Three for Thursday?

Can that be a thing?

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

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

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

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

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

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

Yeah, good times.

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

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

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

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

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

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

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

Sigh.

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

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

Lawyers out there losing their goddamn minds.

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

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

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

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

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

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

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

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

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

Utahlking real reform? Yes, Utah absolutely is.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pennsylvania wins the race to be first with COVID-19 ethics guidance.

I’ve lived in Memphis since 5th grade at this point, but I was actually born in Pennsylvania. I’ll heed all the guidance making the rounds of social media about not sharing information that might be a security question somewhere and won’t tell you what city.

But a part of my heart will always be in Pennsylvania since part of me really grew up there. It’s also the reason why my sporting allegiances beyond the Memphis Grizzlies and Chelsea Football Club all involve Pittsburgh teams.

So, I feel somewhat proud that the Pennsylvania State Bar seems to be the first bar to put out a truly comprehensive ethics opinion attempting to give guidance to lawyers and law firms about their ongoing ethical duties during the pandemic and in dealing with the “new normal” of working remotely from home.

While typically Pennsylvania ethics opinions have been hard to get access to some times because they have historically restricted them, Bob Ambrogi seems to have gotten his hands on the full opinion in digital format, so I’m linking to it as his site here.

It is quite good and really quite thorough (and you probably have some time on your hands), so I’d encourage you to read the whole thing. It addresses a number of rules, including Pennsylvania’s version of the ethics rules on competence and supervising non-lawyer assistants.

I only want to highlight two things that it specifically addresses and one thing that it, unfortunately, does not say at all.

First, I think this is the first ethics opinion from any lawyer regulatory body that comes out so clearly to call out what happens with smart speakers and other “always on” listening devices. It links to a vox.com article to allege that Amazon’s Alexa device and the Google Home speaker actually do have people reviewing the recordings of what those devices pick up and encourages lawyers (and people who work for lawyers and law firms) to not have client conversations in rooms where those always listening devices are located. I cannot remember for certain and have run out of the mental bandwidth today to go searching but I think I’ve written before about how the epiphany is obvious once you have it that the only way such devices can recognize when you call out their name for assistance is that they have to be “listening” before their name is uttered, but your view of such items profoundly changes once you have the epiphany. For what it is worth, I’ve been doggedly adhering to this by trying to have all of my calls take place in one of two places in my house (and on my second-floor balcony) where such devices are not located. And, yet, there’s still my iPhone and Siri which presumably also is a vigilant digital assistant just waiting for me to say her name.

Second, I feel a little personally attacked by the guidance that is stressed about only going to websites that are “secure” in that they have the https: designation. You might notice that this blog is not such a site but also I don’t ask you for any information or try to sell you any products here, so please keep coming around.

And, finally, the one thing that the opinion does not say that I really wish it would have done is this: Pennsylvania’s rules, like Tennessee’s and most others, contain language in the Preamble/Scope to stress that the ethics rules are rules of reason and should be construed as such.

All of the guidance in the opinion is very good and particularly offers a very good clearinghouse of things that lawyers should be trying to do, if at all possible. At the same time though, given how difficult all of this is we should not be sending messages to the profession that we are going to make perfect the enemy of the good.

During these difficult times, my hope will be that mistakes that lawyers may make with respect to the confidentiality and safeguarding of information will be treated as fodder for disciplinary proceedings only in instances of truly reckless or grossly negligent conduct and not mere negligence caused from trying to accomplish what client’s need to get accomplished in circumstances of a prolonged emergency.

That, to me, is a highly practical but entirely timely application of what the rules mean when they say they are rules of reason. Along those lines, while not guidance from a state bar or regulatory entity itself, I also commend for your reading a piece put out by the Holland & Knight law firm that ultimately grabs the spirit of that aspect of the ethics rules to analyze some guidance that can be found in the Restatement of the Law Governing Lawyers.

There will be discontent.

The title of today’s post is an inside joke in that it makes reference to this post from what feels like years ago now.

As these are not particularly humorous times at the moment, it will be the only attempt at humor.

Professionally, I’ve had a pretty good week. I didn’t get what I wanted for clients on a couple of matters, but I participated in a nearly 10 hour Zoom mediation that resulted in the resolution of a case earlier in the week and closed out the week winning summary judgment in a federal court case. Yet, I feel no professional satisfaction and just mostly discontent.

Discontent at what is going on around me, my circumstances, and all the work that must be done to try to repair things. Fortunately, just discontent and not despair.

That’s likely because in the grand scheme of things I’m exceedingly fortunate. I have an established law practice and a better safety than many. I have a roof over my head and thus a place to stay home and stay safe. My family can afford to buy the things it needs right now, and, most importantly, so far all of us have stayed healthy.

All of that is to say that I am entirely cognizant of how good I have it. I recognize that my safety and relative comfort does not make my discontent particularly important, but I do think it makes it telling and, perhaps, worth acknowledging out loud for those who are reading this. Mostly because I think it indicates just how many people who might only be in a slightly worse off position than I could easily slide from discontent into despair.

I still strongly believe as I wrote before that most lawyers are not delivering “essential services” in the context of risking the safety of others. But I just as strongly believe that all the human beings who are those lawyers are essential.

Lawyers as a profession were plagued with higher statistics of depression and anxiety and substance abuse and suicide before the pandemic than the national average. If this pandemic makes those numbers seem closer to the norm, it will likely only be because the average increases.

When you struggle, seek out the help you can afford. There are a wide variety of resources better than this blog to get that help. Here’s just one pretty good one.

I’ve shared my small story before. I feel very fortunate that my timing was such that I went through it when it was physically a lot easier to leave the house and get help. I know it would have been much harder if it were happening now for me. And I’m incredibly fortunate that I’m doing okay on that front.

For any new readers, I’m sharing the post (which is actually from years ago) where I shared the video (you have to click on the link inside the post regarding the last 12 minutes of that year’s Ethics Roadshow) of my “coming out” about this issue again here.

Stay safe. And as a truly final word for now, stolen from someone much smarter and more eloquent than me but because I only saw it on Twitter and failed to note the author: “Try to remember that you aren’t really working from home now. You are staying home in order to live through a pandemic and you are also trying to work.”

Cute story? No. Chance for Cutestory reference? Yes.

♫ You’re a crook, Captain Hook / / Judge, won’t you throw the book at the pirate… ♫

For me, much as I’m certain it likely is for you, it is now “Day Something” (I’ve lost track) of surviving a pandemic. I hope that you are doing all that you need to do to both stay safe and take the appropriate steps to value your mental health and overall wellness.

What I had originally envisioned for a post for today was going to be something that sort of collected a variety of instances of attorneys being jerks and emphasizing how incongruous such behavior is with our current reality, but Michael Kennedy, the chief disciplinary counsel for Vermont, has already done that better than I might have, so here’s a link to his post on that subject.

Instead, I’m going to talk about a very specific, pre-pandemic incident that involves a maritime lawyer and, thus, gives me an excuse to talk about bingeworthy television, and specifically, my absolute favorite comedic television program of all time, Arrested Development.

We certainly live in the Golden Age of Television and will do so for at least a little bit longer until the current shut down in production schedules translates in the future to a lack of new content. But even before this true golden age of television, Arrested Development came on the scene. It hit me in all the right spots. So, if you are somehow desperately trying to figure out what to watch in your spare time and have access to Netflix and haven’t yet watched all of it – please feel free to do so.

Now, I segue from this into how I tie this even tenuously to legal ethics. This past week Law360 released a story, and the ABA Journal online followed with one of their own, about a maritime lawyer who got sanctioned in the form of a $1,000 fine for his bad behavior during a deposition as well as the opposing party’s attorney fees associated with certain aspects of the proceedings which will likely amount to much more than $1,000. Specifically, he interrupted the deposition questioning 145 times including 106 rather lengthy objections. This happened in federal court in Louisiana, one of the few places in the United States where maritime lawyers could thrive because of the robust seaport there.

The order is made available through both web portals but the ABA Journal requires no subscription so it’s likely easier for you to read that one here.

Because of the impact that Arrested Development had on me, I will forever associate being a maritime lawyer with Chareth Cutestory – a pseudonym used by Michael Bluth when he tried to flirt with Maggie Lizer, a lawyer played by Julia Louis-Dreyfuss.

It feels particularly on brand to reference that fictional plotline because (a) the real maritime lawyer involved was named Salley (but not Sally Sitwell) and (b) it feels like if Michael Bluth had actually been permitted to be in a deposition pretending to be a maritime lawyer then he could have ended up with a judge issuing a ruling that said something like this as well:

Of the 255-page transcript of the deposition, Salley appears on 170 pages. Salley objected 106 times, 52 of which were lengthy speaking objections. There are long, speaking objections that cover entire pages of the transcript. One speaking objection and Salley’s attendant argument, which followed a question asking the deponent when an affidavit was signed, covers in excess of six pages of the transcript….

That is simply a smattering of cites to Salley’s objections from the transcript. He also instructed the witness not to answer 16 times…. This Court’s review of the record reveals that none of these instructions was based on a valid reason under Rule 30.

And if you, like many, need a little visual help in getting the whole oeuvre of both this post and the Chareth Cutestory subplot, here you go.

(P.S. Stay safe.)

(P.P.S. And if you take any depositions in the next few weeks by Zoom, or Skype, or WebEx or telephone or otherwise, don’t do the kind of stuff (like speaking objections) that will get you sanctioned.)

There will be content.

So, it is March 20, 2020. We don’t know much about much in terms of what comes next. Stress and anxiety are most folks constant companions at the moment I’m certain. (And I bet a lot of you weren’t expecting the need to tech competence under the ethics rules to come at you quite this fast.) Whether or not there will be things to read here probably matters almost not at all to most people. Nevertheless, for better or worse, as long as I’ve got access to the internet I will plan to continue to post contents on the same weird and unsettling sort of “schedule.” Today’s another one of those days.

Today’s post is an opportunity to talk a bit about the dark side of litigation funding. Now, do not get me wrong, I’m generally “pro” when it comes to the topic of litigation funding. In fact, I had the opportunity to be a lawyer for one of the early litigation funding companies that operated in a niche, high-end space. Even then, one of the consistent issues for a company doing things the right way was the stigma of litigation funders as being companies that would take financial advantage of people in need.

Today’s story isn’t exactly about taking advantage of the kind of person in financial need you might think of, but it certainly is a story that sheds some light on unsavory aspects of an industry that speculates on the outcome of litigation.

Today’s story though also is something of a revisiting of the travails of a prominent California law firm that I’ve written about a few times in the past. Those posts had focused on a very contentious set of litigation matters between the firm and one of its former partners that effectively boiled down to a “he said, it said” sort of situation where the “he” was saying that the “it” was engaged in financial fraud and fired him when he raised questions about it and the “it” said that “he” was a sexual harasser. (If you aren’t familiar with that post, you can catch up here.)

It’s been a very bad couple of weeks for just about everyone in the United States. It’s been an even worse couple of weeks for John Pierce, the founder of the Pierce Bainbridge law firm. It has been such a bad couple of weeks that it is hard for an objective viewer not to think that the previously-referenced “he” seems to have a leg-up in proving his side of events against the “it” in the “he said, it said” landscape.

Before elaborating on the litigation funding issue, just a short recap of the recent chronology of events for the founder of this particular law firm.

And, about that deal, that is the deal with Parvati Capital that was front and center in the allegations in the “he said, it said” litigation. As a result of the Philadelphia suit, the details of that arrangement have come out and involve a highly -unusual approach to litigation funding where the law firm was given the sole responsibility for placing a value on their cases as part of agreeing to a 50-50 split with the litigation funder on the fees obtained in such future cases.

If you have access to Law360, you can read a pretty good article about that piece of the puzzle, one in which a former law partner of mine (who I practiced with back when I had the chance to represent a good litigation funding company many years ago) speaks on the ethical problems with the Parvati Capital deal. (Spoiler: pretty squarely an RPC 5.4 problem since it quacks very much like a fee-sharing duck.)

There are lots of aspects to dealing with litigation funding arrangements that can raise difficult ethics issues. But there are a variety of ways to obtain litigation funding within the ethics rules. Interestingly enough, while the Parvati arrangement seems very problematic as to some issues, and while having the lawyer assign a value to cases is bad news for a variety of reasons, such an approach does avoid altogether problems with navigating how to share documents and other details with a litigation funder for purposes of evaluating a case while doing what can be done to comply with RPC 1.6 and seek to protect privilege and work product.

Change seems like it never comes … right up until it does.

So, I’m not a public health expert and I try to pride myself on not talking too much about conversations to which I am unable to meaningfully contribute. Thus, I’m not going to purport to speak directly to how to be dealing with the pandemic looming over everything. I’ve been doing what little I can to try to help “flatten the curve,” because I’m economically privileged enough and have robust access to technology to be able to do so. If you are in a similar situation, I hope you will do the same.

I’m going to instead focus on something much smaller … the disappointing news out of California yesterday that goes a long way toward kneecapping the efforts of the California ATILS task force. As mentioned in an earlier post, the ATILS task force itself had already scaled down its efforts but the California State Bar voted down significant aspects of even the watered-down proposal.

If you’d like to read the details, you can do so at this The American Lawyer article. If you’d like a sense of what comes next, you can read this Twitter thread from Andrew Arruda, a very irked member of the task force.

All I want to say for today is that I don’t think the California State Bar is going to have the last word on this, not by a long shot.

Beyond the fact that the post-pandemic world is going to be different, I’m not prepared to predict what different exactly looks like. But it seems clear already that, at least in the United States, we are learning quickly that a lot of things people have been told weren’t possible actually are.

Your job likely can be done remotely through telecommuting. The for-profit health system can make allowance to discount costs. A quality legal education can be obtained through online classes. Courts do not have to have as many in-person hearings in order to dispense justice.

The list is much, much longer.

It is hard not to think that there are going to be a variety of businesses, large and small (including law firms), that will not be able to survive in an environment where large swaths of the population do not venture out of their house for much of a 30 or 60 day period. It won’t all be businesses in the food and beverage delivery industry and businesses that otherwise require large groups to gather. Yet, given the legalistic nature of U.S. society today, the demand for people to be helped with their legal and contractual rights likely only increases.

Whether that translates to an increased demand for lawyers to do those things though is a lot less clear.

Innovations will likely happen out of necessity.

In the meantime, stay safe out there.

Late to the podcast party.

As a white male in my mid-forties, it was probably inevitable that I’d end up with an appearance on a podcast since an unfathomably high number of podcasts are showcases for my demographic to espouse their views on things. While I’m a bit late to the party (46), my turn has come around.

More seriously, I was grateful and honored to be a guest on The Podvocate, a podcast produced through the Loyola School of Law in Chicago. We talked about the future of legal ethics with an emphasis on the impetus for, and the state of play of, efforts to re-regulate the profession but also weaved into the discussion a slice of what’s going on in D.C. and whether lawyers are demonstrating reason to believe they value independence of professional judgment under our current system. You can give it a listen at this link: https//soundcloud.com/thepodvocate/season-2-episode-17. The host, Jim Alrutz, does a very fine job of steering the discussion and has a bright future.

If you’re looking to read the voice of someone who is not a white male in his forties on one of these topics, I’d recommend checking out this post from a friend who is a lawyer in Wisconsin at her blog: www.ethicking.com. The post is more than a month old at this point, but, if you haven’t read it, it’s still quite good.

Lawyers continue to struggle with tackling online negative reviews.

Today’s topic come up again for two different reasons. First, because the North Carolina State Bar has put out a new proposed ethics opinion seeking public comment about the topic. Second, because it was also discussed at one of the presentations made at the APRL mid-year meeting a week or so ago.

As the title of the post indicates, the topic is the ethical constraints on lawyers when faced with trying to respond to an online negative review posted by a client where they feel hard done and feel like, if allowed, they could demonstrate that the client’s negative allegations are unfair.

Proposed 2020 Formal Ethics Opinion 1 in North Carolina reaches roughly the same conclusion as the other ethics opinions issued on this topic: tread carefully because none of the confidentiality exceptions offered by RPC 1.6(b) are satisfied merely by the posting of an online review. Attempting to offer some practical advice, the proposed opinion says that the attorney can “post a proportional and restrained response that does not reveal any confidential information.” Given the broad scope of confidentiality under the ethics rules, this outcome offers little room for lawyers to offer much of a response. Perhaps recognizing that a bit, the opinion tries to find ways to authorize a lawyer to contest the negative review with denials while walking a fine line of not disclosing actual information by referencing some “generic” or limited denials that other ethics committees have proffered.

It’s a fine proposed ethics opinion in so far as it goes. (It’s also a good round-up of the opinions issued to date on this issue by other groups.) But it fails to fully wrestle with one ethical question it acknowledges is relevant and fails to address at all at least one interesting ethical question that ought to be the most relevant one of all.

It does address, in part, the meaning of certain language in Comment [11] to RPC 1.6 about a lawyer not being required to “await the commencement” of an action or proceeding to rely upon the self-defense exception. But it only focuses on it in one direction. Looking only to whether the disenchanted (or disingenuous if you believe the lawyer targeted) client is likely to pursue a proceeding, the opinion brushes aside that language as any justification for a lawyer on the basis that the client’s willingness to post a negative review does not alone demonstrate that the client is contemplating pursuing any formal proceeding against the lawyer.

But the opinion does not spend any time talking about the flipside, which was actually raised by an audience member at the APRL mid-year meeting I referenced above: What if the lawyer is the one contemplating pursuing a proceeding?

For example, some lawyers — lawyers who rely very heavily for work on their online presence and can be very badly damaged by a false review — may view the inability to respond to an online negative review as meaning that actually filing a suit for defamation against the client/former client is their only viable option. If they actually filed the suit, they’d be able to disclose information about the representation to make the case. So the logic goes, could they not begin to exercise that right of self-defense before they have commenced that proceeding?

Under that line of thinking, couldn’t they respond to the online review to contest the allegations, and indicate to the client that they will file suit for defamation if the client doesn’t retract the statements? I don’t think that works primarily because any such communication to the client about the review making that kind of demand before filing suit would have no need to occur publicly. In fact, it would seem reasonable to read the language in the Comment to RPC 1.6 exhorting lawyers to take certain steps, including seeking protective orders or filing matters under seal, even when pursuing litigation so as to keep reasonable disclosures of client information from unnecessary public dissemination as fundamentally contrary to such a course of public action prior to commencing such a suit.

The relevant ethical question that the opinion does not address at all is what a lawyer can do with respect to crafting a path for being able to respond through RPC 1.6(a) rather than RPC 1.6(b). As a practical matter, having written frequently about The Streisand Effect here in the past, I still believe that most of the time the best course for a lawyer is not to do anything to risk amplifying the megaphone the client has already obtained. Usually, engaging in a public skirmish with the person is only going to result in more people learning about the criticism, but I recognize that there are some lawyers who simply cannot afford the damage that can be caused to their business pipeline from negative online reviews.

For those lawyers, I think the only ethical path to get beyond offering platitudes and perfunctory denials would be to secure a client’s agreement, in advance, as part of an engagement contract that the lawyer may respond to any future online negative review that the client chooses to make.

Given that RPC 1.6(a) clearly allows lawyers to disclose information about their representation of a client if they have the client’s informed consent to do so. It seems to me that if the issue is described sufficiently on the front end, and the client agrees in advance that the price of going online to complain is that the lawyer can use information about the representation to respond to the complaint, then the requirement of informed consent can be satisfied. While it could feel very much like a truly awful first foot to put forward with a client by raising the issue, if the lawyer’s practice is such that the issue is that important, there also is a benefit to being up front with the person about it at the time that they are prospective client.

But maybe you all can tell me if I’m missing something in that respect?