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.

 

“No. No you’re not.”

So, you may recall back in October 2017 I had an itch and intended to write about a lawsuit in Pennsylvania that would fit in with the recent (seemingly) increased willingness of lawyers to sue other lawyers over their ads, but since I was beaten to the punch, instead I gave you a pointer to a very good piece somewhere else about it.

If that doesn’t ring bells, you can go see that again here.

I bring that lawsuit against a firm with a significant presence here in Memphis, Morgan & Morgan, again because there has been a new development.  And, particularly, a new development that talks about something that has always bounced around my brain when I hear a particular advertisement in that firm’s stable.

First, the recent development in that lawsuit, where a local Pennsylvania law firm sued Morgan & Morgan saying that its advertising was false and deceptive because, among other things, Morgan & Morgan only has one lawyer located in Philadelphia who is claimed by the plaintiff in the suit to have little experience handling personal injury litigation.  The federal district court has declined to dismiss one aspect of the lawsuit – the allegation that the founder of Morgan & Morgan, John Morgan, is lying when he says in an advertisement that he is “your lawyer.”

Now, why this strikes me in a way I find so interesting.  Nearly every time I have heard the line in a particular radio advertisement it has struck me as such an unwise, and unnecessary, thing to say from a legal ethics standpoint.

The line is this:  “Remember this, I’m not just a lawyer.  I’m your lawyer.”

It’s a nearly Pavlovian reaction for me at this point – I hear that, and I say (out loud if I’m alone or just in my head if there are people around):

“No.  No, you’re not.”

And, then, my mind wanders a bit down the path of mulling why that statement in that advertisement feels like such an unnecessary, “own goal” kind of thing to do to yourself.

Your firm has a giant plaintiff’s practice.  Your firm is going to have lots of people make appointments and undergo consultations, and your firm is going to turn a lot of those people away.  Sometimes it might be for conflicts reasons, sometimes it might be because you don’t think they have a case worth your time.  But, either way, you’ve unnecessarily opened yourself up to, at the very least, a disciplinary complaint from someone who claims you broke your promise and violated RPC 7.1 since you actually said you were their lawyer.

Admittedly, that isn’t the exact line of thought used by the federal judge in the Pennsylvania litigation — rather, it is the notion that . . . well, let me simply quote the Court instead of interpreting:

Rosenbaum alleges John Morgan, an attorney with Morgan & Morgan, appears in advertisements stating “I’m your lawyer” and describing “himself to the consumer as a trial lawyer with over thirty years of experience” which “convey[s]” the message John Morgan and Morgan & Morgan will handle the prospective clients’ claim.  Rosenbaum alleges, in reality, John Morgan is not licensed to practice law or to legally represent clients in Pennsylvania but the advertisements do not advise prospective clients of this fact….

Accepting as true Rosenbaum’s allegations, John Morgan’s statement “I’m your lawyer” may be literally false or have the tendency to mislead viewers into believing John Morgan, himself, will represent them….

If you’d like to read the full opinion which dismisses much of the Lanham claims, you can read it here.

That part is interesting and could, of course, be argued over and thoroughly parsed since the principals of imputation of conflicts and other matters would make the statement arguably truthful in the event that someone hires the firm, at least.

But, my qualm is the importance of that italicized language right up there.  My qualm remains true even for jurisdictions in which the lawyer making the claim is licensed.   I remember doing quite a few seminars many years ago that were focused on trying to help lawyer not accidentally end up with client they didn’t want because they were not clear enough in communicating to someone that they were not their lawyer.  (There is even a now-quite-long-ago law review piece on the topic that is very good called “Accidental Clients” written by Susan Martyn.)

Admittedly, I’m not an expert in legal marketing but it still strikes me as such an unnecessarily dangerous and damaging statement that is far-too-readily capable of being characterized as false and misleading to a consumer of legal services and far-too-difficult to characterize as the kind of “puffing” that should be treated as meaningless.

Your mileage may vary, of course.

 

Change is hard. Even where it appears to be wanted.

I have been meaning to do this and am long overdue in getting to it, but you might recall back in the summer of 2017 when I wrote pretty extensively about the contents of the Oregon Futures Task Force Report, and its positive proposed changes to the ethics rules.  If you don’t, you can read those posts here and here.

In November 2017, the chair of the Legal Ethics Committee in Oregon who also was a member of the Futures Task Force was kind enough to drop me a line and update on how those proposed rules revisions were progressing.

Initially the Board of Governors of the Oregon State Bar approved the proposed revisions to RPC 5.4, 7.2, and 7.3 for discussion and voting by its House of Delegates.

After the process in the House of Delegates, in which there was quite a significant amount of debate and discussion as I am told, the proposed revisions to RPC 5.4 and 7.2 were referred back to the Board of Governors to a study committee, but the proposed revision to RPC 7.3 was passed and has been submitted to the Oregon Supreme Court so it can decide whether to adopt it or not.

While in my prior postings I discussed the RPC 5.4 proposed revision at some length, I did not provide any real detail of the RPC 7.3 change Oregon was considering beyond the fact that it would involve allowing in-person or real-time electronic solicitation, with limited exceptions.  For the record, this is what the Oregon Supreme Court now has in front of it for consideration:

RULE 7.3 SOLICITATION OF CLIENTS
A lawyer shall not solicit professional employment by any means if:

(a) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person who is the target of the solicitation is such that the person could not exercise reasonable judgment in employing a lawyer;
(b) the [person who is the] target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(c) the solicitation involves coercion, duress or harassment.

Now, you know what I know on this topic.

 

A very good start.

My last post was filled with criticisms related to the roll out of a new ABA Ethics Opinion.  Today I’m offering a different tone and message for the ABA Standing Committee on Ethics and Professional Responsibility – a positive message offering kudos for the working draft that has now been circulated to revise the ABA Model Rules on advertising issues.

I’ve written a number of times in this space in the past about the push by APRL on this front and, although the working draft that has now been put out by ABA SCEPR does not entirely match APRL’s proposal, it adopts a significant amount of what that proposal sought to accomplish.

The working draft deletes Model Rules 7.5 and consolidates much of the regulation involved in that rules into Comments added to Model Rule 7.1.

It trims a little bit of fat from the Comment to Model Rule 7.2 and explicitly acknowledges the ability of lawyers to offer things akin to a “token of appreciation” to people who provide them with referrals and the like without violating the ethics rules.

It also removes a number of restrictions on solicitation by narrowing what is prohibited to interactions that can be described with the term “live person to person contact,” adding a new class of purchasers of legal services who can even be asked for their business live and in person, and leaving the overarching prohibitions against coercion, duress, or harassment as the line that cannot be crossed in any effort to develop business.

What constitutes “live person to person contact,” would be defined in the first two sentences of Comment [2] to the rule:

“Live person to person contact” means in person, face to face, telephone and real-time person to person communications such as Skype or Facetime, and other visual/auditory communications where the prospective client may feel obligated to speak with the lawyer.  Such person to person contact does not include chat rooms, text messages, or other written communications that recipients may easily disregard.

The new category of purchasers of legal services who would be fair game for even live person to person contact would be people “known by the lawyer to be an experienced user of the type of legal services involved for business matters.”

Model Rule 7.4 would be honed down to two provisions — one that permits lawyers to truthfully tell people what fields of law they practice in and one that prohibits lawyers from claiming to be certified as a specialist in any area of law unless the lawyer actually is so certified by an appropriate entity and the name of the entity is clear in the communication.

The APRL proposal would be an even more streamlined regulatory approach than what is being offered in the ABA SCEPR working draft in large part because the APRL proposal also would have deleted Model Rule 7.2 and 7.4 altogether and retained bits from the Comment to each of those rules that were worth retaining by relocating them to Rule 7.1.

Nevertheless, decrying this progress from the ABA SCEPR would be an exercise in letting the perfect become the enemy of the good.  And, at least one time in 2017, I am going to refrain from doing that.

Where are we when even ABA Ethics Opinions are marketed with a “clickbait” approach?

So, as promised (and even though there have been even further developments down in Florida), today I am writing about the latest ABA Ethics Opinion and whether it might provide any solace and protection for a lawyer who is being dragged by a former client online and wanting to defend herself by responding online to try to set the “record” straight.

The ABA Ethics Opinion in question is Formal Op. 479, and the answer is “no, no it doesn’t.”

Before I elaborate on that, I really do want to vent a bit (hopefully without sounding too much like Andy Rooney because I’m only 44) about the way people rolled out the release of this ethics opinion.

The ABA Journal online gave it a headline reading: “Can news on social media be ‘generally known’?  ABA Opinion considers confidentiality exception”

This then was, of course, picked up in other places, Law360 went with “Social Media Can Create Confidentiality Exception, ABA Says.”

Then I saw some lawyers on social media (lawyers who certainly should know better since they were actually involved in the opinion itself) teasing the opinion in a similar fashion.

If you actually read the opinion, you wonder what in the world anyone was even talking about.  The term “social media” does appear in the opinion.  Once.  On p. 5, in this sentence, “Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media.”

That is not a groundbreaking statement of any sort.  It’s common sense.  It also is nowhere near the actual, helpful or relevant, takeaway of the opinion.

The takeaway of the opinion is clearly the following (forceful) reminder about how stark the obligation of lawyers to protect confidential information about even a former client is:

Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.  Information that is publicly available is not necessarily generally known.  Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).

Don’t get me wrong.  It is actually a really good ethics opinion, and it gives timely advice that lawyers need to take to heart to make sure they stay in compliance with their obligations.  It’s just a shame it was rolled out with a “click-bait and switch” message.  We’d all have been better off if it had been rolled out with the headline:  “ABA Opinion reminds lawyers that just because information about a former client has been publicized doesn’t mean it is ‘generally known.'”

And, to actually deliver on my promised topic, here’s why nothing about this opinion is going to help any lawyer who finds herself in a situation where a former client has posted something, somewhere disparaging the lawyer in a way that the lawyer thinks is unfair and she wants to respond to clear up the record by disclosing other information about the representation that puts it in context: the details that the lawyer wants to reveal to provide context won’t have been disclosed by the former client and, thus, even if the lawyer could try to claim that what the former client has said is now “generally known,” the bits he hasn’t said most certainly are not.

Thus, unless and until some exception is created in the ethics rules to allow responses to online criticism under Rule 1.6 (which I’m not necessarily advocating for), lawyers who opt to get into it with former clients (or even clients) online will need to be very careful about what they say.  Otherwise, they will find themselves in trouble – as did this South Carolina lawyer who was brought to my attention by the always wonderful Roy Simon  (Admittedly, the SC lawyer had more problems than loose lips online, but that was one of the problems all the same.)

(And, so as not to be accused of my own “bait and switch” situation, I will take a stab at juxtaposing this opinion with Opinion 478 which also came out recently.  If the treatment of the two opinions was consistent, 478 would have been rolled out by the ABA Journal with the headline:  “ABA Ethics Opinion tells judges not to go online.”

Friday follow up, follow up: Sick of TIKD yet? If so, a promise of something new for next week

I know they warn people about going to wells too often, but though the Roadshow has now wrapped up your intrepid blogger is a bit exhausted.

So this is the well where we find ourselves today … a further mention of the ongoing TIKD situation.  It is both a selfish and an altruistic offering.

The always on-point Joan Rogers over at the ABA/BNA Lawyers’ Manual on Professional Conduct has put out a very thorough piece this week on all of the TIKD dustup in Florida and has spoken to many of the players, shed more light on that earlier state court action I wrote about, and otherwise put together a compelling narrative of the developments.  You can read that piece here.

She was also kind enough to let me weigh in and quote me as to why I happen to think this situation is a pretty meaningful one on the legal landscape.

Now, about that promise of something new, among the many insightful questions I received from lawyers during the course of my roadshow was one involving the continuing unfairness of situations where lawyers get blasted online by former clients but end up being prohibited by the ethics rules from responding to online criticism because of the obligation of client confidentiality and the lack of clear authority to say that the online venting waives both privilege and obligations of confidentiality.

This week the ABA has put out what could turn out to be a very important new ethics opinion that might provide a roadmap for some relief and fairness or might not.  I don’t want to spoil it for you now.  If you want to go study it ahead of time, you should be able to do so here.  Even if you don’t, I promise (threaten?) to write some more about it next week, and perhaps to even juxtapose that one with another recent ABA ethics opinion also issued this month and also relating to the world of online information but that looks at things from the perspective of judges rather than lawyers.

If you want to study up on that one, you can read it here.

Status quo prevails. A Tennessee update

I am still Roadshowing this week, among other things, so I will again offer some content but with a caveat about its brevity.  (And, again, if you are sitting in a highly-entertained crowd looking for the embedded Spotify playlist just keep scrolling and you’ll find it.)

In the before time, the long, long-ago at this space (right before Xmas 2016 actually), I previously mentioned how Tennessee is a jurisdiction that does not toll the statute of limitations for legal malpractice actions based on the continuing representation of counsel.  When I did so, I managed to offer a contradictory take from the “Hot List” folks in Tennessee in terms of predicting how the Tennessee Supreme Court would rule in the Story v. Bunstine case.  (Admittedly though, I did flagrantly misspell Bunstine in the process back then.)

For the uninitiated, that whole “continuous representation” concept of tolling  just means that the mere fact that a lawyer continues to represent a client does not mean that the client’s time frame for filing suit over alleged legal malpractice does not start running.  For more than 20 years in Tennessee, the way we have dealt with the accrual of the cause of action involves application of the widely-familiar “discovery rule” approach.

For more than 20 years, our state has also operated under guidance providing that, if for some reason [for example, the potential that a mistake or misstep in the underlying action might be fixable and, thus, what seems like a very damaging outcome in the present could be the kind of situation in the future that everyone involved might laugh about] it is awkward to pursue the legal malpractice lawsuit while the lawyer is still trying to remedy the error, then the manner of addressing the situation is to file the legal malpractice action in a timely fashion (within 1 year of the problem) and ask the Court to stay that lawsuit until the underlying suit is completed.

Yesterday, the Tennessee Supreme Court ruled in Story v. Bunstine in which the plaintiff’s counsel explicitly asked the Court to undo that long-settled approach in favor of either the tolling for continuous representation or even the “appeal tolling” doctrine.  I am happy to report in this space that the Court — in a very well-written and thorough opinion, rejected those calls for change and re-affirmed the status quo as to accrual of a cause of action for legal malpractice.

If I had to pick one portion to be the simplest portion of Justice Page’s opinion for the Court that drives home what matters, I’d go with this one:

Based on the foregoing, we conclude that our formulation of the discovery rule articulated in Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995), and again in John Kohl &
Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528 (Tenn. 1998), remains the appropriate analysis for determining when a claim of legal malpractice accrues. Accordingly, we decline to adopt the two tolling doctrines proposed by Plaintiffs—the continuing
representation rule and the appeal-tolling doctrine—and also decline to hold that a final judgment is required before there is an actual injury for purposes of accrual.

You can read the full opinion, should you so desire, at the link set out above.

Friday follow up – TIKD off by a DQ motion and the Supremes won’t stop suspending the wrong lawyers.

In the middle of Roadshowing (short break until the next stops next week) and also still trying to handle client matters to boot, so this will be a quick post.

(If you are here next week looking for the Roadshow playlist, just keep scrolling down as it can be found in the post immediately below this one.)

The dustup between the smartphone app known as TIKD and the Florida Bar has been back in the news in the legal trades recently over a motion to disqualify TIKD’s counsel filed by the Florida Bar.

On its face, it sounds like a pretty decent disqualification motion on the merits as the Florida Bar is alleging that TIKD’s counsel who is a former Florida Bar president had access during his term in office to internal information evaluating the Florida Bar’s antitrust liability exposure given its structure in the wake of the U.S. Supreme Court’s ruling in an antitrust suit against the board that regulates dentistry in North Carolina.  (You might recall that I wrote a bit about that in the past as well as it is that case that has revived interest in, and concerns about, antitrust issues for the regulation of the practice of law in unified bar/mandatory bar jurisdictions.)  That would seem like a slam-dunk in terms of disqualification if that person had been a former General Counsel or otherwise a lawyer for the Florida Bar, but the analysis may be a lot murkier if, as is the case generally of bar presidents, that the president of the Florida Bar is always a lawyer but isn’t necessarily acting as a lawyer for the organization during the term of office.

Oh, and speaking of the U.S. Supreme Court, I wrote a bit earlier this year (as many other people did) about the weirdness associated with the fact that the United States Supreme Court made the very unfortunate mistake of suspending the wrong attorney – confusing one lawyer named Christopher P. Sullivan for another lawyer named Christopher P. Sullivan.  At the time, I tried to make discussing the circumstances a bit more worthwhile substantively and not just anact of piling-on by citing that epic mistake by the highest court in the land as maybe the ultimate example of the need for people in our profession to be deliberate in their actions and take their time because what we do can have real consequences for us and for others.

As is of course true for literally billions of other people on the planet, the Clerk of the U.S. Supreme Court is not a dedicated reader of this space (or didn’t take heed of that message) as a new story came to light a week or so ago of pretty much the same thing happening again with the Court suspending a lawyer named Jim Robbins instead of a lawyer named James A. Robbins.  (Even more coincidentally, the Sullivan who was wrongly suspended earlier in 2017 practiced law with a firm called Robins Kaplan.)

Actually, to say that pretty much the same thing happened isn’t quite right, as the James A. Robbins that deserved to be suspended wasn’t actually a member of the U.S. Supreme Court bar at all.

I’ve been fortunate enough to have been admitted to the U.S. Supreme Court since December 2008 and even more fortunately it appears to be an admittee with a name, Brian S. Faughnan, that seems highly unlikely to be duplicated on (or off) its rolls.