Ridiculous from up close and far away.

I have some real-world experience in trying to help lawyers already admitted in at least one jurisdiction obtain admission to practice here in Tennessee.  My state’s system now is still less than ideal but not necessarily in a way that makes it strikingly more problematic than is the case in many other states.  (In the long, long ago I wrote a bit about how it was strikingly more problematic but we obtained some important rule revisions that made things better, if not perfect.)

Part of the overall problem with this aspect of lawyer regulation is the antiquated nature of the overall process plus the increasingly-difficult-to-intellectually-justify approach that we have to the regulation of the practice of law in this nation that clings to the notion that each of the 50 states plus D.C. is entitled to make its own determinations about whether someone who is perfectly competent at practicing law in one state can manage to grasp how to practice law in their state.

The underlying premise and approach is one that institutionally leads itself easily into a protectionist and parochial approach to making admissions decisions.  There are lots of ways in which the patchwork approach that exists to these issues has been very difficult to reconcile with advancements in technology and how easy it is for a lawyer sitting on a chair, in let’s say Oregon, with an internet connection can effectively practice law in, and service clients in, California or Texas or Maine or . . . well, you get the point.

This recent Law.com story tells the tale of an associate in a Kentucky office of Dinsmore Shohl who relocated to Ohio to work in the Cincinnati office and who is now at risk of being denied admission to the Ohio Bar based on “character and fitness” issues.  The problem with her character and fitness to practice is that Ohio has concluded that she’s been engaged in the unauthorized practice of law in Cincinnati by continuing to represent Kentucky clients where she is licensed while waiting for a decision on her application to be admitted to practice law in Ohio.

As far as fact patterns go, this one is among the more innocuous and is one that – if you happen to practice in a firm that has offices in multiple states — you’ve probably seen happen without incident and perhaps never even contemplated could go awry for the lawyer involved:

The questions about Jones’ potential admission to the Ohio bar trace back to 2015, when the associate requested a transfer to Dinsmore’s Cincinnati office so she could start and raise a family in Ohio, according to court documents. The firm granted her request but asked Jones to first apply for admission to the Ohio bar. It also required her to continue working only on matters arising under Kentucky law while her application for admission to the Ohio bar was pending.

Following the firm’s suggestions, Jones applied in October 2015 for reciprocal admission to the Ohio state bar—a process that would allow her to avoid retaking the bar exam in Ohio. She then moved to Cincinnati and worked only on Kentucky matters. She took a maternity leave and returned to practicing Kentucky law while based in Cincinnati, according to court documents in the case.

The article also indicates that those advocating for her admission in Ohio have raised constitutional arguments that also address one of the core problems with the way admissions authorities will often take a “cake and eat it too” approach to these issues:

Jones also invoked the U.S. Constitution’s due process provisions under the 14th Amendment. In a May brief, Jones’ lawyer noted that Ohio’s bar rules would allow an Ohio lawyer to practice Ohio law even if that lawyer was physically doing the work in another place. But, Jones argued, the board’s view would prohibit an out-of-state lawyer who wanted to do some work while in Ohio.

Even merely reading about this situation is a frustrating endeavor but important to highlight because, even if the Court ultimately gets the answer right, it shows how archaic some aspects of this whole approach to these issues are.  (Not the least of which being that we are talking about a situation in which this associate has now been under this cloud and in this situation for nearly three years.)  And heaven help all the multi-state firms with Ohio offices if the Court gets the outcome wrong.

The end of Avvo Legal Services should not be the end of the discussion.

A lot of the time, saying something seemed “inevitable,” only makes sense to say when you’ve had the benefit of hindsight.  At some level, every outcome can be justified as having been inevitable when you are doing the justifying after the event has already happened.

I say that to make clear that I understand the problem with making the following assertion:  As soon as the news came out that the same company that owned Martindale Hubbell was buying Avvo, it seemed inevitable that Avvo Legal Services was on the road to being scrapped/shut down.

Further, if the mere news that a much larger, much more “conservative” company was taking over didn’t signal for you how things would shake out ( a company that also owned other significant legal marketing products that might “compete” with or be intended to compete with Avvo), the news that quickly followed — all the key people at Avvo (the founder and CEO, the General Counsel, the marketing person who was to some extent the “face” of Avvo) were cashing out and moving on — should have left no doubt that large change was coming.

This week Internet Brands, that new owner of Avvo, let the cat out of the bag in perhaps the weirdest way possible that Avvo Legal Services would be shut down.  As this ABA Journal article reports, an unauthorized practice of law committee of the North Carolina Bar had sent an inquiry letter, apparently, to continue or begin an evaluation of whether Avvo Legal Services somehow involved the unauthorized practice of law.

In response, the General Counsel of Internet Brands sent the North Carolina committee a letter advising that Avvo Legal Services was going to be shut down imminently.  That’s a weird way for the news to come out because, of all the problems that Avvo Legal Services’s business model had, unauthorized practice of law simply wasn’t one.

If you follow this space, then you are likely well-versed on what those problems were: the business-model required participating lawyers to take on all of the risk that participation would involve them in one or more violations of their state’s ethics rules, including rules against sharing fees with people who aren’t lawyers or paying someone something of a value for a referral of legal work.

The end of Avvo Legal Services, however, should not mean that the legal profession should stop efforts to determine how the ethics rules need to be revised in order to facilitate the existence of things similar to Avvo Legal Services.  Consumers who have grown accustomed to using that kind of platform to get assistance with their legal needs are just going to look around the Internet for a new option.

One of the folks behind Avvo has been promoting the existence of one such new option pretty vigorously of late.  But there are all kinds of others out there and likely new ones waiting in the wings.  Very few, if any, of them can truly be described as providing any sort of service that is likely to hurt consumers seeking legal services.  Real-world transactions have demonstrated that the kind of approach to pairing consumers in need of help with lawyers with time on their hands and a willingness to assist at a desirable price point can take place without hurting the consumers of legal services.  The fact that those business models are currently prohibited by the ethics rules simply means that slavish devotion to those prohibitions based on theoretical concerns rather than how things truly are is an untenable position for the profession to try to maintain.

I still think a big choice has to be made in our profession, and I continue to think that choice is clear.

Time to choose: are you Illinois or New Jersey?

Blackhawks or Devils?

Bulls or Nets?

Barack Obama or Chris Christie?

Northwestern or Rutgers?

Kanye or Wu-Tang Clan?

Wilco or Bruce Springsteen?

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

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

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

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

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

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

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

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

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

Choose wisely.

A tale of two ethics opinions.

So, I’ve made something of a habit of writing about ethics opinions.  Bad ones and good ones.  Mostly bad ones though.

As the trite – almost hackish – title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from a well done ethics opinion on the kind of issue that cries out for guidance in the form of an ethics opinion and the harm that can come from the kind of ethics opinion that likely should not be issued at all.

First, the good – an opinion issued out of Texas (which Karen Rubin has already written some about) that tackles a thorny problem that can confront a lawyer who has been retained by an insurance company to represent one of the company’s insureds in a piece of litigation.

The particular question addressed in Texas Opinion 669 is this:

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer retained by an insurance company notify the insurance company that the insured client he was assigned to represent is not cooperating in the defense of the client’s lawsuit?

The answer the Texas opinion provides, as difficult as it might be for insurance defense lawyers to hear, is “no.”  And, that answer is the correct one in any jurisdiction where the way the “tripartite” relationship is structured is that the lawyer’s only client is the insured and the insurance company is merely someone who is permitted to pay the lawyer’s bills as long as the lawyer complies with the state’s version of Model Rules 1.8(f) and 5.4(c).

In Tennessee, for example, RPC 1.8(f) specifically states one of the requirements for permitting the lawyer to accept compensation or direction from someone other than the client as being that “information relating to representation of a client is protected as required by RPC 1.6.” (Interestingly, the Texas opinion makes no mention of, or reference to, any of those kinds of rules but simply uses only its confidentiality rule to justify its analysis.)

The unfortunate opinion comes out of Virginia.  Virginia, you might recall, recently made a great leap forward in streamlining its rules on attorney advertising by revising its rules to look very much like the proposal circulated by APRL.  After adoption of those revisions, which became effective on July 1, 2017, Virginia’s ethical restrictions on advertising were largely capable of being described as simply prohibiting false or misleading communications.

Unfortunately, with the issuance of Legal Ethics Opinion 1750, Virginia manages less than a year later to undermine much of its progress by simply re-issuing and updating a lengthy opinion it has released on multiple past occasions that attempts, in advance and not in response to evaluating any particular real advertisement, to provide “guidance” about what kinds of advertising practices should still be avoided because of the potential to be considered to be misleading.

Unlike the Texas opinion, which answered a real dilemma that lawyers can face and for which definitive guidance can be provided, the Virginia opinion is the kind of ethics opinion designed almost exclusively to chill commercial speech.  Even if the guidance it gave on all of the topics it unilaterally decided to address were correct, it would still be the type of opinion that ought not be issued.

Certainly, it says some things that are undoubtedly true and fun to read about ways that a lawyer could engage in truthful advertising that would still be a problem because it would be misleading by omission.  I’ve spoken at seminars before where I’ve tried to make this point by saying that a lawyer whose ad truthfully proclaimed “I’ve never lost a jury trial,” but fails to also mention, for context, that they’ve never actually been involved in a jury trial is going to be at risk under any fair set of ethics rules.  The Virginia opinion grabs a slightly different version of this rich vein by explaining that a lawyer truthfully crowing that “They secured a $1 million jury verdict in case,” but not mentioning that it came only after turning down a $2 million settlement offer before trial would have disseminated a misleading advertisement.

But, even that guidance is something that really ought not be opined about unless there were an actual lawyer seeking actual guidance about just that sort of advertisement.

So many other pieces of the opinion are even worse, however.   Cautions about using actors in ads, hand-wringing over “no recovery, no fee” statements, and subtle digs at the use of testimonials by actual clients in the opinion appear to be rolled back out for no real reason other than to undermine the progress on lawyer regulation of advertising that had appeared to be achieved by streamlining the rules themselves.

On wellness: An indirect explanation of last week’s lack of content

Content is a hungry beast.  I starved it last week.  Apologies.

It was really a bit of a rough week to let things get away from me and not be able to write anything because there were actually quite a few things worth delving into that happened.  Perhaps the biggest piece of news actually came the same day that I had a speaking engagement at a CLE for in-house counsel here in Memphis.  There were California in-house lawyers with the hosting corporation who were attending remotely and I apologized at the outset for the fact that the differences between their rules and Tennesssee’s were going to make their next hour of time pretty wasted and, also, mentioned that they were certainly striving to change their rules but then saying that we all strive toward lots of things …  implying that they’d never manage to adopt rules that look like the ABA Model Rules.  That very same day California was able to announce that, after 17 years of effort to get there, rules patterned after the Model Rules are being adopted and will become effective in November 2018.  I can’t write much more about that in any meaningful way because I haven’t had time to study any of it, so I won’t.  You can read the first wave of information about what those rules will look like here.

I’m also not going to “write” today about any other ethics topic of interest.  But, I do want to ask for 6 minutes of your time today in the name of the important issue of attorney well-being to watch the clip you can get at the link I’m posting below. (I promise this is not me trying to “pivot to video.”)

The last 12 minutes of the 2017 Ethics Roadshow

I shared this story about me for the first time during last year’s Ethics Roadshow after staying quiet about it for more than 7 years.  If you didn’t attend, or you didn’t stay for the last 12 minutes, then you won’t have seen it.  It offers an indirect window into why there was no new content offered here last week.  (Also, I know I said I’m only asking for 6 minutes of your time.  My personal story starts at the 6 minute mark on the clip.)

All things considered, I remain very lucky.  Client obligations and family obligations come first in terms of what gets accomplished.  After that, speaking engagements and all that entails comes next.  Pretty much everything else, including this blog, ends up third on the depth chart.  Sometimes I’m not deep enough to get that far down in the chart.

Throwback Thursday on Cinco de Cuatro Eve

Usually the concept of Throwback Thursday should reach back farther than merely months ago, but I can’t resist given yesterday’s news.

So, I throw you back to this February 15, 2018 post.  And I do so to point out something about which I was right and something about which I was quite wrong  but with a twist.

At the end of that post, I wrote this:

Instead, I want to point out my own opinion, given the way a certain someone is known to operate, about how this likely went down:

Cohen is likely telling the truth about paying with funds of his for which no one reimbursed him, but omitting the most salient detail.  He probably wasn’t “reimbursed” by anyone after making the payment because he was probably provided those funds, pretty much immediately in advance of the transaction, as some sort of bonus or even a “gift” with the tacit understanding about what he was expected to do with those funds — purchase Ms. Daniels’s silence.

This was me sort of making things too complicated when I should have stuck with simple.  And, yet, I wasn’t too far off the mark.

Earlier in the post, I wrote this:

(c) It also is quite likely that Cohen’s version of the events is probably not 100% the truth, key details have been omitted, and it could very well, if nothing else, be a violation of a rule such as RPC 8.4(c).

That bit, at least if you are now willing to believe another lawyer for the same client over the earlier lawyer for the same client and the client himself now explaining in a series of tweets clearly written by another lawyer – though one who either can’t spell “role” or who knows enough to know his client can’t spell “role,” was pretty much spot on.  You can read a pretty decent, condensed version of the roller coaster events of that last 12-18 hours – including links to a deeper dive, in this The ABA Journal piece.

The fact that we now know more about this situation because the latest in a parade of what may go down in history as the worst high-profile legal team ever assembled blurted out this latest on cable news leads me to my segue.

For many reasons, Jeffrey Tambor ought to play the 45th President when the movie of this unprecedented period of American history is filmed.

And, on that note, and in news entirely unrelated to legal ethics but about which I’m even more excited and nerdy than I am about legal ethics generally, tomorrow, on Cinco de Cuatro, the creator of Arrested Development is releasing an entirely re-cut and transformed version of the 4th season of this incredible show.  If you’re interested [Ron Howard voice: they were not interested], you can read all about that development here.

A short post-mortem for Tennessee’s proposed RPC 8.4(g)

With the flood of comments in opposition, and particularly the fact that the Attorney General of our state felt the need to file not just one but two comments in opposition, the unsuccessful end of the effort to convince the Tennessee Supreme Court to adopt a version of RPC 8.4(g) has felt inevitable for the last month or so.

Yesterday, the inevitable end came in the form of this one-page order from the Tennessee Supreme Court rejecting the petition.

I’m personally very grateful for the handful of entities that lent their support to the TBA/BPR petition which included not just specialty bar associations such as The Ben F. Jones Chapter of the National Bar Association and the Association for Women Attorneys, but also the Memphis Bar Association, the Knoxville Bar Association, and the Lawrence County Bar Association.

I’m not inclined to spend much space here discussing just how deeply disappointed I am in the outcome.  Given that I’m not likely to be the victim of any of the harassment and discrimination we were really aiming to protect against with this proposal, my disappointment is, at best, vicarious.  There are other lawyers in Tennessee who this impacts more directly.  Lawyers who have been told by many of those who filed comments that they are fair targets for disparagement as long as the lawyer disparaging them is not representing a client.

I wrote more than an 18 months ago about how skeptical I was that a state like Tennessee would adopt a black-letter rule addressing harassment and discrimination.  Admittedly, I let myself get a bit too optimistic along the way.  I remain convinced that the sentiments expressed by the most strident lawyers (mostly male, and nearly entirely Caucasian) who submitted comments opposing the proposal do not represent the future of our profession in this state even though they prevailed in the present.

If you have the stomach for plowing through knowing that some of them truly serve as only a forum for attorneys who look like me to sound off with typo-filled paeans to a Limbaugh-esque worldview, I will again state that reading through the comments is an educational experience.

If you’d rather not, I can sum up alot of them with the following TL/dr:

“When you’re accustomed to privilege, equality feels like oppression.” – original source to quote a bit unknown as explained here.

 

Awesome post. Except for the part that isn’t.

There is an awful lot to like and agree with in this post from Dan Lear, one of the folks who have been the face of Avvo for quite some time.  But there is a piece of it that is just simply wrong, and while it would be hyperbole to say it is dangerously wrong, it certainly is wrong in a way that lawyers don’t need to have reinforced.  Lear writes:

Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.

Even understanding the larger point Lear is attempting to make, this is utterly and simply wrong.  ABA Model Rule 8.4 – with language that is tracked in I believe pretty much every U.S. jurisdiction — does not limit itself to situations in which a lawyer is only representing a client and also does not draw a bright line around a lawyer “being a lawyer,”

The easiest, and most obvious, part of the rule that makes the point is RPC 8.4(b) which gets lawyers in ethical trouble for certain criminal acts even having nothing to do with, or not happening while, they are working as a lawyer.

But there are two other, more broadly problematic ways that RPC 8.4 does extend to, and actually govern, the conduct of people who happen to also be lawyers while they are doing things that they don’t think of as working as a lawyer know matter how much they may subjectively think they are being “awesome.”

Those two other pieces are RPC 8.4(a) and (c).  When combined those pieces of the rule read:

It is professional misconduct for a lawyer to . . .

(a) violate or attempt to violate [the ethics rules], knowingly assist or induce another to do so, or do so through the acts of another . . . [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation….

I’ve often joked about 8.4(c) as being the only ethics rule in the books that has to mean something other than what it actually says because, as written, it would make it professional misconduct for me to answer questions from children about Christmas presents or bluff while playing poker or dive to get a call while playing over-35 soccer on Monday nights.  I’ve also, once before and also in response to something written by a lawyer more famous than I, advocated that it shouldn’t apply to a lawyer operating a parody account on social media.   But there are aspects of how that rule truly does apply to dishonesty by lawyers, even when not acting as lawyers, which are quite serious.  Easy examples from the recent past involve deans and others affiliated with administrative positions at law schools lying about statistics to improve enrollment numbers and the like.

And, perhaps the most perplexing and concerning of the examples Lear offers of things a lawyer could do where they wouldn’t be bound by the ethics rules is serving as an expert witness.  I’ve been fortunate enough to serve as an expert on more than a handful of occasions in my career, and, suffice it to say, RPC 8.4 is not the only ethics rule that will still apply to the lawyer when serving in that capacity.

An object lesson about “staying in your lane.”

Prominent technology blogger, Robert Ambrogi, has taken to Above the Law to criticize the latest ABA Formal Ethics Opinion.  In addition to attempting to savage it over being somehow untimely since lawyers have been blogging for almost 20 years, his primary substantive criticism of the opinion is that it makes no sense for an ethics rule to prohibit a lawyer from speaking or writing (or blogging or Tweeting) publicly about information that is already in the public record.

Ambrogi’s criticism is a bland (and perhaps satisfying at a surface level) kind of thing to say, but it reveals that the author is not someone who has spent a bunch of time working with, or thinking about, the ethics rules.

In the nature and spirit of “open letters to people who are unlikely to read them,” I offer this primer to Mr. Ambrogi on why our profession has crafted an ethics rule that does, in fact, err on the side of prohibiting lawyers from further discussing things even that are public record without our client’s consent or the need to do so to further the representation.

Dear Mr. Ambrogi:

Let’s pretend that I was currently representing a prominent legal technology blogger in a divorce proceeding.  This is, admittedly, a hard thing to pretend as I don’t do family law, but we’ll push on nonetheless.

In order to secure the desired divorce for the blogger, and because of the truly toxic nature of the blogger’s relationship with their significant other, I end up having to share a lot of deeply personal, highly intimate, and potentially quite embarrassing information in the complaint for divorce not only about the blogger but about the blogger’s significant other and that person’s various other romantic partners.

Now that happens in a state where it is very difficult to establish the need for court filings to be sealed, thus the complaint for divorce is a public record upon filing.  It also occurs in a state where, while it is true that court records are public records, they are not well-organized online and are not all that easy to locate.

Thus, my client knows that what is in the complaint is a matter of public record, but they are certainly hopeful that the information will not be widely disseminated and that these intimate and embarrassing items are only ever learned and read by people directly associated with the court process.

Now, if your approach to the ethics rule on confidentiality were what our profession had adopted, then I’d be free at a cocktail party, or on a blog, or in a Tweet to share the wild information about my client’s personal life because it was a matter of public record, and I could do so simply to entertain those around me.

I would hope at this point we would both agree that would be a bad approach for the ethics rules governing our profession to take.

Thus, to protect against that kind of ability to disclose information, the rules are crafted to start from the premise that lawyers ought not to talk publicly about their client’s matters unless they have the client’s consent or some legitimate reason to do so.  (This includes not only further communications impliedly authorized to carry out the representation but situations where it becomes necessary to make disclosures, for example, for the lawyer to defend themselves in other proceedings.  If the blogger’s significant other turned around and filed a defamation lawsuit against me over the publication in the complaint about the intimate details of that person’s life, the ethics rules would allow me to disclose information reasonably necessary to defend myself.)

So, as that ends my rant, I will conclude by saying that I still stand by (another writing that you are unlikely to read) my prior take that Formal Opinion 480 is a good one.

 

Another good opinion from the ABA SCEPR

This was not what I originally planned to write about today, but … here we are all the same.

Today, the ABA Standing Committee on Ethics and Professional Responsibility released a new opinion and, because it relates to social media, it is generating a good deal of discussion online.  It is being rolled out and discussed as being of interest to lawyers who blog or tweet or otherwise participate in social media, but it actually is yet another opinion sending a message that all lawyers need to remember.  That is because it is another opinion from this body – in a relatively short period of time – emphasizing how broad the scope of client confidentiality is under Model Rule 1.6.

The key piece of the opinion worth knowing (mostly because it applies to lawyer communications in just about any forum or medium of any sort ranging from cocktail parties, to CLEs, to social media) is this:

The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a). Rule 1.6 does not provide an exception for information that is “generally known” or
contained in a “public record.” Accordingly, if a lawyer wants to publicly reveal client information, the lawyer must comply with Rule 1.6(a).

From my experience, this is a point about which lawyers cannot be reminded nearly enough.  And, it most certainly is not just a social media issue.  Though I have, in the past and far-too-snarkily written about the problem as it crops up on social media.

Interestingly, I spent most of my day today sitting through CLE programming and, perhaps coincidentally, it was the first time in a long time that I actually heard a presenter acknowledge before telling a story about a case that they had actually obtained their client’s permission to talk about the case.

Far too often, I hear lawyer presenters relate information about something they are working on at a CLE by providing so much detail about a situation that it would not take much effort at all to immediately figure out who they are actually talking about.  This latest ABA Formal Opinion also offers a helpful refresher on the problem with doing that:

A violation of Rule 1.6(a) is not avoided by describing public commentary as a“hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.