Sorry to “ghost” on everybody

Life remains crazy for many, and the pandemic just doesn’t seem to have any intention of ending before it can have an extended Season 3 storyline. I almost hate to write these words and “jinx” it but my wife, my children, and I have continued to be able to avoid contracting Covid-19, but that doesn’t mean that life — personal life or work life — has continued in any form of normal fashion.

Events continue to be unsettling and mental bandwidth for many is a constant battle. I’ve managed – yet again – to neglect the blog and continue to play with fire of losing the interest of readers.

So, here I am, at least trying to make a bit of an effort. I was fortunate enough this week to spend some time on the telephone with a journalist who was doing a story about a Washington lawyer who was disbarred for “cheating” on his law firm by representing about 150 or so clients off the books of his firm.

I have seen situations in the past where lawyers have these kinds of “ghost” clients, but certainly never at the volume of this instance. When I first started digging into the underlying story, I was convinced it was going to be a more recent tale and that, at its heart, was going to be that the lawyer got away with it for a while at the volume in question because it was happening during the pandemic when firms have been struggling to wrestle to ground how to supervise lawyers who are away from the office, working from home, and otherwise feeling more autonomous. That case did not involve recent conduct, however, as that lawyer was undertaking this work from 2010 to 2019.

My contribution to the article focused on the potential that more lawyers might be trying things like this during the past two years but also highlighting just how much risk there is for a lawyer in doing so. Even though the underlying conduct wouldn’t even arguably be unethical in the absence of a contractual obligation to only work for the firm in question, any lawyer who starts trying to do “off the books” work likely heads down a path that inherently requires dishonesty and misrepresentation triggering violations of RPC 8.4 if nothing else. Plus, given that it becomes easy for a law firm to allege that what is occurring is theft, the lawyer can find themselves facing criminal exposure – and further ethical infractions. And, if the lawyer as part of trying to keep the conduct quiet, is also not paying taxes on the work involved there becomes federal criminal liability in the form of tax evasion to boot.

You can read the article here with a subscription (or just by registering if you are willing to burn your one free monthly article on it): Lack of Law Firm Oversight During Pandemic Could Make ‘Ghost Clients’ a More Common Problem | Law.com

Second chance to play Peril!

Allow me a short promotional post that can (almost) be justified as a public service to lawyers (at least some Tennessee ones).

This past Tuesday I did the first of two presentations of the 2021 Ethics Homeshow. We go again next Tuesday at 11:30 central. If you still need an hour of CLE credit, you can still register an play Peril! with us. We covered 14 topics in an hour this week, and we have 16 potential topics left to reveal.

It’s a fast-paced presentation, mildly fun, requires very little of you other than helping choose the squares through chat, and I will, once again, wear my game show hair as you can see in a screen shot from this week down below.

If you’re interested, and not already registered, you can do so here.

Florida again. Sigh.

It has only been a little over a month at this point since I wrote about how Florida was a hopeless place.

Well, here we are again. The Florida Bar Board of Governors has unanimously rejected a few proposals aimed toward progress in the re-regulation of the practice of law in the last week or so. Now, I want to be realistic in both my outrage and disappointment.

So, let’s talk first about the much less surprising piece of this development because it is just Florida rejecting something that, to date, most every state has rejected and only two states and the District of Columbia have been willing to consider or enact.

The Florida Bar Board of Governors rejected a proposal that had been submitted to it by a Special Committee to Improve the Delivery of Legal Services established by the Florida Supreme Court. That proposal would have involved amending Florida’s ethics rules to allow some nonlawyer ownership in law firms as long as the majority ownership interest was still in the hands of lawyers and to allow fee-sharing to occur between lawyers and nonlawyers. The proposal involved the notion of giving these kinds of items a try in a regulatory sandbox approach rather than simply throwing doors open wide.

Given that, to date, only Arizona and Utah have joined D.C. in allowing for people without law licenses to have an ownership interest in a law firm, the fact that the Florida Bar rejected this proposal is really not surprising. It is maybe a little bit surprising that the vote was 46-0 and 45-0, but ….

Now, the other aspect of the Special Committee’s suggestions that was rejected at the same time really is a cause for outrage and disappointment. These suggested revisions targeted Florida’s regime for regulating lawyer advertising.

Florida has long been an embarrassment to the profession when it comes to its approach to restricting advertising by lawyers. And while reasonable lawyers can disagree about whether revisions to ownership regimes and fee-sharing are an inherently good direction for the profession to pursue, the notion that Florida can continue to insist that it’s approach to lawyer advertising makes sense is beyond the pale at this point.

The Special Committee had suggested revisions to the Florida advertising rules that were intended to streamline the rules — in large part this was proposed to be done by moving some of the more detailed rules into comments — if this sounds familiar to readers of this blog that would be because it should be. This kind of revision was recently enacted in Tennessee, and the Tennessee endeavor was inspired by the same things that inspired the proposal of the Florida Special Committee, the work of APRL in encouraging these kinds of revisions and the adoption by the ABA of more streamline advertising rules. The Florida Special Committee also proposed ending Florida’s mandatory review process of lawyer advertisements that offer more than just basic information or are not law firm websites.

The notion that a prominent member of the Florida Bar Board of Governors could explain opposition to such proposals by saying:

“While well intentioned, I think both of them are ahead of their time,” Sellers said.

That is the stuff of farce if not outright gaslighting. Ahead of their time? I guess if Florida wants to insist that it is the 1990s down there in terms of the refusal to streamline, and I guess the 1970s down there in refusing to stop imposing a prior restraint on constitutional speech, then, sure.

The notion that the vote on that was also unanimous (43-0) is extremely unsettling.

To be clear about what we are talking about when we talk about Florida’s advertising rules, these are rules that still, in 2021, have an entire separate rule prohibiting certain forms of advertisements as being somehow “unduly manipulative” because they contain the image or a voice of a celebrity. This is a state that has rule that also makes it improper to advertise using “an image, sound, video or dramatization in a manner that is designed to solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client.” This is a state that still has an entire separate rule that purports to tell lawyers what content for their advertisement will be “presumptively valid content.”

All of that is bad enough, but the notion that Florida still imposes a pre-publication review requirement for commercial speech — a concept that is anathema to any reasonable understanding of the First Amendment — and that its governing body of lawyers just reaffirmed unanimously that this should continue is just … sad.

It’s another fine day to abolish the bar exam.

Now is another of the various times of year throughout the nation when law school graduates finish waiting anxiously for bar results and find out whether they passed and get the opportunity to start digging their way out of the debt they amassed in law school or failed and, thus, have to wrestle with the “sunk cost” fallacy and decide whether to amass some more debt to take another shot at passing the exam.

I’ve written a little bit before about how I’ve come to conclude that the bar exam needs to be abolished. I have admittedly not always felt this way but have come to the position over time and (I happen to think) because of growth and a better appreciation for the fact that it is a test that does not measure in any meaningful respect whether the examinee has the skills to be a competent attorney.

That was true even before the pandemic and the “pivot” from in-person exams to online undertakings but has become even more undeniable over these last 18 months.

Very, very little of the work of an attorney involves memorizing things and knowing answers off the top of one’s head. Success during a law school career spread out over three years is a much more reliable indicator of whether someone should be issued a law license. Now that states have had to partner up with software companies to administer the bar exam remotely — an opportunity that could have been used as a perfect vehicle for shifting what is tested to an open-book format that might better test the skills that an actual lawyer would have to use going forward has instead become a test of resources and sometimes just endurance.

Over the pandemic there have been a variety of news articles about the plight endured by folks taking the bar exam online. To the extent those stories ever mentioned litigation it involved efforts before an exam occurred to try to stop it from happening under certain terms and conditions or various kinds of petitions under state procedures to try to convince courts to grant a diploma privilege in lieu of requiring the exam take place.

What you do not hear a lot about is any efforts to sue by someone who fails the bar exam to seek a court ruling that they should be considered to have passed instead. There is a very good reason for that. Most states strictly circumscribe the grounds upon which the outcome of the grading of a bar exam can be challenged.

As an example, here in Tennessee, Tenn. Sup. Ct. R. 7 takes great pains in explaining the various mechanisms for seeking to have the Tennessee Supreme Court review actions of our Board of Law Examiners that are believed to have aggrieved someone seeking their license to make clear that the decision about whether you obtained a passing score is not reviewable.

Sec. 13.02. Petitions to Board.

(a) Any person who is aggrieved by any action of the Board involving or arising from the enforcement of this Rule, other than failure to pass the bar examination or a determination that an applicant has not completed the application process for an examination, may petition the Board for such relief as is within the jurisdiction of the Board to grant.

(emphasis added)

ARTICLE XIV. REVIEW OF BOARD DECISIONS

Sec. 14.01. Petition for Review.

Any person aggrieved by any action of the Board may petition the Supreme Court for a review thereof as under the common law writ of certiorari, unless otherwise expressly precluded from doing so under this Rule. 

Sec. 14.04. No Review of Failure to Pass Bar Examination.

The only remedy afforded for a grievance for failure to pass the bar examination shall be the right to re-examination as herein provided.

Now, at a surface level, this makes perfect sense because absent such a restriction you could foresee graduates seeking a redo of a subjective process – grading – in court. But, given the kinds of technological failures that are coming to light from the less-than-ideal approaches being taken to online examinations and approaches to remote proctoring when the exam is administered online, the notion that asking courts to step-in and change unfair failing grades to passing grades is verboten seems worthy of some reconsideration.

And with all of that as a pretty lengthy prologue, that brings me around to what prompted these thoughts today — this story about a graduate who missed a passing score on the remote bar exam by 5 points and has filed a petition in Arizona seeking a law license because, while he was taking the exam, the software crashed, costing him the time it took to reboot his computer and that caused him to have to redo the portion of an answer he was working on. Importantly, the graduate’s score on the portion of the exam being worked on at the time of the crash was significantly lower than the score obtained on the other portions.

This kind of lawsuit can potentially be filed in any state – even in the face of a Court’s own rules seeking to handcuff itself – in reliance upon the inherent authority that the highest court of any jurisdiction has to determine who should, or should not, receive a law license. But interestingly in Arizona at least, the relevant rule appears to provide some wiggle room for directly challenging whether a passing grade was obtained.

As the Petition itself explains, Arizona Sup. Ct. R. 35(d) provides that “the Committee on Examination’s decision regarding any applicant’s grade score is final and will not be reviewed by the Court absent extraordinary circumstances.”

Hopefully, before there become enough instances of this type of outcome becoming “ordinary” circumstances, this applicant’s challenge will be successful and other jurisdictions will thoughtfully tackle the entire question of what purpose does the bar exam actually serve.

The scams evolve. So too must lawyers.

I mentioned in a prior post that I was going to be fortunate enough to preside over the first in-person meeting of APRL in many, many moons last week.

I’ve also written in the past about APRL has begun working into its programming items we call “Fred Talks.” These are Focused. Rapid. Ethics. Discussions. Shorter and snappier presentations focused on an ethics issue or topic that is of interest but that might not justify a longer presentation than 10-12 minutes of time.

I think APRL’s program in Chicago went pretty well, and we avoided most technological glitches that might come from something of a hybridized program. It wasn’t a true hybrid as large parts of the program were simply available as a live stream to online attendees. But, I think it went fairly well.

At least it did up until it was time for me to present by own Fred Talk. That’s when things melted down. So, as promised to attendees, here is my Fred Talk on a new iteration of a potentially very devastating (and pretty sophisticated) scam that is targeting lawyers.

Following up despite it not being Friday – Tennessee advertising changes

So, sort of as promised, or at least in substantial compliance with a prior promise, I wanted to elaborate a bit more on the news out of Tennessee that we have adopted revisions to our lawyer advertising rules and talk a bit about what is now a new, pending proposal put out directly by the Tennessee Supreme Court.

As to the changes that were adopted, I scooped my own blog by articulating most of those more detailed thoughts in this piece for Bloomberg Law put together by Melissa Heelan.

The one topic I didn’t really mention in that interaction was the fact that the revisions also create a new exception to allow in-person solicitation directed at “a person who routinely uses for business purposes the type of legal services offered by the lawyer.” This is a category slightly different than what the TBA had proposed to the Court but still an improvement on the existing rule.

As to the Court’s new, separate proposal for how to revise Tennessee’s treatment of “intermediary organizations,” the TBA had proposed a “surgical” revision that simply would have removed a “catch all” category from how the concept of an “intermediary organization” is defined. The TBA did not seek to propose any changes to any other aspect of the regulatory structure that requires such organizations to register with the Court.

The Court now has. It has proposed for public comment a revision that would delete Tenn. Sup. Ct. R. 44 in its entirety and that would make some significant revisions to RPC 7.6 itself but that would still leave something of a “catch all” in the definition, though not as broad as the current rule and a few other revisions to the ethics rule portions. Importantly, because the proposal removes the requirements of registration and some other obstacles, what it leaves is a rule that largely places the burden on individual lawyers to make certain they are only doing business with entities that conduct themselves in a fashion that is consistent with the lawyer’s own ethical obligations. The proposed revised rule also requires transparency from the intermediary organization in terms of the furnishing of information to those who might use its services to find a lawyer. Speaking of transparency, the proposal is transparently inspired by a similar proposal recently adopted in North Carolina. You can read the full court proposal at the link below.

Given the removal of the more onerous requirements of Rule 44, this proposal seems worthy of public support as it would seem to make it much more likely that entities that can offer “matching” services that Tennessee lawyers and consumers of legal services alike are interested in using will do so in an open, above-board fashion.

In sum, the proposed revised version of RPC 7.6, paired with the deletion of Rule 44, would appear to be a rule more likely to be complied with rather than ignored.

If you are interested in submitting any public comment to the Court, you have until November 30, 2021 to do so.

Federal court releases crackin’ sanctions ruling

I will not seek pardon for the pun. I will also try not to prolong the nature of this post because the opinion that is the subject matter for today is a very good read, worthy of the limelight.

I have written on several occasions about the problematic efforts of two particular members of my profession who so thoroughly hitched their wagons to the idea that the former guy was somehow robbed of a second term in office that it would seem un-thorough of me not to make the time to write about the most significant ruling against them to date.

So, here it is.

Judge Parker, a Michigan federal district judge, has issued today a 110-page order sanctioning Lin Wood, Sidney Powell, and others for their filing, and continued pursuit, of a particular federal lawsuit that was part of the overall effort of lawyers on behalf of the former guy to gaslight the nation. You can read the full opinion here.

For you “bottom line” types, most of the lawyers most egregiously involved in this gaslighting litigation will have to pay the attorney fees of the defendants, will have to get 12 hours of additional CLE (6 of which will be focused on pleading standards and 6 of which will be focused on election law – good luck finding classes that focus on “pleading standards” that is the stuff of law school courses), and are being referred to various state bars for potential disciplinary proceedings.

Until such time as it is reviewed by the Sixth Circuit, which inevitably will happen, this opinion from the Michigan district court could serve as something of a “short-form treatise” on the concept of sanctions and the filing, and continued pursuit, of bogus litigation. In fact, if there were ever to be a Fourth Edition of the book I’ve been honored to co-author over the last decade, this case would likely be a real frontrunner for new content in Chapter 1, the chapter on the investigation necessary to pursue a case to begin with.

We could have a lot of fun pulling quotes from the opinion that demonstrate how irreparably round-the-bend these “Kraken” lawyers were and how they managed to step on rake-after-rake by continuing to say incredibly stupid things online while their case was being decided, but that’s not really all that interesting.

What strikes me as an interesting exercise though (and maybe it only strikes me that way) is if it were possible to boil down the most instructive pieces of wisdom in the 110-page opinion to give a short talk that might be educational to brand new lawyers about how to avoid filing a lawsuit that could get you sanctioned.

So, here goes nothing. (And so that this effort is perfectly clear, everything that follows this sentence shall be excerpts verbatim from the opinion combined into one excerpt – snips and reshuffles are omitted. Reproduction of this excerpt is something for which you could seek the express permission of Major League Baseball, but they will look at you funny when you do.)

[A]ttorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

For purposes of Rule 11, an attorney who is knowingly listed as counsel on a
pleading, written motion, or other paper “expressly authorize[d] the signing, filing,
submitting or later advocating of the offending paper” and “shares responsibility
with the signer, filer, submitter, or advocate.” In this age of electronic filing, it is frivolous to argue that an electronic signature on a pleading or motion is insufficient to subject the attorney to the court’s jurisdiction if the attorney violates the jurisdiction’s rules of professional conduct or a federal rule or statute establishing the standards of practice.

Even if there are sanctions available under statutes or specific federal rules of procedure, . . . the ‘inherent authority’ of the court is an independent basis for sanctioning bad faith conduct in litigation. To award attorneys’ fees under this “bad faith exception,” a district court must find that (i) “the claims advanced were meritless”; (ii) “counsel knew or should have known this”; and (iii) “the motive for filing the suit was for an improper purpose such as harassment.” When invoking its inherent authority to sanction, “[a] court must, of course, . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”

[L]itigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation. The rule[s] continues to require litigants to ‘stop-and-think’ before initially making legal or factual contentions.

[A]n “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions. And the good or bad faith nature of actions or submissions is not what determines whether sanctions are warranted under Rule 11(b)(3). Inferences must be reasonable and come from facts proven, not speculation or conjecture. Pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation. Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”

As an initial matter, an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred. Plaintiffs are not entitled to rely on the discovery process to mine for evidence that never existed in the first instance. Attorneys are not journalists. It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences.

An attorney’s right to free speech while litigating an action “is extremely circumscribed.” Something does not become plausible simply because it is repeated many times by many people. An attorney who willingly continues to assert claims doomed to fail . . . must be deemed to be acting with an improper motive.

The nation’s courts . . . are reserved for hearing legitimate causes of action. Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order. Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

Labors of love.

Today has been a very weird sort of day.

My morning was consumed by handling a reinstatement proceeding where my client was someone who is inarguably a better human being, spouse, parent, and member of the community than I am. This person’s contributions to the community while they have been suspended from the practice of law far exceed mine to the point where my contributions cannot even see his contributions they are so far apart.

My afternoon has involved succeeding someone as President of the Association of Professional Responsibility Lawyers who is pretty clearly also a better human being, spouse, and parent than I am.

I do steadfastly believe though that I am a pretty decent lawyer. So, I hope for the best outcome for my client who I truly believe is incredibly deserving of a second chance to expand the playing field of his contributions to include contributions to our profession. Based on that steadfast belief of being a pretty decent lawyer, I also hope that I will make APRL proud in the year I get to serve as its 32nd President.

If you are dead set on getting some ethics content out of today’s post, I would point you in the direction of reading up on just how perilous it can be for a lawyer to give a second chance to a nonlawyer staff member with access to trust funds and who has already once intentionally transgressed.

If you are willing to be more flexible in terms of content let me point you to two external resources that have nothing in common other than that they are labors of love.

First, if you are a frequent reader of this space and you are not already a member of APRL. Please give some real thought to joining. No organization is perfect but APRL is a very good organization. It is made up of about 400 or so people who, like me, are ethics nerds. We are a collection of lawyers all over the United States who represent other lawyers in disciplinary proceedings, legal malpractice cases, or related matters or who are academics focusing on legal ethics or work on bar admission matters or who serve a risk management function for their law firm.  Annual membership is only $175. If you are inclined to check us out, our website is here. If you are already convinced and just want to join, you can go directly to registration here.

Second, if you aren’t interested in APRL or you are back to this page after just joining, and you are a huge fan of good television and movies as well as the implementation of awesome ideas, well please, please, please go check out Nestflix. I don’t think I’ve ever put as much time and thought into anything as the person who came up with and implemented that idea.

You will lose your entire weekend navigating that website, but you won’t regret a moment of the time.

A cautionary tale of sorts for solos

It was many, many years ago (almost exactly 5 years ago) that I wrote a bit about how important it can be for lawyers who have solo practices to have contingency plans in place in case something suddenly happens to them in order to provide a way for their clients to be protected.

As we are in the middle of a pandemic that seems like it may never end (though I guess it may not even be accurate to say “middle” when the duration seems unknowable), it seems as good a time as any to remind folks about the need for this kind of planning.

And because it is often easier to learn from actual stories that happened, and because this is a story that seems to have occurred before the pandemic and is one I can indirectly make “personal” because of a common surname, I’ll offer this one.

(Obviously, when you go look at the documents, you will see when I say “common” surname I do not mean that the surname is a common one. It is very uncommon, but it is one that I have in common with the former Florida lawyer. Given that fact, it is highly likely that we are related in some degree.)

This story, which unfortunately will double as a story of how disciplinary proceedings can go from bad to worse if not handled appropriately, involves a Florida lawyer who became seriously ill, quite suddenly in January 2018, and left Florida to move to New York to be cared for by family. This former lawyer also was plagued by additional health issues including cancer further contributing to the inability to work.

She entered into a consent judgment in Florida which was accepted by the Florida Supreme Court in January 2020 to be suspended from practice for 90 days. Because of her sudden illness, having become bedridden and unable to talk, she abandoned a litigation matter she was handling for a pro bono client. The consent judgment lays out a more complicated story — a story in which readers could conclude that the pro bono client in question had already been failed prior to any health issues as the client’s case had apparently languished with no activity for nearly two years prior to January 2018.

Nevertheless, and despite the fact that the consent judgment included the lawyer acknowledging she was likely never going to be able to resume practice, the suspension order did not become effective for 30 days in order to give her time to do what she had failed to do originally, notify clients and make arrangements, etc. That order even went so far as to say: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”

Unfortunately, the lawyer either did not do that or, if she had no other clients to notify, did not make arrangements to file the necessary paperwork to notify Florida and, thus, she was subsequently found in contempt and suspended for 91 days in August 2020. Again, even in that order, the lawyer was given 30 days until it would take effect. That order also again stated: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”

Unfortunately, the lawyer again did not do any of those things. As a result, last month, the Florida Supreme Court entered an order disbarring them on July 22, 2021. That order, unlike the ones that preceded it, was made immediately effective.

If you practice law in a firm of sufficient size, you can get away with procrastination when it comes to thinking about your own morbidity or mortality because someone else at your firm will likely step in to save your, and the firm’s clients’, bacon. If you practice law by yourself, the risk of failing to plan is much more severe.

If you are a solo practitioner in Tennessee, and you have not already put a plan together for what will happen to your clients should something suddenly prevent you from continuing to practice law, do make the time to go familiarize yourself with the provisions in Section 29 of Tenn. Sup. Ct. R. 9 that allow for the appointment of receiver attorneys. While many lawyers have heard of this concept, many only know that affords courts with the ability to appoint someone to step in when a lawyer has become unable to practice. What is even more important though is that the rule blesses, in Section 29.9, advanced planning efforts to accomplish the same purpose:

29.9.  Advance Designation of a Receiver or Successor Attorney.  An attorney may designate in advance another attorney by contract, appointment, or other arrangement to handle or assist in the continued operation, sale, or closing of the attorney’s law practice in the event of such attorney’s death, incapacity or unavailability. In the event an attorney to whom this rule applies has made adequate provision for the protection of his or her clients, such provision shall govern to the extent consistent with this Rule unless the trial court or the Court determines, upon a showing of good cause, that the provisions for the appointment of a receiver attorney under this Rule should be invoked.  

Such contracts need not be unwieldy or overly complicated, and they can not only serve the public good by protecting your clients, but also having one might just play a big role in having your story (should something happen to you from which you can recover) be one of temporary troubles rather than a downward spiral to disbarment.

The Greening of New York

As promised, though just under the wire, I am following up to write more about one of the stories I didn’t write about in July, the issuance of N.Y. State Bar Ass’n Committee on Prof’l Ethics Op. 1225.

One of the downsides of publicly announcing you will write about something in the future is the risk that other folks will do it sooner and better. I understand that two of my favorite legal ethics sites have done so, but I’ve made the personal sacrifice to not read any of those folks until I can manage to commit my own thoughts into the ether.

So, let’s start with where we left off… Op. 1225 gives the ethical “green”light to lawyers both to advise businesses on how to comply with New York’s new law legalizing marijuana for recreational use and to personally use marijuana and grow the limited amounts authorized for personal use.

In getting to that conclusion, the NY Committee wasn’t starting from scratch but building on a foundation it had established in earlier opinions addressing a lawyer’s ability to provide advice to clients at an earlier time when New York only had legalized marijuana for medical use.

This opinion is noteworthy still, however, for several reasons.

First, I believe this to be the first ethics opinion clearly stating that a lawyer in a jurisdiction where recreational marijuana has been made legal can partake just as any other citizen of the state and that prohibitions in the ethics rules on personal conduct that is illegal should not change the outcome despite the fact that use of marijuana remains illegal under federal law. (I could be wrong about it being the first, but my memory is that other jurisdictions that have been willing to say that a lawyer can advise a client about the kind of business have still been unwilling to take the next logical step and say that the lawyer can partake.) It also makes the point that the now near full decade of federal forbearance on attempting to enforce federal law prohibiting marijuana use in states where it has been legalized could provide a lawyer with a good faith argument that no valid obligation exists to comply with the federal law in the face of the state legislative action.

On that front, however, it is worth knowing that the persuasiveness of the rationale likely could turn on what is the exact language of any particular jurisdiction’s version of Rule 8.4(b), the language of its accompanying comments, and what the ruling body considers to impact a lawyer’s “fitness.” For that matter, opening the door to the defiance of federal law by lawyers based on a claimed good faith belief of no valid obligation can itself be the stuff of slippery slopes.

Second, this opinion offers a very thorough explanation of why Rule 1.2(d) simply should not be interpreted in a fashion that would prohibit lawyers from offering businesses the assistance they would need to navigate the commercial endeavors that will be allowed. And it does so without feeling like any revision to the rule or comment is needed unlike some other jurisdictions have approached matters. A fundamental truth about the modern United States is that it is difficult, if not impossible, to navigate any regulated business without the assistance of lawyers.

More generally, in a complex regulatory system where cultivation, distribution, possession, sale and use of a product are tightly regulated, legal advice and guidance has immense value. Without the aid of lawyers, the recreational marijuana regulatory system would, in our view, likely break down or grind to a halt. The participation of attorneys thus secures the benefits of the Recreational Marijuana Law for the public at large, as well promotes the interests of the private and public sector clients more directly involved in the law’s implementation.

Unlike New York’s common sense acknowledgement of the overall public good, the Georgia Supreme Court just issued guidance turning a blind-eye to those concepts and declaring that lawyers that help clients do business in selling medical marijuana oil, despite that being legal, can be sanction for violations of the disciplinary rules because of the illegality under federal law.

Third, in delving into the attorney’s other question about accepting an equity interest in a marijuana business client, the committee opinion provides excellent guidance that would be useful for any attorney addressing the question with respect to any business client — an analysis of Rule 1.8 regarding business transactions and Rule 1.7 regarding conflicts of interest– which is a nice change of pace.

Now, off to go read the other folks, possibly better takes…