Yet another reason for change. Pretty much the most serious reason.

So there are things that can really make you feel small.  And there are things that can really lead to despair and a feeling of helplessness.  Fortunately, there are few things that do both at once.  The report from the Intergovernmental Panel on Climate Change can do both of those things pretty simply.  If you haven’t read it, or at least parts of it, you can do so at this link.  If you don’t want to read the report itself (or parts of it), then you can go read one of the many articles discussing at length its sobering warnings of what the future (the close-enough-future that we can imagine ourselves in it pretty easily) here or here or here for example.

You really ought to read as much about it as you can because, to a pretty significant extent, whether we have a habitable planet is just about all that really matters.  And, though the more you digest the news about the situation the easier it is to feel small and helpless, the reaction needs to be significantly different from that.

Why am I writing about this at a legal ethics blog?  (Beyond the cop-out sort of reason in which I would tell you it feels a bit petty to write about anything else given the stakes, of course.)  Well, it isn’t because lawyers are somehow going to save us from this outcome.  For every lawyer out there who lobbies a state legislature to impose some new regulation to try to reduce carbon emissions, there will be another lawyer who ends up representing the industry that seeks to challenge that legislation in court.  That’s the nature of our profession.

But, our profession can try to do a few things to not be part of making the problem worse.

A lot of the discussion about what the future of the practice of law is going to look like involves embracing technology and regulatory questions about ways in which the traditional approach to lawyer regulation may be stifling innovation that would ultimately benefit consumers of legal services.  In my opinion, all of that should continue as quickly as we can move the conversation forward.  But, as we try to talk about what the future of the profession should look like, we ought to be bearing in mind many of these much larger issues.

What can we do to make sure that technological solutions are used so that people in the court system do not have to make multiple, ultimately unnecessary, trips across town for court when nothing happens that couldn’t be handled over the telephone or by video conference or web stream if courts would permit that to occur?

What options should we be considering empowering so that fewer disputes go into the traditional court system at all if they could be resolved through online dispute resolution?  What can we do to try to better fashion courts into places that can themselves be resolving disputes online?

What can we do to persuade those remaining jurisdictions that have been unwilling to move to electronic filing to give up the fight and swiftly enact electronic filing?

Pursuit of these sorts of initiatives can save an incremental number of natural resources.

And, why can our profession readily get comfortable with relaxing the artificial barriers we impose on the ability of a lawyer licensed in one state to actively practice law in another state only in the aftermath of disasters?  Many states have issued ethics opinions in the wake of various weather disasters or passed court rules to permit flexibility for out-of-state lawyers to go to the disaster area and render legal assistance without fear of being accused of unauthorized practice of law.  My own state did so a few years back.

The ABA very recently just issued Formal Ethics Opinion 482 encouraging lawyers to be ready for disasters and to plan ahead to protect their own practice and protect their clients’ cases and matters from adverse impact in the wake of disasters.  The ethics opinion gives very good guidance and, perhaps, it gave that guidance far enough in advance of the devastating impact that Hurricane Michael is currently inflicting on a part of the world where my family has vacationed every summer for the last almost 20 years, Apalachicola and St. George Island, Florida, so that lawyers in that part of the world knew enough to have been prepared in advance.

The IPCC report presents a pretty clear indication of the coming disaster if radical change is not undertaken.  Overhauling the regulation of the legal system to remove artificial barriers to cross-border practice and barriers that prevent technology from making it easier for clients to find lawyers and for lawyers to practice law without unnecessarily wasting resources seem like some things that amount to the least our profession can do to not be part of making worst-case scenarios even more likely to come to pass.

 

 

Withdrawing a guilty plea is notary-ly easy thing to do.

The pun was, of course, inevitable.  It was also fully intended.  In fact, it is, at least for me, repetitive as back in 2013 I was asked to do a seminar on the ethics of being a notary public — they have their own ethics code — and I called it “Notary-ly Common Topic: The Intersection of Lawyer and Notary Public Ethics.”

I’m writing today about a relatively straightforward criminal case arising out of federal court in the Northern Mariana Islands but that has at least four interesting lawyer ethics percolating under the surface of it.  The decision also has one of the most elegant and timeless statements penned by the district judge authoring the opinion that I’ve read in a federal court opinion.  It is either one of the most useful statements of insight into the human condition or one of the best pieces of universal (but indirect) advice to offer to anyone – including lawyers — or possibly both.

In case you want to stop reading at this point, I’ll just share with you the district judge’s statement which, for many reasons (no matter when you manage to read this) will be timely:

Probably every adult feels that there is some important decision she has made that she wishes she could do over.  But that does not mean she did not make that decision voluntarily and did not know what she was doing at the time.

To be exceedingly candid, I’m also writing this post about this case because an incredible lawyer, and a giant in the field of legal ethics issues, Bill Freivogel, brought the case to my attention and encouraged to me to think I might have something to say about it that would be worth reading.

The case is U.S. v. Li and you can grab the PDF of it here: United States v. Li (D. N.Mariana Is., 2018).  In sum, Li was a notary public.  He managed to mess up a document he was notarizing for a passport application for a minor child, and the application was rejected for that discrepancy.  When folks reassembled to try to fix it and reapply, the father had already flown back home to China.  Despite the fact that it was contrary to the ethics code for a notary public, and despite the fact that the form was requiring him to speak under oath, Li signed the form misrepresenting under oath that the father was physically present the second time when he was not.

It seems clear that Li did this thinking that it was his own mistake that created the problem and that this would fix the error.  How the falsehood came to light is much less clear, but it did and Li was charged with two federal criminal counts related to false statements on a passport application.

A week before the case was set for trial, the parties submitted a plea agreement and proceeded to a change of plea hearing.  At that hearing, Li’s attorney – Holmes – was present as was a more senior attorney from Holmes’ law firm.  The opinion walks through the fairly detailed line of questioning the federal judge presented to Li designed to ensure that the record was crystal clear about the voluntariness of the guilty plea.  These questions solicited many clear answers demonstrating voluntary and knowing decision-making, including Li’s statements that he was fully satisfied with his attorney’s advice and legal representation.

Two months after the guilty plea was entered and about two months before the date set for sentencing, a new lawyer for Li filed a notice of appearance.  About 45 days later, Holmes moved to withdraw from representing Li citing “professional reasons.”  That motion was denied without prejudice based on failure to demonstrate good cause.

Two things then occurred right about a week before sentencing: Li, through the new counsel, filed a motion to withdraw the guilty plea and Holmes renewed the motion to withdraw now pointing to statements in a pre-sentence report that were alleged to create a conflict between her firm and Li.  This renewed motion to withdraw was granted.  (The opinion does not provide a ready explanation or insight into what the nugget was in that pre-sentence report that Holmes was forced to surface in order to be let out of the case.)

The order then details what Li argued as his grounds for seeking now to withdraw his guilty plea – it largely involved accusations that his attorneys would not listen to him and coerced him – through time pressures, denigrating his chances at trial, and hammering the potential of a prison sentence of more than a year, even allegedly going so far as to tell Li that he would be sexually assaulted if he had to do prison time.

The district court, however, was entirely unconvinced by Li’s allegations and walked through an objective view of what the attorney time records, and other underlying documents, showed about the events that occurred surrounding the plea negotiations.

Three of ethics issues here are, I think, readily recognizable.

The case is at least an indirect reminder for attorneys that RPC 1.2 doesn’t provide crystal clear guidance on all decision-making as between clients and attorneys but leaves no room for doubt that the decision whether to plead guilty in a criminal matter is always the client’s to make.

The case also is a good, indirect reminder to attorneys who have support staff who are notaries that your obligations under RPC 5.3 can be considered to include having some measures in place to provide reasonable assurance that they know how important complying with the law and their own code of ethics as to notarizing documents can be.  (For the record, there was no indication in the opinion itself that Li had any employment situation where he was working for an attorney.)

Also, the case reveals how sometimes – despite the best efforts of the drafters of the rules – the guidance given to attorneys seeking to withdraw from representation doesn’t always work as designed.  ABA Model Rule 1.16 cmt. [3] tries to provide guidance to attorneys about situations when they should begin by stating only that “professional considerations” require withdrawal and indicating the hope that courts will accept that “statement as sufficient,” but courts do not always go along and end up putting attorneys into a situation where they have to disclose information the client might rather not have aired.

The fourth ethics issue, however, is not as obvious but is, I think, the most interesting and compelling.  The district judge, without explicitly saying so, made clear that if the lawyers had scared Li into pleading guilty “by conjuring the nightmare of sexual assault in prison,” that would have been the kind of thing that could have “put their bar license on the line.”  I’m torn on that front.  Obviously, if the lawyers had actually threatened to cause that to happen or otherwise crossed lines into coercing someone against their will to plead guilty, then I’d agree wholeheartedly.  But, if a lawyer representing someone facing potential jail time, and knowing their client had the chance to take a plea that was likely to result in no jail time at all, engaged their client in discussions about the possibility of going to prison and the realities of the problems in the U.S. prison system including the statistics on violence and sexual assault that happens there on a daily basis, would that really be unethical conduct?

I tend to think the exact opposite.  I think that a lawyer would certainly be entitled under Model Rule 2.1 to discuss as “other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”  In fact, depending on the client and the likely prison in play, a lawyer might well be ethically obligated to discuss such issues under Model Rule 1.4(b)’s obligation “to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Making it up as you go (but for a good cause): Texas State Bar Op. 673

There has been something of a trend of late in terms of ethics opinions focusing on variations on the breadth of the duty of client confidentiality and the inconvenience it creates for lawyers who have bought in to the modern trend of sharing and oversharing when online.  There was this opinion from the ABA and then this opinion from the ABA, for example.

The latest opinion in this vein is Professional Ethics Committee for the State Bar of Texas Op. 673.  Except, it is only partially in this vein because, while it starts out heading down the path of explaining how the duty of client confidentiality might prohibit lawyers from being able to do something useful, it swerves away from what would be the likely conclusion in most jurisdictions.

Of course, it does so essentially by making up a justification nearly out of whole cloth but, if you’ve ever participated in, and benefited from, access to any kind of online forum or listserv frequented by lawyers, it reaches a conclusion for which Texas lawyers should be grateful.

The questions addressed in Op. 673 are:

  1.  Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client from other lawyers in an online discussion group?
  2. Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client through informal, direct consultation with another lawyer in a different firm?

The opinion then goes on to describe arrangements that will be familiar to anyone who has spent anytime on any sort of lawyer listserv or other social media group setting or online forum but also makes the point that lawyers reaching out to pick someone’s brain about an issue or perform “lazy person’s research” can also happen in the “meat space,” offline when one lawyer seeks out another lawyer’s input in a version of informal mentoring.

The Texas opinion squarely flags that the biggest concern for the asking lawyer in such scenarios is protecting the confidentiality of client information.  (Importantly, the opinion also does a nice job of flagging for the answering lawyer the most significant risks for her – potentially creating duties to the asking lawyer’s client or wittingly or unwittingly violating duties to her own other clients by helping the lawyer.)

Nevertheless, the opinion explains that the asking lawyer can proceed even if providing some background information that is likely to identify the client or situation is necessary in order to get the advice without violating the ethics rules as to the disclosure of confidential information.

It is the opinion of the Committee that Rules 1.05(d)(1) and (d)(2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.

This is where the Texas opinion is able to rely on two things.  One is a “creative” interpretation of the “implied authorization” aspect of the rule on client confidentiality that most jurisdictions also have.  (Texas Rule 1.05(d)(1)).  The other is a nuance in Texas’s rule that jurisdictions tracking the Model Rule don’t have at their disposal to justify this kind of lawyer-friendly (and not exactly consumer unfriendly) outcome.  (Texas Rule 1.05(d)(2)).

Starting with the second is the easy approach because it really is the most important thing to know to explain the outcome – Texas’s version of RPC 1.6 (which they have numbered as Rule 1.05) contains an exception (d)(2) that allows a lawyer to reveal information that is “confidential” but “unprivileged” when “the lawyer has reason to believe it is necessary to do so in order to ‘carry out the representation effectively.'”

For context, here is the entirety of Texas 1.05(d):

(d) A lawyer also may reveal unprivileged client information:

(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

Now, I could quibble with that word “necessary” and how seeking out assistance from an online discussion forum could ever be “necessary,” but I can admit to being a fan of outcome-determinative analysis when I’m a fan of the outcome.  (To be clear, I have always tried very hard when making use of any kind of online forum to not let any cats out of any bags in terms of actual whos, whats, and wheres.)

The fact that the Texas opinion still involves a “making-it-up-as-you-go” approach though comes through loud and clear by the fact that the opinion has to provide a set of numbered considerations spanning more than a full page to guide lawyers in deciding whether and how much confidential but unprivileged information could be disclosed.  If you want to work through those factors, you can do so at pages 2-4 of the actual opinion itself here.

In any jurisdiction that does not have something like Texas’s Rule 1.05(d)(2) though, getting to this kind of result is a lot more difficult since it involves having to try to push the envelope on the “implied authorization” aspect of Model Rule 1.6(a).

Yet, again, this kind of conduct is likely not anything that a client would complain about and often results in driving down the cost of the representation by gathering the wisdom of a crowd before spending hours on research so… as good a time as any to bring back up again my thoughts on how Model Rule 1.6 ought to be revised.

The ethics of putting together an unenforceable contract.

It is still astounding (as well as deeply dispiriting) that the context of the discussion I’m about to launch is the work of White House Counsel but this is the world we currently occupy.  You may very well have read this fascinating The Washington Post article by now released in connection with the ongoing news story of a former White House staffer who repeatedly secretly taped conversations – including her own firing in The Situation Room — inside The White House and what those recordings may reveal about whether that person says even more outrageous things in private than the outrageous things he says in public, as well as whether that person is suffering from a decline in his mental faculties.

Because tackling the notion of the ethics of representing a client with diminished capacity if that client happens to be – at least theoretically – the most powerful politician on the planet – is too depressing to tackle, I’m not writing about that today.  If you want to delve into those issues, your starting point is ABA Model Rule 1.14.

Instead I want to talk about [as the title of the post telegraphed] what can be a thorny ethics issue even in much more pedestrian contexts: is it ethical for a lawyer to draft and create a contract for a client’s use that the lawyer knows to be unenforceable?

As the topic du jour the context of the question is requiring staff at The White House – public employees — to sign non-disclosure agreements including provisions that would prohibit them from disparaging the 45th President of the United States.  Seemingly everyone acknowledges that given the nature of public employment, democracy, the at-least-still-for-the-time-being cherished concept of transparency in government, and numerous other federal laws such an agreement is obviously and undisputedly unenforceable.  The article describes what the media has been told about the events:

A number of White House aides were urged to sign NDAs in early 2017 by White House Counsel Donald McGahn, according to current and former aides, who requested anonymity to discuss internal West Wing deliberations. Trump was obsessed with leaks to the news media and repeatedly demanded that McGahn draft the agreement, the aides said.

Initially, McGahn told Trump he would not draft or give aides the NDAs because they were not enforceable, White House officials said. But in the end, McGahn created a document that said aides would not divulge any confidential or nonpublic information to any person outside the building at any time, according to three people who signed it.

Other media outlets have reported that McGahn may have convinced people to actually sign the document by reassuring them that it was unenforceable.  One of the reasons the question is important ethically is that if you create a contract for a client that you know is unenforceable, they will likely still try to use that contract in the future against people and cause them harm (at the very least economic harm and inconvenience associated with defending a lawsuit seeking to claim a breach of the unenforceable contract).  Media reports today indicate that something like this is now being undertaken – although admittedly apparently based on an NDA that was required by the campaign and not the actual government.

My opinion about the answer to the question of whether any such conduct by a lawyer is unethical is, unfortunately, less than equivocal.  At heart, it will have to turn on a situation-by-situation analysis.  Using the Model Rules to explain, this is because there is not exactly a specific rule outside of the litigation context that flatly prohibits a lawyer from assisting a client in pursuing a frivolous position in negotiation of a document in the same way that there is such a rule prohibiting the pursuit of frivolous claims in litigation.

What is available is a collection of rules that would need to be sifted through and applied to the circumstances to reach a conclusion about the lawyer’s role in assisting a client in getting someone to agree to a provision in a contract (or an entire contract) that is known to be unenforceable.  Those rules are:

RPC 1.2(d):  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

RPC 1.16(a):  … a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law ….

RPC 4.1:  In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RPC 4.3:  In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. . . . The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

RPC 4.4(a):  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….

RPC 8.4(d):  It is professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice.

Assuming that, at all times in dealing with the members of staff being asked to sign the contracts, White House counsel was truthful about the situation, then the most troublesome provisions from the list above would be RPC 4.4(a) as there seems no “substantial” purpose other than to burden these people to seek to have them agree to an unenforceable contract — particularly where one of the grounds of unenforceability in this scenario is a constitutional issue.

In other circumstances, for example, where the unenforceable piece of the contract puzzle is just one part of an otherwise enforceable contract or, on the other extreme, where the contract itself is unenforceable because its purpose is inherently criminal or illegal, then the interweaving of these rules may provide a clearer outcome.

Awesome post. Except for the part that isn’t.

There is an awful lot to like and agree with in this post from Dan Lear, one of the folks who have been the face of Avvo for quite some time.  But there is a piece of it that is just simply wrong, and while it would be hyperbole to say it is dangerously wrong, it certainly is wrong in a way that lawyers don’t need to have reinforced.  Lear writes:

Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.

Even understanding the larger point Lear is attempting to make, this is utterly and simply wrong.  ABA Model Rule 8.4 – with language that is tracked in I believe pretty much every U.S. jurisdiction — does not limit itself to situations in which a lawyer is only representing a client and also does not draw a bright line around a lawyer “being a lawyer,”

The easiest, and most obvious, part of the rule that makes the point is RPC 8.4(b) which gets lawyers in ethical trouble for certain criminal acts even having nothing to do with, or not happening while, they are working as a lawyer.

But there are two other, more broadly problematic ways that RPC 8.4 does extend to, and actually govern, the conduct of people who happen to also be lawyers while they are doing things that they don’t think of as working as a lawyer know matter how much they may subjectively think they are being “awesome.”

Those two other pieces are RPC 8.4(a) and (c).  When combined those pieces of the rule read:

It is professional misconduct for a lawyer to . . .

(a) violate or attempt to violate [the ethics rules], knowingly assist or induce another to do so, or do so through the acts of another . . . [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation….

I’ve often joked about 8.4(c) as being the only ethics rule in the books that has to mean something other than what it actually says because, as written, it would make it professional misconduct for me to answer questions from children about Christmas presents or bluff while playing poker or dive to get a call while playing over-35 soccer on Monday nights.  I’ve also, once before and also in response to something written by a lawyer more famous than I, advocated that it shouldn’t apply to a lawyer operating a parody account on social media.   But there are aspects of how that rule truly does apply to dishonesty by lawyers, even when not acting as lawyers, which are quite serious.  Easy examples from the recent past involve deans and others affiliated with administrative positions at law schools lying about statistics to improve enrollment numbers and the like.

And, perhaps the most perplexing and concerning of the examples Lear offers of things a lawyer could do where they wouldn’t be bound by the ethics rules is serving as an expert witness.  I’ve been fortunate enough to serve as an expert on more than a handful of occasions in my career, and, suffice it to say, RPC 8.4 is not the only ethics rule that will still apply to the lawyer when serving in that capacity.

They got away with it, but that doesn’t make it worth trying.

Lawyers billing clients on the basis of time spent is less than ideal for all involved.  For lawyers, it isn’t the best proxy for value delivered in terms of service and incentivizes inefficiency.  For clients, it isn’t the best proxy of value received in terms of service and leaves clients feeling like the only way to cut corners on costs is to either demand limited time on a task or to just not agree for a lawyer to perform a particular task.  For clients and lawyers alike, it also creates distrust of lawyers with respect to second-guessing the amount of time they spend on tasks (or claim to have spend on tasks).  It also doesn’t give clients much of a sense that they are paying for results or accomplishments.  Lots of pieces have been written, over many, many years, about how the billable hour model is outdated or on its way out the door.  Yet, it persists.

This is not going to be one of those pieces today.  Rather, I want to write a few words about a case out of Wyoming that I would worry is going to send exactly the wrong message to lawyers.  That case is a ruling on fee dispute litigation out of the Wyoming Supreme Court, Manigault v. Daly & Sorenson, LLC.  You may have seen headlines of stories about it that are in the nature of: Court rules billing in 15-minute increments was not abusive.

All lawyers who bill by the hour end up having to pick some base line minimum increment for billing purposes.  I, and my firm, do so using 6-minute increments (.1) as the baseline.  It is certainly possible to measure time more accurately than that, but (I believe) that the standard minimum these days for keeping time is to carve time up into 6 minute blocks.  There was a time when the standard minimum for those blocks were 15 minute intervals, but technology has advanced, timekeeping has improved, and the time when minimum quarter-of-an-hour billing was acceptable (in my opinion) has passed.

In the Wyoming decision, the Court ultimately found that this particular law firm’s use of a 15-minute minimum increment with this particular client was ultimately reasonable.  Remarkably, it did so even when the firm did not have a written fee agreement with the client.  But there are a couple of things about the case that – to me – stand out as crucial to the particular result and also help drive home the point that this is not something that most lawyers could get away with and, thus, should not attempt to do.

The first, and I think the more outcome-determinative, is that the fee dispute was one that was with a very long time client of the firm and, thus, someone who, over time, would be much less sympathetic to be heard complaining about 15-minute billing increments as the minimum.  Since apparently that was how this client and that firm had interacted over the course of almost 100 prior matters over 15 years.

The second is that the record indicated that the firm was relatively diligent about aggregating tasks into the minimum increments so that the minimum increment was not used as a method of easily increasing the charge to the client.

The Wyoming Supreme Court explained quite cogently the difference between the situation it had before it this time and other, prior circumstances in which it took lawyers to task for how they used their 15-minute minimum billing increment approach:

Manigault likens the firm’s use of a fifteen-minute billing interval to that which was the subject of a disciplinary proceeding in Casper.  In that case, the attorney employed a number of unethical billing practices and admittedly misused her fifteen-minute minimum billing interval.  She billed fifteen minutes every time she signed a document, and several times she billed fifteen minutes for reviewing a one-page document.  She also billed fifteen minutes to review a short document and then billed the same amount of time again for signing it.

In Casper, this Court discussed the practice of billing according to minimum intervals of six, ten, and fifteen minutes. . . . we observed it would be abusive to bill two fifteen minute charges for two five-minute phone calls in the same fifteen-minute period.

Nothing approaching that sort of unreasonable or abusive billing is evident on this record.. . .

[snip]

What is not often discussed is this concept of the need to still attempt to hew toward composite accuracy in the amount of time billed regardless of what minimum increment is used.  “Composite accuracy” might not be the right phrase but what I’m using it to attempt to describe is that the ultimate measure for a lawyer who bills by the hour has to be that you don’t use it to bill clients for more time in the day than the total time you actually spend working.

The truly pernicious problem for lawyers who attempt to still use 15-minute increments as their method of billing is how easily that can lead them to bill a collection of clients for 8 hours of time while only putting in 3 or 4 hours of actual work.  Or, more likely, billing 14 or 15 hours for a day where 6 or 7 hours of actual time was spent performing work for clients.

The Wyoming case also, unfortunately, gave credence to a common attempted justification by lawyers confronted with trying to justify the 15-minute billing increment that – to me – involves a significant amount of disingenuity:  that billing a client 15 minutes of time for a phone call that they know full well may have taken only 5 minutes is justified because the 15 minute time period also captures the time associated with stopping one task, shifting to the client’s task, making a note in the file about the interaction, and then trying to get back into the mindset of whatever you were working on before.

In modern practice, however, there is one dominant form of communication that simply – and often unequivocally – undercuts any lawyer that tries to use that justification.  Email.  Find me a lawyer who wants to justify a 15-minute minimum increment based on that kind of rationalization, and I strongly suspect that I can show that lawyer, by way of a review of their email history, that they turned much more quickly from answering an email for one client, to crafting an email for another client, then on to responding to some other email.

What that means is, if a lawyer is out there trying to charge their clients for 15 minutes of time for reading and responding to an email, which may have only taken them 5 minutes, and then attempting to justify it based on other things that were done or time lost as part of that, then it will often be extremely easy to demonstrate that within the same 15 minute period they will have replied or sent other emails to other clients on other matters and, likely, they will have billed that client for a 15 minute block as well.  This quickly adds up and is how a lawyer could easily manage in only 20 minutes of actual working time to attempt to bill for an hour of work.

That fudging of the numbers, of course, can also happen using 6-minute increments of time, which raises the ultimate larger point that I fear escapes notice of far too many lawyers:  no matter the minimum increment you pick (unless you are recording and billing for your time truly down to the minute), you are supposed to still be using that system as a proxy toward attempting to best capture your actual time spent.

That means that even if you are billing in 6-minute increments, you are supposed to be trying to bundle smaller tasks during the course of the day together into one of the minimum increments.  If, for the same client, you respond to 2 and only 2 emails during the course of a day and each one took you only a couple of minutes to address, you are supposed to bill that client for one .1 time entry – because you spent a total of 4 minutes working for them that day and you have arranged to bill them at a minimum increment of 6 minutes.  You are not supposed to bill .2 (12 minutes) for that 4 minutes of working time.  When lawyers do both this and opt for the minimum 15 minute incremental block, then the problems with the arrangement increase in magnitude because the lawyer ends up billing the client for 30 minutes of time for 2 tasks that only took 4 minutes to perform.

An incredibly unhelpful ethics opinion from Colorado

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

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

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

Advance Agreements on Joint Settlement OK, Colorado Bar Says

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

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

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

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

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

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

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

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

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

 

 

 

EVA(n) good things are complicated by ethical obligations.

So, this week’s biggest news in terms of the role of artificial intelligence in the practice of law is the rollout of a new, free AI product from ROSS Intelligence.  The product is called EVA, and you can read all about it here.

The short version of it is that when the other side files a brief in your lawsuit, you can upload the brief and EVA will analyze the cases being relied upon, alert you to other cases where those cases have been negatively treated, and point you to other relevant cases to fast track your research efforts.

It sounds great, and it probably is great.  But, me being me, I immediately started thinking about questions such as:

Will ROSS, through EVA, be keeping all of the data that is uploaded to it?

What are the terms and conditions lawyers have to agree to in order to use EVA?

Will those lawyers need their client’s permission to upload such documents into the EVA platform?

Here is a link to those terms and conditions so you can read them yourself should you be so inclined (at that link, you will need to click on the link titled Terms of Use to get those to popup on your screen), but I think the short version is that, almost always, a lawyer can safely make the decision to upload the other side’s brief into EVA without even talking to your client by relying upon the authority provided under Rule 1.6(a) to say that doing so is impliedly authorized in order to carry out the representation of your client.

It is, of course, interesting that what you are uploading is actually the work product of the other side and that the terms and conditions require you to say that you have all the necessary ownership rights to send the document through the EVA service.  Along those lines, I would imagine the weird instances of counsel attempting to claim trademark rights in briefs they file could complicate usage issues.  More realistically though, cases that are operating under protective orders and where briefs are filed under seal would seem to be the one area where lawyers could get themselves into trouble by using the free EVA service.

Husband can’t control his wife, gets disciplined.

Sometimes titles for posts are tough to come up with, sometimes they are far too easy.  This is one of the latter and is offered both with a spirit of tongue-in-cheek silliness and because it is a truly perfect seven-word summary of a recent disciplinary case of note.

It is, of note, at least for discussion purposes, because it appears to be: (1) the right outcome; and (2) a quintessential example of the harm that my state, Tennessee, seeks to prevent through the existence of a very specific, black-letter rule.  Despite that, I’d still like to explain why I happen to think that the Tennessee rule, in particular, is still too harsh and the wrong public policy approach.

The case comes out of Illinois and involves a public censure handed down earlier this month.  The ABA Journal online wrote an article about it a couple of days ago but here’s the pithier description of events published by the Illinois disciplinary authorities:

Mr. Niew, who was licensed in 1972, was censured. His wife, Kathleen Niew, an Illinois lawyer, was disbarred in 2013 for misappropriating $2.34 million belonging to a client who she represented in a real estate matter. After her disbarment, Mr. Niew failed to ensure that his wife no longer maintained a presence in their law office and he also failed to supervise his associate, to prevent that associate from aiding Ms. Niew in the unauthorized practice of law.

The ABA Journal piece points out a bit more detail, explaining that the wife was disbarred in November 2013 but kept coming into the law offfice she had shared with her husband multiple days a week until June 2014.  You can get the highly unfortunate details of the wife’s wrongdoing at the ABA Journal piece.  (Spoiler:  financial wrongdoing.)

The reason that the husband’s role in the wife continuing to come into the office was, itself, a disciplinary problem is that Illinois has a Supreme Court Rule, Rule 764b, that bars a lawyer who has been disbarred or suspended from the practice of law for at least six months from maintaining a presence in any office where law is practiced.  That Illinois rule also imposes a direct duty on other lawyers affiliated with the disbarred or suspended lawyer to stake steps to insure that the rule is complied with.

This kind of rule, which we also have in our ethics rules in Tennessee, is one that I and other Tennessee lawyers have described to people as a rule that means, if you’ve been disbarred or suspended, you can’t even push a broom in a law office as a way of trying to make a living.

In Tennessee, over the objections of the Tennessee Bar Association, our Supreme Court put such a prohibition housed in our rules as RPC 5.5(h).  It acts similarly to the Illinois rule by completely barring involvement in anything surrounding the practice of law for disbarred or suspended lawyers, but it is solely focused on the other lawyers involved and is actually even more harsh than the Illinois rule in two respects.

The Tennessee rule reads:

(h) A lawyer or law firm shall not employ or continue the employment of a disbarred or suspended lawyer as an attorney, legal consultant, law clerk, paralegel or in any other position of a quasi legal nature.

It is harsher than its Illinois counterpart, first, because it applies (on its face) with respect to a lawyer suspended for any period of time not just for six months or more.  Arguably even where a lawyer has been suspended for only 30 days or, possibly, even when they are subject to merely an administrative suspension.  Second, it is harsher because it is not just limited to a prohibition on being physically present in a law office but applies to any employment of such a person by a lawyer or law firm.

In Illinois, for example, the public policy objections I have to such a harsh rule might be less pointed beccause the ability to work from home or otherwise remotely be employed to perform certain tasks could be a saving grace against the otherwise absolute barrier to opportunities for lawyer rehabilitation.  But not so in Tennessee.

While the Niew Illinois case that has gotten some attention certainly appears to demonstrate the right outcome for its circumstances, I still think rules like Tennessee’s are far too harsh.  Problems posed by the classic scenarios that such rules seek to prohibit can otherwise be addressed through provisions in RPC 5.5 that make it unethical for a lawyer to assist someone else in the unauthorized practice of law.

It seems that there ought to be exceptions to such an absolute prohibition; exceptions that it would be hard for reasonable people to argue against.  One could readily construct a hypothetical involving a lawyer who gets herself suspended because of problems associated with the handling of client funds or other deficiencies in their ability to handle the business aspects of the practice of law, but who might be an incredibly gifted researcher and writer.  Seems unduly harsh to foreclose that person’s ability to continue to contribute and benefit clients of other lawyers through performing such work for other lawyers with no access to client funds or even to the clients in question while rehabilitating themselves on their deficiencies.

At present, there simply is not.  The only potential route to rehabilitiation that could be available in Tennessee, apropos if for no other reason than our being called “the Volunteer state,” is that it does look like a disbarred or suspended lawyer could take on such assignments for free.

If racism is disqualifying for a juror, why not for an aspiring lawyer?

Nothing like the day after a holiday weekend to pose a difficult, potentially controversial, question, right?  But when the holiday weekend in question is one to celebrate the life and legacy of Dr. Martin Luther King, Jr., this particular question is certainly topical.

This is a post I have had rattling around inside of my head since this I read this weighty article from The Huffington Post.  Now, I know, for many, HP is not thought of as a place for weighty articles, but this one really fits the bill.

The article’s title is “Should White Supremacists Be Allowed to Practice Law?”  The article delves into the nature of the question and elaborates a bit on the underlying concept that people who wish to be admitted to the bar in any given state not only have to demonstrate competence in the law but also must satisfy “character and fitness” requirements to be issued a law license at all.

The HP article does an effective job of examining the thorny, and obviously problematic, nature of the problem with staking out a position that someone’s ideas or thoughts alone should prohibit them from being permitted to pursue a chosen profession – a profession for which they have otherwise demonstrated qualifications by passing the required tests and satisfying the objective criteria.  But — given that fundamental principles of white supremacy (for example) can be shown to go beyond mere beliefs and into promised actions and conduct that are at least inherently discriminatory and taken to the logical conclusion of the movement are even genocidal — the slope being argued over does not sound all that slippery in such a context.

Further, the slope our profession has to wrestle with on such a question is inherently slippery because of how subjective the admission standards are as to character and fitness as a concept — the idea that existing lawyers will evaluate the candidacy of applicants for admission to see if they have the requisite “character” and “fitness” to be a member of the profession.  Moreover, as someone who has represented quite a few folks in bar admission proceedings, I can tell you that the admissions process often creates seemingly ridiculous barriers to entry labelled as character and fitness matters.  Traffic offenses and underage drinking as just a few common examples where law school graduates frequently find themselves having to respond to orders to show cause why they shouldn’t be denied admission.

The notion that an avowed white supremacist would be deemed to be an acceptable candidate to practice law from a character standpoint when a person who struggled with a “lead foot” throughout college gets extra scrutiny seems laughable.

For a little more context, here are the admission standards in Tennessee from which character and fitness questions spring:

Tenn. Sup. Ct. R. 7 requires the Board of Law Examiners to decide that an applicant

has demonstrated the reputation and character that in the opinion of the Board indicates no reasonable basis for substantial doubts that the applicant will adhere to the standards of conduct  required of attorneys in this State.  (Section 1.03(d))

The same rule elaborates in more detail what this means:

(a) An applicant shall not be admitted if in the judgment of the Board there is reasonable doubt as to that applicant’s honesty, respect for the rights of others, and adherence to and obedience to the Constitution and laws of Tennessee and the United States as to justify the conclusion that such applicant is not likely to adhere to the duties and standards of conduct imposed on attorneys in this State. Any conduct which would constitute grounds for discipline if engaged in by an attorney in this State shall be considered by the Board in making its evaluation of the character of an applicant.  (Section 6.01)

If espousing an inherent belief that one race is inherently superior to other races and that certain races are so inferior that the world would be better off if they were eliminated from society is not something that would “justify a conclusion that such applicant is not likely to adhere to the duties and standards of conduct imposed on attorneys,” then what exactly is the point of referencing “respect for the rights of others” in such a standard?

And, if even you are inclined to agree that would move the needle in the direction of being unfit, then you probably still might have more difficulty agreeing with the idea that racism is not inherently as bad as white supremacy and is more just an idea or state of mind that should not be regulated and, thus, there can be no cogent argument made that just being a racist should prevent someone from being issued a law license.  After all, as noted above, in Tennessee, the standard requires the Board of Law Examiners to only look to conduct of an applicant which – if undertaken by someone who is already a lawyer could trigger discipline.  You would be hard pressed to find many instances of lawyer discipline imposed against a lawyer merely for holding dear to a belief system, no matter how ignorant or odious.

And, yet, quite recently, the United States Supreme Court issued its decision in Tharpe v. Sellers that reversed and remanded a case over a certificate of appealability in a death penalty case that turns on whether racist statements made by one of the jurors who voted for death could justify the reopening of habeas corpus proceedings premised upon arguments that improper racial animus infected the jury deliberations.

Although the analogy is admittedly not a perfect one, it seems very difficult to feel very comfortable with the idea that racism on the part of a member of the jury is unacceptable but that letting someone with the same views become a lawyer and, thus, be in the position of getting to routinely strike citizens from being selected to be on juries because of the color of their skin is just part of the system.

And, no this is not intended to be an advocacy piece for the proposed rule revision in Tennesee that I’ve written about before, because these questions are extremely ripe ones in my jurisdiction and other jurisdictions under even existing ethics rules.  In Tennessee and elsewhere, the rules already prohibit lawyers, regardless whether they are representing clients or not at the time, from engaging in conduct that is prejudical to the administration of justice.  (RPC 8.4.)

So, I guess the true question to struggle with is this:  Does empowering a racist by conferring a license to practice law on them something that is inherently prejudicial to the administration of justice?