ABA SCEPR Increases Lifetime Batting Average.

Look at me with the super seasonally timely sports reference. Baseball. In January.

I have written on quite a few occasions in the past about the perils for lawyers in responding to criticism posted about them online. Well, the ABA has issued its latest ethics opinion to address the same topic. Behold ABA Formal Ethics Opinion 496 396 – Responding to Online Criticism.

Let’s have a double-header of untimely cultural references.

Issued January 13, 2021, ABA Formal Ethics Opinion 496 is the hottest ABA ethics opinion regarding online criticism ever.

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This opinion has everything. Sound rule interpretation. Meaty footnotes chock-full of research material for disciplinary cases and state ethics opinions. Acknowledgement of the important role that Barbara Streisand plays on this topic. Good practical guidance for what a lawyer might do.

Seriously, go read it.

The only quibble I have with it is its initial conclusion that online criticism alone from a client does not qualify as a “controversy” under Model Rule 1.6(b)(5). I think that is wrong, but the opinion goes on to even make my quibble pointless because they acknowledge that even if they are wrong about that, the lawyer wouldn’t need to respond online in kind to “establish a claim or defense on behalf of the lawyer” with respect to the controversy. I’d prefer that the opinion just rely upon that point rather than arguing that an online dust-up could not constitute a controversy.

To me, the point that is unassailable is that whether or not it is a “controversy” isn’t dispositive, the issue is whether an online response would be necessary to establish a claim or defense. Given how the internet works currently, the answer to that question with respect to the Model Rule, and any state that has adopted the same language, is obviously “no.”

You can access the full opinion here.

(Edited to fix my embarrassing mistake on the opinion number.)

Protecting lawyers and law firms from themselves.

Let’s talk about something coming out of D.C. but entirely unrelated to politics for a change. If you know, you know. And, if you know, then based on the post title you’ve guessed we are going to talk about the D.C. Bar Rules of Professional Conduct Review Committee’s draft Report on proposing changes to the ethics rules to address outside counsel guidelines and client-generated engagement letters.

A long time ago in Internet time, I wrote a bit about how problematic the calls in certain segments of our profession for protection against outside counsel guidelines are. Even back then I made a tie-in to politics by comparing the arguments in favor of trying to change the rules to stop clients from being able to get what they want through outside counsel guidelines to demands for term limits. For those that don’t want to go back and refresh, they both suffer from a similar Achilles heel – they both are solutions to problems that have a more organic solution.

Term limits. Just stop electing the incumbent when they are awful.

Outside counsel guidelines. Don’t agree to them.

Rather than offering that solution, the D.C. bar draft report runs 26 pages, proposes revisions to RPC 1.6, 1.7, 5.6, and 1.16 in D.C., and asks for public comments on the proposed revisions by February 11, 2021. (For those keeping track, this is actually the second go-round for D.C. in asking for public comment, they previously requested public comment in 2019 with respect to issues raised by outside counsel guidelines. This report is generated in response to that feedback.)

Now, to repeat myself on the overriding issue associated with proposed changes to RPC 5.6 and 1.7 that are designed to make it unethical for clients to propose certain approaches to conflicts under an engagement letter, I fail to see how any such effort is at all consistent with the idea that lawyers can also ask clients to waive situations that would otherwise be conflicts. It is very, very difficult to find a path where it seems fair to allow lawyers to ask clients to waive conflicts but also say that clients cannot ask lawyers to agree to very broad definitions of what constitutes a conflict in a matter.

Having repeated myself on that, let me say that the D.C. report does a pretty admirable job of trying to find that path. I’ll let you go read the report for the full treatment of that issue, but the rationale offered is rooted in the notion of not allowing one client to improperly limit a lawyer from being available to represent other clients. I still don’t find it sufficiently persuasive, but they’ve laid it out as well as can be managed, I think.

The report, and the proposed revisions, also address some other issues. Some of them are a bit unique to D.C. given D.C.’s variations on aspects of the Model Rules, but at least one other topic of note has more universal applicability.

Agreements between lawyers/firms and clients involving indemnification. This again is wrapped within the mantle of provisions included by clients in engagement letters or outside counsel guidelines, but this one feels like a more appropriate topic for pushback through rulemaking, at least to me.

Specifically, the D.C. report proposes revising D.C.’s current rules to add a provision to RPC 1.8 that would prohibit a lawyer from agreeing to any conditions that would impose liability on the lawyer under circumstances where liability wouldn’t flow from either existing common law or existing statutory law.

And, I don’t think it is hypocritical for me to take this position because I think it fundamentally avoids the hypocrisy of the conflicts issue. Of course, I might only think that because I practice in Tennessee where we have a rule that restricts lawyers’ ability to ask clients, in advance, to waive any liability for malpractice. Given that RPC 1.8 deals with that issue in that fashion, I see nothing unfair – or otherwise in violation of any goose/gander protocols – with protecting lawyers from agreeing to indemnify clients for things that the lawyers otherwise could never be held responsible for.

Oh, also, there is one other topic that the report addresses on which I cannot control myself to avoid weighing in. In terms of overall importance, it might not be the most important issue, but in terms of ham-handedness it might be the most egregious piece of the report. This is so because it addresses an issue a lawyer can simply avoid on the front end and proposes a poorly-drafted rule revision as a solution.

The topic addressed is outside counsel guidelines that give the client the right to unilaterally change the guidelines/change the terms of engagement. This is another thing that lawyers could protect themselves against simply by refusing to agree to such a term. Nevertheless, the D.C. proposal would revise RPC 1.16 to provide for a new subsection on when a lawyer has the discretion to seek to withdraw reading as follows:

(5) a lawyer has agreed that a client may make unilateral changes in the
conditions of engagement or other terms of the representation, and the
client unilaterally makes a material change to which the lawyer is
unwilling to assent;

Now, if you absolutely believe there needs to be a rule revision to protect lawyers from this, why would you want to offer the protection only if a lawyer has already agreed that a client can make unilateral changes? Wouldn’t the better course of action simply be to have the rule say: “the client unilaterally makes a material change in the conditions of engagement or other terms of the representation to which the lawyer is unwilling to assent” ?

An open letter to State Bar of Texas

Dear Sir or Ma’am:

It’s been a tough year, but I hope this email finds you staying safe. I’m writing to urge you to give some real thought to whether your rule on the ability to impose an “interim” suspension on a Texas lawyer goes as far as it needs to in order to be able to protect the public.

As I understand it, the current Texas rules provide the following as what is required in order to be able to obtain an immediate interim suspension of an attorney:

PART XIV. INTERIM SUSPENSION

14.01. Irreparable Harm to Clients: Should the Chief Disciplinary Counsel reasonably believe based upon investigation of a Complaint that an attorney poses a substantial threat of irreparable harm to clients or prospective clients and be authorized or directed to do so by the Commission, the Chief Disciplinary Counsel shall seek the immediate interim suspension of the attorney. The Commission shall file a petition with a district court of proper venue alleging substantial threat
of irreparable harm, and the district court shall, if the petition alleges facts that meet the evidentiary standard in Rule 14.02, set a hearing within ten days. If the Commission, at the hearing, meets the evidentiary standard and burden of proof as established in Rule 14.02, the court shall enter an order without requiring bond, immediately suspending the attorney pending the final disposition of the Disciplinary Proceedings or the Disciplinary Action based on the conduct causing the harm. The matter shall thereafter proceed in the district court as in matters involving temporary injunctions under the Texas Rules of Civil Procedure. If a temporary injunction is entered, the court may appoint a custodian under Part XIII. If, at the conclusion of all Disciplinary Proceedings and Disciplinary Actions, the Respondent is not found to have committed Professional Misconduct, the immediate interim suspension may not be deemed a “Sanction” for purposes of insurance applications or any other purpose.


14.02. Burden of Proof and Evidentiary Standard: The Commission has the burden to prove the case for an interim suspension by a preponderance of the evidence. If proved by a preponderance of the evidence, any one of the following elements establishes conclusively that the attorney poses a substantial threat of irreparable harm to clients or prospective clients:

A. Conduct by an attorney that includes all of the elements of a Serious Crime as defined in these rules.
B. Three or more acts of Professional Misconduct, as defined in subsections (a) (2) (3) (4) (6) (7) (8) or (10) of Rule 8.04 of the Texas Disciplinary Rules of
Professional Conduct, whether or not actual harm or threatened harm is
demonstrated.
C. Any other conduct by an attorney that, if continued, will probably cause harm to clients or prospective clients.

Under this rule, your power is limited to issues that pose a threat of harm to clients or prospective clients. Normally, I’d agree that makes a certain amount of sense.

But here in Tennessee, our Board of Professional Responsibility is imbued with a broader power in this regard. Our rule reads as follows:

12.3.  Temporary Suspension. 
      (a) On petition of  Disciplinary Counsel and supported by an affidavit or declaration under penalty of perjury demonstrating facts personally known to affiant showing that an attorney has misappropriated funds to the attorney’s own use, has failed to respond to the Board or Disciplinary Counsel concerning a complaint of misconduct, has failed to substantially comply with a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel pursuant to Section 36.1, or otherwise poses a threat of substantial harm to the public, the Court may issue an order with such notice as the Court may prescribe imposing temporary conditions of probation on said attorney or temporarily suspending said attorney, or both.
     (b) Any order of temporary suspension which restricts the attorney maintaining a trust account shall, when served on any bank maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent said bank from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the Court. 
     (c) Any order of temporary suspension issued under this Rule shall preclude the attorney from accepting any new cases, unless otherwise provided in the order. An order of temporary suspension shall not preclude the attorney from continuing to represent existing clients during the first thirty days after the effective date of the order of temporary suspension, unless otherwise provided in the order; however, any fees tendered to such attorney during such thirty day period shall be deposited in a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.
     (d) The attorney may for good cause request dissolution or amendment of any such order of temporary suspension by filing in the Nashville office of the Clerk of the Supreme Court and serving on Disciplinary Counsel a Petition for Dissolution or Amendment.  Such petition for dissolution shall be set for immediate hearing before the Board or a panel.  The Board or panel shall hear such petition forthwith and file its report and recommendation to the Supreme Court with the utmost speed consistent with due process. There shall be no petition for rehearing.  Upon receipt of the foregoing report, the Court may modify its order if appropriate or continue such provision of the order as may be appropriate until final disposition of all pending disciplinary charges against said attorney.

In terms of the triggering events, the big differences it seems to me are that, in Tennessee, the Disciplinary Counsel does not have to wait on a complaint to act and can act if an attorney “otherwise poses a threat of substantial harm to the public.” Now, I readily admit that this power is one that I have taken issue with when used in Tennessee in some circumstances, but I’m still writing you this letter you will never read to suggest you might want to look into getting something like this power conferred upon you in Texas.

Why?

Well, you’ve got a couple of really big problems on your hands. I know Texas is known for bandying about that “everything is bigger in Texas” line of bragging, but this time it might really be true.

Problem #1 is named Sidney Powell. She’s on something of a crusade to demonstrate over this last month or so just how much of a threat of substantial harm to the public a Texas attorney can pose and not have the threat be directed at clients or potential clients. If you aren’t familiar with what she’s been up to lately, just try Googling her name (or, and I know this will sound silly at first, but you could also try Googling “Kraken”). I’ll give you a few minutes…

See? Between gaslighting thousands of people and scamming them into sending her cash, filing repeated meritless lawsuits, including plaintiffs in those lawsuits that she doesn’t actually represent and who haven’t consented to being included, engaging in rhetoric designed to stir up “militias” and vigilante acts of violence, and (well to be blunt) seeking to undermine democracy in our country itself, if she were a Tennessee lawyer …. I think we’d be at the substantial threat of harm to the public phase of things.

Problem #2 is … well admittedly this is going to be a bit awkward but … Ken Paxton, your current Texas Attorney General. Now, you might already be aware of his having been under a long-time Securities and Exchange Commission investigation (that’s now been dismissed) as well as some related state criminal charges, and you might even have caught the news that he is under FBI investigation for corruption because some of his former subordinates turned him in, but you might not have had a moment yet to hear of the fact that he took it upon himself today, in the name of the State of Texas, to file an original petition with the U.S. Supreme Court against multiple other states (Pennsylvania, Georgia, Wisconsin, and Michigan) to seek to have the votes of literally millions of voters in those states thrown out as a way of trying to prevent the President-Elect from taking office.

Yeah, kind of staggering, right?

Technically, he’s at least doing better than Ms. Powell on competence as he’s also filed a bill asking the U.S. Supreme Court for leave to proceed with the Petition, but still … doing better than Ms. Powell on competence is a really low bar.

You can get access to all of the Texas Supreme Court filings here. But, for convenience, here’s the Conclusion paragraph of the petition:

This Court should first administratively stay or temporarily restrain the Defendant States from voting in the electoral college until further order of this Court and then issue a preliminary injunction or stay against their doing so until the conclusion of this case on the merits. Alternatively, the Court should reach the merits, vacate the Defendant States’ elector
certifications from the unconstitutional 2020 election results, and remand to the Defendant States’ legislatures pursuant to 3 U.S.C. § 2 to appoint electors.

So, oh also, many reports are speculating (because of the aforementioned SEC and FBI investigations) that Mr. Paxton is doing this not because of any belief that the claim is anything other than a frivolous one, but to see if he can get one of those pardons the outgoing President is throwing around these days.

Theoretically, your existing rule might get you there with respect to the Attorney General since this kind of buffoonery does threaten his client – the State of Texas — but it sure would be easier if you only had to show that he poses a threat of substantial harm to the public.

Also, the suspension of a state law license wouldn’t be pardonable by the President, so that’d be a bit of a nice bonus too.

Following up after shouting into a void.

This is not really a “new content” post. With luck, I will have one of those later this week. This, however, is a follow up about something from last month. It is the best sort of follow up because it is prompted by the process of sifting back through the past year to prepare for my annual end-of-year presentation for the TBA.

It is also the best sort of follow up because it will allow me to shamelessly self-promote two undertakings while simultaneously acknowledging just how small and unimportant I actually am in the grand scheme of things.

(Prepare to watch the magic and behold.)

This year, for obvious reasons, there will be no Ethics Roadshow. Instead, there will be an Ethics RoadHomeshow. (It will happen on Zoom on December 9. If you are worried that you are too late to sign up, you’re definitely not since I haven’t even finalized the program itself yet.) In trying to put together exactly what that will look like, I was reviewing items of interest. That brought me to re-reading this post from November. The last line of that post was a cry out to readers to let me know if there was an ethics opinion out there that did what I thought the Nebraska ethics opinion did.

I received a tremendous amount of feedback in response to that invitation. Ha. Just kidding. Absolute crickets. But that’s not because there isn’t such an opinion out there, there certainly is. The lack of feedback is much more indicative of the lack of readers.

Even better, an example of such an opinion is something I should not have been so frail as to forget – because I’ve pointed it out to other people in providing advice and because it is going to be part of some new material that will be in a book I co-author and for which the Third Edition is scheduled to come out in the Summer of 2021. If you’d like to pick up the Second Edition before the Third Edition comes out, you know, to make sure you can follow the plot of the new book, you can still buy it from the ABA.

The opinion that I should have remembered when I wrote that Nebraska post is New York City Bar Formal Opinion 2016-2. It hits almost all of the topics mentioned by me earlier this month. And, if you’ve never read it or if, like me, you forgot about it for a bit, I commend it to your reading.

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.