Some different COVID news.

It is safe to say, at this point, that most of the United States, and particularly southern states such as mine, are treating the pandemic as being over. Whether it actually is or is not remains to be seen. If it is over, its lasting effects will certainly live on.

This post isn’t exactly about any of that though. A few months ago, I recall doing a telephone interview with a reporter that was focused on trends in discipline. I recall discussing my best guesses for what we might start seeing and how the pandemic would likely be central to that. A different part of my conversation fed into the actual article, so I’m now having to work from the most ephemeral of sources — pandemic memory (pandemory?) but my recollection is that I talked about two possible things likely to occur. One was an increase in disciplinary complaints of the potentially legitimate variety given the strains experienced by lawyers in trying to pivot to living at work, coping with the stress of navigating a pandemic, and potential for missing deadlines and other failures that could coalesce around the struggle. The other was an increase in potential disciplinary complaints of a less legitimate variety where clients try to blame their lawyers for things that were actually being caused by the pandemic itself, including delays in court proceedings, court rulings, and other similar delays in transactional settings. I also mentioned, of course, that even those less legitimate complaints could take hold if the lawyers involved had been less than diligent in communicating with their clients along the way.

What I didn’t say anything about in that conversation was whether lawyers might catch any breaks with respect to errors that they make during the pandemic simply because the errors occurred, you know, while trying to get through a pandemic.

With this post, I’d just like to highlight the surprising fact that there are at least two such incidents that have made it onto my radar screen. Two is certainly an insufficient sample size to claim any sort of trend but discussing them together is still worthwhile.

The first involves a clear example of a disciplinary body using the pandemic itself as a mitigating factor in determining an appropriate level of discipline for a D.C. lawyer. Because it came to my attention through Mike Frisch’s site, and because I have been awful in the past of saying that out loud when it is true, I will simply point you to his post and excerpt it below:

We recognize that much of 2020 was a particularly challenging time when COVID related deaths, illnesses, lockdowns, and social restrictions were at their peak without an end in sight. Therefore, we also considered your reaction to the pandemic as a mitigating factor in the context of your misconduct. Our consideration of this factor is heavily influenced by the timing and nature of your misconduct, coupled with the proactive remedial measures you took to cope better with the pandemic. 

The other involves something that seems much more extraordinary… a Rhode Island court forgiving a lawyer for missing a statute of limitations by a couple of days. The possibility of lawyers missing deadlines because of COVID was something I discussed with the reporter; particularity issues associated with trying to keep track of when time was running or tolled in states like Tennessee where our Supreme Court entered and then extended emergency orders that tolled certain deadlines but did not toll others. The possibility that courts might just exercise judicial power to simply give a free pass for missing a statute of limitations though was not something I envisioned as possible.

In an attempt to try to avoid the doghouse I’ve placed myself in as to Mike Frisch, I will clearly state that I only heard about the Rhode Island ruling because of an email alert from the Hinshaw law firm. You can read their content about that decision here.

Confidentiality and credit cards

I have written here in the past about a number of ways that a lawyer’s obligation of confidentiality imposes limits on their ability to do certain things that others can do and even as to subject matter where it seems highly unfair. Most frequently, this issue arises when talking with lawyers about what they can and cannot do when a client or former client takes to social media to criticize the lawyer’s work.

The problem for lawyers is that the attorney ethics rules do not treat a public disclosure by a client or former client as a waiver of the ethical obligation of confidentiality in the same way that other law treats such disclosures as waiving attorney-client privilege. Thus, while RPC 1.6 offers some exceptions that allow lawyers to disclose otherwise confidential information, those exceptions are cabined.

Because online dustups on social media are not “proceedings” and because even though they can be characterized as a “controversy” responding to criticism online does not involve establishing a “claim or defense” in the way the rule contemplates, most jurisdictions and ethics authorities agree that a lawyer cannot rely upon RPC 1.6(b) to disclose details about the representation of a client or former client in order to try to refute, for example, an unfair negative review online.

Another area, not as often discussed here or most other places, where this “unfairness” of RPC 1.6 can rear its head is for lawyers who accept credit card payments from clients. This unfairness also only comes to pass if the lawyer feels like they are being hard done by a dissatisfied client but can have very harsh results if the lawyer hasn’t addressed the issue in their engagement contract with the client.

If a client or former client initiates a chargeback with the credit card company to contest the lawyer’s ability to retain the funds previously paid, RPC 1.6 will also tie the lawyer’s hands in trying to provide and produce information that the credit card company will ask for in that process and can result in the lawyer getting shafted on payment and having to then decide whether to sue the client for the fees.

This will be the case because a dispute with a credit card company is also not a “proceeding” as contemplated by RPC 1.6(b) and, although certainly a controversy between the lawyer and the client, most authorities will also conclude that responding to inquiries from a credit card company does not involve establishing “a claim or defense” as the rule envisions.

So, what is a lawyer to do? Well, the ease and convenience of allowing clients to pay for attorney fees using credit cards is obviously a huge net-positive for many lawyers. So simply refusing to accept such payments is not a realistic answer. Lawyers also cannot try to get their clients to contractually agree that they will not dispute payment or never initiate a chargeback procedure. Any such provision would be likely to be viewed as draconian and unenforceable. But what lawyers can do is include a provision in any engagement contract that makes clear that in exchange for the lawyer agreeing to accept payment for services by credit card the client provides consent, in advance, that in the event of any dispute about that payment or the initiation of any chargeback efforts the lawyer may disclose to the credit card company whatever information they reasonably believe is necessary to demonstrate the validity of the services provided.

Should racists be permitted to practice law?

This is a question I’ve asked in the past. It is not instinctively an easy question to wrestle with. It can easily boil over into various slippery-slope arguments and accusations regarding risk of inviting concepts of the “thought police” and the like.

But another news item invites the question back into the arena for further discussion. This ABA Journal online story details efforts of two criminal defendants to seek relief from their convictions/guilty pleas because of information that has emerged indicating that the Massachusetts lawyer that represented them in their cases was a racist. That lawyer was appointed to and assigned to these cases through Massachusetts’ public defender agency.

In terms of the facts of the matter, there are at least two interesting wrinkles.

One, the lawyer in question has now passed away and cannot speak further in the matter to defend himself. Two, the proof of the asserted racism on the part of the deceased lawyers come from a variety of Facebook messages believed to be attributable to the deceased lawyer.

The posts in question are collected at the link above, but also appear in an affidavit filed by the public defender agency through which the lawyer was appointed to the cases. (Unless you are truly looking for offensive stuff to read, I would skip the link though.) As happens at a surprisingly frequent rate, these posts were easily accessible because the lawyer left his Facebook profile set to public access rather than limiting his posts to being viewed only by his Facebook friends.

Both of the defendants seeking relief — are African American males of the Islamic faith. One seeks leave to withdraw a guilty plea while the other is seeking a new trial in a case in which he was convicted of armed assault with intent to commit murder.

One of the avenues of pushback that arises in kicking around issues regarding whether racist beliefs are so inherently disqualifying for someone to be a lawyer or not tends to be lots of examples, both historical and verifiable and anecdotal, of lawyers being able to represent clients that they found to be repugnant or clients who had horrible racist or even genocidal views directed towards a class of people that would include the lawyer.

There is certainly no question that open-minded, non-racist lawyers are entirely capable of representing, for example, people who are racist. But those examples don’t really move the needle.

What there do not seem to be are examples of things working out well in the opposite direction. Examples of situations in which a racist attorney is able to competently and zealously represent a client who is a member of a group that the racist attorney hates and thinks is “lesser” than they are.

Now, are the lack of those examples simply a lack of data that is out there and exists — perhaps in part because there are few examples of people who are attorneys but who are open about their racist views? Or do such lawyers simply turn down all such cases where they would have to represent someone outside of the group with which they align themselves? (And that might be something they are simply required to do after all under RPC 1.16 and 1.7 if their own personal interests would create a significant risk of material limitation on the representation.) Or is the lack of such examples an inevitable consequence of the inherent problem?

There are obvious First Amendment concerns as the issuance of a law license is something done by the government and evaluating someone’s views that manifest themselves through speech can be problematic when it amounts to the government favoring one form of speech over another. But, aspiring lawyers already do face inquiries into character and fitness that sometimes can straddle that line in ways that the profession seems to tolerate and, of course, lawyers often have aspects of their First Amendment rights hampered by ethics rules when they are engaged in representing a client

Nevertheless, I’m still left pondering a variation of the question I left off with over 4 years ago:

Does empowering a racist by conferring a license to practice law on them something that is inherently prejudicial to the administration of justice?

It’s another fine day to abolish the bar exam.

Now is another of the various times of year throughout the nation when law school graduates finish waiting anxiously for bar results and find out whether they passed and get the opportunity to start digging their way out of the debt they amassed in law school or failed and, thus, have to wrestle with the “sunk cost” fallacy and decide whether to amass some more debt to take another shot at passing the exam.

I’ve written a little bit before about how I’ve come to conclude that the bar exam needs to be abolished. I have admittedly not always felt this way but have come to the position over time and (I happen to think) because of growth and a better appreciation for the fact that it is a test that does not measure in any meaningful respect whether the examinee has the skills to be a competent attorney.

That was true even before the pandemic and the “pivot” from in-person exams to online undertakings but has become even more undeniable over these last 18 months.

Very, very little of the work of an attorney involves memorizing things and knowing answers off the top of one’s head. Success during a law school career spread out over three years is a much more reliable indicator of whether someone should be issued a law license. Now that states have had to partner up with software companies to administer the bar exam remotely — an opportunity that could have been used as a perfect vehicle for shifting what is tested to an open-book format that might better test the skills that an actual lawyer would have to use going forward has instead become a test of resources and sometimes just endurance.

Over the pandemic there have been a variety of news articles about the plight endured by folks taking the bar exam online. To the extent those stories ever mentioned litigation it involved efforts before an exam occurred to try to stop it from happening under certain terms and conditions or various kinds of petitions under state procedures to try to convince courts to grant a diploma privilege in lieu of requiring the exam take place.

What you do not hear a lot about is any efforts to sue by someone who fails the bar exam to seek a court ruling that they should be considered to have passed instead. There is a very good reason for that. Most states strictly circumscribe the grounds upon which the outcome of the grading of a bar exam can be challenged.

As an example, here in Tennessee, Tenn. Sup. Ct. R. 7 takes great pains in explaining the various mechanisms for seeking to have the Tennessee Supreme Court review actions of our Board of Law Examiners that are believed to have aggrieved someone seeking their license to make clear that the decision about whether you obtained a passing score is not reviewable.

Sec. 13.02. Petitions to Board.

(a) Any person who is aggrieved by any action of the Board involving or arising from the enforcement of this Rule, other than failure to pass the bar examination or a determination that an applicant has not completed the application process for an examination, may petition the Board for such relief as is within the jurisdiction of the Board to grant.

(emphasis added)

ARTICLE XIV. REVIEW OF BOARD DECISIONS

Sec. 14.01. Petition for Review.

Any person aggrieved by any action of the Board may petition the Supreme Court for a review thereof as under the common law writ of certiorari, unless otherwise expressly precluded from doing so under this Rule. 

Sec. 14.04. No Review of Failure to Pass Bar Examination.

The only remedy afforded for a grievance for failure to pass the bar examination shall be the right to re-examination as herein provided.

Now, at a surface level, this makes perfect sense because absent such a restriction you could foresee graduates seeking a redo of a subjective process – grading – in court. But, given the kinds of technological failures that are coming to light from the less-than-ideal approaches being taken to online examinations and approaches to remote proctoring when the exam is administered online, the notion that asking courts to step-in and change unfair failing grades to passing grades is verboten seems worthy of some reconsideration.

And with all of that as a pretty lengthy prologue, that brings me around to what prompted these thoughts today — this story about a graduate who missed a passing score on the remote bar exam by 5 points and has filed a petition in Arizona seeking a law license because, while he was taking the exam, the software crashed, costing him the time it took to reboot his computer and that caused him to have to redo the portion of an answer he was working on. Importantly, the graduate’s score on the portion of the exam being worked on at the time of the crash was significantly lower than the score obtained on the other portions.

This kind of lawsuit can potentially be filed in any state – even in the face of a Court’s own rules seeking to handcuff itself – in reliance upon the inherent authority that the highest court of any jurisdiction has to determine who should, or should not, receive a law license. But interestingly in Arizona at least, the relevant rule appears to provide some wiggle room for directly challenging whether a passing grade was obtained.

As the Petition itself explains, Arizona Sup. Ct. R. 35(d) provides that “the Committee on Examination’s decision regarding any applicant’s grade score is final and will not be reviewed by the Court absent extraordinary circumstances.”

Hopefully, before there become enough instances of this type of outcome becoming “ordinary” circumstances, this applicant’s challenge will be successful and other jurisdictions will thoughtfully tackle the entire question of what purpose does the bar exam actually serve.

The scams evolve. So too must lawyers.

I mentioned in a prior post that I was going to be fortunate enough to preside over the first in-person meeting of APRL in many, many moons last week.

I’ve also written in the past about APRL has begun working into its programming items we call “Fred Talks.” These are Focused. Rapid. Ethics. Discussions. Shorter and snappier presentations focused on an ethics issue or topic that is of interest but that might not justify a longer presentation than 10-12 minutes of time.

I think APRL’s program in Chicago went pretty well, and we avoided most technological glitches that might come from something of a hybridized program. It wasn’t a true hybrid as large parts of the program were simply available as a live stream to online attendees. But, I think it went fairly well.

At least it did up until it was time for me to present by own Fred Talk. That’s when things melted down. So, as promised to attendees, here is my Fred Talk on a new iteration of a potentially very devastating (and pretty sophisticated) scam that is targeting lawyers.

I Take No Joy in Writing This.

So, a relatively quick post for this week in terms of content as I’m thrilled to be somewhere else and to be presiding over the first in-person meeting of APRL in two years.

A lawyer in Tennessee brought my attention to an article in a recent ABA publication where two academics, Professor Peter Joy and Professor Kevin McMunigal, write to embrace another academic’s theory (Professor Jon Bauer) published 13 years ago that Model Rule 3.4(f) should be read to absolutely prohibit lawyers from participating in non-disclosure agreements. The new article is “The Ethics of Buying Silence,” and it is in the ABA Criminal Justice publication for Fall 2021. The Bauer piece was in the Oregon Law Review back in 2008 and was titled “Buying Witness Silence: Evidence Suppressing Settlements and Lawyers’ Ethics.”

The context for the more recent discussion of the argument is the pretty shameful use of NDAs in the representation of Harvey Weinstein to seek to prevent victims of a sexual predator from speaking out. But that doesn’t change the fact that the argument that this is the meaning of the rule just seems to fail on its face so obviously.

Granted, I admit that a couple of states over the years have issued ethics opinions adopting the same rationale, and I’ll admit that I haven’t had time to dig into those state’s versions of the rules to see if there is any difference from the Model Rule, but Professor Joy and others’ argument as to the Model Rule itself is, in my opinion, just wrong.

It also seems weird for these two professors to say that “[t]hose who argue that NDAs are not unethical tend to ignore the language of Model Rule 3.4(f).” No, the language of the rule itself is almost all the evidence I need to make my point.

For context, the rule we are talking about says that a lawyer shall not:

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

This is a rule, Rule 3.4, that is titled “Fairness to Opposing Party and Counsel.” This a rule that uses both the term “person” and the term “party.” This is a rule that absolutely, and clearly, contemplates the existence of litigation at the time of its application. This is a rule that prohibits a lawyer, in connection with a litigation matter, from trying to stop someone other than their own client (or as the rule indicates a family member of the client or the client’s employees or agents) from agreeing to voluntarily provide relevant information to the opposing party (or some other party) in that litigation.

Two of the four comments to the rule even more clearly make the point about the context of the rule:

[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

Model Rule 3.4(f) is not a rule that can reasonably be read to apply to an agreement that is entered into as a matter of contract between two or more contracting parties well in advance of any litigation about what is being made the subject of the contract ever existing.

It just can’t. And I don’t even have to trot out the language in the Preamble/Scope about how the ethics rules are rules of reason and must be construed as such to cut the legs out of the argument. And the proponents who are arguing that it prohibits all NDAs reveal that even they know their effort (if not their analysis) is flawed when they admit that there are certain forms of NDAs that they would agree with and that ought to be permitted, such as in the realm of protecting trade secrets or in resolving breach of contract actions before litigation is brought.

Just stop. If you want the rule revised, spend your time arguing for how to revise it. Admittedly, these two professors sort of do that by urging the ABA and states to take actions to “clarify” what RPC 3.4(f) means but trying to argue that the rule already means that – when it doesn’t – just seems disingenuous.

Federal court releases crackin’ sanctions ruling

I will not seek pardon for the pun. I will also try not to prolong the nature of this post because the opinion that is the subject matter for today is a very good read, worthy of the limelight.

I have written on several occasions about the problematic efforts of two particular members of my profession who so thoroughly hitched their wagons to the idea that the former guy was somehow robbed of a second term in office that it would seem un-thorough of me not to make the time to write about the most significant ruling against them to date.

So, here it is.

Judge Parker, a Michigan federal district judge, has issued today a 110-page order sanctioning Lin Wood, Sidney Powell, and others for their filing, and continued pursuit, of a particular federal lawsuit that was part of the overall effort of lawyers on behalf of the former guy to gaslight the nation. You can read the full opinion here.

For you “bottom line” types, most of the lawyers most egregiously involved in this gaslighting litigation will have to pay the attorney fees of the defendants, will have to get 12 hours of additional CLE (6 of which will be focused on pleading standards and 6 of which will be focused on election law – good luck finding classes that focus on “pleading standards” that is the stuff of law school courses), and are being referred to various state bars for potential disciplinary proceedings.

Until such time as it is reviewed by the Sixth Circuit, which inevitably will happen, this opinion from the Michigan district court could serve as something of a “short-form treatise” on the concept of sanctions and the filing, and continued pursuit, of bogus litigation. In fact, if there were ever to be a Fourth Edition of the book I’ve been honored to co-author over the last decade, this case would likely be a real frontrunner for new content in Chapter 1, the chapter on the investigation necessary to pursue a case to begin with.

We could have a lot of fun pulling quotes from the opinion that demonstrate how irreparably round-the-bend these “Kraken” lawyers were and how they managed to step on rake-after-rake by continuing to say incredibly stupid things online while their case was being decided, but that’s not really all that interesting.

What strikes me as an interesting exercise though (and maybe it only strikes me that way) is if it were possible to boil down the most instructive pieces of wisdom in the 110-page opinion to give a short talk that might be educational to brand new lawyers about how to avoid filing a lawsuit that could get you sanctioned.

So, here goes nothing. (And so that this effort is perfectly clear, everything that follows this sentence shall be excerpts verbatim from the opinion combined into one excerpt – snips and reshuffles are omitted. Reproduction of this excerpt is something for which you could seek the express permission of Major League Baseball, but they will look at you funny when you do.)

[A]ttorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

For purposes of Rule 11, an attorney who is knowingly listed as counsel on a
pleading, written motion, or other paper “expressly authorize[d] the signing, filing,
submitting or later advocating of the offending paper” and “shares responsibility
with the signer, filer, submitter, or advocate.” In this age of electronic filing, it is frivolous to argue that an electronic signature on a pleading or motion is insufficient to subject the attorney to the court’s jurisdiction if the attorney violates the jurisdiction’s rules of professional conduct or a federal rule or statute establishing the standards of practice.

Even if there are sanctions available under statutes or specific federal rules of procedure, . . . the ‘inherent authority’ of the court is an independent basis for sanctioning bad faith conduct in litigation. To award attorneys’ fees under this “bad faith exception,” a district court must find that (i) “the claims advanced were meritless”; (ii) “counsel knew or should have known this”; and (iii) “the motive for filing the suit was for an improper purpose such as harassment.” When invoking its inherent authority to sanction, “[a] court must, of course, . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”

[L]itigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation. The rule[s] continues to require litigants to ‘stop-and-think’ before initially making legal or factual contentions.

[A]n “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions. And the good or bad faith nature of actions or submissions is not what determines whether sanctions are warranted under Rule 11(b)(3). Inferences must be reasonable and come from facts proven, not speculation or conjecture. Pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation. Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”

As an initial matter, an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred. Plaintiffs are not entitled to rely on the discovery process to mine for evidence that never existed in the first instance. Attorneys are not journalists. It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences.

An attorney’s right to free speech while litigating an action “is extremely circumscribed.” Something does not become plausible simply because it is repeated many times by many people. An attorney who willingly continues to assert claims doomed to fail . . . must be deemed to be acting with an improper motive.

The nation’s courts . . . are reserved for hearing legitimate causes of action. Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order. Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

A cautionary tale of sorts for solos

It was many, many years ago (almost exactly 5 years ago) that I wrote a bit about how important it can be for lawyers who have solo practices to have contingency plans in place in case something suddenly happens to them in order to provide a way for their clients to be protected.

As we are in the middle of a pandemic that seems like it may never end (though I guess it may not even be accurate to say “middle” when the duration seems unknowable), it seems as good a time as any to remind folks about the need for this kind of planning.

And because it is often easier to learn from actual stories that happened, and because this is a story that seems to have occurred before the pandemic and is one I can indirectly make “personal” because of a common surname, I’ll offer this one.

(Obviously, when you go look at the documents, you will see when I say “common” surname I do not mean that the surname is a common one. It is very uncommon, but it is one that I have in common with the former Florida lawyer. Given that fact, it is highly likely that we are related in some degree.)

This story, which unfortunately will double as a story of how disciplinary proceedings can go from bad to worse if not handled appropriately, involves a Florida lawyer who became seriously ill, quite suddenly in January 2018, and left Florida to move to New York to be cared for by family. This former lawyer also was plagued by additional health issues including cancer further contributing to the inability to work.

She entered into a consent judgment in Florida which was accepted by the Florida Supreme Court in January 2020 to be suspended from practice for 90 days. Because of her sudden illness, having become bedridden and unable to talk, she abandoned a litigation matter she was handling for a pro bono client. The consent judgment lays out a more complicated story — a story in which readers could conclude that the pro bono client in question had already been failed prior to any health issues as the client’s case had apparently languished with no activity for nearly two years prior to January 2018.

Nevertheless, and despite the fact that the consent judgment included the lawyer acknowledging she was likely never going to be able to resume practice, the suspension order did not become effective for 30 days in order to give her time to do what she had failed to do originally, notify clients and make arrangements, etc. That order even went so far as to say: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”

Unfortunately, the lawyer either did not do that or, if she had no other clients to notify, did not make arrangements to file the necessary paperwork to notify Florida and, thus, she was subsequently found in contempt and suspended for 91 days in August 2020. Again, even in that order, the lawyer was given 30 days until it would take effect. That order also again stated: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”

Unfortunately, the lawyer again did not do any of those things. As a result, last month, the Florida Supreme Court entered an order disbarring them on July 22, 2021. That order, unlike the ones that preceded it, was made immediately effective.

If you practice law in a firm of sufficient size, you can get away with procrastination when it comes to thinking about your own morbidity or mortality because someone else at your firm will likely step in to save your, and the firm’s clients’, bacon. If you practice law by yourself, the risk of failing to plan is much more severe.

If you are a solo practitioner in Tennessee, and you have not already put a plan together for what will happen to your clients should something suddenly prevent you from continuing to practice law, do make the time to go familiarize yourself with the provisions in Section 29 of Tenn. Sup. Ct. R. 9 that allow for the appointment of receiver attorneys. While many lawyers have heard of this concept, many only know that affords courts with the ability to appoint someone to step in when a lawyer has become unable to practice. What is even more important though is that the rule blesses, in Section 29.9, advanced planning efforts to accomplish the same purpose:

29.9.  Advance Designation of a Receiver or Successor Attorney.  An attorney may designate in advance another attorney by contract, appointment, or other arrangement to handle or assist in the continued operation, sale, or closing of the attorney’s law practice in the event of such attorney’s death, incapacity or unavailability. In the event an attorney to whom this rule applies has made adequate provision for the protection of his or her clients, such provision shall govern to the extent consistent with this Rule unless the trial court or the Court determines, upon a showing of good cause, that the provisions for the appointment of a receiver attorney under this Rule should be invoked.  

Such contracts need not be unwieldy or overly complicated, and they can not only serve the public good by protecting your clients, but also having one might just play a big role in having your story (should something happen to you from which you can recover) be one of temporary troubles rather than a downward spiral to disbarment.

Update on racial insensitivity within the practice of law.

It still exists, of course. No real surprises there.

In just the last two weeks, there have been multiple stories that drive that point home. One such story, while admittedly actually involving a sitting judge rather than a practicing lawyer, is this one out of Colorado. Another such story involves a New York lawyer who was serving both as General Counsel to her employer and as an adjunct law school professor and has now lost her GC position over multiple uses of the same racial epithet the Colorado judge explored during a lecture in her professor position. There are other examples just occurring over the last few months that are readily found through searching online.

While both the Colorado judge, and the New York lawyer, have found themselves on the outs with respect to their employment status, the resolution of the individual judge’s situation and how it came about through judicial ethics proceedings including a public censure and agreement to resign, is also a reminder that the judicial ethics rules already have broad enough language to address and resolve certain kinds of conduct involving sustained racial insensitivity in a way that the current lawyer ethics rules in many locales do not.

As readers of this space are well aware, there have been a variety of efforts in a variety of places over the last 5 years or so to try to remedy that. A few very recent noteworthy developments in the now long-running saga of the effort to enact better language into the ethics rules of various jurisdictions to tackle the problem of lawyers engaging in harassment and discriminatory conduct are worth mention.

My guess is the one that has the most potential for significant impact is a proposal out of New York. But, given the rapid state of overall developments, I need to be clear about which proposal out of New York. Not this proposal put out for public comment in March 2021 that would suggest replacing New York’s existing RPC 8.4(g) with the ABA Model Rule version. No, I’m talking about this one:

That proposal for a revised RPC 8.4(g) in New York was put out late last week for public comment by the New York State Bar Committee on Standards of Attorney Conduct. It has a comment deadline of May 28, 2021. The Chair of that Committee, Roy Simon, was kind enough to send me a copy of the proposal last weekend.

This one appears – from the backstory of which I have been made aware and despite the fact that it does not show all of its work as certain kinds of reports often do — to have been the product of a significant amount of time and effort, including efforts at trying to consensus-build. Early reactions I have seen involve some long-time vocal opponents of both the ABA Model Rule and some other states attempts at implementation seeming to take something of a shine to this proposal. Now, admittedly some of the reactions I’ve seen also involve the vocal opponents to other versions trying to argue that this version won’t actually mean what it purports to mean as to the scope of “conduct in the practice of law.” Specifically, it has already been argued that teaching of a CLE could not be conduct in the practice of law despite the fact that the rule itself would define “conduct in the practice of law” to include “participating in bar association, business, or professional activities or events in connection with the practice of law.”

For whatever reason, almost always the various “parade of horribles” hypotheticals offered about how these rules will curtail free speech by lawyers always involve the teaching of a CLE somewhere. It would seem to me that if you cannot manage to speak at a CLE without managing to violate at least this version of the rule (given the further bells and whistles described below), you should probably stick to being an audience member and not a presenter. But, whatever on that, I guess.

It appears that the most significant ways this proposed anti-discrimination and anti-harassment rule deviates from the ABA Model Rule are: (1) in using that turn of phrase regulating “conduct in the practice of law” rather than “conduct related to the practice of law;” (2) defining “harassment” for purposes of the rule to require something that is both “severe” or “pervasive” and that is directed at an “individual or specific individuals;” and (3) trying to go even further with respect to clarifying that definition of harassment in a comment that would explain:

[5C] Petty slights, minor indignities and discourteous conduct without more do not constitute harassment. Severe or pervasive derogatory or demeaning conduct refers to degrading, repulsive, abusive, and disdainful conduct. Verbal conduct includes written as well as oral communication.

I have long believed that we need to bolster the rules on this subject matter and if the NY proposal becomes something that can gain traction, then consider me to be all for it. (I would suggest, however, that the second sentence of proposed Comment [5C] would be better off with a disjunctive connector rather than a conjunctive connector so that it would say “degrading, repulsive, abusive, or disdainful conduct.” Surely something would not have to check all of those boxes to be prohibited.)

There also is another very recent proposal that appears to head down a path that is somewhat similar to the New York proposal, at least in terms of trying to address arguments made time and again by those who have voiced steadfast opposition to ABA Model Rule 8.4(g), by making clear that prohibited discrimination or harassment has to actually target some other specific person. The D.C. Bar Rules of Professional Conduct Review Committee has put out this lengthy report proposing that D.C. adopt a new RPC 8.4(h) that would also differ from Model Rule 8.4(g) in that it would specifically state that conduct to be prohibited must be directed at another person and that also attempts to offer more clarity about what is or is not within the scope of covered circumstances. harassment. The DC proposal rather than using either the “related to” language of the ABA Model Rule or an “conduct in the practice of law” language now proposed in New York, uses the language “with respect to the practice of law.” Unlike New York’s latest proposal, however, the D.C. report does not propose requiring something be “severe” or “pervasive” in order to amount to harassment. You can access the full D.C. report at the link below:

It’s always easy to get distracted by the cat.

So, if you’re involved in the legal profession, one thing was guaranteed to make it into your email inbox or social media feed or both. And, no, it wasn’t even the atrocious lawyering that was on display in the defense in Washington, D.C. of a former social media influencer. It was undoubtedly the 34 second video from a Zoom hearing of a lawyer who was stuck using a cat filter and didn’t know how to disable it.

I am extremely confident that you’ve seen the video. I probably watched it at least 5 times yesterday and laughed pretty raucously each time. Everything about it is pretty seriously funny. Except for one part. That’s the part that I think needs to be discussed seriously and, so far, hasn’t been.

Now I’m not going to weigh in on the “tech competence for lawyers and ethics” piece, others have already rapidly covered that ground. You can read three of the better quick pieces here, here, and here.

No, I want to focus on a slightly larger issue for lawyering and a much larger issue for the public at large.

While all the humor was occurring in the bottom right square of the video, the upper left square had text of warning. (Now, admittedly, the warning may have been disregarded in order for all of us to have seen the video, but it was still there and presumably appears ubiquitously in proceedings in that particular court.)

The language of warning read:

394th Judicial District Court

Recording of this hearing or live stream is prohibited.

Violation may constitute contempt of court and result in a fine of up to $500 and a jail term of up to 180 days.

Excuse me?

Earlier in my career, along with normal litigation and legal ethics work, I represented a few media entities from time-to-time including work on access to courts issues so I can still remember many of the better quotations by heart, including this one:

What transpires in the courtroom is public property.

Now I remember the quote off the top of the dome, but have to look it up to be able to tell you the name of the U.S. Supreme Court case it comes from, which is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and, actually, is quoting an even older U.S. Supreme Court case, Craig v. Harney, 331 U.S. 367 (1947).

The pandemic has sown much chaos and disruption into our judicial system. This has been particularly difficult for people facing criminal charges as many have had to languish in prison for inability to take their case to trial in states where in-person judicial proceedings have continued to be prohibited because of the risk of transmission of the virus.

The ability to allow the business of the courts to continue through remote virtual proceedings has been a positive, but the cavalier nature in which courts are disregarding the issues associated with finding ways for the public to still have access to proceedings is not at all a positive for our system of justice.

While the restrictions on physical access to court proceedings where such in-person proceedings still take place can be justified on emergency grounds of being necessary for the protection of the actual, physical health of the public, presumptive restrictions on members of the public being able to monitor and watch judicial proceedings that are able to happen online are very unlikely to be justifiable as necessary at all. Such restrictions also are harmful to the health of our judicial system.

As another of the most important cases serving as the foundations of public access to judicial proceedings fleshes out, allowing for people to see and scrutinize trials and court proceedings “enhances the quality and safeguards the integrity of the fact finding process” and “fosters an appearance of fairness, thereby heightening public respect for the judicial process.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982).

The fact that our profession, 11 months into a pandemic, is being pretty blithe about the idea that the contents of public court hearings in February 2021 come with a broadcast threat that you could go to jail for recording them or sharing the contents of a live stream of them is not at all a good look for attorneys, judges, and the system.

The ethics rules in most jurisdictions (patterned after ABA Model Rule 6.4) make clear that lawyers are allowed to participate in judicial and legal reform efforts even if doing so might get you crosswise with the interests of clients you represent, I’d like to encourage lawyers out there to be more willing to do so to make certain that the increasing trend toward making what happens in court proceedings essentially private comes to an end.