Nebraska demonstrating less patience than Tennessee

Although I live in SEC country, I am a Chelsea FC fan rather than a follower of college football.  So this is not a sly college football reference in my title.  (I am aware that apparently UT lost its first game of the season but have literally no idea whether the Cornhuskers have even played yet in 2018.)  This post title is actually a very short description of the difference in how quickly the Nebraska Supreme Court managed to disbar an attorney who was obviously flouting the rules than did the Tennessee Supreme Court in the last matter about which I wrote.  The less patient approach on display in Nebraska was entirely understandable because the underlying rule being flouted was related to trust accounts and not conflicts.

The now-former lawyer in question – John Nimmer – went from one prior instance of having received a public censure to being disbarred for his next offense in 2018 because he repeatedly commingled funds and used money in client trust accounts to pay an array of personal expenses.  He also managed to get disbarred because his only defense to the charges – which were first pursued in 2016 but covered his banking for more than a decade – was something of an attempt to plead ignorance.  (He also managed a too-cute-by-half variation of something I’ve written about before as apparently having worked for one particular Wisconsin lawyer – failing to also keep records sufficient to fully prove what you did.)

Interestingly, before I tell you all that I will tell you about why the outcome seems so justifiable, it is worth noting that the initial decision against him was not disbarment, it was merely a 1-year suspension followed by 2-years of probation.  Nimmer objected to/appealed that proposal and, ultimately, got disbarment.  (It likely would come as no surprise to anyone who does disciplinary defense to hear that Nimmer was pro se on appeal.)

Also interestingly, unlike your normal trust account violation disciplinary proceeding, this one began when the SEC (no, not that one I referenced earlier, the Securities and Exchange Commission) made a referral in March 2016 to Nebraska bar regulators after gaining access by subpoena to Nimmer’s trust account records and finding much questionable activity.

The SEC’s “review of Nimmer’s trust account transactions revealed that he wrote numerous checks for personal expenses, ranging from rent and child support to
dog boarding and landscaping fees.”

Nebraska bar counsel first asked Nimmer to explain a number of the checks and he declined to do so.  They then issued their own subpoena for his trust account records covering a time period going back more than 10 years to January 1, 2006.  Thereafter, they pursued a formal petition for discipline against him alleging that:

between January 2006 and February 2016, Nimmer wrote personal checks on
his client trust account to 29 different businesses, individuals, and organizations. Additionally, it alleged that on December 20, 2007, Nimmer deposited a $10,000 check from his mother issued to him with the notation “loan” into his client trust
account.

As often happens in pro se disciplinary proceedings, Nimmer first challenged (unsuccessfully) the notion that there was any jurisdiction since bar counsel worked for the Supreme Court and also sought out a requirement that bar counsel should have to be disqualified because Nimmer was going to call him as a witness.  He ultimately got a special counsel assigned to his case, but the dismissal motions were unsuccessful.  Nimmer also tried a number of other procedural “Hail Marys,” including trying to have his trust account records barred from evidence because he was only actually required to keep records going back 5 years.

You can read the 31-page opinion here (N00006179PUB) and the array of transactions that were involved and that Nimmer admitted happened.  But, I’ll end with a quick elaboration on that “ignorance of the law” defense, paired as it was with an attempt to argue that he was acting at all times in good faith.

Essentially, the record was undeniably clear that Nimmer used his trust account like a personal checking account — he repeatedly wrote checks to pay the power company, his internet service provider, to pay for his daughter’s camps and health insurance, to pay for his cell phone service, and even one to pay his Nebraska State Bar dues out of his trust account.

Nimmer attempted to argue that “maybe” he was actually using earned fees he had deposited into the trust account to make these payments but he didn’t exactly offer documentation to support the possibility.  He also argued that the commingling rules were less than clear so he didn’t understand that he couldn’t, for example: receive a loan from his mother for $10,000, deposit that into his trust account, and then use that $10,000 to pay a whole series of personal debts.

Nebraska grabbed language from our nation’s capital to quickly dispatch of such an argument in this situation:

The District of Columbia Court of Appeals explained it well: “If a failure to understand
the most central Rules of Professional Conduct could be an acceptable defense for a charged violation, even in cases of good faith mistake, the public’s confidence in the bar and, more importantly, the public’s protection against lawyer overreaching
would diminish considerably.”  In re Smith, 817 A.2d 196, 202 (D.C. 2003).

Making it up as you go (but for a good cause): Texas State Bar Op. 673

There has been something of a trend of late in terms of ethics opinions focusing on variations on the breadth of the duty of client confidentiality and the inconvenience it creates for lawyers who have bought in to the modern trend of sharing and oversharing when online.  There was this opinion from the ABA and then this opinion from the ABA, for example.

The latest opinion in this vein is Professional Ethics Committee for the State Bar of Texas Op. 673.  Except, it is only partially in this vein because, while it starts out heading down the path of explaining how the duty of client confidentiality might prohibit lawyers from being able to do something useful, it swerves away from what would be the likely conclusion in most jurisdictions.

Of course, it does so essentially by making up a justification nearly out of whole cloth but, if you’ve ever participated in, and benefited from, access to any kind of online forum or listserv frequented by lawyers, it reaches a conclusion for which Texas lawyers should be grateful.

The questions addressed in Op. 673 are:

  1.  Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client from other lawyers in an online discussion group?
  2. Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client through informal, direct consultation with another lawyer in a different firm?

The opinion then goes on to describe arrangements that will be familiar to anyone who has spent anytime on any sort of lawyer listserv or other social media group setting or online forum but also makes the point that lawyers reaching out to pick someone’s brain about an issue or perform “lazy person’s research” can also happen in the “meat space,” offline when one lawyer seeks out another lawyer’s input in a version of informal mentoring.

The Texas opinion squarely flags that the biggest concern for the asking lawyer in such scenarios is protecting the confidentiality of client information.  (Importantly, the opinion also does a nice job of flagging for the answering lawyer the most significant risks for her – potentially creating duties to the asking lawyer’s client or wittingly or unwittingly violating duties to her own other clients by helping the lawyer.)

Nevertheless, the opinion explains that the asking lawyer can proceed even if providing some background information that is likely to identify the client or situation is necessary in order to get the advice without violating the ethics rules as to the disclosure of confidential information.

It is the opinion of the Committee that Rules 1.05(d)(1) and (d)(2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.

This is where the Texas opinion is able to rely on two things.  One is a “creative” interpretation of the “implied authorization” aspect of the rule on client confidentiality that most jurisdictions also have.  (Texas Rule 1.05(d)(1)).  The other is a nuance in Texas’s rule that jurisdictions tracking the Model Rule don’t have at their disposal to justify this kind of lawyer-friendly (and not exactly consumer unfriendly) outcome.  (Texas Rule 1.05(d)(2)).

Starting with the second is the easy approach because it really is the most important thing to know to explain the outcome – Texas’s version of RPC 1.6 (which they have numbered as Rule 1.05) contains an exception (d)(2) that allows a lawyer to reveal information that is “confidential” but “unprivileged” when “the lawyer has reason to believe it is necessary to do so in order to ‘carry out the representation effectively.'”

For context, here is the entirety of Texas 1.05(d):

(d) A lawyer also may reveal unprivileged client information:

(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

Now, I could quibble with that word “necessary” and how seeking out assistance from an online discussion forum could ever be “necessary,” but I can admit to being a fan of outcome-determinative analysis when I’m a fan of the outcome.  (To be clear, I have always tried very hard when making use of any kind of online forum to not let any cats out of any bags in terms of actual whos, whats, and wheres.)

The fact that the Texas opinion still involves a “making-it-up-as-you-go” approach though comes through loud and clear by the fact that the opinion has to provide a set of numbered considerations spanning more than a full page to guide lawyers in deciding whether and how much confidential but unprivileged information could be disclosed.  If you want to work through those factors, you can do so at pages 2-4 of the actual opinion itself here.

In any jurisdiction that does not have something like Texas’s Rule 1.05(d)(2) though, getting to this kind of result is a lot more difficult since it involves having to try to push the envelope on the “implied authorization” aspect of Model Rule 1.6(a).

Yet, again, this kind of conduct is likely not anything that a client would complain about and often results in driving down the cost of the representation by gathering the wisdom of a crowd before spending hours on research so… as good a time as any to bring back up again my thoughts on how Model Rule 1.6 ought to be revised.

Information overload; summer struggles.

Mid-August often feels like summer doldrums.  Yet, there has been so much recent information of interest in the world of legal ethics that it is hard to keep up.  Thus, one can manage to feel simultaneously adrift and overloaded.

In that spirit (and because I am that “one”), here are a handful (plus 2) of laconic (if not insightful) entries about important things that have happened of late but that between the constant push/pull of overload and doldrums will not be written about here separately at any great length:

  1.  The competitive space in the legal industry impacted by developments in artificial intelligence and the continued push of providers of legal services other than law firms had a “you got your chocolate in my peanut butter” moment recently with the announcement that one of the Big 4 accounting firms – E&Y – was purchasing Riverview Law, which among other things is responsible for the AI product KIM.  You can read a pretty good summary of what this might mean in the short (and long) term at the first link above and here.
  2. A California Bar task force is undertaking exploration of whether to change rules to permit people other than lawyers to own legal services firms.  This move was prompted by a report the California Bar commissioned from a leading guru, Bill Henderson who you can keep up with here.   Though action from this report could be seismic for the legal profession the task force isn’t scheduled to provide any such report until the end of 2019 by which time, California might not actually be able at the rate things are going to “go first.”
  3. Utah is about to be able to be added to the list of U.S. jurisdictions that allow limited licensing of paralegals so that they can practice certain types of law similar to Washington’s set up for Limited License Legal Technicians (LLLTs).
  4. LegalZoom put out a press release about having received a secondary investment of half a billion dollars in a deal that values it at $2 billion dollars total.  (As the old joke goes, that is a tough amount of money to envision, so try thinking of a billion dollars as being represented by a one-hundred dollar bill and now imagine you had 2 of those!)
  5. A coalition of law firms (including law firm biggie Baker Hostetler – which you might recall as being the first major law firm to sign up with ROSS) and startups in the blockchain space have made a big announcement about an endeavor they intend to launch in October, as Forbes reports, to: “develop a new legal services platform called the Agreements Network. Originally revealed in April, the network is being designed to allow lawyers to perform tasks like managing contracts, leases, and governance documents via smart contracts that are compatible with the public ethereum blockchain.”
  6. The enacted-but-never-implemented “Persuader Rule” that I wrote some about many, many moons ago was rescinded by the Department of Labor, in part, having heard the concerns that were expressed by many over the harm it would inflict on attorney-client privilege and client confidentiality.
  7. And speaking of the intersection of government and legal ethics, the current occupant of The White House speaks of John Dean as if he were a villain in the story of Watergate.  For those of us who focus on legal ethics, and are familiar with the role that the events of Watergate played in the evolution of modern legal ethics, that is a pretty chilling piece of information.

 

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.