in Pig International..  The ABA Journal story was a bit more comprehensive in identifying the multiple membership or subscription organizations involved in Quitschau’s abuse which also included registrations/unwanted signups for Diabetic Living and Auto Trader.

But, the full picture of the extent of Quitschau’s attack occurring from June 2016 to December 2016 is best taken in through a read of the petition for discipline filed against him last month by the Illinois Attorney Registration and Disciplinary Commission.  There also were other acts of deception and fraudulent online activity that went beyond personal attacks into professional attacks as well.

The petition explains that Quitschau created a false negative review of the female lawyer on each of www.martindale.com and www.lawyers.com, and created a false Facebook account for the sole purpose of then using that persona to post a negative review of the female lawyer’s law firm.

Based on the timing of events, it appears to be efforts at professional harm was what Quitschau first tried against the female lawyer and only thereafter did he move on to harassment that was purely personal in nature.  That conduct isn’t “worse” in any true sense of the word as the other purely personal attacks are pretty vile, but the expanded activity that focused the deception and harassment on the female lawyer’s own reputation as a lawyer certainly comes closer to being conduct that might actually also be prosecuted as violations of other ethics rules and not just RPC 8.4(c) because the female lawyer and Quitschau had been opposing counsel in seven matters during an 8-month stretch of time during his course of conduct.  .

If the Illinois board could prove any connection between this conduct and Quitschau’s representation of any of those clients, then a rule like RPC 4.4(a) — which declares that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person” — could also come into play.

Regardless, the ability to pursue inexcusable conduct of the sort Mr. Quitschau undertook should be universally agreed to be a fitting use of RPC 8.4(c).

A kind note from a satisfied client

Since I’m seeing quite a few of these notes from satisfied clients on LinkedIn, Facebook, and other places in various formats, it seems like a good time to share a touching one I received recently.

Brian,

Thank you very much for the really great work and the successful outcome.  I really appreciate you and all that you do.  I’m sure I don’t even need to say this, but I’m certainly hopeful that you have the common sense not to try to publicly share my kind, private remarks to you about my case on any social media or anywhere else.  I figure you probably know not to do this without my consent because … well, you have that obligation of client confidentiality under RPC 1.6 and posting this as some sort of “atta-boy pat-on-the-back” which is really just a kind-of-but-not-really-all-that-subtle effort at marketing and touting your excellent work and client satisfaction certainly isn’t something that would be impliedly authorized in order to carry out the representation.

Plus, if you did that, it would be just kind of … I don’t know … crass (gauche?).  The mere act of sharing it to crow is one thing I guess, but then the way social media works you’re just crying out for people to comment and say, yeah you’re great and your clients are lucky to have you, or to “like” it and provide you further validation which certainly wasn’t why I sent you this kind note.   And even if the reason I’m so excited and grateful about your work is that the matter is over and now I’m just a former client, you still have confidentiality obligations to me under RPC 1.9 and if this had become generally known as would be necessary at that point, then you probably don’t need to do this because if you are going to get accolades they would come more naturally (right?), so, I mean, again.  How about you just not with the sharing this?

I mean I guess you could try to strip down any information anyone might use from my message to you to be able to figure out who I am or what the matter was, (because remember the Comment to RPC 1.6 talks about how even disclosures that don’t directly disclose confidential information are prohibited if the disclosures “could reasonably lead to the discovery of such information by a thid person”) but once you’ve done that it truly becomes so impersonal that it doesn’t really have the impact you were hoping for, and depending on the format you use, it might even look like you’ve maybe just made the whole thing up.

And, if you don’t do something like that, then you really are placing my confidentiality rights at risk because maybe you did remove everything you needed to in order to protect anyone in your network or circle of connections from being able to figure out who it was that would have sent this, but maybe you didn’t.  If you didn’t, I’m potentially not going to be very happy about that.  Plus, you might in your introductory paragraph of your social meda “update” say something about time and place or circumstances that actually does — combined with this note — let the cat out of the bag.

So, anyway, thanks for getting me that extension of time.  Sorry for being such a scold.

[name redacted]

These are the kind of messages that make being a lawyer worth it all.

Happy Friday!