A lawsuit about a lawsuit that touches on everything about 2019?

If time capsules were still a thing (are they still a thing?), and someone wanted to capture issues facing the legal profession in 2019 for a time capsule to be buried… what sort of topics would you choose to include?

Outside of the legal dynamics at play in the political landscape of the nation (which I’m excluding for today just for purposes of sanity), a quick effort to sketch things out on scratch paper might find you listing:

  • Risks of the flow of information involving modern technology
  • Financial pressures placed on lawyers and law firms
  • Continuing difficulties in achieving and maintaining diversity in law firms
  • How #metoo and problems of power and sexual misconduct in the workplace play out in law firms.
  • The role of businesses other than law firms in the delivery of legal services and what that means for the profession.

I’m probably leaving something out, but those bullet points comprise a pretty good overview of the legal landscape, right? Surely, you couldn’t find one document that would touch all of that to throw into the time capsule?

Well, thanks to a new lawsuit filed in California in May about another lawsuit filed in New York in May, you can now fill your time capsule with just one complaint plus its Exhibit A.

You may already have read any of the stories about this lawsuit that have run at the ABA Journal or in Bloomberg Law or even this Harvard Law School and snark-centric one at Above the Law.

If you want to read the entirety of what would go in the time capsule, you can read the lawsuit filed by Pierce Bainbridge against Donald Lewis (which attaches the suit Lewis filed against Pierce Bainbridge as an exhibit) by downloading the PDF below.

The two documents combined span more than 110 pages, so here’s a summary.

Lewis joined Pierce Bainbridge as a partner in June of 2018 but ended up working there for only 4 or 5 months. He was terminated by the firm in November 2018. Both sides agree that during the five months he was there A LOT happened. They disagree pretty vehemently on exactly what though.

Lewis filed a lawsuit in New York on May 15, 2019 alleging that he was wrongly terminated as a retaliatory matter because Lewis had become aware of financial wrongdoing by Pierce Bainbridge involving misrepresentations about the value of cases to a third-party litigation funding company. Lewis’s lawsuit sought $65 million in total damages with $50 million of those being claimed punitive damages.

In support of his allegations against the firm and his claims that it is a toxic environment for those who work there, Lewis’s lawsuit publicly discloses a litany of internal Pierce Bainbridge communications including what would appear to be not just emails and text messages but some that are indicated as being from the firm’s use of the Slack messaging platform.

That same day, May 15, 2019, Pierce Bainbridge filed a lawsuit against Lewis in California alleging that pre-suit sharing of a draft of the lawsuit with certain people was actionable defamation by Lewis and that by seeking a multi-million settlement to avoid filing the lawsuit, Lewis was engaged in extortion. The firm’s lawsuit also pursues claims of negligent and intentional interference with contractual relations and prospective economic advantage on the theory that Lewis’s effort to spread false information about the firm and its partners is an effort to damage the firm’s relationship with the third-party funding company and its clients and potential future clients.

Pierce Bainbridge contends that Lewis was the subject of credible allegations of sexual assault, harassment, and retaliation leveled against him by an employee of the law firm and that he attempted to obstruct the firm’s internal investigation of those allegations and was terminated on that basis. The firm’s lawsuit paints a portrait of a lateral hire alleged to have “immediately bec[ome] a corrosive presence” at the firm.

The firm alleges that on the same day Lewis was appointed to be an “assigning partner” a legal assistant made a report about an alleged event that would have occurred in June, fewer than 2 months after Lewis arrived, and that involves Lewis doing his best impression of what might happen if Louis C.K. and Matt Lauer were collaborators on a workplace project. In response to the allegations, the firm put Lewis on administrative leave and hired an outside law firm to investigate. While on leave, the firm alleges that Lewis sent an email to many at the firm airing his allegations (many of which apparently ended up the subject of his lawsuit). For that, the firm says they terminated his employment. The firm contends that their outside counsel concluded that the allegations against Lewis were credible.

Lewis, for his part in his lawsuit which spans 486 numbered paragraphs and was not filed pro se, takes issue with the propriety of that investigation as well and alleges that another partner at the firm was terminated after voicing an opinion that Lewis had gotten “a raw deal” from the firm

Using history as a guide, I’m prepared to declare that neither side will win this lawsuit. As a teaching tool, this lawsuit of course is an easy opportunity to repeat a point I’ve made many times before (here and elsewhere) about why so many law firm disputes and lawyer departures ultimately shouldn’t end up in litigation if there is any way to avoid it. The likelihood almost always is that no one “wins.” Everyone loses. And most prominently among the losers are the clients of the law firms/lawyers who don’t want to directly or even indirectly be harmed by the battle and, if they are at all risk averse, have to find themselves wondering whether they want anything to do with any of the players.

When you’re right, you’re right. Even when you’re Right.

I’ve written a bit in the past about the differences between unified bars, like what exists in North Carolina, and voluntary state bar associations such as what we have in Tennessee. (If you are uninterested in clicking on either of those links, as a refresher, the fundamental difference is that unified bars require that anyone who is licensed to practice in the state is a member of the state bar association.)

Among the biggest differences are the risks attendant for unified bars when they take various actions, including issuing ethics opinions, that they are treated as a government entity.

A case working its way through the Texas courts emphasizes another of those risks – the risk that engaging in efforts that bar leadership may believe to be in the best interest of society will be challenged by members of the mandatory bar association on First Amendment grounds.

Those risks have been made starker by the 2018 ruling of the United States Supreme Court in Janus v. AFSCME.

Texas is a state with an unified bar and exactly such a lawsuit has been brought by Texas lawyers over the State Bar of Texas having programs involving diversity initiatives, access to justice, and programs seeking to prevent the deportation of immigrants. This matter came back into the legal news this week because the Attorney General of Texas has taken the somewhat unusual step of filing an amicus brief to side with the lawyers rather than with the government agency under fire.

You can read the Texas AG’s amicus brief here. But, in sum, the argument it makes is that the funding of speech and policies with which one disagrees using bar dues you are required to pay is coerced speech and, in light of what Janus has said about that, is a violation of the First Amendment.

Now, long-time readers of this space will know I’m not much of a fan of the current Texas Attorney General, and I have little doubt that this particular elected official would never have gotten involved in this fashion if the State Bar of Texas had been taking positions more in keeping with his personal politics. (For what it is worth, my own biases had me thinking that even before I read the part of the ABA Journal article pointing out that one of the plaintiffs to whom the AG is lending his support is a conservative group with a PAC that has donated hundreds of thousands of dollars to past campaigns of the AG as well as his wife who happens to be a state senator).

But none of that changes the ultimate fact here that – because of the downsides attendant with the unified bar structure – he’s probably on the side that has the stronger arguments under the First Amendment issue as interpreted by Janus, at least as to the hot-button issue of immigration reform. (I think it is much tougher sledding to claim that fighting for access to justice is not a core regulatory purpose of a bar association sufficient to satisfy exacting First Amendment scrutiny.)

This latest development in the Texas litigation is also further proof, in my opinion, that the voluntary bar association model used by Tennessee is such a vastly better approach overall.

The TBA has repeatedly been able to take positions that I personally view are on the right side of history on a variety of issues with the only risk being that if it somehow gets viewed as too political by someone who disagrees with what it is advocating for then it might lose that lawyer as a member. I would imagine, most of the time, people don’t decide to quit because, on the whole, our voluntary bar association is a worthwhile thing to be part of.

For example, I’m not at all pleased that the TBA has invited (and I’m presuming is paying) Ken Starr to come speak at its upcoming annual convention. I think Starr ought to be treated as persona non grata for a variety of reasons. His most recent hypocrisy regarding attacks on the contents of the Mueller Report as “too detailed” is just the latest example. His utter failure to do the right thing in his time at Baylor is likely, by far, the biggest reason I wish the TBA wouldn’t want him to be any part of any of its programming.

I’m disappointed, but I’m not going to quit my membership over it. I will simply refuse to attend the convention as my small act of demonstrating my distaste with the decision.

But, most importantly, I could never sue about the fact that my dues are being used to fund such an invitation because we’re not an unified bar. If we were, then under Janus I might just have a claim and that’s not at all a good thing for bar associations to have to deal with.

Lawyers engaging in criminal conduct. Big love for immunity in Texas.

Let me offer a word or two or probably 1,000 about two recent items of interest having the issue of lawyers involved in crimes as their common thread. One comes from the Fifth Circuit and the other comes from an ABA Journal article about a situation in Utah.

First, the Fifth Circuit’s ruling in Troice v. Greenberg Traurig, LLP handed down on April 17, 2019. That case is one of many pieces of litigation involving the Allen Stanford Ponzi scheme. Specifically, this case involved a potential class action involved claims against Greenberg Traurig under a vicarious liability theory alleging that an attorney at Greenberg Traurig conspired with Stanford to further his scheme.

I am a big believer that the scope of immunity for civil liability to third parties for lawyers in connection with their acts in the representation of clients should be very broad. The most widely known version of this kind of immunity for lawyers is often referred to as the litigation privilege.

A readily-understandable example of which is this: a lawyer is representing a client and files a lawsuit for the client against a company alleging that the company’s products are defective and unsafe, according to the litigation privilege as a form of immunity, the company shouldn’t be able to sue the lawyer for defamation over those allegations.

As a proponent for this immunity to be broad in scope, I was not surprised to see the Fifth Circuit rule that Texas law would provide immunity even with respect to matters outside of litigation as long as they occurred within the scope of the representation of a client. What I was initially puzzled by, however, was the Fifth Circuit’s conclusion that a lawyer could even be immune from civil liability to a third party for criminal conduct.

My immediate reaction flowed from thinking about the fact that the ethics rules [RPC 1.2(d)] specifically delineate that “[a] lawyer shall not … assist a client, in conduct that the lawyer knows or reasonably should know is criminal.” Thus, there might be a logical basis for arguing that a lawyer using her representation to assist a client in committing a crime should not be treated as acting within the scope of a representation for purposes of civil immunity but would be treated as something outside of the scope of a legitimate representation.

Of course, the problem with that logic is how I had to insert “legitimate” in as a modifier for “representation.” Such an approach would raise questions about an array of other ways that a lawyer might violate the ethics rules during representation of a client and whether those acts should also trigger a loss of immunity from liability to third parties.

Although the opinion did not really get into any discussion of ethics rules, the Fifth Circuit was confronted by a similar argument from the plaintiffs — that criminal conduct by a lawyer is necessarily outside the scope of normal representation:

The plaintiffs also argue “attorneys are not immune from suit when they engage in criminal conduct.” Their contention is not that criminal conduct is an exception to the general rule immunizing behavior in the scope of representation but rather that criminal acts are categorically never within” that scope.

The Fifth Circuit, applying and interpreting/predicting Texas law, walked through how the Texas courts look at the issue not based on the nature of the attorney’s alleged conduct (i.e. criminal or not) but on the type of conduct (i.e. does it look like something that amounts to legal services to a client or not). Given that fact, it was easy for the Fifth Circuit to say that even alleged criminal conduct by a lawyer can be in the scope of a representation for purposes of evaluating civil immunity.

The prospect of civil immunity even for allegedly criminal conduct, however, likely does not change the fact such conduct is sufficiently dis-incentivized in other respects.

It can still subject the lawyer to potential criminal liability. And, of course, lawyers also still face the risk of professional discipline for most criminal behavior.

Most, but not all.

Which brings us to the Utah story and whether or not lawyers should face discipline for criminal conduct, if the criminal conduct in question involves polygamy. Utah apparently has a criminal statute that makes involvement in a polygamous relationship subject to as much as fifteen years in prison. The short ABA Journal piece discusses the background – a complaint has been brought by a former member of something called the Davis County Cooperative Society where polygamy is pervasive headed up by a lawyer leader — and stressing that Utah’s relevant ethics rule – like most – only addresses criminal conduct that “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness” as a lawyer.

In most instances, one would think that an attorney would have a hard time pulling off a polygamous relationship without engaging in some acts of dishonesty, fraud, deceit, or misrepresentation but perhaps not here. Given the lawyer’s role as a leader of the Davis County Cooperative Society it sounds like the conduct is occurring out in the open so that deception is not part of the picture. Thus, the only way for RPC 8.4 to come into play would be for someone to try to argue that polygamy is a crime that reflects adversely on fitness as a lawyer.

As there are far too many jokes that could be made with that set up, I’ll refrain and, instead, focus on the original point about civil immunity. If Utah’s approach, was the same as the Fifth Circuit said Texas’s was, then it should mean that a lawyer could have potential civil liability to a third party for a polygamous relationship itself but a lawyer who, for example, represents clients in drafting up contracts related to a polygamous relationship, should be entitled to immunity.

Things you might not know (for a Thursday)

Am I about to write about this just for the click-bait possibilities? Probably.

Does that make the underlying topic less worth discussing? I hope not.

So there used to be a time when people could become lawyers without ever having to go to law school. You could effectively apprentice in the law where you could work for and study with (through working for mostly) a practicing lawyer and then be able to sit for a bar examination and, if you passed, then become licensed to practice.

At some level, that sort of model makes some sense if you believe the ultimate goal of a legal education is for someone to be able to actually practice law at the end of their professional education.

In fact, many voices of criticism of modern law school education tend to focus on how disconnected it can be from teaching people how to actually practice law.

The flip side of course is that law school does a very fine job of teaching people how to think like a lawyer — a skill that readily translates to the ability to practice a variety of kinds of law. Whereas the idea of apprenticing into the practice of law may be more limited in that if you apprentice for a probate litigator you likely will learn how to be a good probate litigator but you might not learn that in a way that would translate into practicing some other type of law.

What you might not know (and I certainly didn’t before today) is that you can still apprentice into the law in California. I learned this from today’s news over at Above the Law that Kim Kardashian (you may have heard of her) is pursuing that path to becoming a California lawyer.

Mulling all of that over has returned me to a thought that I kick around from time-to-time from admittedly a different perspective but that is certainly related.

If successfully attending law school and passing the bar exam actually do each have real meaning such that both have to be required to practice law, then why shouldn’t (other than character and fitness requirements as an additional piece of the puzzle) the logical consequence of that be that anyone who has managed to do that to be able to practice law in at least one state, then be considered sufficiently qualified to be able to then at least apply to be admitted in any other state without having to jump through lots of procedural hoops? (For today, I’m not even going to go the step further that might also be a legitimate question if we really want to get contemplative.)

Quite a lot of states are pretty flexible in their procedures for letting folks already licensed in one jurisdiction “waive in” to get a license in that jurisdictions without having to take another bar exam. Some states are still pretty parochial in their approach – particularly states that have a good bit of beach front property.

Utahlking Ethics Opinions to Me? (Also Texas)

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

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

Now, back to regularly-scheduled programming…

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

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

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

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

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

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

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

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

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

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

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

 

 

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.