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.

The ABA comes through with another quality ethics opinion.

So, nearly everything is awful these days. Finding something interesting enough to avoid highlighting the awfulness around us is not altogether easy. This is pretty much too traumatic and damning to write about. Dwelling on this would just be petty at this point.

Coming through as a light at the end of the tunnel today is ABA Formal Ethics Opinion 494 released by the ABA Standing Committee on Ethics and Professional Responsibility addressing a decent topic.

The topic – what are an attorney’s obligations that can arise from personal relationships with opposing counsel? Patterned a bit, as it explicitly acknowledges, on a recent Formal Ethics Opinion regarding judicial personal relationships with lawyers (Formal Opinion 488), Formal Opinion 494 hits all of the correct notes for dealing with this issue.

Most importantly, it appropriately centers the analysis where it fits in the Model Rules: it is an issue involving RPC 1.7(a)(2) – material limitation conflicts arising from a lawyer’s own personal interests. The opinion stresses that ordinarily such conflicts are not imputed to others at the firm. And it lays out reasonable categories to help guide lawyers in their thinking about these issues.

It also makes the point that while, most of the time, the obligation on the lawyer is disclosure to the client and moving forward only if the client is willing to waive the conflict, there can be situations where the conflict is, itself, not waivable.

The opinion posits a relationship between two lawyers that is so close that the lawyer could never get comfortable filing a well-founded motion for sanctions against the other lawyer on behalf of a client as an example of a situation where the conflict may not even be waivable.

And that entire genre of thought has, over the years, been very helpful to me in talking lawyers through situations, both in their real practice, and just as an educational tool at seminars. I, like many other ethics CLE speakers, have used lots of hypotheticals to tease out ethics issues and one that has always been fun to discuss involves something like this scenario:

You are at lunch with opposing counsel on an appellate matter who is a close friend and former colleague. Unprompted, he says, “I bet you can’t wait to see what I’ve got in store for you in my response brief. Well, you’ll have to wait a bit because I’m going to take every day allowed for me before filing so you won’t get your hands on it until a week from tomorrow.” You know, because you just checked it before coming here, that his deadline for his brief is actually tomorrow. What do you say?

This scenario usually prompts a good discussion and there is always someone in the crowd willing to say that they would tell their friend to, at least, go back and double check their math on the deadline. The problem, of course, is that doing that without first talking to your client to get approval would be extremely ethically dicey. The easiest way to drive that point home to lawyers is to ask them if, since the personal relationship with opposing counsel is so important to them, they secured informed consent from their client at the outset with respect to how the lawyer’s personal interest in their close friendship with opposing counsel could materially limit the representation.

Formal Opinion 494 is a well-done explanation of this same concept as well as something that offers a more formal set of guiding principles for determining whether disclosure to a client may be required. The full opinion is worth a read.

Is it perfect? No. It is infuriating in one respect. It is dated July 29, 2020 but was only released today, October 7, 2020.

We are all struggling with linear time these days. The last thing we need is the ABA trying to gaslight us about what month it is. Plus, if they are going to do that, you might as well go full bore and date Formal Opinion 494 as having been issued on the 221st day of March 2020.

Truth is stranger than fiction.

This is not a post about politics in the United States, though the title of the post might make it seem like it could be.

This is instead a post that has to be written because I saw a headline and thought, “well that has to be fodder for a post,” and then it turned out to be a new story about someone I wrote about previously.

(NB: I could have titled this post, “Turns out it was a story about two men named Brady” but that would have been both too deep of a deep cut if you are a new reader, and a pretty unacceptable level of punnery even for a Friday post.)

Having now “cleared my throat” on screen more than sufficiently, I’ll actually deliver some content… this is a quick hit follow up on a story I wrote about back in the before-times… July 2019.

Christopher Brady used to be a Florida lawyer. He got disbarred for some Hollywood (California not Florida) style breaking and entering to steal a computer server from his former law firm.

I got pulled into writing about his story originally because the ABA Journal online ran a headline about how he got disbarred over punctuation which was, at best, partially correct. (He created a new law firm that had the same name as the firm that had terminated him but that added periods to the abbreviation part of the law firm name, so that his former employer was Barak Law Group, PA but his new firm was Barak Law Group, P.A.)

(Barak. Like a misspelled version of the first name of the most-recent prior President of the United States. Barack Obama. You remember him, right. A man who would have never responded to a question about whether there would be a peaceful transition of power in the United States in a chilling fashion.)

So, why am I rehashing this guy’s story? Well, because the ABA Journal got me with a headline again, but this time it appears the headline was 100% accurate:

Disbarred lawyer is convicted even though twin took responsibility for the crime.

I mean, come on. Now that I know this guy had a twin brother, how in the world was that not more integral to the defense of the disciplinary proceedings?

“No, I’m not the guy you see on that video recording tying a rope from that truck to the front door of the Barak Law Group law firm and then moving the truck so that the door rips open. . . No, sir, not me. Also, I’m not one of the two guys on that tape who go inside and take out a safe and a computer server. No, sir. I’ve got a twin. That has to be the work of my twin!”

(The above is, of course, entirely fictional dialogue I just made up out of whole cloth.)

The twin defense didn’t exactly work in the latest criminal case, of course, but still. “Feels” like this should have been mentioned earlier.

The criminal case that captured the ABA Journal’s attention this week involves a crime that has much more of a “Better Call Saul” flavor rather than the “Breaking Bad” style of the truck-door-computer server heist. The criminal act was the faking of a court order impacting child custody for the benefit of the lawyer’s twin brother. The fake order, which indicated it was filed on a day the court clerk’s office wasn’t open for business and which included misspellings such as “habeus” and “honerable,” commanded the twin brother’s ex-wife to deliver custody of the child to the twin brother. According to the news reports of the trial, the former lawyer was convicted for the forgery even though the twin brother testified that he was the one who committed the act.

Interestingly, these events all occurred earlier in time than the server heist. The events leading to this conviction actually did involve the Florida lawyer acting as a lawyer because he was representing his twin brother in the child custody proceedings and was still permitted to practice law during the events. Representing family is often a bad idea for lawyers. The reasons typically are more subtle than the issues presented by the Brady twins.

If you’re looking for photos of the twins (identical not fraternal), rest assured they do have the “Florida man” flavor you might expect and you can get them at this link to some local Florida media.

The era of permanent disbarment in TN has begun.

What now seems like an eternity ago, because it was written in the before-times, I wrote about Tennessee’s change to its disciplinary procedural rules resulting in implementation of permanent disbarment. I questioned exactly why the change was needed and what it would mean given that it was being paired with changes to extend the maximum length of suspensions from 5 years to 10 years.

As with a lot of things I have written, it amounted to nothing more than screaming into the void as the changes went forward and became effective as disbarments entered on or after July 1, 2020. (Also, “Screaming into the Void” sounds like a very good high school yearbook theme for 2020-2021.)

Earlier this month, the first two permanent disbarments were entered in Tennessee under the new procedural rules. An attorney practicing in middle Tennessee was disbarred forever on September 10, 2020. The charges against him stemmed from having pled guilty in federal court in 2019 to wire fraud, identity theft, and tax fraud. The underlying conduct involved misappropriations of funds in trust belonging to a minor and misappropriating other funds in a probate case.

The second permanent disbarment order was entered a day later involving a Tennessee lawyer based in Alabama. Her case has few similarities to the first beyond the ultimate outcome. She essentially took on clients in immigration matters (6) and failed to provide services despite being paid, dumped the clients, and retained the fees. She apparently did this in the process of abandoning her practice. Once a disciplinary investigation began, she did not respond to the Board, was then temporarily suspended (did not comply with the requirements for providing clients notice after such a suspension), and then consented to the permanent disbarment ruling against her.

So, what we can learn from this with respect to how permanent disbarment might be used? Not much, I guess. Neither of these lawyers have very sympathetic stories, one of the two consented to being disbarred forever and the other is likely in federal prison for essentially stealing money. That doesn’t mean that neither might have been able to trod a path to redemption under the prior procedure, but neither presents the kind of case that would make anyone want to even online browse for, much less go to, any mattresses.

But there are two things still worth thinking about.

The first is the capriciousness of timing. As mentioned in my ancient posts, the rule change implementation was not one that was going to apply only to new cases arising after a certain date but to orders of disbarment entered after a certain date. To drive that point home, on June 26, 2020, a lawyer in Washington County, Tennessee consented to disbarment over conduct that is not publicly clarified in any respect other than with reference to rules (RPC 8.4(a)(b)(c)(d) and (e), which would imply the situation would have involved some sort of criminal conduct and some sort of dishonesty. But, because the order was entered before July 1, 2020, that lawyer has the glimmer of hope for redemption because they can apply for readmission to the bar on or after June 27, 2025.

The second is an administrative issue that probably does not matter in the two permanent disbarments so far but that might be worth some further scrutiny in the future. Both of the September 2020 permanent disbarment orders end with the statement that the former lawyers must also comply with the portions of the rules applying to disbarred attorneys with respect to notifying clients and others of the disbarment. Now that disbarments are permanent in Tennessee, that’s a pretty pointless requirement. There is no hammer to force compliance and now no longer any carrot to incentivize compliance. In the past, whether a lawyer complied with those notice requirements would play a role in any future efforts to be reinstated.

But now? If not a purely aspirational requirement to maintain, it is practically, entirely toothless.

Three developments presented in decreasing order of importance.

Last week, the Utah Supreme Court officially approved the most “radical” change in any state’s ethics rules since DC adopted a limited approval for law firms to have partners who are not lawyers several decades ago.

The Utah Supreme Court announced its adoption of a package of reforms aimed at improving the access to justice gap in Utah as well as improving the availability of access to legal information generally. I’ve written about the Utah proposal in the past, but you can read the press release regarding approval of the reforms issued by the Utah Supreme Court here.

In addition to reforms to the advertising rules, the re-regulation effort revises Utah’s version of RPC 5.4 and 7.2 to allow people who are not lawyers to have ownership interests in law firms, allow lawyers and people who are not lawyers to work together in entities that will provide legal services and allow lawyers to compensate people who are not lawyers for bringing them work. As part and parcel of these efforts, Utah has formed a regulatory “sandbox” where entities can apply to take advantage of these provisions and deliver legal services and through which data can be gathered about the effectiveness of the revisions. The sandbox program will operate initially as a two-year program. You can read more takes online about this development here, here, and here.

Also, just shy of a month ago now, the Chicago Bar Association became the first voluntary bar association to have a task force report that also proposes altering aspects of the legal landscape to address these issues. You can read the full task force report from the Chicago Bar Association here if you’d like. What the Chicago Bar proposes does not go nearly as far as what Utah is undertaking – specifically the Chicago Bar was not willing to take on ownership restrictions — but it does propose significant reforms, including:

  • Removing restrictions on the ability of lawyers to work with intermediaries to deliver legal services
  • Creating a new category of licensed paralegal that could deliver certain limited legal services to consumers
  • Streamlining the Illinois ethics rules related to advertising

Finally (for today), the least important development of the three, but one I shamelessly will still write about… I am honored to report that on Friday of last week I was elected as President-Elect of the Association of Professional Responsibility Lawyers. As a result, I will serve in that capacity from August 2020 to August 2021 and will then become President of APRL for a one-year term commencing in August 2021. I am very much looking forward to being able to serve APRL as the 32nd President in its history as an organization.

Two ethics opinions: one good, one bad, but both reveal systemic problems.

So, New York and Florida. Interestingly, those states have been bookends of our nation’s problems with COVID-19 and with fighting it. New York got hit very badly early, given the concentrated nature of its population centers, but then engaged in a very serious effort of taking the virus very seriously and managed to significantly flatten its curve. Florida’s government ignored and downplayed the situation, and now is experiencing horrible daily numbers and now has overall numbers of cases and deaths that are worse than New York’s. The two states contrasting efforts though still combine to tell a large part of the problem plaguing the United States when it comes to the pandemic — the lack of a coordinated national strategy because we have an incompetent and dysfunctional federal executive.

Two recent developments in ethics opinions from each state also offer contrasting approaches to issuing ethics opinions, contrasting results, and combine to tell part of the larger story of issues plaguing the profession as a whole.

First, let’s start with New York State Bar Association Op. 1200 which is good on procedure but bad on outcome. This opinion addresses application of New York’s RPC 5.7 and the combination of legal services and wealth management services. It was issued after what would appear to be the traditional, efficient, process of receiving a written request for an opinion, having a committee meet and deliberate, and then issuing a written opinion.

The answer it gives to the question whether the same lawyer can render legal services to a client and, through another entity, provide wealth management services to the same person is baffling. Despite the clear rationale for a why a rule like RPC 5.7 exists and, despite the fact that RPC 1.7 should provide for the ability for a waiver of such a conflict, the answer provided is that the conflict is so severe as to be unwaivable. And the only real explanation that is proffered for why is that the lawyer is simply going to be making too much more money from the provision of the wealth management services than from the provision of legal services. Maddening because of all that implies about not only evaluating the conflict rules but how it can justify other assumptions raising questions about a number of other ethics rules that operate under the assumption that lawyers can do the right thing in terms of representing their clients ethically even when it is in conflict with their own financial interests.

Next comes Florida where there exists a proposed ethics opinion waiting on action by the Florida Supreme Court. Technically, it isn’t an ethics opinion as it comes from the Florida Bar Standing Committee on the Unauthorized Practice of Law, but given the relationship to RPC 5.5, that’s a bit of a tomato/tomahto situation.

Now, procedurally it is nightmarish. To get to the point of even issuing the opinion, they held what for all intents and purposes looks like the equivalent of a trial. Sworn witnesses and all. Even after that, it still has to be approved by someone else. Substantively, proposed Florida Advisory Op. 2019-4, would be good because it would conclude that a New Jersey-licensed lawyer who had retired from his job, moved to Florida, and then took a new job for a New Jersey company would not be engaged in UPL if he continued to reside and work in Florida (where he was not licensed) and advised the New Jersey employer about federal law issues.

Now, it is an opinion that shouldn’t be necessary at all for a few reasons, including that if all that is occurring is advising about federal law issues, then Model Rule 5.5(d)’s language should pretty straightforwardly and clearly allow that activity. Unfortunately, Florida curiously does not have that language in its rules and does not appear willing to facially admit the underpinnings of federalism and the Supremacy Clause that require that result. And, even if the question had been about general work for the New Jersey company remotely, it shouldn’t take the equivalent of a trial to figure out that the answer should be that no UPL takes place.

This may all have been less clear to the profession before the pandemic, but during (and if we ever get to a point of “post”) the pandemic it should be painfully clear that the physical presence alone of a lawyer in a particular location should not be dispositive of whether UPL is occurring.

For what it is worth, my proposal for a practical solution to the question of UPL in modern practice that would still allow for things that truly should be regulated to be regulated would be as follows:

There should be a uniformly used “totality of the circumstances/most substantial connection”-style test that evaluates:

  1. where the lawyer is located
  2. where the client is located
  3. if there is a contemplated legal proceeding (or other matter involved such as commercial transaction or closing) where that is located or expected to be located; and
  4. what state’s law would govern in such a proceeding (or other matter).

And, unless the majority of those factors involve a state where the lawyer is not licensed then it simply isn’t UPL.

If my math is correct that would mean that as long as any 2 of the factors touched the lawyer’s state of licensure, then the lawyer is free and clear (or stated differently, unless 3 of the 4 involve a state where the lawyer isn’t licensed, then the lawyer is free and clear).

And, there would still have to be a continued exception acknowledged for purely federal law situations.

Three for Thursday?

Can that be a thing?

I’ve fallen down on the job of being a reliable blogger and I’m not sure I’m getting up any time soon.

I think I’ve continued to manage to be a decent lawyer, pretty good expert witness, okay husband, mediocre father, and generally non-evil human being. But I’m failing as a blogger lately.

I have decent intentions. I can’t prove that, but you’ll just have to trust me. But when I try to carve out the time, I stray to the world of constant information of the Internet and wallow in the notion that 150,000 people in the United States have died now and so, so, so very many of them did not have to if we had even halfway decent leadership in our nation. And, it doesn’t look like it is getting better any time soon.

So, here’s three short entries about three topics I’ve written about in the past and that are back in the consciousness of, at least me, but also I think the legal news world.

Remember when, as lawyers in the United States, we were worried about protecting client information in connection with international travel?

Hey, remember when lawyers in the United States could travel internationally?

Yeah, good times.

Well, very briefly to reset the discussion to back in the before-times, things were maybe looking up and it looked like privileged and confidential information possessed by lawyers might be protected in connection with border crossings. Here’s a link to an ABA Journal story that indicates that things may not actually be looking up really at all. At least not as long as the current regime remains in charge.

So, topic the second, states are still trying to figure out how to allow the law school graduates of 2020 to demonstrate that they can be admitted into the practice of law. I wrote some about what Tennessee was going to do, and chided a little bit about how signs were pointing toward trying to go to diploma privilege was probably a better answer. Since then, Tennessee has cancelled its rescheduled in-person bar exam and instead will have an online only exam in October 2020. Better. Still not willing to allow for diploma privilege as the answer though.

On a not unrelated point, Michigan was one of the first states pursuing the online only bar exam option to move forward this week, and it did not go very well. Tech problems. Caused apparently by a DDOS attack. Good thing there is no reason to think those might happen in other states. Oh, also, Indiana has been trying to do one online and announced it will instead have an emailed bar exam.

And, finally, the ABA recently issued a Formal Ethics Opinion designed to try to lay to rest ongoing concerns about what the scope of ABA Model Rule 8.4(g) is and what it does and does not restrict. You might recall 8.4(g) which was adopted almost exactly 4 years ago by the ABA and has been adopted almost nowhere else since. (You might recall it from when I used to write about it Hamilton-style (“non stop“).) It is a good advocacy piece. Probably better than the advocacy pieces that the ABA had available when it first passed the rule. It is not a good ethics opinion exactly though because it doesn’t really do any of the things you would expect an ethics opinion to do. You can read it here.

But, I mean, have you looked at the world around us?

I don’t think a well-reasoned explanation of why states could adopt ABA Model Rule 8.4(g) and not be concerned that they would somehow be restricting cherished liberties is going to gain much traction whether it looks like a traditional ethics opinion or an outright advocacy piece.

So, I mean, why not just try an advocacy piece, I guess?

Sigh.

(P.S. Given that the only prior Taylor Swift album I liked was the one Ryan Adams did as a cover… I never expected I’d be saying how incredibly good a Taylor Swift album is, but here we are. folklore is fantastic. And it isn’t fantastic just because I love The National and Bon Iver. Ms. Swift’s got incredible talent, a very lovely voice, and wrote some really good and poignant lyrics.)

(P.P.S. It is a really good, really good album as is. But I also can totally imagine every single song (except Exile [for obvious reasons]) also being excellent if sung by Matt Berninger. I’m thinking that’s a feature not a bug.)

Lawyers out there losing their goddamn minds.

Apologies in advance for the fact that today’s content is going to be something of a mishmash or stream-of-consciousness type of presentation, but it’s where the brain is at based on the events of the last 48-72 hours. (Loyal readers will likely wonder why I think a mishmash is any different than the normal presentation.)

I’m pretty sure none of us expected in 2020 to be living both 1918 and 1968 simultaneously. I know I didn’t. I have a wide variety of political thoughts about our situation, but if you are interested in those go find me on Twitter.

The fragile and incendiary nature of our circumstances in the United States though have recently resulted in a variety of instances of lawyers making incredibly poor decisions. I struggled a bit with whether any of the situations merited posting about or if bringing extra attention (Ha! As if I have that kind of power or reach…) was unhelpful.

Then, yesterday, through a “professional” listserv I participate in I witnessed a lawyer call for the assassination of public officials and incarcerating people without trials and for as long as it would take for them to contract COVID-19. I also watched a different lawyer throw wholehearted support to the first lawyer’s writings and sentiments. That second lawyer though might just be salty about having previously been criticized among the same group for having disparaged an entire generation of lawyers. Those two instances did drive home the point to me that a much larger percentage of lawyers then you might think are doing what the title of this post suggests.

More instances of lawyers reacting very poorly to the current environment have been bombarding us in the legal news of late.

You’ve certainly read about the two lawyers, one of whom work(ed) for a very large law firm, who have been arrested for throwing an incendiary device into an unoccupied police car. Perhaps you’ve also read about the Florida prosecutor who just got fired over a racist Facebook post that involved comparing protestors to animals. You might also have read about the lawyer in Vermont who was immediately and temporarily suspended over pulling a gun on a store clerk in a dispute over social distancing.

But I really, truly hope you’ve been doing your reading on what – in terms of historical ramifications – was the worst of the recent lawyer conduct. If the latest reports are correct, it was the Attorney General of the United States (someone who I’ve written about repeatedly in the past with respect to defiance of his ethical obligations) who approved/authorized the deployment of tear gas and rubber bullets on peaceful protestors in D.C. in order to provide a clear pathway for the current occupant of the White House to make this video. If you’d like a different video to show you just a snippet of what it took to make that video, try here. It continues to be difficult to wrap my head around the fact that we live in a situation in which the fact that this man continues to hold the office of Attorney General is, itself, prejudicial to the administration of justice in a way that runs afoul of RPC 8.4(d).

This same lawyer also appears to be redirecting other federal law enforcement resources, including the DEA, into expanded roles that are impossible to view as anything other than highly threatening to the exercise of civil liberties and First Amendment rights of assembly and petitioning the government for redress of grievances.

In fairness, to Mr. Barr, it is not fair to say he’s lost his goddamned mind because of the ongoing circumstances. This seems to be who he has always been.

Utahlking real reform? Yes, Utah absolutely is.

Infrequent readers will know this pun structure is one that I have no shame in running into the ground every time it is relevant.

Frequent readers will know I am far too willing to break the fourth wall here. So just for background I had resigned myself to writing a post on Friday about the New Jersey lawyer who could only get reinstated to practice if he could assure that his wife would not have any further access to their trust accounts and it was going to likely be unnecessarily preachy and riddled with hacky references to how hard that might be when everyone is trapped in their house. So, while you are only getting content a few days late, thanks to Utah you at least are spared that the content that could have been.)

Last Friday, Utah released for public comment the final version of its work product for an overhaul of significant parts of its ethics rules. If you need to get back up to speed on that issue and the pre-pandemic discussions of it, you can find prior posts about the rapid work of Utah’s task force here.

If you’d rather read the source materials put out for public comment on April 24, 2020 yourself, you can get to them all through this link.

If you’ll allow me to describe them to you in all of their relative glory, I’ll do so now.

I’d like to start with what ought to be the least controversial piece but a part that still really ought to be cherished for the elegant thing that it is, reducing the rules on lawyer advertising down to the core and nothing but the core.

  • The Utah Supreme Court’s proposal would eliminate RPCs 7.2, 7.3, 7.4, and 7.5 and, instead, revise RPC 7.1 to address the terrain by (a) prohibiting lawyers from making false and misleading claims about themselves or their services and (b) prohibiting lawyers from going about dealing with people in ways that involve coercion, duress, or harassment.

If any state were proposing to do this to their advertising rules, and only just this, it would be an exciting development toward important regulatory reform. But wait … there’s so much more to Utah’s proposal. As a result, comprehensive reform of the advertising rules is nearly just the icing.

The centerpiece of Utah’s proposed rule revisions though involves an overhaul of RPC 5.4 in the form of the creation of two rules, one 5.4A that will look a good bit like the current rule with one very significant change and another 5.4B that will look like nothing that has been actually implemented so far in the United States.

Under the proposal, RPC 5.4A will apply to lawyers who continue to operate in the traditional fashion (read, at least in its pre-pandemic context to mean working in a law firm owned and operated only by lawyers). That rule would carry forward existing restrictions on partnerships with non-lawyers and on operating in the form of any entity in which someone who is a not a lawyer has a financial interest but would permit lawyers in such conventional settings to be able to share fees with people other than lawyers as long as sufficient disclosure is made to the client (and anyone other than the client who is paying the fee) about the fact that such sharing is occurring/going to occur and with whom. The rule though is also refashioned to make clear that lawyers still can only do these things as long as there is no interference with their independent professional judgment, maintaining their loyalty to their client, and protecting client confidences.

(One other seemingly pedestrian item in its package of revisions is to remove the current restrictions on fee sharing between lawyers not in the same firm by deleting RPC 1.5(e) altogether. This makes a lot of sense on a standalone basis as a variety of jurisdictions already permit “naked” referrals between lawyers not in the same firm as long as there is a certain amount of disclosure, but if you are going to open the doors for lawyers to share fees with people who aren’t lawyers then you certainly have to drop the RPC 1.5(e) approach.)

RPC 5.4B would be a new thing altogether and would govern the conduct of lawyers that choose to practice in nontraditional structures as part of a legal regulatory Sandbox to be launched Utah. This proposed rule establishes an ability for lawyers to practice in ways that RPC 5.4A would prohibit as long as there is no interference with any of the lawyers duties that are also stressed in RPC 5.4A (independent professional judgment, loyalty, and confidentiality). Specifically, what it permits is best described using the proposed rule itself:

(b) A lawyer may practice law with nonlawyers, or in an organization, including a partnership, in which a financial interest is held or managerial authority is exercised by one or more persons who are nonlawyers, provided that the lawyer shall:

(1) before accepting a representation, provide written notice to a prospective client that one or more nonlawyers holds a financial interest in the organization in which the lawyer practices or that one or more nonlawyers exercises managerial authority over the lawyer; and

(2) set forth in writing to a client the financial and managerial structure of the organization in which the lawyer practices.

And to implement the Sandbox concept that RPC 5.4B will permit lawyers to participate in, and to make sure that there exists an entity that will have regulatory authority over those participants in the Sandbox who are not lawyers, the Utah Supreme Court has released a proposed Standing Order that would be the foundational document for establishing the relevant regulatory entity and the regulatory principles that will govern its work.

The relevant regulatory entity will be the Office of Legal Services Innovation and, for a pilot period of two years from whenever the effective date of the Standing Order comes to pass, this Innovation Office will “establish and administer a pilot legal regulatory sandbox (Sandbox) through which individuals and entities may be approved to offer nontraditional legal services to the public by nontraditional providers or traditional providers using novel approaches and means, including options not permitted by the Rules of Professional Conduct and other applicable rules.”

And, as for the relevant regulatory principles? Those will be as follows:

  1. Regulation should be based on the evaluation of risk to the consumer.
  2. Risk to the consumer should be evaluated relative to the current legal services options available.
  3. Regulation should establish probabilistic thresholds for acceptable levels of harm.
  4. Regulation should be empirically driven.
  5. Regulation should be guided by a market-based approach.

There is a 90-day comment period on the proposal which ends on July 23, 2020. That comment period is not only for Utahns. (And, yes, according to the Standing Order that is how to refer to a collection of residents of Utah. College football fans likely believed, and My Cousin Vinny fanatics would likely have been demanding, that Utes to be the official term.)