A recipe for ethical lawyering?

Now that the Ethics Roadshow is complete in all of the cities where it was staged, I want to repackage the main idea from this year into a post and make a similar ask of my readers that I made of the attendees as to feedback on the point.

The title of the Roadshow this past year was “Back to Basics: Sailing the Five Cs of Ethical Lawyering,” but the main ultimate question or conceit when boiled down was whether the 5 Cs I had identified could provide not only a basic road map for being an ethical lawyer no matter the nature or setting of your practice but could also provide the ingredients of a recipe that can be used to justify the existence of those pieces of the ethics rules that are absolutely worth keeping moving forward in discussions about the future of legal ethics and lawyer regulation. 

The 5 Cs as put forth as the ingredients of the recipe were:

  • Be COMPETENT at what you do
  • Recognize and respect your obligations of CONFIDENTIALITY
  • COMMUNICATE appropriately with your clients (and others) both as to content and frequency
  • Employ CANDOR in all situations in your practice [If you absolutely cannot be 100% truthful, and can’t simply stay silent, then don’t be false.]
  • Avoid CONFLICTS for which you don’t have, or cannot get, consent.

Recognizing that some people might immediately think of another important “C,” avoiding commingling I then offered thoughts about how quite clearly rules about trust accounting could be readily reverse-engineered by combining ingredients.  I initially suggested that Competence + Candor + Communication could do the trick; some others suggested that particularly the requirement to avoid commingling could be described as Candor + Communication + Conflicts.

There are a number of different groups at work on trying to make progress on what the modern regulation of the practice of law should look like.  One of those is APRL’s Future of Lawyering Committee.

I’m fortunate to be a member of that committee and our mission is this:

[T]o explore the evolving nature of technology and its impact on the delivery of legal services and access to justice.  Our goal is to develop specific proposals for amending the legal ethics rules and reforming the lawyer regulatory process.

And so my ask of you is the same as my ask of attendees: Unless a rule is truly, and absolutely, required in order to protect consumers of legal services, shouldn’t the rules worth revisiting be the ones that are hard, if not impossible, to describe using a combination of ingredients from this recipe?

Friday Follow Up: TIKD off at the Wisconsin judicial system

Just two short items by way of follow up from pieces I’ve written about in the past here.

First, I’ve written several different posts about the saga down in Florida that appeared to be one of the first big disputes – post the U.S. Supreme Court decision in the North Carolina Board of Dentistry case –  in which the rise of technology and alternative methods of delivering legal services to consumers would be pitted against traditional bar regulation with antitrust law issues serving as the rules of engagement.  You can read each of those older posts at the links above and this one right here too.

If you haven’t read any of those earlier posts, or don’t know the reference to the Florida litigation, TIKD is an app that you can put on your phone to use to resolve speeding tickets and similar moving violations without ever having to go to court yourself.  It arranges the retention of a lawyer for you and even provides you with a financial guarantee on cost and a promise to pay court fines for you if unsuccessful.  The company behind the app filed an antitrust lawsuit against The Florida Bar and a Florida law firm (The Ticket Clinic) challenging allegedly conspiratorial conduct designed to damage TIKD’s business operations.  I’ve focused so much on the dispute and what its ramifications might be that it would be a pretty big cop out not to mention the fact that the federal district court in Florida issued a 1-page order earlier this month granting the Florida Bar’s motion to dismiss the antitrust claims against it.

It is a classically unsatisfying order for an outsider to litigation to read because it offers no insight into its rationale other than to say it ruled that way based on the “reasons stated at the motions hearing.”  Having followed the events, I would think the reasons have to be a belief that, despite the fact that the Florida Bar regulators include market participants, the regulations they are enforcing are clearly delineated and emanate directly from the Florida Supreme Court.  Assuming there will be an appeal, then there may be more discussion of how this shook out, but, for now, it appears that TIKD’s shot at the regulatory framework in Florida ended up being full of sound and fury but signifying nothing.

Going much back further into the archives, you will find a couple of posts expressing frustration and outrage with a particular Wisconsin lawyer who became infamous (at least for a while) with the release of Netflix’s Making a Murderer documentary.  You can read my original thoughts on the awfulness that was Len Kachinsky’s way of practicing law here and here.

His was a name I was never hoping to run across again so it was quite a roller coaster of emotions to simultaneously learn that Kachinsky had been arrested and charged with stalking but to simultaneously learn he had been acquitted of the charge.  The roller coaster ride went even lower though at the moment the words I was reading about his employment situation fully engulfed me … he had become a municipal judge in Wisconsin.

WT actual F Wisconsin?  Are y’all not even trying?  How can that guy have failed upward into a position in your judiciary?  How is he allowed to preside over any case about any thing?  That’s just a travesty.

Threats to the legal profession include threats by members of the profession

This post is coming late in the week because this week marked the first two stops on the Ethics Roadshow for 2018.  (If you are in or near Memphis and Nashville you can still register to come attend next week’s stops and hear about a potential recipe for ethical lawyering involving the 5 Cs of Competence, Communication, Candor, Confidentiality and Conflicts.)

This year’s Roadshow doesn’t focus much on threats to the legal profession from developing technologies and outside providers of legal services nearly in the way that last year’s Roadshow did, but today I want to discuss a slightly different kind of threat to the legal profession – threats made my members of our profession.

I’ve written in the recent past about the generalized problems of anger and violence given that we are living in angry times but two recent things I came across (one a full blown story and the other a Twitter thread) lead me to think that a bit of attention should be paid again to threats of violence particularly where the people engaged in the threatening conduct are attorneys.

The ABA Journal, working from a Louisville Courier Journal story, highlighted right at the end of November an arrest of a Kentucky criminal defense lawyer.  The lawyer who, it will come as no surprise, is male was arrested and charged with, among other things, terroristic threatening.  Perhaps in an effort to just let some irony simmer, the news articles point out that one of the lawyer’s own clients was convicted of terroristic threatening earlier in the same month.  The subject of his allegedly terroristic threats were two lawyers involved in the handling of his own child custody case – one was opposing counsel and the other had been appointed by a court to be the guardian ad litem.

The ABA Journal piece highlights the nature of the threats — which ranged from some aggressive voicemail messages to much more tangible examples of actually communicating to third parties an intention to kill the lawyers involved.  The article also discusses other recent problems the lawyer has been going through related to those proceedings and published reports of a positive drug test for meth.  Even though the lawyer’s conduct doesn’t involve representation of a client, this Kentucky lawyer will likely be at real risk of discipline (in addition to having to deal with the criminal law issues) under a variety of parts of RPC 8.4.

I also managed to stumble onto a thread involving similarly unprofessional and threatening behavior by a lawyer on Twitter.  You can peruse the thread here if you’d like to read it yourself.  It involves someone who appears to be a Texas lawyer and who, if the fact that he was willing to be a lawyer for (and apparently member of) The Proud Boys (a white supremacist group) in the past wasn’t already a pretty good indication of what kind of fellow he might be, decided to make his feelings plain by going on the attack against a journalist employing a homophobic epithet and a threat of violence sent by email.

As seems like a fairly good option, both for purposes of self-protection and as a way of possible shaming the lawyer involved, the reporter posted a screen shot of the email on Twitter.  The email the reporter received read as follows:

Now that I am no longer part of the Proud Boys and no longer representing them.  I want to let you know that you are a despicable and evil human being.  It is my hope that your duties as a HuffPo reporter bring you to the metroplex this holiday season so that I can give you the gift of a left hook.

Kiss my ass, faggot.

For what it is worth, this particular reporter has been focusing a good bit of time on trying, through reporting, to highlight the problem our country has involving the rise of violent extremists.  It appears that shedding some light on this particular lawyer only shows how deep some of those problems go.

Reading these kinds of exchanges also makes me continue to think through questions in my own head – written about in the past — about whether the willingness to be openly racist should simply be disqualifying for lawyers from a character and fitness standpoint.

(P.S. The Twitter thread itself tries to bring this conduct to the attention of Texas disciplinary authorities so it will be interesting to see what comes about.  With a little digging, this lawyer appears to have retired his Texas license but also appears to be licensed in Colorado, D.C., and Georgia and appears to have a clean disciplinary record in each of those states.)

(P.P.S. An entirely different reporter received death threats from the same Texas lawyer and also created a thread on Twitter about those exchanges as well.)

(P.P.P. S. BlacKkKlansman is a movie all should see, is germane to the above discussion of the problems of white supremacists in our nation, and I’m thrilled that it is getting some rightly deserved nominations.

Litigating your own work product – a tricky (at best) topic.

So, first things first, I am thoroughly surprised and incredibly honored to have made it into the ABA Journal’s 2018 Web 100.  If you are here for the first time because this happened, thanks for reading and feel free to look around as there is 3+ years of content you can read while you are on hold with customer support.  If you are a long-time reader here out of habit, I cherish you and you can rest easy knowing that you are still going to receive the same not-exactly-regularly-scheduled-mostly-maybe-twice-a-week-but-sometimes-only-once-a-week content you have come to expect.

Second things second:  I truly and profoundly recognize the irony that this post leads off crowing about the Web 100 honor after literally just talking about how lawyers shouldn’t blow their own horn online six days ago.  But I’m going to just blow past that irony and move on to today’s offering which comes up more than you might imagine in real-world consultations and that is on the radar screen for today because of two recent developments — a recent ethics opinion from the Texas Center for Legal Ethics and an order denying disqualification out of a Pittsburgh federal court.  If you are a Law360 subscriber you can read some about the Pennsylvania decision and even download the order now here.

Both the ethics opinion and the Pennsylvania decision grapple with what Bill Freivogel refers to on his site as the “Underlying Work” Problem. Bill has written a very good overview at that link of the problem for law firms when they decide to take on the litigation of a matter where its earlier work for the client involved will be at issue and, if history is any guide, will likely have a good summary of that case up relatively soon.

The short version of the order denying disqualification goes like this:  A visiting senior district judge denied a motion to disqualify the lawyer representing a company sued under the Americans with Disabilities Act.  The nature of the claim is that the employee was wrongfully denied extra breaks to deal with her anxiety issues.  The genesis of the disqualification dispute was that the lawyer in question was also the lawyer who gave the company the legal advice that it could deny the employee’s request for this accommodation.

The longer version of understanding how that might not be the outcome you’d expect is best laid out by discussing the recent, really-good, Texas opinion.

In Opinion 682, the Texas Committee explains how its version of the “advocate-witness” rule works under these facts:

A Texas lawyer assisted a client in drafting and negotiating a contract with another party represented by separate counsel.  A lawsuit arose concerning the meaning of certain provisions in the contract.  The lawyer drafted and negotiated those provisions.  The lawyer’s client wants the lawyer and a trial lawyer in the same firm to represent her in the lawsuit.  Both lawyers are attempting to ascertain whether they may do so, and if so, under what conditions, if any.

The opinion does a nice job of explaining the different analysis required for the individual attorney at the firm versus other attorneys at the same firm who were not actually involved in doing the underlying work.  The fundamental difference if it has to be cliff-noted is simply that the confusion involved in the dual role of witness and advocate is severely obviated when a different lawyer is doing the advocating.  The opinion also does a decent job of emphasizing a point that judges sometimes overlook when ruling on disqualification motions — that the disqualification for the witness-lawyer generally does not actually come into play until the trial – not during discovery or even pre-trial motion practice, just at the trial.

As Texas lawyers know, the numbering of the Texas ethics rules is a bit off from the ABA Model Rules even where the substance may be roughly the same.  So, while lawyers normally think of the ethics rule addressing lawyers as witnesses as being Rule 3.7, in Texas it is housed in Rule 3.08.  Although I think the Texas opinion provides the structural narrative for getting to the correct analysis even under the language of Model Rule 3.7, I think it is worth highlighting two pieces of Texas Rule 3.08 that likely are a real improvement on the Model Rule.

First, the rule includes an exception that seems obviously correct but is not actually addressed in the text of the Model Rule.  Texas’s rule makes plain that if the lawyer happens to be a party to the lawsuit and acting pro se, then the prohibition does not arise.  (I have a long history of trying [both for altruistic and pecuniary reasons]to discourage lawyers from acting pro se but it still happens and opposing counsel should not be able to try to use Model Rule 3.7 as a cudgel in such situations.)

Second, and more universally important, the Texas rule goes further in terms of requiring disclosure in two respects that I think are positive.  Like the Model Rule, the Texas rule acknowledges that “substantial hardship” for the client involved can provide an exception to the lawyer’s disqualification if they also have to be a witness.  Unlike the Model Rule, the Texas rule requires the lawyer who will be traveling under that exception to “promptly notif[y] opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.”  The Texas rule also requires more disclosure to the client when the lawyer’s firm intends to handle the case by taking advantage of imputation of the witness-lawyer’s conflict not working its way to other lawyers at the firm by explicitly conditioning the ability to have some other lawyer at the firm handle upon “the client’s informed consent.”  I think that is a vital piece of the puzzle from a loss prevention standpoint for any firm in such a situation as fully discussing with the client on the front end what the plan is and the risk associated with additional expense in the form of motions to disqualify goes a long way to avoiding grief.

 

 

 

Friday Follow-Up: Florida Finds Facebook Friendship Fine

You’ve probably heard this news by now.  But, it’s Friday and I wrote about this before, so … I feel a sense of obligation to follow-up.

The Florida Supreme Court ruled yesterday that the fact that a judge is Facebook friends with a lawyer appearing before her in a litigated matter is not alone sufficient to justify disqualification of the judge.  You can read lots of good articles providing summary treatment of this decision.  I’d recommend this one from the folks at Bloomberg/BNA.

The majority certainly got to what I strongly believe is the right result.  And, the core of the correctness of that result lies in these six sentences which I have admittedly spliced together from different parts of the majority opinion:

[T]he mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature. Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.”  Therefore, the mere existence of a Facebook “friendship” between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship.

I’m writing today about this more to make three points that I feel like have to be said out loud.

  1.  I can’t believe it was a 4-3 decision and that three justices of the Florida Supreme Court were willing to sign their names to the following position:  “The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted.”
  2. I’m even a bit more amazed that the concurring opinion (“I concur with the majority opinion. However, I write to strongly urge judges
    not to participate in Facebook.”) demonstrates a majority of the Court (4 justices) believes that judges simply shouldn’t be on Facebook at all.  There are legitimate reasons why maybe all of us should delete Facebook, but the reasons espoused by the dissent and concurrence aren’t among them.
  3. If you are in a band and aren’t actively considering naming it, or changing its existing name to,”Friends of an Indeterminate Nature,” then I don’t really think I can ever understand you.

The intersection of the ethics rules and the GDPR “right to be forgotten”

Although today is Halloween in my part of the world, I am not offering any spooky content.  I thought about trying to replace all mentions of Maryland in this post with Scaryland, but that just seemed like I was trying too hard.

In fact, I’m a bit torn about even writing about this particular topic because I’m really of two minds in all respects about what to say about Maryland becoming the first U.S. jurisdiction to issue an ethics opinion attempting to wrestle with any aspect of the EU’s General Data Protection Regulation (“GDPR”).

On the one hand, it seems like Maryland ought to be applauded for trying to be on the leading edge of issues of concern and many lawyers (and their firms) are struggling with exactly what GDPR might require of them.

On the other hand, the core premise of the inquiry being addressed involves an assumption about a legal question — not an ethics issue — and is the kind of thing ethics-opinion-writing bodies likely ought to stay away from.

Lots of commentators will give ethics-opinion-writing bodies grief for not, for example, striving to apply Constitutional issues when issuing opinions about the ethics rules.  I’ve probably done that myself in the past.  But, on the whole, more trouble for lawyers can likely come from ethics opinions straying outside the lines and getting a legal issue altogether wrong.

That might or might not have been how it would have shaken out if the Maryland State Bar Association Committee on Ethics had fully committed to trying to figure out whether the premise of the question posed to it in Opinion No. 2018-06 was even how the GDPR would work in the circumstances.

Instead, the committee flagged for the reader the possibility that the GDPR would not require the lawyer to respect the request to be forgotten at all but offered up what is, on the whole, pretty sound guidance that lawyers can bear in mind as to this and similar questions as other jurisdictions start adopting new privacy laws and regulations that may hit closer to home than the GDPR.

The question posed relied on the premise that a former client, if a citizen of the EU, could exercise the “right to be forgotten” by demanding the lawyer delete data about the person and, thereby, cause the lawyer to delete information that would otherwise protect the lawyer in terms of conflict checking in the future to avoid taking on a new client or matter that would involve an unethical conflict of interest as to the former client representation.

The core of the guidance ultimately given – again explicitly premised on assuming that it might ever be necessary – is this:

If a former client asks an attorney to delete the information needed to manage conflicts of interest, and the GDPR requires the attorney do so, we believe that the client’s request can act as a waiver of conflicts that could have been discovered had the data been retained if: (1) the firm provides written advice to the former client that fully informs the former client that deleting the information could result in a conflict and that by requiring such deletion the client consents to the firm’s potential future representation of other clients with conflicts that might have otherwise have been discovered, and (2) none of the attorneys who handle the matter for the firm have any retained knowledge of the former client’s information.

That’s pretty good guidance, actually.

It probably would have been better though if they hadn’t imposed quite so large a burden of communication and advice to the firm in response to the former client.  I think that simply saying that any such request from a former client can be treated by the firm as equivalent to a waiver on the basis that a former client cannot demand that s/he be forgotten and then try to later claim the “forgotten” relationship presents a conflict.

You can read the full Maryland opinion here.

And, if you are interested in more opportunities to hear me try to talk intelligently about what the GDPR does actually mean for U.S. lawyers, I’ll be participating in a panel discussion in Washington, D.C. on November 9 as part of a joint program presented by APRL and the Law Society of England and Wales.  If you’re interested, you can register at this link.

ABA Confirms that Model Rule 1.15 Should Solve What Model Rule 4.4 Doesn’t

So, I am certain you have heard by now that a little under a week ago the ABA issued a new Formal Ethics Opinion to address the ethical obligations of lawyers in the aftermath of a cyber-attack or an electronic data breach.  ABA Opinion 483 makes for a good read and provides good guidance about how the ethics rules work on the subject.

There are lots of decent summaries out there already of this ethics opinion if you want to try the tl:dr approach and just read secondary sources.  I am not going to repeat those summaries here.  Instead, I want to focus on what is, to me and perhaps only me, the most important development that ought to come from this opinion — the recognition by the ABA that “property” in Model Rule 1.15 has to also include digital property.

In the latest ABA Opinion, this issue is addressed with an eye toward thinking about electronic copies of client files, specifically as follows:

An open question exists whether Model Rule 1.15’s reference to “property” includes information stored in electronic form.  Comment [1] uses as examples “securities” and “property” that should be kept separate from the lawyer’s “business and personal property.”  That language suggests Rule 1.15 is limited to tangible property which can be physically segregated.  On the other hand, many courts have moved to electronic filing and law firms routinely use email and electronic document formats to image or transfer information.  Reading Rule 1.15’s safeguarding obligation to apply to hard copy client files but not electronic client files is not a reasonable reading of the Rule.

Now, why is this such an important takeaway to me?  Well, myopia often flows from the egocentric nature of people and I am no exception.  This is an important takeaway to me because I’ve been trying to make this point in an entirely different context – and to little avail — since 2010 when I co-authored an article entitled: “Model Rule 1.15: The Elegant Solution to the Problem of Purloined Documents” published in the ABA/BNA Lawyers’ Manual on Professional Conduct.  Now that article – which you can still find here — was itself an excerpt of part of a chapter of a book I was also fortunate enough to co-author with Doug Richmond that came out in 2011.  The “Elegant Solution” article explained that the lack of guidance offered by Model Rule 4.4(b) on what a lawyer must do if they receive stolen documents (whether on paper or electronically) should be resolved by application of Model Rule 1.15 and the obligations lawyers have under subsections (d) and (e) of that rule.

There are likely lots of reasons why that article has been largely ignored – and when not ignored treated as offering a controversial view to be shunned — but the primary one is that Model Rule 4.4(b) becomes a bit unnecessary as a rule if such questions could have been resolved under Model Rule 1.15.

Model Rule 4.4(b) reads:

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Model Rule 4.4(b) only addresses information that a lawyer receives that is known to have been inadvertently sent and only requires the receiving lawyer to give notice to the sending lawyer of what has happened.  It does not address information sent purposely but without authorization, and it punts on what comes next.

In the “Elegant Solution” article, we explained why Rule 1.15 provided answers to the questions Model Rule 4.4(b) won’t address and, particularly in light of this latest ethics opinion recognizing the need for Model Rule 1.15 to apply to digital information, I think our explanation is worth repeating to close out this post:

The Model Rules do, in fact, appear to offer an elegant answer for lawyers who question
their professional responsibilities when they receive documents that may have been purloined or otherwise improperly obtained from another. The answer lies in Model Rule 1.15 and its provisions establishing lawyers’ obligations with respect to ‘‘safekeeping property.’’ See Model Rules of Prof’l Conduct R. 1.15 (2010).  Although lawyers are generally familiar with Rule 1.15 in the trust account context, the scope of the rule is clearly not so limited, as amply evidenced by its repeated references not just to funds or fees or expenses, but also to ‘‘property.’’

Model Rule 1.15(a) declares that ‘‘[a] lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property.’’ Id. R. 1.15(a) (emphasis added). Model Rule 1.15(d) further requires that ‘‘[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.’’ Id. R. 1.15(d) (emphasis added). Finally, Model Rule 1.15(e) mandates that ‘‘[w]hen in the course of the representation
a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer)
claim interests, the property shall be kept separate by the lawyer until the dispute is resolved.’’ Id. R. 1.15(e) (emphasis added).

Analysis of over-the-transom deliveries through the lens of Rule 1.15 establishes that a lawyer, upon receiving purloined documents (or if not clearly purloined at least clearly reflecting privileged or confidential information belonging to someone other than the person who delivered the documents), is obligated to hold those documents separate from the rest of the lawyer’s documents, promptly notify the person from whom the documents were taken, and, if the lawyer is going to refuse to return the documents to that person (and thereby claim either that the lawyer or the lawyer’s client has an interest in them), continue to keep those documents segregated from the rest of the lawyer’s property until the dispute over the documents is resolved,
presumably through a ruling by a tribunal. This approach places no meaningful burden on the receiving lawyer and respects the rights of the party to whom the materials belong.

Friday Follow Up: Ohio Gets to the Right Outcome on UPL

Almost exactly three months ago, I wrote about what I considered to be a very disturbing ruling in a lawyer admissions case in Ohio.  If you missed that post, you can read it here.

I’m pleased to write, in follow-up today, that the Ohio Supreme Court has ultimately gotten to the correct outcome – it has rejected the findings below that the applicant was engaged in UPL while working on Kentucky matters for Kentucky clients in an Ohio office while awaiting action on her application for admission in Ohio.  As a result, it has finally cleared her to be admitted to practice in Ohio after multiple years of waiting after transferring from a Kentucky office of her law firm employer to an Ohio office of that same firm.

The majority opinion does a workperson-like job at justifying that outcome by stretching the meaning of the word “temporary” to its furthest defensible point — anything that is not permanent.  But, as the fascinating-and-much-more-important-to-the-future-of-our-profession concurring opinion explains: the majority opinion did so at the cost of mostly ignoring other text of the rules – particularly the text of the relevant rule that limits when a lawyer can provide services “through an office.”

The concurring opinion deserves your attention and a full read.  It is my strong hope that the rationale and logic expressed in the concurring opinion is the rationale and logic which will be embraced moving forward by all courts and other bodies dealing with this issue.  If RPC 5.5 could be used to determine that a lawyer “working remotely” is engaged in UPL, then RPC 5.5 applied in that fashion is simply, but plainly, unconstitutional.

The core of the concurring opinion’s analysis is a strong and smart understanding of what such a rule is truly saying:

But when applied to a lawyer who is not practicing Ohio law or appearing in Ohio courts, [RPC] 5.5(b) serves no state interest. Plainly, as applied to such a lawyer, the rule does not further the state’s interest in protecting the integrity of our court system. Jones, and others like her, are not practicing in Ohio courts.

Nor does application of the rule to such lawyers serve the state’s interest in protecting the Ohio public. Jones and others in her situation are not providing services to or holding themselves out as lawyers to the Ohio public.  Jones’s conduct as a lawyer is regulated by the state of Kentucky—the state in
whose forums she appears.

The problem is that unless a specific exception applies, [RPC] 5.5(b)(1) holds one to be engaged in the “unauthorized practice of law” and subject to legal sanction therefor simply because one has established an office or a systematic and continuous presence in the state. The rule deems such a
lawyer to have engaged in the unauthorized practice of law regardless of whether her practice touches on the Ohio public or Ohio courts. In an earlier age, perhaps such a rule made sense. Before the advent of the Internet, electronic communication, and the like, a lawyer who worked in Ohio was almost always
practicing Ohio law. But today that is hardly the case. Any number of lawyers, for any number of reasons, may choose to do their work from Ohio. Yet that does not give Ohio a right to prohibit their conduct.

Indeed, imagine what would happen if the rule were strictly enforced. Are we to ban lawyers from setting up a secondary office inside their homes so that they can access their files remotely simply because their homes happen to be in Ohio and their practices in another state? What about a New York attorney who maintains an Ohio vacation home on Lake Erie and is there for several months of the year? Certainly such an attorney has a continuous and systematic
presence in Ohio, but are we really going to say that she has engaged in the unauthorized practice of law because she does New York legal work at her vacation home?

I would conclude that as applied to an out-of-state attorney who is not practicing in Ohio courts or providing Ohio legal services, [RPC] 5.5(b)(1) violates Article I, Section 1 of the Ohio Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Utahlking Ethics Opinions to Me? (Also Texas)

I’m interested in writing today about two recent ethics opinions that manage to go together quite nicely.  Utah Ethics Adv. Op. 18-04 and Texas Professional Ethics Committee Op. 679.  Both involve RPC 1.8 (or at least both should).  And, not only does neither opinion do a very good job with the subject matter it tackles but both tackle subjects where lawyers need to tread very carefully and could use really good advice.

But, as just a quick aside before doing so, I wanted to express some gratitude from last week and point you to a very important story worth reading.  As the culmination of a many-months-long project, I had the chance to share the stage last week at the ABA Forum on Franchising with two excellent lawyers – Shannon McCarthy Associate General Counsel for Chihuly, Inc. and Kevin Kennedy, General Counsel of Wiggin and Dana in Connecticut — and talk about a tricky and delicate topic – lawyers and obligations to report other lawyers with a particular emphasis on issues involving harassment and other toxic behavior.  I was really fortunate to get to work with them both.  For a story that offers something of a how-not-to manual offered by the experience of one of the world’s largest law firms, you can go read up here.

Now, back to regularly-scheduled programming…

While I missed it around the time it came out, the Utah State Bar put out an interesting ethics opinion explaining to lawyers a way they might be able ethically to mitigate their risk exposure in the event of third-party claims against the lawyer based on the client’s conduct.

The opinion declares that “[a]n attorney may include an indemnification provision in a retainer agreement at the commencement of representation that requires the client to indemnify the attorney and related entities against claims that arise from the client’s behavior or negligence.”

In explaining this outcome, the Utah opinion points out that nothing about RPC 1.8(h) directly prohibits it.  However, it doesn’t just stop there, it goes on to explain … just kidding actually.  It stops there on that issue.

As a practical matter, that is sort of a shame because lawyers ought to be cautioned a bit about the problems associated with starting the relationship with a client off with that sort of provision — particularly because if you are that concerned about that risk of liability from the client’s conduct, then maybe a rethink about whether to take them on is in order.  But, if one is going to do it, the beginning of the relationship is certainly more viable than mid-stream.

Speaking of which, that brings me to the Texas opinion, which tasked itself with answering this question:

May a lawyer renegotiate his fixed, flat fee for representing a client in litigation after the litigation is underway if the matter turns out to be greater in scope and complexity than the lawyer and client contemplated?

If Texas was interested in doing this right, it would recognize that the answer lies in application of its version of Model Rule 1.8(a) because that situation is a business transaction between lawyer and client.  Instead, Texas actually announced that its version of that rule does not apply to a mid-stream renegotiation of a fee.

Instead, the opinion points out that Texas courts have considered the issue and have said that it can occur but that there is a “presumption of unfairness.”  Rejecting the opportunity to apply Rule 1.8 to these circumstances is all the more baffling because — providing guidance to interpret ethics rules is the kind of thing ethics opinion writing bodies are supposed to do, rather than providing guidance about what court decisions mean.

In the end though, I’m likely being too harsh on the Texas opinion because it, at least, summarizes pretty nicely the analysis of the dynamic from the lawyer side of things and why, in most situations, effectuating an enforceable renegotiation will be unlikely:

The fundamental nature of a flat or fixed fee is that there is risk to the lawyer that the legal work and time required may exceed what the lawyer might have earned if the lawyer instead billed by the hour.  The client knows with certain that the total fee charged, no matter how much lawyer time or effort is involved, will not exceed the fixed amount.  The client’s risk in a flat or fixed fee agreement is the possibility of paying more than the client would have paid under an hourly billing agreement if the lawyer is able to complete the representation is [sic] less time than originally expected.  Because the lawyer is better able to anticipate the time and legal work required, the lawyer should be mindful that he knowingly assumed the risk — and should not unreasonably seek to change the fee agreement simply because the lawyer agreed to a fixed fee that, in hindsight, is no longer adequate.

(emphasis added).  And, also, amen to that.

 

 

“Let’s put our heads together and start a new country up.”

Serial, perhaps the best known podcast of all podcasts, has recently launched its third season and like one of the REM songs off of Life’s Rich Pageant it focuses on Cuyahoga – but not the river but the County in Ohio – more particularly, it focuses on what goes on inside the Justice Center in Cuyahoga County.  Yet, much like the song was according to Peter Buck, the podcast also may just really be about America and its lost promises too.

So far the first three episodes have dropped, and they are particularly good.  Good, of course, in a troubling way for what they show with respect to the inner workings of the justice system.  Admittedly, all this season of Serial can truly do is show problems in just one particular courthouse in one particular location, but we all know there are universal themes that recur in many other similar venues in the nation.

The first three episodes alone have also given fodder for discussions of legal ethics for those so inclined.  The first episode follows an unfortunate and unfair bar fight through the court system.  The host, Sara Koenig, is given extensive access to the criminal defense lawyer involved.  (The series so far reveals that she was given nearly free rein in the building altogether.)  Even though there is one spot in which Koenig explains that had to be excluded from a meeting between the lawyer and his client in order to protect the attorney-client relationship while they talked, those familiar with the duty of client confidentiality still know that given how incredibly much is actually revealed by the lawyer about the case he is handling, how he is handling it, what he and his client have discussed, that surely there must have been a thorough and clear consent provided by the client for there to be no breach of the lawyer’s duty under Ohio’s version of RPC 1.6.

The second of the first three episodes introduces you to a judge who almost certainly needs to be made the subject of multiple judicial ethics complaints and who seems to have no business sitting in judgment of other people.  But the judge it introduces you to is likely a character-type that will sound very familiar to you in many respects no matter whether you’ve ever been in Cuyahoga County, Ohio or not.

The third episode tackles the very relevant topic of police brutality, the intricacies that can arise when one situation results in intertwining civil and criminal matters, and, for true ethics nerds, raises (at least indirectly) issues associated with a lawyer who swaps places in the system later in their career as well as problematic issues regarding where the line is in court proceedings between advocacy and assisting someone with manipulating evidence and testimony to assure an end result that may be believed to be just.

Anyway, your mileage may vary, but I find myself hooked.  I also find myself really wishing that Karen Rubin over at The Law For Lawyers Today might be able to weigh in at some point on her take on how the show portrays things, but, because she practices in Cleveland, I’m guessing that she is likely too close to the courts and the lawyers involved to be able to comfortably weigh in.

The fourth episode should be out tomorrow.  You should check it out.  (And, yes, I’m a guy with a pretty decent sense of humor and I see the hilarity in me encouraging the few hundred or so people who read this blog to go check out something that has millions upon millions of downloads.)