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.

Everything is arbitrable in New Jersey. (Sort of)

Lawyers and law firms have long struggled – at least during the length of my career – with whether they can, or should, include a provision in their contracts with clients that would require arbitration of some, or all, kinds of disputes.

In situations where a local or state bar association offers a free, voluntary fee dispute arbitration forum, the decision to put something into an engagement letter requiring participation in such a tribunal upon demand tends to be an easier call.

Seeking to have clients agree to arbitrate fee disputes and only fee disputes also tends to be an easier call even in the absence of bar association provided venues.

Whether a lawyer can, or should, seek to have a client agree to arbitrate all claims or disputes, is much trickier stuff. Many jurisdictions do not offer much in the way of formal ethics guidance beyond making clear that you cannot avoid having to take a trip through your state’s disciplinary process by trying to claim that an agreement to arbitrate disputes would include preventing a client from pursuing a grievance against the lawyer’s license. (In fact, in some places, simply trying to do that could get you into disciplinary trouble.) Another issue that exists in this realm but is often not fully focused upon is any impact that federal law, and specifically the Federal Arbitration Act, would have on enforceability in that it can be difficult for a client to try to argue that the nature of a legal matter does not affect interstate commerce. If the FAA is recognized as applying, then obstacles to enforcing an arbitration agreement with a client should be significantly reduced.

In advising lawyers on the topic, I have tried to be practical about the risk associated with such provisions and the need to be exceedingly clear and transparent about how any such provision is explained to a client. (I also make an effort to strongly suggest that the lawyer communicate with their professional liability insurance carrier as those folks tend to have strong opinions about whether arbitration is a good forum for resolving a legal malpractice claim or whether it is more likely to result in a “split-the-baby” outcome.) I have not actually written anything about this topic here in more than five years though.

Recently, the New Jersey Supreme Court has issued a thorough, and pretty good, opinion navigating the waters of how an attorney may balance their ethical duties of communication with obtaining an enforceable arbitration agreement from a client. Unfortunately, for the law firm in question that was involved in the litigation, the decision is only applicable on a going-forward basis. In that regard, it is helpful to know that the nature of the dispute in question was an engagement agreement between a lawyer and a sophisticated business client, a fee dispute was being arbitrated and the client then brought a lawsuit for legal malpractice. The engagement agreement established arbitration through JAMS and included a hyperlink in the engagement agreement where the 33-pages of JAMS rules were available, but the lawyer did not provide the actual JAMS rules to the client at that time.

One can certainly quibble with the New Jersey court’s analysis of application of the FAA given that it still clearly treats a contract between a lawyer and a client differently from other commercial contracts. The New Jersey court doesn’t actually confront the fact that it is treating an arbitration provision in an attorney-client contract differently from one in another type of contract. Instead, it compares arbitration provisions in an attorney-client contract with all other provisions in an attorney-client contract and says:

“When viewed through the lens of the RPCs, arbitration provisions are not treated differently from other provisions in a retainer agreement. Requiring attorneys to explain to a client the advantages and disadvantages of arbitration so that the client can make an informed decision whether to arbitrate a future fee dispute or legal malpractice claim against the firm does not single out a retainer agreement’s arbitration provision for disparate treatment and therefore does not run afoul of the FAA or NJAA. See Snow, 176 A.3d at 739; see also Hodges, 103 So. 3d at 1077.”

One can also argue about the fact that the opinion makes no effort to address the notion that a person who hasn’t yet signed an engagement agreement isn’t a client of the lawyer and so all of the arguments about fiduciary duties attorneys owe to clients and ethical obligations to clients are not actually on point unless you assume and agree that the law should treat a potential client as a client during the process of negotiating a fee agreement.

For lawyers generally though, even if you are not in New Jersey, the opinion provides pretty safe guidance to look to follow if you want to head down the path of pursuing such a provision.

You can access and read the full opinion here, but I’ll close by offering what I think are the two best excerpts:

We now hold that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c).
An arbitration provision in a retainer agreement is an acknowledgement that the lawyer and client may be future adversaries. That the retainer agreement envisions a potential future adverse relationship between the attorney and client — and seeks to control the dispute-resolution forum and its procedures — raises the specter of conflicting interests. An arbitral forum and judicial forum, and their accompanying procedures, are significantly different.
We do not make any value judgment about whether an arbitral or a
judicial forum would be more beneficial to a client if the client and attorney part as adversaries. We conclude, however, that an attorney’s fiduciary obligation mandates the disclosure of the essential pros and cons of the arbitration provision so that the client can make an informed decision whether arbitration is to the client’s advantage. See RPC 1.4(c). That obligation is in keeping with an attorney’s basic responsibility to explain provisions of a retainer agreement that may not be clear on their face. Accordingly, the disclosures required of an attorney in explaining an arbitration provision in a retainer agreement stand on an equal footing with the disclosures required in explaining other material provisions in the agreement. Such comparable treatment does not offend the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, or the New Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -36.

and

Consistent with ABA Formal Opinion 02-425, the weight of authority as
expressed in professional advisory opinions and judicial case law in other jurisdictions, and this Court’s interpretation of its own RPCs, we hold that attorneys who insert provisions in their retainer agreements to arbitrate future fee disputes or legal malpractice claims must explain the advantages and disadvantages of the arbitral and judicial forums. Attorneys can fulfill that requirement in writing or orally — or by both means.
Attorneys may explain, for example, that in arbitration the client will not have a trial before a jury in a courtroom open to the public; the outcome of the arbitration will not be appealable and will remain confidential; the client may be responsible, in part, for the costs of the arbitration proceedings, including payments to the arbitrator; and the discovery available in arbitration may be
more limited than in a judicial forum.
Additionally, a lawyer who drafts a retainer agreement that channels any future legal malpractice action into an arbitral forum must say so directly in the written agreement. The client should not be left to discern the meaning of language that is clothed in ambiguity.

The New Jersey Supreme Court also referred the topic to the state bar’s Advisory Committee on Ethics for the issuance of any further ethical guidance deemed appropriate about the obligations of disclosure for New Jersey attorneys.

Two ethics opinions: one good, one bad, but both reveal systemic problems.

So, New York and Florida. Interestingly, those states have been bookends of our nation’s problems with COVID-19 and with fighting it. New York got hit very badly early, given the concentrated nature of its population centers, but then engaged in a very serious effort of taking the virus very seriously and managed to significantly flatten its curve. Florida’s government ignored and downplayed the situation, and now is experiencing horrible daily numbers and now has overall numbers of cases and deaths that are worse than New York’s. The two states contrasting efforts though still combine to tell a large part of the problem plaguing the United States when it comes to the pandemic — the lack of a coordinated national strategy because we have an incompetent and dysfunctional federal executive.

Two recent developments in ethics opinions from each state also offer contrasting approaches to issuing ethics opinions, contrasting results, and combine to tell part of the larger story of issues plaguing the profession as a whole.

First, let’s start with New York State Bar Association Op. 1200 which is good on procedure but bad on outcome. This opinion addresses application of New York’s RPC 5.7 and the combination of legal services and wealth management services. It was issued after what would appear to be the traditional, efficient, process of receiving a written request for an opinion, having a committee meet and deliberate, and then issuing a written opinion.

The answer it gives to the question whether the same lawyer can render legal services to a client and, through another entity, provide wealth management services to the same person is baffling. Despite the clear rationale for a why a rule like RPC 5.7 exists and, despite the fact that RPC 1.7 should provide for the ability for a waiver of such a conflict, the answer provided is that the conflict is so severe as to be unwaivable. And the only real explanation that is proffered for why is that the lawyer is simply going to be making too much more money from the provision of the wealth management services than from the provision of legal services. Maddening because of all that implies about not only evaluating the conflict rules but how it can justify other assumptions raising questions about a number of other ethics rules that operate under the assumption that lawyers can do the right thing in terms of representing their clients ethically even when it is in conflict with their own financial interests.

Next comes Florida where there exists a proposed ethics opinion waiting on action by the Florida Supreme Court. Technically, it isn’t an ethics opinion as it comes from the Florida Bar Standing Committee on the Unauthorized Practice of Law, but given the relationship to RPC 5.5, that’s a bit of a tomato/tomahto situation.

Now, procedurally it is nightmarish. To get to the point of even issuing the opinion, they held what for all intents and purposes looks like the equivalent of a trial. Sworn witnesses and all. Even after that, it still has to be approved by someone else. Substantively, proposed Florida Advisory Op. 2019-4, would be good because it would conclude that a New Jersey-licensed lawyer who had retired from his job, moved to Florida, and then took a new job for a New Jersey company would not be engaged in UPL if he continued to reside and work in Florida (where he was not licensed) and advised the New Jersey employer about federal law issues.

Now, it is an opinion that shouldn’t be necessary at all for a few reasons, including that if all that is occurring is advising about federal law issues, then Model Rule 5.5(d)’s language should pretty straightforwardly and clearly allow that activity. Unfortunately, Florida curiously does not have that language in its rules and does not appear willing to facially admit the underpinnings of federalism and the Supremacy Clause that require that result. And, even if the question had been about general work for the New Jersey company remotely, it shouldn’t take the equivalent of a trial to figure out that the answer should be that no UPL takes place.

This may all have been less clear to the profession before the pandemic, but during (and if we ever get to a point of “post”) the pandemic it should be painfully clear that the physical presence alone of a lawyer in a particular location should not be dispositive of whether UPL is occurring.

For what it is worth, my proposal for a practical solution to the question of UPL in modern practice that would still allow for things that truly should be regulated to be regulated would be as follows:

There should be a uniformly used “totality of the circumstances/most substantial connection”-style test that evaluates:

  1. where the lawyer is located
  2. where the client is located
  3. if there is a contemplated legal proceeding (or other matter involved such as commercial transaction or closing) where that is located or expected to be located; and
  4. what state’s law would govern in such a proceeding (or other matter).

And, unless the majority of those factors involve a state where the lawyer is not licensed then it simply isn’t UPL.

If my math is correct that would mean that as long as any 2 of the factors touched the lawyer’s state of licensure, then the lawyer is free and clear (or stated differently, unless 3 of the 4 involve a state where the lawyer isn’t licensed, then the lawyer is free and clear).

And, there would still have to be a continued exception acknowledged for purely federal law situations.

Two for Thursday.

It is Thursday, right?

In a “recent” effort, I mentioned that there were recent developments I was planning to eventually write about. Today presents an effort at checking two of them off the list that have only Tennessee in common. Neither of which likely provides fodder for a full post, so they will be covered together.

The first is a recently enacted revision to Tennessee’s ethics rules regarding money held in trust accounts. Specifically, the Tennessee Supreme Court has adopted a revision to RPC 1.15 regarding trust accounts to impose requirements for dealing with “unidentified funds” held in trust.

As revised, RPC 1.15 now has a new subsection (f):

(f) A lawyer who learns of unidentified funds in an IOLTA account must make periodic
efforts to identify and return the funds to the rightful owner. If after 12 months of the discovery of the unidentified funds the lawyer determines that ascertaining the ownership or securing the return of the funds will not succeed, the lawyer must remit the funds to the Tennessee Lawyers’ Fund for Client Protection (TLFCP). No charge of ethical impropriety or other breach of professional conduct shall attend to a lawyer’s exercise of reasonable judgment under this paragraph (f).

A lawyer who either remits funds in error or later ascertains the ownership of remitted funds may make a claim to TLFCP, which after verification of the claim will return the funds to the lawyer.

I personally was opposed to this proposal because in almost all circumstances “unidentified funds” simply shouldn’t exist in a trust account in the first place and, thus, this is one of the very few places in the rules that addresses a situation which can nearly only come to pass because of lawyer misconduct. Although the rule doesn’t define “unidentified funds,” my understanding is that these are different from “unclaimed funds” because the lawyer simply has no idea to whom the funds belong at all. Comment [14] still indicates that as to “abandoned” funds those will likely have to go through the process of escheatment to the State. Thus, other than circumstances in which a lawyer purchases someone else’s law practice and then finds that the underlying records aren’t up to snuff, this rule addresses obligations of a lawyer who has already dropped the ball on a very important duty.

The Tennessee Bar Association publicly signaled support for the proposal, however. The rule revision was not accompanied by any new comment paragraphs, so perhaps a time will come in the future for the Court to give a bit more clarity about how funds might come to be “unidentified” and whether the protection for judgment extends only to whether to send funds to the TCLF or not and not also to judgments about whether funds qualify as “unidentified” or not.

The second development raises a question of judgment as well. If you’ve been following aspects of how the legal profession is trying to cope with the ongoing, and now worsening in the U.S., pandemic, you’ve likely seen a variety of approaches in various states to dealing with graduates of law school and how to provide them with an opportunity to get their law license. Some states have transitioned to having their bar exam online, some states have limited the number of people who can sit for the traditional bar exam in a socially-distanced room (and some of those states have given preference to in-state law school grads), and some states have opted instead to offer diploma privilege rights to law students and allow them to become licensed without having to sit for a bar examination.

To date, my state has gone with an approach that involves limited availability but with a twist. The traditional July bar exam would have limited spaces, but they also determined to hold an extra bar exam later in the fall.

Last month, however, a collection of law school graduates has filed an emergency petition with the Tennessee Supreme Court requesting that the Court take action to allow for diploma privilege in Tennessee because of, and in response to, the pandemic. You can go read the full petition here.

It is hard to try to argue that they don’t have a point.

Edit/update: About an hour after putting this up, the Tennessee Supreme Court posted an order cancelling the July 2020 bar examination in Tennessee. You can go read the order here … it doesn’t sound like the Court is seeing it along these lines … but having to cancel it rather than move it online seems to me to be more support for seriously considering the diploma privilege route.

Pennsylvania wins the race to be first with COVID-19 ethics guidance.

I’ve lived in Memphis since 5th grade at this point, but I was actually born in Pennsylvania. I’ll heed all the guidance making the rounds of social media about not sharing information that might be a security question somewhere and won’t tell you what city.

But a part of my heart will always be in Pennsylvania since part of me really grew up there. It’s also the reason why my sporting allegiances beyond the Memphis Grizzlies and Chelsea Football Club all involve Pittsburgh teams.

So, I feel somewhat proud that the Pennsylvania State Bar seems to be the first bar to put out a truly comprehensive ethics opinion attempting to give guidance to lawyers and law firms about their ongoing ethical duties during the pandemic and in dealing with the “new normal” of working remotely from home.

While typically Pennsylvania ethics opinions have been hard to get access to some times because they have historically restricted them, Bob Ambrogi seems to have gotten his hands on the full opinion in digital format, so I’m linking to it as his site here.

It is quite good and really quite thorough (and you probably have some time on your hands), so I’d encourage you to read the whole thing. It addresses a number of rules, including Pennsylvania’s version of the ethics rules on competence and supervising non-lawyer assistants.

I only want to highlight two things that it specifically addresses and one thing that it, unfortunately, does not say at all.

First, I think this is the first ethics opinion from any lawyer regulatory body that comes out so clearly to call out what happens with smart speakers and other “always on” listening devices. It links to a vox.com article to allege that Amazon’s Alexa device and the Google Home speaker actually do have people reviewing the recordings of what those devices pick up and encourages lawyers (and people who work for lawyers and law firms) to not have client conversations in rooms where those always listening devices are located. I cannot remember for certain and have run out of the mental bandwidth today to go searching but I think I’ve written before about how the epiphany is obvious once you have it that the only way such devices can recognize when you call out their name for assistance is that they have to be “listening” before their name is uttered, but your view of such items profoundly changes once you have the epiphany. For what it is worth, I’ve been doggedly adhering to this by trying to have all of my calls take place in one of two places in my house (and on my second-floor balcony) where such devices are not located. And, yet, there’s still my iPhone and Siri which presumably also is a vigilant digital assistant just waiting for me to say her name.

Second, I feel a little personally attacked by the guidance that is stressed about only going to websites that are “secure” in that they have the https: designation. You might notice that this blog is not such a site but also I don’t ask you for any information or try to sell you any products here, so please keep coming around.

And, finally, the one thing that the opinion does not say that I really wish it would have done is this: Pennsylvania’s rules, like Tennessee’s and most others, contain language in the Preamble/Scope to stress that the ethics rules are rules of reason and should be construed as such.

All of the guidance in the opinion is very good and particularly offers a very good clearinghouse of things that lawyers should be trying to do, if at all possible. At the same time though, given how difficult all of this is we should not be sending messages to the profession that we are going to make perfect the enemy of the good.

During these difficult times, my hope will be that mistakes that lawyers may make with respect to the confidentiality and safeguarding of information will be treated as fodder for disciplinary proceedings only in instances of truly reckless or grossly negligent conduct and not mere negligence caused from trying to accomplish what client’s need to get accomplished in circumstances of a prolonged emergency.

That, to me, is a highly practical but entirely timely application of what the rules mean when they say they are rules of reason. Along those lines, while not guidance from a state bar or regulatory entity itself, I also commend for your reading a piece put out by the Holland & Knight law firm that ultimately grabs the spirit of that aspect of the ethics rules to analyze some guidance that can be found in the Restatement of the Law Governing Lawyers.

Essential? It depends.

So, I have now been exclusively working from home for . . . a number of days that … who am I kidding? Just like you, I barely can keep track of time at this point. March seems to have been 3 years long so far. It’s definitely been a while. And, importantly for context of this post, I’ve been doing it now for longer than the time that my firm’s office has now been closed.

My firm’s office, the Memphis office, of our multi-office firm, closed at 6pm on I think it was Tuesday of this past week. We did this because the “safer at home” order entered by the Mayor of Memphis went into effect at 6pm that day and it indicated that lawyers delivering legal services were only “essential services” exempt from the stay-at-home restrictions when we were delivering legal services necessary to the delivery of others who were providing essential services.

Our office had to go a different route than our Nashville office because Nashville’s “safer at home” order treated the delivery of legal services as essential services without exception.

This discrepancy from municipality to municipality in our state has prompted the Tennessee Bar Association to issue a public statement lobbying for the idea that lawyers should be treated as essential services under any such orders. Discrepancies elsewhere have also caused the American Bar Association to lobby for the same outcome: that any order requiring people to stay at home should include an exception for lawyers as essential services.

But, here’s the thing. In the context of orders for public safety designed to keep people in their homes for social distancing and prevent people from commuting to common spaces for the performance of work — most of us lawyers are not performing that kind of “essential services.”

Most of us with law licenses and an internet connection can do our jobs from the safety (both our own safety and the safety of others) of our home.

The taking of nuanced positions is difficult in normal times. It is incredibly difficult in the middle of a pandemic, but I feel obligated to say to both the TBA and the ABA that it is fundamentally irresponsible to stake out a non-nuanced position on this topic.

In the middle of a pandemic, certain things are undeniably essential services: healthcare, food, water, things related to infrastructure… the list is admittedly longer than that… but reasonable people should be able to agree that, in such circumstances, only certain lawyers in certain situations should qualify as essential services.

Lawyers representing criminal defendants? Absolutely. Lawyers working as prosecutors? Absolutely. Lawyers who somehow actually have a trial that is actually going forward despite the circumstances? Certainly. Lawyers representing juveniles defending themselves in delinquency proceedings where the juveniles could end up in prison? Yes.

But, the rest of us? No matter how important what we are doing is – and I’m NOT trying to gainsay the importance…I’m doing quite a few things that I would defy anyone to argue are not important right now (well, not “right now,” right now I’m just writing an incredibly unimportant blogpost) — but in the context of a discussion about whether we have to go to a business location, and require other staff members to do the same, the answer has to be simply no.

Lawyers are exceedingly important. But so many of us can do the things we do on a daily basis using only technology and so much of what we do can routinely be pushed off for 30 days at a time that, if the circumstances weren’t so grave, it would be almost laughable for us to be arguing so hard to be treated as exempt from stay-at-home requirements.

One possible answer: Radical transparency in design for legal services?

So, this post isn’t exactly about legal ethics. Of course, it isn’t exactly not about legal ethics. I’ve written a bit here recently about various jurisdictions launching increasingly bolder initiatives to try to reform the regulatory landscape when it comes to the delivery of legal services.

Many critical voices of these initiatives demand evidence that any changes to the ethics rules will result in better access to justice; others wonder what it is that technology companies or others who aren’t lawyers might be able to bring to the legal services marketplace that lawyers can’t afford to or are not interested in.

I certainly can’t provide a great answer to the first question. And I’m not sure I’m the definitive authority for answers to the second question. But I do have a thought that hit me yesterday while listening to the latest episode of one of my favorite podcasts – 99% Invisible.

If you aren’t familiar with it (and you really should be), it is a design podcast. Its most recent episode is entirely about the condition of waiting and how, as technology has advanced, people have designed ways to deal with people’s expectations as to waiting and how to manipulate them to have people feel better about their experience.

The episode is entirely worth your time in its entirety, but without giving too much away it focuses on things like changes over time to how you interact with Internet websites and how where once there was just a spinning hourglass that did not tell you anything about how long you might expect to have to continue waiting to the way the travel deal website, Kayak.com, shows you in a fully transparent fashion what is being searched while you are waiting.

One of the examples of the steady change in the direction of transparency the episode discusses is one of my favorite things online — something where I never really had previously thought about the “why” of its existence – the Domino’s pizza tracker.

The episode of the podcast talked about research and other studies measuring the effect of transparency, even “radical transparency,” on customer satisfaction. Examples of situations where a customer is happier with an online experience that involves an extended wait – but with flowing information about work being done in the meantime made transparent – than with a non-transparent but “instant” result. And, not all examples involved online interactions. One example was a restaurant that changed its design so that diners could see what was going on in the kitchen to make their food and that resulted in survey responses about how much better the food tasted than before.

My mind quickly moved to the experience for clients of hiring and relying upon lawyers and ways it could be made more transparent that are somewhat similar to the pizza tracker and other situations detailed in the episode. Anthony Davis of Hinshaw once explained to an audience (which included me) about how important it was for lawyers to be more communicative as to their billing because hiring a lawyer was like riding in a taxicab but with the windows blacked out. All you could see was the meter continuing to increase but had no idea how much closer to your destination you were.

Now the analogy is still a great one, even though fewer people experience cab rides now and opt instead for shared rides with prepaid fares.

In fact, the analogy is an even better one now because we live in a world where shared ride companies are putting cab companies out of business. Not only do you know on the front end how much you are agreeing to pay for the ride, but you also, through the app, can monitor your progress toward your destination the whole time (and can even track where your driver is when they are on the way to you).

Now, lawyers could try to be as descriptive as possible in the bills they send their clients, but those still only go out once a month or so. And lawyers could try to communicate more frequently to clients about what they are, or are not, doing on their case, but in an hourly billing scenario each of those communications just drives up the price for the client.

Thus, it seems logical that someone could harness technology and understanding of the life cycle of legal matters to provide a web portal that a firm (or a lawyer) could make available to clients where they could log in at any time of day and “see” something that would tell them what is going on in the life cycle of their matter.

It could be as simple as something that would tell them what the last significant event in their matter was and what the next upcoming significant event is. Or it could be as robust as something that not only gives immediate access to the big picture but would also tell them exactly when the last time was that the lawyer had “touched” their file and what work had been done and when the lawyer has calendared to next do something on the matter. Legal ethics would play a role in restricting certain parts of what could be done because some of the “manipulation” that occurs in terms of managing expectations would be quite risky given ethical restrictions on deceptive or misleading conduct of all kinds.

After those thoughts hit me and I was done with the first level of wondering if an approach surrounding “radical transparency” would work when applied to practicing law to improve the experience for clients and perhaps make people more willing to spend their money on acquiring the assistance of legal professionals, I almost immediately, and instinctively, brushed it off as something that would require too much investment and infrastructure to ever even try it.

And, that’s the real point. Isn’t it?

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.