One thing that lawyers and judges have in common.

People often think of lawyers and judges differently.  And, to a large extent, they should.  In almost every situation, someone cannot become a judge without having been a lawyer first.  But once a lawyer transforms into a judge, their role in the judicial system becomes radically different and they now have a new set of ethics rules to which they have to comply.

Yet, lawyers who become judges are still human beings and lawyers who become judges can be plagued by some of the same flawed aspects of being human as lawyers who never become judges.

This post for your Friday wants to offer up 4 very recent examples – 2 involving lawyers and 2 involving judges – of human beings all demonstrating the same variation of a common flaw:  Not knowing when to simply not say stupid things out loud (or in digital format).

On back-to-back days earlier this week, The ABA Journal online had stories about two different lawyers (who likely would have hit it off if they knew each other) getting in trouble for communications to or about clients that were roughly equally ill-advised although they involved the use of two different means of electronic communication.

The first was a New Jersey lawyer who has now been publicly censured over a text communication to a criminal defense client.  The client in question had ceased paying the lawyer and the lawyer had tried on two occasions to be granted leave to withdraw but was unsuccessful as the court denied the withdrawal motions.  Despite being stuck with having to pursue the representation (or perhaps because of it), the lawyer sent a text to his client that the ABA Journal described as follows:

In a text, Terry told the client he wouldn’t prepare in the weekend before the trial without getting paid first. Then he wrote, in all capital letters: “HAVE FUN IN PRISON.”

That text ultimately did manage to get the lawyer out of the case as the client showed it to the judge and the judge then removed the lawyer as counsel.  But it also resulted in the public censure.  At core, the ethics rule the lawyer was deemed to have violated was a conflict of interest rule by placing his own personal interest in getting paid ahead of his obligation to diligently represent the client.

The second was an Iowa lawyer who allowed himself to get too worked up on Facebook — enough to publicly disparage a client.  While, as things currently stand, the lawyer has only been the subject of negative publicity, it remains a real possibility that a disciplinary proceeding could be part of the lawyer’s future.  The ABA Journal treatment of the core of what happened is pretty succinct so I’ll just offer it up for your reading:

In the post, Frese told of a meeting to help prepare a client for trial on federal drug and gun charges. The client told Frese he would have a hard time connecting with blue-collar jurors because he hadn’t “had to work for anything in your life.”

Frese wrote that he was “flabbergasted” by the comment because anyone who knows him is aware of his modest background. Frese wrote that the man is an “idiot and a terrible criminal.”

“He needed to shut his mouth because he was the dumbest person in the conversation by 100 times,” Frese wrote. “You wonder why we need jails huh?”

The lawyer deleted the post in question after he was contacted by the Associated Press about it.  The article points out that the AP was able to piece together from what was written exactly who the lawyer was talking about even though the lawyer didn’t use the name of the client in the post.  The Iowa lawyer’s story highlights one of many reasons why lawyers shouldn’t be writing about their client’s matters without express and clear consent from their client.  Of course, technically, the lawyer made the situation even worse by what it is reported that he said to the AP when contacted:

Frese told AP that he told the client he was in jail because he was terrible at what he did, and they left the meeting on good terms. He didn’t immediately respond to a voicemail from the ABA Journal seeking comment.

On the judicial front, Law360 had two examples reported on the same day of judges demonstrating problems with communications as well.  One of the judges in question also hails from New Jersey.  That judge, as Law360 explained, was censured for inappropriately making certain when communicating to court staff about his own personal child support case to emphasize his status as a judge.  This came across as an obvious attempt to use his judicial office to achieve special treatment.  The other judge highlighted in Law360 this week ended up later engaging in actual conduct that was much worse than the original communications but still also managed to allow the ready access of text messaging to start him down the bad path.  As with most Law360 articles, you will need a subscription to read the full article, but you can get a strong sense of the Jeopardy category of wrongdoing from the opening blurb which explains the circumstances for which he was now offering an apology to a state ethics body in an attempt to avoid discipline:

An ex-Pennsylvania judge facing discipline for exchanging sexually explicit text messages and eventually sleeping with the girlfriend of a man participating in a court-mandated rehab program he oversaw ….

These are, unfortunately, not earth-shattering examples of “new” problems in the human condition.  They do though tend to highlight how much easier modern technology makes it for well-educated professionals to somehow make really poor judgment calls when technology makes it easy to do so and to do so rapidly.

 

California offers opportunity for a word (or 1,000) on the topic of sex with clients.

So, many moons ago I wrote a post about the fact that California was working through the process of trying to overhaul its ethics rules.  I said I’d get back to that topic, but never really did.  So, today, I am.  Kind of.  But not really.

In the news within the last 24-36 hours are articles about a split of opinion on whether California’s proposed revised rules should follow the ABA Model Rules to impose a ban on lawyers having sex with clients.  You can check out the short ABA Journal online snippet here.  You can read the original article referenced here.

Here is how the ABA Model Rule, Rule 1.8(j) reads:

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Pretty simple and straightforward admittedly.   At present, the articles explain that California rules only prohibit lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  (That’s not really much to prohibit when you think about the fact that both such acts would already be prohibited under other ABA Model Rules.  For example, the latter essentially being prostitution and thus likely a violation of Model Rule 8.4(b).)

The news articles grab quotes and thoughts from lawyers on either side of the argument in California which mostly boil down to — the relationship between attorney and client is so close that the injection of sex into the mix will always result in imbalance v. consenting adults should be permitted to do as they please even if one of them is the other’s attorney.

There is little I can say on this subject definitively, but I do feel pretty strongly that the term “a blanket sex ban” used in the article is the wrong one as it can be read to be far too narrow a restriction (as opposed to “a blanket ban on sex”), and it is one where I read it and can’t help but hear Sterling Archer, in my head, immediately say: “Phrasing.”

My reason for writing though is not just to be able to make that Archer reference, I swear.  My reason for writing is to advocate for my belief that the Tennessee approach to this issue in the ethics rules really gets it right and ought to be emulated by California and anywhere else that is in need of a rules fix on this front.

In Tennessee, we did not adopt Model Rule 1.8(j) but in large part because it is too narrow rather than because it is too broad.

The Model Rule, for example, doesn’t cover a lot of ground that is problematic.  Imagine the context of a divorce case in which the lawyer for the wife is having sex with the husband.  Or imagine a criminal defense lawyer who is representing a jailed husband but having sex with the husband’s wife.  Or imagine an even less conventional arrangement where there are three people in a room and sexual relationships are present but at no point does the attorney in the room engage in sexual conduct with the person in the room who happens to be the attorney’s client.

Those are all real conflict of interest problems for the lawyers in question but the approach taken by the ABA Model Rules wouldn’t prohibit any of them.   (They also each have really happened and been the subject of publicity but I’m not going to dig up and provide links so as not to open any old wounds for anybody involved.)

In Tennessee, we recognized (and in so doing we largely followed the lead of D.C. if memory serves) that the only approach to the issue of conflicts created for lawyers by sexual relationships that goes as far as it needs to but that also still provides for the ability, in rare circumstances, for a lawyer and a client to have a mutually-consented-to sexual relationship (perhaps say if they were married) is an approach that treats the issue as just one variety of “personal interest” conflict of a lawyer that can result in a material limitation conflict under RPC 1.7(a)(2).

Thus, our rules address the topic through three paragraphs of Comment to RPC 1.7 as follows:

[12]  The relationship between lawyer and client is  fiduciary one in which the lawyer occupies the highest position of trust and confidence.  Because of this fiduciary duty to clients, combing a professional relationship with any intimate personal relationship may raise concerns about conflict of interest, impairment of judgment of both lawyer and client, and preservation of attorney-client privilege.  These concerns may be particularly acute when a lawyer has a sexual relationship with a client.  Such a relationship may create a conflict of interest under paragraph (a)(2) or violate other disciplinary rules, and it generally is imprudent even in the absence of an actual violation of these Rules.

[12a]  Especially when the client is an individual, the client’s dependence on the lawyer’s knowledge of the law is likely to make the relationship between the lawyer and client unequal.  A sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant risk that the lawyer’s emotional involvement will impair the lawyer’s professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict the extent to which communications will be protected by the privilege, because communications are protected by the privilege only when they are imparted in the context of the client-lawyer relationship.  The client’s own emotional involvement may make it impossible for the client to give informed consent to these risks.

[12b]  Sexual relationships with the representative of an organizational client may not present the same questions of inherent inequality as the relationship with an individual client.  Nonetheless, impairment of the lawyer’s independent professional judgment and protection of the attorney-client privilege are still of concern, particularly if outside counsel has a sexual relationship with a representative of the organization who supervises, directs, or regularly consults with an outside lawyer concerning the organization’s legal matters.  An in-house employee in an intimate personal relationship with outside counsel may not be able to assess and waive any conflict of interest for the organization because of the employee’s personal involvement, and another representative of the organization may be required to determine whether to give informed consent to a waiver.  The lawyer should consider not only the disciplinary rules but also the organization’s personnel policies regarding sexual relationships (for example, prohibiting such relationships between supervisors and subordinates).

I happen to think these three paragraphs cover the waterfront quite ably when it comes to running such an issue through the “material limitation” conflict spectrum as a personal interest of the lawyer that can impact the representation.

To the extent we stole this good idea from D.C., California ought to feel free to steal it from us should it wish.

TN Supreme Court rejects proposed resolution of disciplinary case as too lenient

This week sees a rare instance of media publicity regarding something perceived to itself be a rare event (but for which it is difficult to prove that the perception is also reality) – the rejection of a negotiated conditional guilty plea in a lawyer discipline case that had been approved by a hearing panel, and the BPR.  The Knoxville daily newspaper has the story about the Court’s rejection of a deal for a Knoxville lawyer who would, under the terms of the conditional guilty plea, have been suspended for 1 year, with 30 days of active suspension and 11 months of probation thereafter.  Again, thanks to the Knoxville News Sentinel, you can also take a look at the Court’s order indicating the punishment should be increased here.

Although all aspects of the record of disciplinary proceedings are technically public after the BPR files a formal petition for discipline, they are not all that easily accessible compared to many other kinds of court records.  So, traditionally, unless you are one of the lawyers involved in the process (as the target or as someone representing the target), you’re not all that likely to learn about the outcomes of the proceedings until they have wrapped up and the BPR puts out a press release about the discipline imposed.  As a result, all that many of us who practice in this area have to go on is our own experience in representing clients, mine has led me to believe that instances where the Court ends up rejecting agreed discipline that passed muster with a hearing panel and the BPR is a rare event.

This particular instance likely came to light given (1) the overlap with some federal court proceedings flowing from a simultaneous, but secret, investigation of this lawyer by the U.S. DOJ, and (2) the fact that this lawyer is currently involved as a lawyer for clients in some high-profile litigation going on in Tennessee.

The underlying allegations involve a sexual relationship between the lawyer and an indigent, allegedly addicted client the lawyer had been representing as court-appointed counsel and a claim by the lawyer to suffer himself from sexual addiction.  As good a time as any to remind lawyers in Tennessee, that instead of having a rule on this issue patterned after the ABA Model Rule 1.8(j) that is limited to clients (and would not for example have reached this kind of conduct if the relationship had been with the client’s spouse), we treat a lawyer’s sexual relationships under RPC 1.7 as a subset of “personal interest” conflicts that can create a material limitation on the ability to represent a client and elaborate at length on the problems created in Comments [12], [12a], and [12b].