That escalated … but not all that quickly.

You’ve likely already read something this week about the Florida lawyer who was disbarred last month as the culmination of his “cumulative and escalating misconduct,” so I don’t know that I have anything truly unique to offer about the situation.

But because I so clearly remember talking about the first event in his series of bad behavior in seminars I did about 8 years ago, I feel compelled to write about his disbarment.

Back in 2010, an opinion came out that suspended Robert Ratiner for 60 days over an incident involving a highly aggressive and inappropriate reaction to another lawyer putting a sticker onto his laptop during a deposition.

That case garnered some substantial legal media attention because the Florida Supreme Court described Ratiner’s conduct as something that ought to be viewed in professionalism courses to teach lawyers how not to behave.  In that incident which happened in 2007, Ratiner responded to the other lawyer’s placement of the exhibit sticker by first trying to physically run around the table to where the lawyer was and then, instead, forcefully leaned over the table, angrily yelled at the other lawyer, and through the wadded up sticker at him.

Between that incident and the latest, Ratiner received a three-year suspension in 2015 flowing from more litigation behavior evidencing problems both with inter-personal skills and with recognizing and respecting physical boundaries.  In that case, Ratiner first called opposing counsel a “dominatrix” during a document review session and, on the following day, tried to grab a document away from her which prompted the involvement of a security guard.  That event happened in October 2009.

The February 2018 order of disbarment (which you can read here), unlike the prior two incidents, involved conduct inside the courtroom.  Ratiner was accused of loudly kicking the table of other counsel during a hearing, saying “lie, lie, lie” during the cross-examination of one of his law partners, and wrinkling and throwing documents in court.

The ethics rule Ratiner ran afoul of is Florida’s slight variation on the traditional Model Rule 8.4(d) about not engaging in conduct prejudicial to the administration of justice.  That rule in Florida reads:  “A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers.”

Perhaps remarkably, the initial proposed discipline for this event was another 3 year suspension rather than disbarment.  The Florida Supreme Court decided, however, that disbarment was required.

As the Florida Supreme Court explained:

Ratiner has denied the existence of such objectionable, disrespectful conduct over the years, even in the face of videotaped evidence and witness testimony. His argument or belief that said conduct constitutes the zealous representation of his clients is completely unacceptable.

[snip]

In cases where lawyers have previously been disciplined for engaging in misconduct of a similar nature, the Court has generally taken an incremental approach in imposing discipline, increasing the severity of discipline in each instance.

[snip]

Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.

Other than what is set out in the various opinions, I do not know anything more about this lawyer’s situation.  Although none of the opinions include anything to clearly signal underlying, treatable problems plaguing this lawyer,  this certainly feels like a sad story that has issues of lawyer wellness at its heart.

It also involved a pattern of conduct spread out over a fairly long time (though not as long as it feels at first when you have 10 years elapsing between the sticker-throwing incident that prompted the first, short suspension and the disbarment) when you think about it in terms of “escalation.” Ratiner practiced law for 28 years before being disbarred.  Almost 4 years passed between the deposition sticker row and the table-kicking courtroom incident.

Nevertheless, it’s as good a reason as any to remind people in our profession to add this report from the National Task Force on Lawyer Well Being to your reading pile and to actually read it.  Particularly, when news in the world of lawyering brings developments like this shooting — a situation which I would say truly involves quick and very scary escalation — and the notion that this odious lawyer is out there representing our profession to the public.

Preparing for disbarment.

The panel I was fortunate enough to participate in at the meeting of the Association of Professional Responsibility Lawyers in Vancover earlier this month has received a very good write up appearing in a Bloomberg Law publication.  You can go read it here.  We talked about a number of things other than the looming GDPR deadline, but that is what is the focus of the article.  (I do promise to write more about GDPR issues before that May 2018 deadline rolls around, but not today.)

One of the very good panel presentations I had the chance to observe at the APRL mid-year meeting involved representing lawyers in disbarment cases and how difficult it can be to manage your client when you know what’s coming – they are going to be disbarred – but they do not yet realize that’s the future (or they are still struggling mightily to convince themselves it will play out differently.)  There are certainly lawyers who deserve to be disbarred, but even those lawyers, if they’ve hired a lawyer for their matter, deserve the best advice and guidance their own lawyer can provide them about their situation.  It was a very good panel discussion and offered some good insight about the kind of skill sets lawyers who handle such matters need to possess.

Last week was a pretty big week in Tennessee for removing lawyers from the rolls as the Tennessee Supreme Court issued two opinions disbarring two lawyers in largely different scenarios.  The two prominent things they have in common are: (1) as with lots of disbarment scenarios there were conversions of client funds from trust in the mix of problematic conduct; and (2) they both involved what should have been viewed as quite obviously doomed arguments to try to have an order of disbarment be made retroactive to a much earlier date.

One of the things that lawyers representing lawyers ought to recognize – and that was at least something of an implicit theme in parts of the panel discussion – is that, sometimes, the best representation you can provide involves helping your client get disbarred as quickly as possible.  In jurisdicitons where disbarment is permanent, that isn’t necessarily true at all.  But, in jurisdictions like Tennessee, where a lawyer can apply for reinstatement even after being disbarred, but cannot do so until at least five years has passed, getting to disbarment quickly can be incredibly important.  (And, to be clear, I have no insight into the handling of this particular case.  The lawyer for the lawyer might have been trying to do everything possible in that regard and might have even made it perfectly clear to the lawyer client that the price of continued appeal was that the disbarment clock was not going to start for many years.)

One of the two opinions – likely quite rightly – describes the conduct of that lawyer as seeming to be “more bungling than nefarious” so this post will focus instead on the case that pretty clearly drips with nefariousness.  You can, of course, go read the full opinion here, but here’s a very quick and dirty, bullet point version of the wrongdoing:

  • The lawyer convinced someone to give him more than $5 million for a financial venture, promised the funds would be held in escrow and not moved without the person’s permission, and promised payouts to the person from the venture to begin within 30 days.
  • The lawyer did not keep the funds in the manner promised, made no payouts, only returned $1 million of the deposited funds, never provided an accounting to the person of what happened to the money, pulled those funds out for a variety of purposes, and then falsified accounting records filed with a court to show the money was still in trust when it wasn’t.
  • The lawyer defied a court order requiring transfer of whatever funds were still in the trust account to the Clerk of Court for holding and instead directed the bank to transfer those funds to a bank account of an employee of his law firm.
  • At around the same time, the lawyer took a $1,500 retainer from a client. wrote one letter, and then stopped communicating with the client, and didn’t refund the money.
  • A year before those situations, the lawyer separately got a payment of $5,000 from a client, did very little work, and then stopped communicating with the client altogether and ignored counsel for the opposing party, and did not refund the client’s money.
  • Later, after a temporary suspension had been entered and while on disability inactive status (NB: the only apparent claimed defense for any of the above hinged on a claim to have suffered a head injury in an attack involving being hit on the head with a metal pipe.), the lawyer worked as an assistant for another attorney (NB: back at a time when in TN we did not have the “can’t sweep the floor” rule I wrote about here.) and scammed $10,000 out of one of that attorney’s clients based on false statements that the attorney wanted the payments.

I mean, if you have a decent amount of experience with the disciplinary system, you know the end of this story once you’ve gotten up to speed with the facts:  That’s the tale of a lawyer who will be disbarred.

It’s also the tale of a lawyer who will have a very, very hard time ever being able to be reinstated to the practice of law in the future and whose best hope of reinstatement ever coming to fruition likely turns as much on what they do during the disbarment proceedings as what they do to rehabilitate themselves and become a different person over the following five years.

This is also the story of a lawyer who needed someone to remind him that there are things you can do on hills besides die on them.

If that kind of reminder was given in the form of legal advice, it certainly wasn’t followed.  Instead, a really big hill was located.

The primary argument pursued on the appeal of the case to the Tennessee Supreme Court was that the date of disbarment should have been made retroactive back some 6 to 7 years earlier.  Setting aside just the pure legal flaws associated with trying to argue that the concept of disbarment (rather than suspension) can be made retroactive to a period of ongoing temporary suspension, the act of pushing this argument in this case required someone to stand in front of the Court and ask it to enter an order of disbarment for the above conduct but agree that the lawyer could immediately turn around and apply for reinstatement.

Hope may spring eternal and all that, but that’s such an obviously untenable position that I would have hoped no lawyer would build an entire appeal around it.

In the end, as indicated above, this is the story of a lawyer that likely has no realistic chance at ever being reinstated, but, by persisting on appeal long after the ghost should have been given up (and while having been sidelined from practice for the last 7+ years), any effort at reinstatement cannot be pursued until 2023.

 

 

An incredibly unhelpful ethics opinion from Colorado

Were you looking for something that is very well-written but entirely unhelpful to your needs as a lawyer?  Well, you’ve come to the right place today.

Wait, I now see how that paragraph could be misconstrued in an entirely unflattering way and as an inadvertent passing of judgment on this whole blog.  Obviously, I didn’t mean that.  After all, I said “well-written.”

Anyway, what I’m actually intending to refer to is Colorado Formal Ethics Opinion 134 which was enacted in January 2018 but which was brought to my attention by a loyal reader of this space.  It likely came into his path because of some treatment in the ABA/BNA Lawyers’ Manual which I admittedly have not read beyond their headline and lead sentence, which is as follows:

Advance Agreements on Joint Settlement OK, Colorado Bar Says

A lawyer who represents multiple clients in a case can prepare for them, with informed consent, an agreement stating that a majority vote controls for settlement offers, a recent Colorado bar ethics opinion says.

That is one way to spin the Colorado opinion and draw peoples attention, but studying the opinon itself reveals that the picture being painted is far too rosy because a more fair introduction to the opinion would be:

Advance Agreements on Joint Settlement OK to Memorialize But Lawyer Can’t Enforce It in the Future, Colorado Bar Says

A lawyer who represents multiple clients in a case can prepare for them, with informed consent, an agreement stating that a majority vote controls for settlement offers, a recent Colorado bar ethics opinion says, but what would be the point?  The same opinion explains that if any of the clients later rejects the settlement and refuses to abide by the majority vote then the lawyer doesn’t have settlement authority and can’t continue to represent everybody.

I’m not kidding.  That is the TL/DR version of Colorado Formal Opinion 134.  Don’t believe me, go read it for yourself.

Now, Colorado may feel like it has given a helpful opinion because it distinguishes its opinion from some others by saying it is perfectly ethical for a lawyer to participate in preparing an agreement along these lines for jointly represented clients and explaining how Rule 1.8(g) is not triggered until some future point when a settlement is on the table for consideration.  But . . . geez.  From a practical perspective, it’s an exercise in navel-gazing because of this paragraph of the opinion:

If multiple clients agree in advance on a majority-decision rule for how they will respond to an aggregate settlement proposal, but one client in the future refuses to follow the majority’s decision, the dissenting client might be in breach of that agreement.  The other clients might have claims against the dissenting client.  This circumstance creates an unwaivable conflict for their joint lawyer due to the dispute between in the dissenting client and the other clients.  The lawyer may not take sides in the dispute, and may not seek to enforce the agreement againts the dissenting client, on behalf of the majority clients, by compelling the dissenting client to settle.  The lawyer might need to withdraw from the joint representation entirely.

Because of that, it seems hard to understand how any good Colorado lawyer armed with this opinion could ever respond to an inquiry by joint clients about putting together a majority-rule agreement with any advice other than:

Yeah, you don’t want me to go through all of that.  If anyone changes their mind later, I can’t enforce it and you probably just end up in additional litigation maybe over breaching the contract and you all just end up having to hire more and different lawyers.  So, let’s just wait until we have something in front of us to think about on settlement some day and then work it out if and when that day ever comes around.

 

 

 

My 300th Post. The shady “Stormy” story gets shadier.

If you had told me back in March 2015 when I started this blog that my 300th blogpost would struggle with trying to decide which angle of a statement to The New York Times made by a personal attorney for the 45th President of the United States about paying $130,000 to a porn star to apparently buy silence regarding that porn star’s past affair with the President at a time that was within months of the President’s third wife giving birth to his fifth child would be worst legal ethics bit, then I … well, I don’t even know what I would have begun to have thought, much less said.

But this is the reality of the world in which we now live.  So, here we are.  Let’s get this over with.

You’ve certainly likely already reports from yesterday either The New York Times article itself, or the thoughts of other folks online about the story which are too numerous to try to link to at this point.  The very short version is Michael Cohen, a New York lawyer who has been the private, personal attorney of the current occupant of The White House and who was, in the recent past, something of an in-house attorney for the 45th President’s family corporate organization has now provided a statement to one of the largest newspapers in the nation — that he says echoes substantively what he has told the Federal Election Commission — that he personally paid $130,000 to a woman, who goes professionally by the name, Stormy Daniels, and was not reimbursed directly or indirectly by the current President’s campaign or his family corporate organization.

I am a lawyer – I may have mentioned that on one or more occasions.  For anyone who might be reading this and wondering what it is like to be a lawyer, Mr. Cohen’s experience as he describes it is definitely not what lawyers do.  The best of our profession often times think of ourselves as, and even describe ourselves, as problem solvers.  But we traditionally are not allowed to solve problems for people simply by throwing our own money at the problem.  That aspect is just one of the ways in which this incident, and how the statement describes it, raises a whole host of immediate, problematic ethics issues for discussion.

Those include:

(a) If Cohen’s statement about the transaction is true, it might have been a violation of New York’s ethics rules on business transactions with clients or not providing financial assistance to a client regarding litigation or certainly otherwise a scenario that creates a serious, personal interest conflict of interest for the attorney.  (b) The making of the statement itself is not something a lawyer should likely be doing unless he’s been instructed to by the client because it just made things worse for the lawyer’s client because the porn star who had been worried she was still under an NDA now believes she is free to speak out about the affair and actually confirm other media reports rather than being coy about the whole situation. (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).

Now, in trying to discuss such topics at length, I could repeat what other fine lawyers on the ground in New York and who are well versed in ethics have now already said in a story in The ABA Journal online about the likely violation of New York RPC 1.8(e), but I won’t.  You can read what they say at this link instead.  (Plus, I quite recently wrote about a somewhat similar kind of situation involving a much less crazy overall scenario and so it seems like it isn’t necessary to write more about the “doing a financial favor for a client” piece of the puzzle.)

I could also spend some time complaining about the fact that much of what I first read online posted by journalists about Cohen’s statement was how everybody kept claiming that Cohen had said he’d paid the money to Ms. Daniels “out of his own pocket,” which he never actually said apparently.  But, instead you can go read a good take on that aspect of the situation here.

I also could focus on the fact that, without respect to the shadiness of the whole transaction and how problematic that is for a lawyer to be near, the decision to give a statement to The New York Times appears likely to damage his client as Ms. Daniels is now signaling through the media that she can tell all because Cohen’s public statement confirming the payment is a breach of the NDA she signed.  But, there is already a better article about that development you can read here.

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.

So, under that theory, if Cohen’s conduct is unethical, then it is probably because it either is, or might very well be akin to, money laundering or money laundering in reverse. . . if that’s a thing.

Idaho why I insist on punny titles.

So, those familiar with this space may remember I have written a bit from time-to-time about Tennessee’s proposed rule revision to adopt a modified version of ABA Model Rule 8.4(g).  The future of the proposal is still up in the air and the public comment period continues to run until March 21, 2018.  If you want to, you can go read those comments that have been submitted so far at this link.  The Court regularly updates the contents of the PDF at that link as new comments are submitted.  (Spoiler alert:  quite a few lawyers are pointing to their religious beliefs as being under attack if an ethics rule is adopted that would prohibit them from harassing or discriminating against people and, in the process in my opinion, overlooking the vast chasm that exists between proclaiming one’s personal beliefs but still treating all people with respect and conduct that involves harassing or discriminating against someone.)

The purpose of this post is not exactly to provide an update on Tennessee’s proposal.  Instead, the reason for writing is to share another approach to the topic that I learned of recently when I was getting fully up-to-speed on Idaho’s rules.

Although it was only tangentially relevant to my presentation to the Idaho Prosecuting Attorneys Association, I learned that not only does Idaho have the same RPC 8.4(d) and Comment [3] approach as Tennessee [both patterned after the older ABA Model Rule approach] but, in addition to that, Idaho has additional language targeting lawyer conduct motivated by discrimination in its RPC 4.4.

In Tennessee, for example, RPC 4.4(a)(1) prohibits the following sort of conduct:

(a)       In representing a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person….

Idaho’s version of this rule, however, adds something extra by way of an example of what is included:

(a) In representing a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person, including conduct intended to appeal to or engender bias against a person on account of that person’s
gender, race, religion, national origin, or sexual preference, whether that bias is directed to other counsel, court personnel, witnesses, parties, jurors, judges, judicial officers, or any other participants….

It is an interesting approach because I have found myself, in some discussions at seminars in Tennessee where I’ve discussed my support for the proposed rule responding to examples of things lawyers say could become fodder for a bar complaint if the rule were revised, pointing to the fact that the conduct being described could very well be pursued as a violation of RPC 4.4(a).  I think that’s likely true in a number of litigation-related examples of sexual harassment or usage of racial and other kinds of epithets directed at others involved in the process, but would only cover issues related to when a lawyer is representing a client.  I happen to think that’s likely true in any jurisdiction that has language like Tennessee’s RPC 4.4(a) even without going to the trouble of elaborating on the point as Idaho has in its rule.

But, Idaho’s approach is certainly an interesting one as something of a belt-and-suspenders approach to trying to stop such conduct by lawyers, but only when they are representing clients.

Friday follow up. Good news and bad news.

I seem to be trending toward this model of one new/fresh substantive post early in the week and one of these “FFU” posts at the end of the week, but I’m not sure if this is a rut or my script going forward.  A very intelligent and thoughtful lawyer asked me while I was in Vancouver what my publishing schedule was, and I had to embarrassingly admit that a fixed schedule was not something I had.  I told him what I’d tell you – if you asked — I try my best to at least post twice a week, but the days varies and some weeks I am better at this than I am other weeks.  Not the kind of consistent excellence that builds a readership, I readily admit.

So, oh year.  The follow ups.  Good news and bad news.

First, the good news.  The Oregon Supreme Court has approved the revision to RPC 7.3 in that state that I wrote a bit about recently.  You can read the Oregon court’s order . . . eventually (I can’t find it yet online) [updated 2/10/18 – Thanks to Amber Hollister, you can now see the order hereAmended SCO 18-005 Amending RPC 7-3 and 8-3 signed 2-7-18], but you can get your confirmation that I’m not lying to you here.

Second (also last), the bad news.  D.C. has now officially issued a 60-day suspension (with potential for it to be much longer) for the former G.E. in-house counsel that I wrote some about quite a few moons ago.  One of the panel presentations I had the chance to sit through in Vancouver touched on issues of lawyer whistleblowers.  You can reach your own conclusions about whether we currently live in a world in which lawyers should be encouraged to be whistleblowers (particularly, for example, in-house lawyers in Washington, D.C. these days), but the only conclusion that can be drawn from this D.C. outcome is that anyone who learns about the punishment that was sanctioned will be a whole lot less willing to do so than they would otherwise be.

I remain particularly skeptical of the treatment afforded Ms. Koeck by the D.C. bar given the fact – as discussed way back when (which was itself a FFU almost a year ago so…) – that they also decided to punish the lawyers who gave Ms. Koeck advice and guidance along the way.  Which is, as far as these things go, even a more chilling wrinkle.  You can read a National Law Journal piece on the news out of D.C. here.

Idaho why lawyers are so often tripped up on this.

I’m writing from Boise where tomorrow I’m delighted to have the chance to speak on legal ethics for the Idaho Prosecuting Attorneys Association.  (I’m also delighted that the weather is unseasonably warm at the moment.)  Last year I had the chance to do a similar presentation for the Tennessee District Attorneys General Conference.  Prosecuting attorneys throughout the country are finding themselves more frequently in the cross-hairs of disciplinary proceedings.

But today’s post isn’t really about that, but it does help explain the selection process.  As I find myself drawn to write about a recent instance of discipline imposed on a private attorney in Idaho that involves behavior that I’ve counseled lawyers about so I know it happens to be relevant beyond just the Idaho Bar.

The case involves the issuance of a suspension order against Attorney Beckett issued at the end of January 2018, but for which the 28-day active suspension period will run during the month of February.  You can read the press release put out by Idaho State Bar Counsel here.

The underlying case was a personal injury lawsuit, and Beckett was able to get the case successfully settled for his client.  His client, though, wanted immediate access to parts of what would be forthcoming from the settlement.  Perhaps simply motivated by an effort to be accommodating, or more likely because of a failure to properly communicate with the client and manage expectations regarding how long such things take, Beckett agreed to provide two advances of the forthcoming settlement funds to the client out of his own money and from money belonging to a separate company Beckett owned.

As the press release explains, he didn’t do that in a way that was at all proper because she didn’t manage to keep the funds properly segregated to avoid commingling them with money in other accounts and also didn’t communicate to the client the available alternatives.  Despite the fact that, as the press release makes clear, Beckett didn’t charge any interest or fees for the transaction and that no other clients were harmed in any way, the conduct violated Rule 1.15 and 1.4 of the Idaho Rules and merited a 60-day suspension, with 28 days of active suspension, and a six-month probationary period.

What is interesting is that the press release makes no mention of Rule 1.8(a) governing business transactions with clients.  When I have had to counsel lawyers about inquiries from clients along these lines, that is the Rule most pertinent to the discussion for a path to actually doing what the client wants if the lawyer is insistent on providing an accommodation.

Idaho, like Tennessee, has a Rule 1.8(a) patterned after the ABA Model Rule.  Tennessee’s, for example, provides that a business transaction with a client – which is what a loan like what Beckett did would be — cannot happen unless

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Now, working through that rule is not 100% of the battle altogether, because the risk still exists that a bar counsel would argue that other provisions in the same rule, RPC 1.8(e) and (i) in Tennessee for example, would still work to prohibit such a business transaction altogether if the case has been settled but no order of dismissal ending the litigation has been entered.

Those provisions provide:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

and

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

RPC 1.8(i) has always struck me as a prohibition that can be drafted around in the transaction documents to sever any connection between the litigation and the loan, but (e) is trickier if the litigation, despite being settled is technically still “pending” at the time of the client’s inquiry.

TIKD off my list.

Some day I’m going to get tired of having pun with TIKD titles, and you’ve probably already gotten tired of me doing it, but today is not that day for me.  I was looking to find something to be able to easily write about today before scrambling out of town for some speaking engagements and meetings and Roy Simon has come through for me again.  Roy kindly pointed me this morning to the latest development in the saga down in Florida over the traffic ticket app, TIKD, and its fight with the Florida Bar.

If you are not a Law360 subscriber, you can only read part of the story at this link.  Roy was kind enough to send me the full article, so I’ll summarize the key points of the development for you and then leave you with the only potentially relevant thought I can manage today.

The story explains that the Florida Supreme Court has issued a show cause order to TIKD to require it to respond to the Florida Bar’s petition over UPL allegations and to show cause why the Florida Supreme Court should not enter an order barring its services.

The article contains a very confident sounding quote from the owner of TIKD, likely more confident than he should be under the circumstances that reads as follows:

“What a stunning waste of time and resources,” Riley said. “For nearly a year we have been asking the bar to tell us what aspects of our business they find objectionable, so we could work to address
their concerns. Rather than having a conversation, they chose this route and now have filed a vague complaint, lacking any basis in case law.”

“Nonetheless, we’re glad the issue is out of the bar’s hands, and into a realm where actual facts matter. We remain confident Tikd and its affiliated lawyers are fully in compliance with Florida law,
and are hopeful we can finally resolve this and move on,” he added.

I remain skeptical that TIKD itself is truly engaged in the unauthorized practice of law, though I suspect the Florida Supreme Court may find otherwise.  I’m as confident as Mr. Riley sounds above that what they are is a referral service that violates the current version of the Florida Bar’s ethics rules and that lawyers doing business with TIKD simply cannot do so and comply with the current Florida rules.

I’ve written in the past about my thoughts in general about being open to taking hard looks at revising existing ethics rules that touch on these issues, but for now the rules say what they say.

What I’m puzzling over is this:  is there a way of describing what this traffic ticket app company does that is sufficiently analogous enough to what insurance companies do to justify its existence even under current ethics rules?

At some level, isn’t what this company is offering in the equivalent of ticket insurance without a deductible?  They select the lawyer to represent you, they pay the lawyer to represent you, and if a “judgment” goes down against you for which you are liable – a fine for violation of the traffic laws — they pay it.

If we let insurance companies do something very much like that, then what’s the difference here?

Friday follow up: This week flu by.

Apologies for the lack of content this week, been down with the flu since Monday afternoon.

Two short items by way of follow up today worth highlighting with a hope of resuming this blog’s normal, sub-par output next week.

First, word has come out that the former Florida Bar President made the subject of the disqualification motion in the TIKD litigation has now withdrawn from representing TIKD.  You can read an update about that here.

Second, in complaining a week or so ago about the scope of Tennessee’s RPC 5.5(h) prohibition on employing suspended lawyers, I made reference to the fact that the rule could arguably apply even to a lawyer serving an administrative suspension.  This month brings news of the relatively rare occurrence of a lawyer actually getting disciplined for continuing to practice while administratively suspended in Tennessee.  You can read the release from our Board of Professional Responsibility about a lawyer getting publicly censured for continuing to go into the office for 7 business days while suspended for purely administrative reasons relating to not securing the necessary CLE requirements here.  These materials don’t mention whether the lawyer actually even knew during those 7 business days of their administrative suspension.  Presumably so or the public censure, which already sounds overly harsh, would be extremely harsh.  Under RPC 5.5(h), if she were employed by other lawyers during those seven days, they could potentially face discipline as well.

Which is bananas.

And, as to flu, I think I was probably fortunate to only get the B strain.  Reports this week about the extent of things are bad on that front.

So, stay safe.

Safeguarding confidential information, border searches, and your devices

In February, I will have the opportunity to be part of a panel discussion in Vancouver, Canada at the mid-year meeting of the Association of Professional Responsibility Lawyers focused on privacy and client confidentiality issues.

We will discuss quite a few interesting topics, including something that likely isn’t on the radar of as many U.S. lawyers as it should be — the EU’s General Data Protection Regulation which will become effective on May 25, 2018.  I plan to find some time on another day to write a bit more about that, but for today I just want to offer up a short-ish update on something talked about here before (and that we will also discuss in Vancouver) – concerns for lawyers when crossing the border back into the United States if Customs and Border Patrol demand access to electronic devices.

With a thankful tip of the hat to Wendy Chang with Hinshaw & Culbertson who alerted me to its existence, I can possibly alert you to the fact that CBP put out a new Directive on the topic of border searches of electronic devices on January 4, 2018.  You can go read the full document here.

The piece of it I want to spend just a moment or two elaborating on is the new guidance it provides in Section 5.2 “Review and Handling of Privileged or Other Sensitive Material.”

Before doing so though it makes sense to lay out for you what CBP’s prior directive on this topic indicated – which was dated August 20, 2009 and can be found here.  Section 5.2.1 of that directive provided as follows:

Officers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege.  Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures:  If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records.  CBP counsel will coordinate with the U.S. Attorney’s Office as appropriate.

Now, assuming that meant what it implied, that seems to paint the guidance as being in the nature of:  if an attorney tells you that something you want to look at is a problem because it is privileged information, then you don’t proceed further with trying to look at it unless you suspect that it might be evidence of a crime or otherwise something that impacts CBP’s jurisdiction (i.e. you really think that maybe the person shouldn’t be let into the country unless you can read what that is).  And, if so, you first have to start talking with a lawyer for the CBP about whether to do so.

Now compare that to the much more extensive language on this issue in the new directive.   (Spoiler alert:  it appears to me to be more extensive but less friendly to traveling lawyers.)

5.2.1  Officers encountering information they identify as, or that is asserted to be, protected by the attorney-client privilege or attorney work product doctrine shall adhere to the following procedures.

5.2.1.1  The Officer shall seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.

5.2.1.2  Prior to any border search of files or other materials over which a privilege has been asserted, the Officer will contact the CBP Associate/Assistant Chief Counsel office.  In coordination with the CBP Associate/Assistant Chief Counsel office, which will coordinate with the U.S. Attorney’s Office as needed, Officers will ensure the segregation of any privileged material from other information examined during a border search to ensure that any privileged material is handled appropriately while also ensuring that CBP accomplishes its critical border security mission.  This segregation process will occur through the establishment and employment of a Filter Team composed of legal and operational representatives, or through another appropriate measure with written concurrence of the CBP Associate/Assistant Chief Counsel office.

5.2.1.3  At the completion of the CBP review, unless any materials are identified that indicate an imminent threat to homeland security, copies of materials maintained by CBP and determined to be privileged will be destroyed, except for any copy maintained in coordination with the CBP Associate/Assistant Chief Counsel office solely for purposes of complying with a litigation hold or other requirement of law.

So, it does seem to me that this more extensive guidance is likely good for protecting privileged materials from improper use if actually reviewed and held and does seem to be clearer guidance about how CBP could go about, for example, reviewing some information on an electronic device but segregating items asserted to be privileged or work-product.  But it also seems to me that this guidance does not move the needle in a helpful direction for lawyers who want to attempt to protect review of their client’s information at all by asserting privilege as it both (1) imposes a more onerous process on the lawyer to do so (including the potential for demanding something in writing akin to a privilege log) and (2) appears to drop what was at least the implication of the prior directive that the assertion alone is likely enough to move the burden over to CBP to justify trying to do something further.

Which also makes me think that any attorney put in this situation is, at the very least, not going to be making any connecting flight if they seek to protect client materials from review.

Of course, neither the older directive nor this directive even mentions things that attorneys have to treat as confidential under their ethical obligations even though not privileged, which remains unfortunate.  But I am interested in hearing from anyone wanting to weigh in about whether you think I am misreading this guidance and that this directive is better for lawyers than the 2009 directive.