ABA favors innovation but really stresses the “no” part.

Okay. Now that all of the problems with the erosion of the rule of law in our country have been solved, I can write that post about the onslaught of developments in the last little bit related to potential efforts to “re-regulate” the legal profession.

Just kidding. Rule of law is still ENTIRELY in jeopardy despite the fact that more than 2,000 former officials of the U.S. Department of Justice have co-signed a letter calling on the current Attorney General of the U.S. to resign.

Nevertheless, we are doing this long-contemplated post today. So, in just the first two months of 2020, there have been several developments demonstrating continued momentum for reform in the world of legal ethics and the delivery of legal services.

In Utah, that states rapidly-moving effort continues apace. Utah’s Implementation Task Force on Regulatory Reform is up and running. And its website is accepting inquiries about participation in its Legal Regulatory Sandbox at this link.

In Arizona, a petition was filed on January 30, 2020 seeking to have the Arizona Supreme Court, among other things, delete its RPC 5.4. The petition was filed by a member of the Arizona Task Force on the Delivery of Legal Services who serves as the Chair of one of its work groups. The petitioner also happens to be Administrative Director of the Arizona Administrative Office of Courts.

Even earlier during January 2020, the Global Legal Practice Committee of the D.C. Bar put out a formal request for public comment about a number of topics related to its existing RPC 5.4. In so doing, Washington, D.C., which has permitted a limited form of non-lawyer ownership opportunities in law firms since 1991 has now announced feedback on seven pretty-thorough bullet point requests, ending with: “If D.C.’s existing Rule 5.4 should not be changed, why not?”

News reports in January 2020 indicate that the Connecticut Bar has launched a task force called the State of the Legal Profession Task Force.

California has a crucial meeting of its Task Force on Access Through Innovation of Legal Services on tap for February 24, 2020. The agenda for that meeting lists seven report and recommendations and one clarifying statement up for consideration. Included in the list is not only what sounds like some minor amendments to California’s RPC 5.4 but also implementation of some form of regulatory sandbox focused on being a pilot program to gather data, and the study of a licensing program to allow people other than lawyers to provide certain kinds of limited legal services.

And, most recently, the ABA House of Delegates has adopted Resolution 115 to seek to encourage states (such as those mentioned above that are already far out in front of the ABA) to pursue innovation.

When originally circulated, ABA Resolution 115 was the kind of thing that read as short, to the point, and (particularly given all the task forces already in place in various states) seemingly not truly all that controversial:

RESOLVED, That the American Bar Association encourages U.S. jurisdictions to consider innovative approaches to the access to justice crisis in order to help the more than 80% of people below the poverty line and the majority of middle-income Americans who lack meaningful access to civil legal services.

FURTHER RESOLVED, That the American Bar Association encourages U.S. jurisdictions to consider regulatory innovations that have the potential to improve the accessibility, affordability, and quality of civil legal services, while also ensuring necessary and appropriate protections that best serve the public, including the provision of legal counsel for children facing essential civil legal matters, for anyone facing a possible loss of physical liberty, and for low income individuals in adversarial proceedings where basic human needs are at stake.

FURTHER RESOLVED, That the American Bar Association encourages U.S. jurisdictions to collect and assess data regarding regulatory innovations both before and after the adoption of any innovations to ensure that changes are effective in increasing access to legal services and are in the public interest.

And, yet, even that was a step-too-far in the world of ABA politics as a number of prominent slices of ABA membership, including the New York State Bar and the Solo and Small Firm section of the ABA, went on the attack against Resolution 115 as a radical proposal.

Perhaps thinking it would be hard to imagine how the reaction to a sort of milquetoast resolution encouraging the exploration of innovative ideas to engendering such vociferous opposition, far too many media outlets reported on the resolution as proposing significant changes to the Model Rules when, in fact, no rule revisions at all were actually included.

Thereafter, the forces in favor of Resolution 115 made amendments to try to provide reassurance to the clamor from a variety of groups. In so doing, what was already a “meh” proposal was watered down even further. Specifically, the resolution was revised to add an additional “Further resolved” paragraph at the end:

FURTHER RESOLVED, That nothing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subject.

The extensive and thorough report that accompanied the Resolution was also pared down to remove references to, and discussions of, a number of efforts at exploration that have occurred or are under consideration in various jurisdictions, including in the area of considering revisions to RPC 5.4 and to allowing non-lawyer ownership. As a result, the original nine-page report became a three-page report. And given that the addition of the third “Further Resolved” paragraph just reads as surplus of the silly sort, it is the defenestration of 2/3 of what the Report had to say originally that is the true loss.

Having been further watered down to the point where it was still a resolution encouraging innovation but strongly signaling that some innovations would be encouraged a lot less than others, Resolution 115, as amended, passed the ABA House of Delegates with overwhelming support.

I mean, “Yay!” … I guess. If a half of a loaf is better than no loaf at all, then so it follows as well that a quarter of a loaf is better than the complete absence of a loaf. But I still can’t help but think of the message of Resolution 115 as being a lot like one of my favorite moments from the show Reno 911:

And I tell you what, ma’am — We are gonna tell you that we are gonna try our best.

That’s what we’re gonna tell you. We’ll try our best. Thank you.

We aim to try. We aim to try — That’s our motto.

That’s what our motto is becoming.

The future of legal ethics?

What I’d like to write about is a series of stories that have been piling up on pretty important developments on various fronts touching on the efforts to re-regulate the legal profession and debates about whether and how to do that … and all of those things would seem to be very important. But I’m not writing about that today because other things are going on that raise a much more immediate, potentially much more alarming, issue — is there even a viable future for legal ethics that means anything at all?

Yesterday, a number of alarming things happened rapidly to raise real questions about whether efforts to try to re-regulate the profession and tackle subjects like law firm ownership, fee-sharing, and payments for referral or other marketing arrangements to make legal services more affordable for middle-class consumers and possibly increase overall access to justice is just rearranging deck chairs on the Titanic.

The first thing you need to remember – in case it somehow slipped your mind — is that among the many people who have been convicted or plead guilty from within the President’s campaign circle is a man named Roger Stone. Stone was convicted for lying to Congress about his contacts with the Trump campaign and with WikiLeaks and for obstructing the Congressional probe into Russian influence in the 2016 election and for witness tampering. Prior to yesterday’s events, the federal prosecutors handling his case had filed paperwork with the court recommending that the appropriate sentence range for Stone would be between 7 and 9 years.

Then came yesterday. First, at about 1 a.m., the current occupant of The White House took to Twitter to complain that the sentencing recommendation made by the federal prosecutors handling the case against Roger Stone was too harsh. This was what he had to say:

Later that morning, the Department of Justice announced that it will be making a new recommendation for a shorter, less-harsh sentence, effectively overriding what federal prosecutors had already communicated to the court and certainly seeming to be in reaction to the tweet.

Later in the day, the third President in U.S. history to be impeached publicly stated that he had every right to tell the Department of Justice what to do. You can go see that video here.

By the end of the day, all four federal prosecutors who were counsel of record for the United States in the Stone case had filed papers to withdraw from the representation and one of those four also resigned altogether from their position as an AUSA and another resigned his position as a Special Assistant Attorney in DC while intending to keep his job as an AUSA in Baltimore. Then the media reports came out to indicate that the Attorney General of the United States was now personally taking on all of the cases that mattered to the guy who is likely, if the United States Congress is paying attention, to become the 1st President in United States history to be impeached twice. In addition to intervening in the Stone matter, the article indicates sources are relaying that Barr also was behind the change in the approach to sentencing for Michael Flynn another of Trump’s campaign comrades who pled guilty to lying to the FBI and is now, two years later, trying to withdraw his guilty plea.

I’ve written before about the fundamental problem under the ethics rules if not otherwise for the Attorney General of the United States to act as if he were the personal attorney for the President rather than the chief law enforcement officer of the United States. You can read that here.

But more importantly you can pretty quickly get up to speed on yesterday’s very troubling developments here, here, and here. Or if you want to go straight to the source to confirm what is going on, you can read this from this morning:

And, if you want some reference to the actual ethics rules to feel like this post somehow really counts as “on ethics,” let’s talk a bit about how the four AUSAs who are seeking to withdraw from the Stone case are – unlike their Attorney General — complying with their ethical obligations under the ethics rules.

They appear to have a keen awareness that, as lawyers representing the United States, the United States as an entity is their client and not the guy occupying the Oval Office. Both the Model Rules and state analogs, including D.C., uniformly make plain that when you represent an organization, the entity is your client. Both the Model Rules and state analogs, including D.C., pretty uniformly impose ethical obligations on a lawyer representing a governmental entity or other organization who comes to know that officers of the entity are acting in ways that violate the law.

Some state variations on RPC 1.13, including mine here in Tennessee (which admittedly has no bearing on any aspect of the Stone case) not only impose those requirements for reporting up the ladder in the organization but demand that “[i]f despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and is likely to result in substantial injury to the organization, the lawyer may withdraw in accordance with RPC 1.16….”

Please do go read the links. It is not really all that hyperbolic to describe this situation as truly jeopardizing the rule of law in our country. The fire may be spreading so rapidly that we’re about to be out of glass to try and break.

PDA: If you’re going to get disbarred in TN, get it done before July 1, 2020.

Because if you can get it finalized by June 30, then you might still have the chance to be reinstated starting July 1, 2025. In this instance, PDA is short for “public disservice announcement,” not “public display of affection.” You might remember back last year I wrote about a proposed revision to the rules of disciplinary enforcement in Tennessee and my reasons for thinking it was not a necessary change.

On Friday, the Court entered an order adopting the revisions as proposed. The order mentions that in addition to comments filed by the Tennessee Bar Association, the Board of Professional Responsibility, and the Knoxville Bar Association, there were comments filed by two individual lawyers. It should probably come as no surprise to anyone reading this that all of the comments, except for the BPR’s comment, voiced opposition to the proposed changes. You can read all of the comments that were submitted here.

The Court’s order offers no explanation for why the Court thought the revision to be necessary in the first place, nor does it undertake any explanation of why it disagreed with the majority of the comments or what about the Board’s position it found persuasive, if anything. (The most effort that the Board put into its response was actually to talk at length about the Hughes case that already demonstrates that the Court had the power and willingness under the current system to refuse to reinstate a disbarred lawyer who it doesn’t feel should be reinstated.) So … disbarment in Tennessee is about to become a “forever” punishment, putting Tennessee into a very small group of states that embrace such an approach, and we still don’t know “why” the Court thought the change was needed.

Thus, on the present record, there seem to be only two possible conclusions to draw: (1) the Court simply thinks that disbarment under the current system is not sufficiently severe in terms of a penalty because it provides for a second-chance; or (2) the Court thinks that disbarment should truly be reserved only for the worst-of-the-worst offenses and that most lawyers who get disbarred should actually be hit instead with a suspension of somewhere between 6 and 10 years in length.

Which one is it? Only time will tell I guess.

WhatsApp at Atrium? A lot, but also WhatsApp with you?

Now, I’m certain the 5 or 6 of you still left who haven’t been alienated by the long hiatus are a bit miffed about the lack of content over the last couple of weeks.

Fair, but technically there has been new content posted to the blog first on January 10 and then on January 12, just not by me. Two interesting comments on this post of mine about Atrium Law were left by someone who — other news sources tell me – may well have been one of the lawyers laid off by Atrium in the past few weeks.

Now I’m not really in the breaking of legal news business as much as the commenting on breaking legal news business so the fact that I life and work conspired to cause me to miss the opportunity to be among the first to speak on that development is not so bad. My delay allows me to instead point you to a number of good pieces that have been written about the goings on over at Atrium. Try here, here, and here.

For today, I want to try getting slightly out in front of a different issue that needs to be relevant to lawyers struggling with finding the right balance for how to engage in electronic communications with clients on various platforms. While “scary” is an overused term in a world as unstable as ours and where wealth is unevenly distributed and people all over the world truly live in scary conditions, concerns associated with the security of communications platforms can at least be “scary” at the “world of lawyering” level.

With WhatsApp being a pretty prominent texting platform, particularly for international organizations, the news of one or possibly two very prominent apparent hacks through use of that platform should make lawyers very cautious about using it to communicate with clients. The one that seems more concrete is the news regarding Amazon’s CEO having been hacked by a Saudi Arabian royal through the sending of a link through WhatsApp. You can read a good article about that trending story here. That article also helpfully reminds users of the fact that a similar-sounding vulnerability was acknowledged and patched by the app in November 2019.

The more speculative story making the rounds ties together these stories about potentially improper use of personal devices and apps to pursue official White House business and the known friendship Jared Kushner and the particular Saudi Arabian royal involved in the alleged Jeff Bezos hack.

Now, others have written long ago about reasons to be concerned about whether this particular app can be used ethically at all given other issues that are known risks, like this article that was in Above the Law more almost a year ago.

Prominent news stories such as these raise the specter of concern over less obvious risks of use. Such risks tied in with the fact that almost every state now has adopted some version of the “ethical duty of technical competence” concept through embrace of language in paragraph [8] of the Comment to ABA Model Rule 1.1 just adds more fodder for lawyers to be wary of the risks associated with third-party platforms when communicating with clients and to be deliberate about deciding whether to address such concerns in advance through language in engagement agreements.

My favorite post of 2019

For the second straight year, I’m ending the year with an homage to a concept (ripping off an idea) pursued by Nate DiMeo the writer and performer of The Memory Palace podcast. I’m going to re-post what was my favorite post from the past year.

Deciding what to put out there again this year was fairly easy as it is a post that (I think) offers the most solid and original idea about anything related to ethics that I offered up this year. It also continues something of a theme of last year’s repeat offering as it focuses on what the profession should be moving toward and, thus, also is a nice way to usher in a new year — particularly a new year where the numbering offers plenty of opportunities for puns about vision.

Of course, as often happens when I think I have offered up a solid and original idea, it ends up pretty much entirely ignored. So, let’s give this one another chance to gain relevance.

Loosing a big (maybe?) idea into the world.

I had originally promised myself that the articulation of this thought would debut here at my blog. I almost managed it but I raised this notion in the real world lately among some very bright lawyers. So, before I do it again somewhere other than the Internet, I’m following through to put this idea out through this platform for anyone who wishes to chew on it to chew on it.

The only background that I think you need (even if you are not a regular reader of this space) is that there is much activity going on across the country in terms of real efforts at proposed change to the way lawyer ethics rules address certain topics that are largely viewed as barriers to information about the availability of legal services.

Two of the potentially most important, and relatively fast-moving, endeavors are the work of the California Task Force on Access Through Innovation of Legal Services, the APRL Future of Lawyering project. But there is movement happening in a number of different states to propose changes to the ethics rules to loosen, if not outright delete, restrictions on monetary and other arrangements between lawyers and people who are not lawyers, that are currently placed in rules patterned after ABA Model Rule 5.4 (generally prohibiting fee-sharing with people who are not lawyers) and 7.2 (restricting the ability of lawyers to make payments to others for referrals to, or recommendations of the lawyer).

It is anticipated that there will be some significant level of outcry over any such proposed changes on the grounds that removal of such rules erodes the protection against lawyers having their exercise of independent professional judgment interfered with. Most every time I engage with anyone on that topic, I find myself making the point that, even without those provisions, the rules still require lawyers to maintain their independent professional judgment.

But, here’s the idea I am letting loose into the world: perhaps we should make that obligation more prominent. At present, outside of any particular context, the only rule that plainly starts down this path is the first sentence of Rule 2.1 which reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Should we, as part of the coming necessary reform of the ethics rules, revise the first rule? Perhaps like this?

Rule 1.1: Competence and Independence

(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer representing a client shall not permit any person to direct, regulate, or otherwise interfere with the lawyer’s exercise of independent professional judgment.

If that rule existed, then in all places in which restrictions considered to be barriers to access to legal information but which are justified because of the risk to lawyer independence could be replaced with a pointer back to the lawyer’s obligation under Rule 1.1(b).

Two updates: Ruff[alo]ed feathers in Georgia & Piercing personal jurisdiction in California

Apologies for the drought in content over the last little bit as I’ve been traveling my state for my Ethics Roadshow doing a three-hour presentation in four cities about what I think the future looks like for those who will still be practicing in 2025.

For today, two updates of note that involve important, ongoing topics but that also involve strikingly different interactions.

I’ve written quite a few posts during 2019 and I’ve had subsequent interactions with lawyers involved in two of those matters. One of the interactions has been cordial and one has not. As with all things in the world, their situations and lives have continued and more has transpired regarding their disputes since I interacted with their stories.

The lawyer taking on whistleblower status in a high-profile dispute with his former law firm that involved litigation on both coasts that I wrote about earlier this year (under the heading “A lawsuit about a lawsuit that touches on everything about 2019?”) has emailed me on a few occasions to update me about the litigation proceedings. His dispute with his former law firm involves very serious allegations being thrown in both directions by the adversarial sides.

Most recently, the California lawsuit that was filed against him by his former firm, after he had filed his own lawsuit against his former firm in New York, appears to have been dismissed/quashed on the basis of a lack of personal jurisdiction.

The New York litigation between the parties is ongoing, however. One piece of the ongoing dispute appears to be over whether the lawyer will be entitled to obtain a copy of the investigative report upon which the firm allegedly relied in deciding to terminate him and whether another sealed litigation matter in New York should be unsealed. Should you be interested, you can read the firm’s opposition to those efforts and the lawyer’s reply to that opposition at the buttons below.

Another post I wrote earlier this year was about a Georgia lawyer who was being disbarred and who provided an example of how difficult it can be in a disciplinary case to plead the Fifth Amendment without being visited with dire consequences for one’s license. She has also corresponded with me, but her interactions with me have involved demanding that I delete my prior post about her disbarment.

Given that my prior writing on her situation relied upon both the Georgia Supreme Court disbarment order and reporting by the ABA Journal online, I’m not concerned about any threats or demands to delete content. What I’ve written is clearly covered by fair report privilege as well as worthy of protection under my state’s anti-SLAPP statute.

But I did want to share a filing she has sent me that she has made with the United States Supreme Court because it raises issues of potential real importance in the world of lawyering and disciplinary defense.

As I wrote back at the time, even though disciplinary proceedings are treated as quasi-criminal, lawyers who plead the Fifth when trying to defend their licenses invariably have such refusal to testify held against them. This particular lawyer is now seeking relief from the U.S. Supreme Court to hear her case and to stay the disbarment, in part, on the basis of arguments over the correct application of In re Ruffalo and other U.S. Supreme Court decisions addressing the impact of asserting the Fifth Amendment on a disciplinary matter.

Her effort to have the Court take her case and overturn the disbarment also raises an issue that I talked about some during my recent Ethics Roadshow, the impact of the United States Supreme Court’s ruling in North Carolina State Dental Board v. FTC on the risks for unified bars of potential attacks based on antitrust liability when the majority of the decision-makers are active practicing lawyers.

I would imagine that the likelihood of the Court taking this lawyer’s case up is small, if for no other reason than that statement is true about any effort to get the Supreme Court to hear a case. But the motion seeking stay makes arguments that, if the Court does take the matters up, could make for interesting developments and it makes for interesting reading in terms of how those arguments are constructed as well.

You can read that U.S. Supreme Court motion filing at the button immediately below:

For attorney’s eyes only.

Okay. It helps to get into my mindset while writing this if you hear the title in the voice of the musical snippet “For British Eyes Only” from Arrested Development. If you can’t make the frame of reference, then so be it. We’ll have to work to find common ground all the same. (Actually, for the briefest of moments I forgot that we live in 2019 when everything is but a link away, so here is what you want the title of the post to sound like: clip.)

Ethics opinions are interesting creatures. They provide a group (usually) of people with law degrees with an opportunity to elaborate on otherwise potentially unsettled (or even unsettling) questions of application of the ethics rules. As a result, they can be used to set a trend in one direction or another toward either expanding or limiting the scope of a rule.

Usually, they are most influential when they involve an interpretation of the standard version of a particular ethics rule. In Tennessee, as I’ve written about a few times now, formal ethics opinions are being used (for better or worse) to severely expand the scope of what RPC 5.6 means in terms of when an agreement entered into in connection with the settlement of client’s matter will be deemed to involve an improper restriction on the attorney’s right to practice. Those opinions are potentially of particular moment because they are interpreting language that is pretty widespread in its uniformity: “A lawyer shall not participate in offering or making … (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” Over the course of a few opinions now, the Tennessee Board of Professional Responsibility has added layer upon layer of kinds of provisions that could be in a settlement agreement for a number of potentially legitimate reasons but that are being ruled out because they are being treated as an improper restriction under RPC 5.6.

A recent ethics opinion in Ohio addressing another variation of same seems to be rowing in the same direction as it concluded that a plaintiff’s lawyer could not be asked to commit to the fact that they did not actually have any other clients at the moment of settlement with similar claims against the settling defendant. You can read that one here.

So, I was briefly intrigued when I saw a tweet about a proposed ethics opinion in North Carolina that was concluding that a lawyer could ethically agree to an “attorney’s eyes only” restriction on the production of certain documents in a case without first getting their client’s consent to such an arrangement. That seemed like a very difficult position to justify and it seemed like it was something of a polar opposite of what is going on in the thread of Tennessee ethics opinions about RPC 5.6. The 5.6 series of opinions is almost going out of its way to find conflicts between an attorney’s interest and their client’s interest in order to shoehorn the situations into RPC 5.6. Yet, here was a nearby state proclaiming that something that seemed squarely like a real conflict for the lawyer would be kosher even in the absence of seeking client consent.

(Admittedly, my initial reaction also was to be skeptical about the conclusion. I’ve certainly encountered my fair share of AEO provisions in protective orders but I’ve never signed off on one without running it by the client so that they can decide in advance if they are going to have a problem with the arrangement. Seems like a pretty clear creation of a conflict of real importance to the attorney-client relationship where the client should be signing off on accepting such a situation before it transpires.)

But, in reading the proposed opinion, which you can access here,what I learned is that it leans heavily upon non-standard language in North Carolina’s rules that provides strong justification for the conclusion. Specifically, it relies upon the fact that North Carolina has divided its RPC 1.2 into a number of subparts, including an (a)(3) that gives the lawyer the ability to “exercise his or her professional judgment to waive or fail to assert a right or position of the client.”

On its face, the existence of such a rule could provide grounds to think this is a correct conclusion, but, if you really think about it, that provision if it is without limit is … I believe the technical, legal term would be BANANAS!

Surely, it was never intended to impact things that are vital to the representation and for which the client should have final say. Right? I mean, on its face, it would allow a lawyer to exercise professional judgment to waive the client in a criminal case’s right to choose not to testify.

To the extent the comments provide us with any insight about what was intended it seems pretty important to note that paragraph [1] of the Comment provides only one elaboration on the concept: “For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.” That is both an innocuous example of the use of the rule and one that seems pretty redundant for RPC 1.2(a)(3) given that North Carolina’s RPC 1.2(a)(2) also addresses that kind of situation by saying: “A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.”

Really good guidance, but not good enough for some.

While I’m catching up on things I should have managed to write about sooner, ABA Formal Ethics Op. 488 is deserving of a few words. That opinion was issued back in early September of this year. What particularly brought it to mind now was that it covers one of multiple topics I was lucky enough to get to talk about last weekend at that PilotLegis member meeting I mentioned in a post last week.

Opinion 488 is a very well written opinion covering the landscape of what the consequences for judges should be in situations where they have some sort of relationship with lawyers or parties appearing before them. The opinion addresses this question with an eye toward what folks online refer to as IRL situations.

It divides the world for judges into three categories of relationships: (1) acquaintances; (2) friendships; and (3) close personal relationships. Having done so, it proceeds on a pretty straightforward basis to explain that if a judge and a lawyer, or a judge and a litigant, are just acquaintances, then the judge has no obligation to even make disclosure of that fact and certainly no obligation to decide to recuse themselves because they are disqualified from presiding. The opinion offers a fairly succinct proffered definition of what it means by the term “acquaintances” — “A judge and lawyer should be considered acquaintances when their interactions outside of court are coincidental or relatively superficial, such as being members of the same place of worship, professional or civic organization, or the like.” The opinion also makes clear that a judge and a litigant should be considered acquaintances under the same kinds of circumstances as judges and lawyers. As to the third category, “close personal relationships” the opinion explains that those require disqualification outright only if the relationship is a romantic one or what I’m going to call “unilaterally, aspirationally romantic.” Where the judge wants to have a romantic relationship with the person. As for the rest of the world of friendships and other close personal but non-amorous relationships, the opinion candidly admits that they are all pretty much fact specific as to whether disqualification is required or merely a disclosure on the record is what is required accompanied by an explanation of the grounds for why the judge believes they can still preside is appropriate instead.

I can manage to have some real fun criticizing ethics opinions from time-to-time so I can’t really begrudge others when they do. But this is one that I think gets things correct.

Two other prominent legal ethics experts, Karen Rubin and Alberto Bernabe, criticized this opinion in slightly different ways. Karen expresses disappointment that is does not do enough to provide what she called “needed” guidance about the impact of judges’ use of social media and connections with lawyers and litigants on questions of disqualification. Professor Bernabe mentioned that omission but was a bit more critical of the nature of the opinion as being an “it depends” and is largely “up to the judge” in the first instance.

I disagree on Professor Bernabe’s point because I think that is the very nature of the beast. And, I appreciate the opinion being candid about the exercise. I disagree with Karen Rubin for what might be two reasons, but might really just be one overall reason.

First, treating social media as something so important or different as to be deserving of its own space and separate treatment (I think) misses the larger point. A social media connection simply is just one piece of the overall puzzle of determining whether or not the judge and the person have an actual relationship that is a friendship or something less. Second, the opinion does address the topic – and does so in a way that is entirely consistent with my first point. It does this in footnote 11:

Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.

By simply acknowledging that it matters, but that it is no more dispositive of the relevant question than any other piece of the puzzle, I think that Opinion 488 handles it exactly the correct way. Stated another way, given the widely varying state opinions that Karen addressed in her much more timely post about this, I think the guidance needed from the ABA on the social media front was pretty much exactly what was in the footnote and nothing more. If that guidance is heeded, then perhaps state entities can start to “chill out” a bit about the trees and focus on the forest.

Then I went and slept on Arizona

So … as far as 400th posts go … this should be my best 400th post at this blog.

A while back I warned everyone not to sleep on Arizona when it comes to movement toward radically reshaping the regulatory landscape for lawyers. Apparently, I should practice what I preach because Arizona’s Task Force on the Delivery of Legal Services put out its most recent report a month ago, and I haven’t gotten around to reading it or writing about it until now.

You can read the full report and its appendices here, but the headline that matters for today is that the Arizona task force — like Utah before it — has also proposed eliminating altogether Arizona’s Rule 5.4. The report includes a large number of other proposals aimed at improving the delivery of legal services in Arizona but because of the dynamics involved, any serious proposal in any state to throw open the doors to lawyers being able to practice in firms owned by people who are not lawyers will consume all of the oxygen in any given room.

As with all of the reports that are being churned out by various work groups, the Arizona task force report spends a lot of time discussing issues associated with the “justice gap.” The Arizona report does a pretty good, very pithy, job of making the point that many hear but don’t allow to fully marinate when thinking about these issues — on average, real people (as opposed to corporate people) don’t hire lawyers for much of what they need to be hiring lawyers for and, on average, lawyers who work in small firms don’t have enough work to do to make ends meet.

While admittedly blending together data involving disparate time periods, the Arizona report nicely blends together information written about by Professor Henderson and data made available by Clio:

One reason for the current “justice gap” is that the costs of hiring lawyers has increased since the 1970s, and many individual litigants have been forced to forego using professional legal services and either represent themselves or ignore their legal problems. Professor William D. Henderson, Indiana University Maurer School of Law, has noted the alarming decline in legal representation for what he calls the “PeopleLaw sector,” observing that law firms have gradually shifted the core of their client base from individuals to entities. Indeed, while total receipts of United States law firms from 2007 to 2012 rose by $21 billion, receipts from representing individuals declined by almost $7 billion.

[snip]

According to the 2017 Clio Legal Trends Report, the average small firm lawyer bills $260 per hour, performs 2.3 hours billable work a day, bills 1.9 hours of that work, and collects 86% of invoiced fees.11 As a result, the average small firm lawyer earns $422 per day before paying overhead costs. These lawyers are spending roughly the same amount of time looking for legal work and running their business as they are performing legal work for clients.

In reaching the conclusion that Rule 5.4 should simply be scrapped, the report explains that the task force considered and rejected options to just amend Arizona’s Rule 5.4 to do something closer to what the D.C. Rules have long permitted at the entity level and also rejected a small “sandbox” sort of arrangement that would have allowed just applicants who could get approval to run “pilot” project style efforts.

The Arizona report, like Utah’s before it, also has an eye toward creating a mechanism for “entity” regulation. Interestingly, the Arizona report also recommends scrapping Rule 5.7 regarding law-related services in light of the deletion of Rule 5.4’s prohibitions and in favor of amendments to other rules to make clear that the kinds of protections that a rule like Rule 5.7 gave a lawyer a mechanism for not having to afford to customers who were not clients should always be afforded to customers in a post-5.4 world whether clients or not. Also, as indicated would be the case in my earlier post about the goings-on in Arizona, the report does propose dropping altogether the restriction on paying for referrals housed in Rule 7.2(b).

The Arizona report also contains an Opposition Statement, written by a member of the Arizona task force who also happens to sit on the Arizona Court of Appeals. In short, Judge Swann’s Opposition Statement can be summed up as seeing the proposal to scrap Rule 5.4 as a cash grab by the legal profession wearing the cloak of concern with access to justice. Perhaps the strongest point Judge Swann makes is how badly the judicial system itself is in need of reform:

Though the current rules do an excellent job of implementing the “Cadillac” system of trial by jury and cutting-edge discovery techniques, they are completely ineffective at offering a simple path to dispute resolution for self-represented litigants, and they offer no streamlined procedures for small cases. The complexity of the system – indeed the very need for legal services in many cases – is a problem of our own making. I respectfully submit that the Task Force should have directed its attention to systemic reforms, and not to finding ways to direct even more resources to an already-too-resource hungry system. If the court system is too complex for the average citizen, then we must create a simpler and more efficient system – not new industries that will continue to consume the public’s money.

With its built-in “dissent,” the Arizona report really does frame the issues quite appropriately in terms of the nature of the choices that are out there for what must or should or will happen next both in Arizona and elsewhere.

This coming weekend, this general topic will be one of several that Merri Baldwin and I will be speaking on at an event for the PilotLegis Annual Member Conference in Washington, D.C.

Later this year, what has been going on and what comes next will be the focus of the 2019 Ethics Roadshow. We’re calling it “What to Expect When You’re Expecting (Fundamental Changes in the Legal Profession).” I’ll be doing it live in Memphis, Nashville, Chattanooga, and Knoxville over the course of two weeks in December 2019.

I always knew I’d be headlining music festivals one day.

That’s not true at all. I never even imagined I’d be the headliner at a music festival.

After this year’s AmericanaFest in Nashville though, everything has changed.

Well, that’s actually still pretty misleading as I was not the headliner at AmericanaFest.

I did, however, get to be a speaker during AmericanaFest, as part of a panel along with Professor Tim Chinaris. Ours was neither the most high-profile and well-attended session of the conference, but we did talk for 90 minutes about a timely topic in the world of legal ethics.

Unlike loads of other parts of this post, the two-immediately preceding sentences are neither false nor misleading.

Other programming events at the CLE conference portion of AmericanaFest included a session (featuring the daughter of June Carter Cash as a panelist) focused on the upcoming PBS series from Ken Burns about the history of country music, a lunch session involving a conversation with Grammy award winner Brandi Carlile, and a session focused on combating internet monopolies featuring another Grammy award winner, T-Bone Burnett.

Professor Chinaris and I spoke about the new ABA Model Rules revisions addressing lawyer advertising and the current trend toward modernization of such rules across the country. Ours was definitely the best presentation during AmericanaFest on that subject.

Of course, to make that last sentence entirely truthful and not the least bit misleading, I should add that ours was the only presentation during AmericanaFest on that subject.

This post has been much more amusing for me to write than it probably has been for you to read. But, to the extent it can end up being a constructive effort at making any coherent point relevant to legal ethics, that point would be this: if a lawyer were seriously (rather than in jest) making any of the various kinds of false or misleading statements written above in order to advertise their services, the only ethics rule that would be necessary to have a way of imposing discipline for such conduct would be a rule such as ABA Model Rule 7.1.

Model Rule 7.1: Communications Concerning A Lawyer’s Services.

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

If this post can be allowed to make one other coherent point relevant to legal ethics, it would do so by quoting a piece of the report and recommendations from the Utah Work Group on Regulatory Reform that (as mentioned in this earlier post) the Utah Supreme Court approved explaining the need to rework Utah’s ethics rules related to lawyer advertising:

The main concern should be the protection of the public from false, misleading, or overreaching solicitations and advertising. Any other regulation of lawyer advertising seems to serve no legitimate purposes; indeed, it is blunt, ex ante, and — like so many current regulations — neither outcomes-based nor risk-appropriate.