Robot roll call …

If I had any faith that the Venn diagram showing overlap between readers of this blog and fans of Mystery Science Theater 3000 had broad, heavy shading in the overlapping areas of the circles, then I would take this joke all the way with some clever effort at following up the title with a first line “In the not-too-distant future, next Sunday A.D.,” but I don’t, so I’m not.

In fact, at this point by having dropped off the map for a bit to pursue what was, and what I should have been realized sooner was, a fool’s errand, I can’t definitively believe that I still have any readers at all.  Hoping to do better moving forward with the regular posting.

The purpose of today’s post, in addition to apologizing into what might be a void, is to very quickly reference just how quickly things are moving in a certain aspect of the legal tech space – something that is not quite AI but seems like it, the world of chatbots.

Last week there were two pretty significant stories in the legal press regarding developments in this area.  First, the maker of DoNotPay (the most well-known/most influential legal chatbot to date) announced that not only has it made legal chatbots available at present for some 1,000 areas of law but that it has made its framework available for lawyers to use to create their own chatbots for areas of law not presently provided for.  You can read more of the details at the ABA Journal online. 

The thing that I find most interesting about this sort of development is not just the role that such chatbots can play for would-be-consumers of legal services to solve their own issues without lawyers, but the potential for lawyers to use the chatbots themselves to venture into areas in which they do not otherwise have expertise to represent clients and claim the work product generated by the bot as their own.

A second story made the rounds about another software/robot offering that is more AI than chatbot that would serve as competition for paralegals in the patent marketplace and likely – quite quickly – beyond.  Again, you can read more about RoboReview a patent drafting software product at the Journal.

Beyond the obvious upside for lawyers of access to this kind of AI and machine learning to do their own job, and the work of others that might assist them, faster and perhaps better, the existence of these kinds of products could serve to prevent lawyers from being in position to make the bad choice this Texas attorney is being alleged to have made to try to keep his legal assistant in the United States.

Final thoughts for now on the Oregon report

For this last, at least for now, of the three posts I envisioned to talk about the important aspects of the Oregon State Bar Futures Task Force, I want to talk about the piece I’ve not really said anything about to date – the recommendations of the Innovations Committee of that Futures Task Force.

As the briefest of refreshers for those who may vaguely remember what that committee was intended to be about, the Executive Summary of the OSB report explained that its Futures Task Force was split into two committees and that the Legal Innovations Committee was “focused on the tools and models required for a modern legal practice.”

Now you can read the entirety of its report starting at p. 60 of the overall report, but I should warn you that right out of the gate it reads unlike most state bar work-product you may have encountered with references to products you may never have heard of and business-speak you likely never use.  Here for example is the paragraph that explains how the Innovations Committee “built” its report:

The report itself was built in Sprints, a tool that comes from the Agile project management methodology known as Scrum.  This method placed an early emphasis on “minimum viable product” for each report section, with subsections developing iteratively over the course of subsequent sprint periods.  We also conducted periodic retrospectives (another Scrum technique) to ensure that team members were feeling comfortable with the methodology.  To manage the sprints, we used the technology tool Trello and the cards for each report subsection (including items considered but not acted upon) can be found at https://trello.com/b/X7N8kKki.

Now, if that makes your head hurt, then a lot of the report probably isn’t going to be for you… unless, of course, you plan to continue to practice law for 5 or more years because then it probably is for you… whether you want that to be true or not.

The first recommendation of the Innovations committee — though numbered as 4 in the overall report — is “Embrace Data-Driven Decision Making.”  That is a recommendation that many law firms do or should adopt and that all lawyers at some level ought to as well.  As just an example, if you run your law practice taking cases on a flat fee basis but don’t know which of the types of cases you handle are the ones where you end up with the best return on investment, then you don’t exactly have the data you need to best decide where to focus your marketing efforts or which cases to be less inclined to agree to take on rather than declining on the front end.

Within this recommendation, the OSB Futures Task Force offers four subparts of the recommendation, but I only want to write a little bit about one of those:

RECOMMENDATION 4.3: The OSB and the Oregon Judiciary should adopt an Open-Data Policy.

Simply put, many of the bright ideas that focused individuals and groups can come up with to try to alleviate burdens on access to justice are made all the more difficult (if not impossible) to implement by the lack of ready access to system-wide data.

The second broad recommendation of the Innovations committee — Expand the Lawyer Referral Service and Modest Means Programs — targets Oregon-specific programs that may or may not exist in your jurisdiction and that are difficult to talk about in any universal fashion.  What I do think is interesting is to contemplate a bit about what correlation there might be between Oregon’s willingness to embrace and advocate for rule changes to permit fee sharing with nonlawyers in connection with online lawyer referral services such as Avvo Legal Services and the fact that Oregon has successfully been running a referral service that, to quote the report, was changed to a “percentage-based fee model in 2012” and, since that time, “Oregon lawyers who utilize the program have earned over $22M in fees and, in 2016, returned $815,000 in revenues to the OSB.”

The third recommendation out of the Innovations committee focused on ways to “Enhance Practice Management Resources,” specifically:

RECOMMENDATION 6.1: The OSB should develop a comprehensive training curriculum to encourage and enable Oregon lawyers to adopt modern law-practice management methods, including (but not limited to) automation, outsourcing, and project management.

The details and rationale offered by the Futures Task Force on these subjects makes for a compelling and cogent read, and I’d recommend at least reading that section (p.65-68) in full.  Hopefully, you will come away from that thinking that such an approach to teaching modern practice management would be worth pursuing perhaps in your own law firm if not something you’d very much like to see made available by your state regulatory body – though in states like Tennessee where we have a bar association that is a purely voluntary membership organization, the road map offered up by the OSB task force seems tailor made for advancement by such organizations.

The fourth and final recommendation of the Innovations committee seems to me to be the most vital piece of innovation that those invested in the practice of law can hope to see come about if unemployed and underemployed lawyers are going to be able to build better careers by findings ways to deliver legal services to under-served populations and those who have unmet legal needs.

RECOMMENDATION NO. 7: Reduce Barriers to Accessibility

The recommendation is comprised of four sub-parts but I only want to point your attention to two of those because they are essentially inextricably linked and can be thought of in a way that is more readily universal.  Those recommendation sub-parts are:

7.2:  The OSB should more actively promote the use of technology as a way to increase access to justice in lower income and rural communities.

7.3:  Make legal services more accessible in rural areas.

These recommendations include a number of concrete, and thought-provoking suggestions for how technology can be embraced and leveraged not just to make life easier for lawyers as it has been but to “bring down some of the geographic barriers that constrain access to justice,” and to emulate other industries where “[t]echnological innovation” has been used to “reduce[] the cost of products and services and made them more accessible to a broader range of customers and clients.”

One specific recommendations made in Oregon that — when you think about the vast array of actions people take in the ordinary course of life now through the use of streaming video services and online resources on a daily basis — seems ripe for serious consideration by small claims courts throughout the nation is:

Encouraging the courts to provide opportunities to conduct court proceedings through video conferencing in civil procedural cases or hearings that involve few witnesses and documents.  The use of videoconferencing can reduce the costs and burdens for parties and witnesses who have difficulties personally appearing in court due to geographic distance, lack of transportation, employment needs, childcare issues, or other challenges.

More of me weighing in on Oregon weighing in on the future

For those that missed my post earlier this week on the release of the Oregon State Bar Futures Task Force report, you can read that post here and get caught up.

Today, I want to offer some thoughts on one of the three Recommendations made by the Regulatory Committee of the Futures Task Force.  It is likely the most important of the Recommendations but certain to be the most controversial as well.

Recommendation 2: Revise Rules of Professional Conduct to Remove Barriers to Innovation.

This recommendation is comprised of four parts.  I’ll list them in the order they are presented, even though that is not the order in which I want to discuss them.

2.1  Amend current advertising rules to allow in-person or real-time electronic solicitation, with limited exceptions.

2.2  Amend current fee-sharing rules to allow fee sharing between lawyers and lawyer referral services, with appropriate disclosure to clients.

2.3  Amend current fee-sharing and partnership rules to allow participation by licensed paraprofessionals.

2.4  Clarify that providing access to web-based intelligent software that allows consumers to create custom legal documents is not the practice of law.

Now, that third sub-part creates a spoiler for another of the three Regulatory Committee recommendations – Implement Legal Paraprofessional Licensure.  Given the way those programs have played out to date in a number of other jurisdictions, I don’t think that is going to do much to turn any tides, so for now I’m going to pass on discussing it.  (If you want to delve into it, you can read all of thoughts of the Futures Task Force on that subject and the entirety of the 90+ page report behind the Executive Summary here.)

The fourth one – making clear that certain software programs that let someone through self-help generate customized legal documents — is a perfectly fine idea and, in this day and age, seems very difficult to argue against.  With each passing day, the notion that there are certain legal problems that states cannot allow be served through software programs that do for certain legal problems what tax return software programs do for income taxes seems harder and harder to justify.  But, I’m not sure that such a clarification is what is standing between better access to legal services for consumers and where things are today.  I tend to think that, in part, because those services already exist and are in pretty wide use because companies already make them available and consumers already use them.

The first one about changes to the advertising rules is most certainly a provision I would support (and have supported in past posts).  Virginia has just done something similar with its recent rule revisions.  But again, I don’t know that this change would be something that, as a response or solution to trying to improve public access to legal services, will make any real difference.  Why do I say that?  It is currently not at all very difficult to create an online platform in which it is the consumers that make the first communication effort so that lawyers can respond to it rather than initiate it.  As long as that is true, then lawyer advertising rules prohibiting solicitation do not present any barrier at all to getting consumers in need of legal services and lawyers with the time and ability to provide the services together.

That leaves the second subpart.  And that is the one where I suggest, respectfully, all the marbles are located for lawyers.

The notion of changing the ethics rules to allow lawyers to share fees in a particular matter with nonlawyers, as long as there is full, appropriate disclosure to the consumer of what is taking place.

The specific proposal Oregon’s Task Force has offered is for its current RPC 5.4(a)(5) that only references bar-sponsored or not-for-profit referral services to be revised to read instead as follows:

(a)  A lawyer or law firm shall not share legal fees with a nonlawyer, except that

***

(5) a lawyer may pay the usual charges of a lawyer-referral service, including sharing legal fees with the service, only if:

(i) the lawyer communicates to the client in writing at the outset of the representation the amount of the charge and the manner of its calculation, and

(ii) the total fee for legal services rendered to the client combined with the amount of the charge would not be a clearly excessive fee pursuant to Rule 1.5 if it were solely a fee for legal services, including fees calculated as a percentage of legal fees received by the lawyer from a referral.

That is an action that would, overnight, make pretty much every technological innovation already available (or even conceivable) viable for lawyers to participate in as a way of delivering legal services to consumers and businesses.  It would also allow many existing operators in the legal space to spend less time on trying to come up with workarounds about not being engaged in making referrals in their business model to try to assuage concerns that lawyers who use their platforms will be the subject of disciplinary complaints.

In short, that recommendation appears to me to the one that must be discussed and debated and decided on before any evaluation can be made about what any of the other ones might mean or accomplish.

If Oregon follows through, it seems difficult to speculate that one or more other states won’t follow.  And, if the experience of those states shows that full disclosure of the sharing arrangement, plus compliance with the other ethics rules requiring exercise of independent professional judgment and not allowing interference with that judgment, then it will seem very difficult for any jurisdiction to argue against doing the same.

It is inherently a controversial topic because the prohibition against fee sharing with nonlawyers is viewed by many as a bedrock principle of our profession.  But — if the underlying premise of that bedrock principle is restated as preserving the independent professional judgment of lawyers from undue influence by others — then the Oregon proposal that would allow fee sharing, require fulsome disclosure to the consumer involved about that arrangement could still readily be expected to serve that bedrock principle and protect consumers while benefiting consumers because – though not highlighted in the Report, RPC 5.4(c) would still be in force as well.

(c) A lawyer shall not permit a person who
recommends, employs, or pays the lawyer to render
legal services for another to direct or regulate the
lawyer’s professional judgment in rendering such legal
services.

Existing models of the online approach to pairing lawyers and consumers in need of legal services could almost all be placed into this bucket and, thus, lawyers using these services would still have maintain their independent professional judgment and refuse and resist efforts to compromise it.

What’s in a name?

For example, the folks behind the popular Radiolab podcast also launched a spin-off podcast last year about the U.S. Supreme Court called “More Perfect.”  The reason for naming it that, of course, is that it almost assuredly a reference to the famous line in the Preamble to the U.S. Constitution

But today it seems a funny/ironic name because the U.S. Supreme Court managed to make a pretty bad mistake that is being reported on now and that likely added some real stress into the life of a lawyer whose only crime was having almost the same name as another lawyer.

You can read about the story itself, and find links to other outlets reporting on the story, at the ABA Journal online, but the short version is that the U.S. Supreme Court intending to suspend and potentially disbar a Christopher P. Sullivan of Vermont instead suspended and issued show cause why disbarment should not occur to a Christopher P. Sullivan of Boston, Massachusetts.  The Vermont Sullivan’s middle name was Paul and he had already been disbarred in Vermont after being involved in a fatal automobile accident and pleading guilty to a DUI.  The Massachusetts Sullivan’s middle name is Patrick.

If you do the math, you will find that the Sullivan who was wrongfully sullied ended up with 15 days passing between being suspended and the U.S. Supreme Court fixing its mistake and reinstating him.  Presuming he was aware of and dealing with fixing the Court’s mistake, I imagine that was a long 2 weeks for that gentleman.

But, in terms of a larger lesson to be learned, I think the lesson is that we all need to be more deliberate rather than more perfect in what we do.  I can’t help but think that a more deliberate review of information on the Court’s part would have avoided the “mistaken identity” error in the first place.

I like to think that most errors I make are ones that, upon reflection, I could have avoided had I been more deliberate in the first place.  I reckon you might say the same about yourself, so …

A glimpse into the world of consumer-facing legal services providers

Yesterday, I had the pleasure of serving as a moderator at a CLE event in Nashville focused on developments in the world of consumer-facing legal services providers.  There are a world of companies – predominantly existing only online — that have an increasing presence in the lives of people in need of legal services and answers to their legal questions who, often otherwise, would not reach out directly to a lawyer to try to obtain help for their problems.

The full event was a 3 hour long seminar covering several topics, but the panel I moderated encompassed an hour of conversation with Bob Aicher of ZeekBeek, Matt Horn from Legal Services Link, and Dan Lear from Avvo.

Now, if you are reading this, you’re likely already familiar with the various aspects of Avvo’s footprint in the marketplace.  You may not know as much, however, about ZeekBeek or Legal Services Link.

In some ways, they do quite similar things but the approach is different.  Both operate as an online platform through which people in need of legal services can connect with lawyers who are willing to provide services.  ZeekBeek partners exclusively with state bar associations and, thus, in those states comes across as an entity that has the imprimatur of the state regulatory body and also — for a fee — provides its participating lawyers within a state a different platform for making referrals of work to other lawyers.  Legal Services Link monetizes its provision of a market place for consumers to ask questions and obtain legal advice and representation from participating lawyers by allowing lawyers to view questions for free but requiring lawyers who want to interact with the consumer by replying and answering their inquiries to pay an annual membership fee for that privilege.

While each of the three representatives had differing views on the topic of whether they versus those they compete with are able to do what they do in a way that the participating lawyers can be assured of compliance with the ethics rules, it was very interesting (though not surprising) to hear all three of them agree that the ethics rules that relate to their services are desperately in need of change.

It was a very interesting and engaging discussion.  The good news for you, if you are interested in checking it out, is that you can view the entire program by registering/purchasing it at this link from the TBA.  (As of now there is no way to just pay for the middle hour which was the program I moderated, but should that change I will update this post.)

 

(In)Famous Attorney Violates the First Rule of Holes

Rules of Holes.  Rule the First.  When you are in one, stop digging.

Now two things worth saying by way of preface, I guess, before further explanation.

First, I’ve dealt with my share of problematic lawyers over the years (so too probably have you), including the type that doesn’t know when to say when, so the subject of this post could theoretically be about lots of lawyers but it happens to be about a lawyer I have certainly never met before.  He is (in)famous though and if you’d like to know more about his background than just what you can glean from the scathing opinion of the Ninth Circuit we’re about to discuss, you could try his Wikipedia page.

Second, I’ve never been denied pro hac vice admission before so I can’t definitively say it would be easy for me to live with such an outcome.  It’s the kind of thing you have to disclose on all sorts of forms for the rest of your legal career, but I’d like to think that I’d navigate the situation better than the story about to be told.

With that out of the way, attorney Larry Klayman, having already been denied pro hac vice admission in federal district court in Nevada and having already unsuccessfully appealed that ruling to the Ninth Circuit (840 F.3d 1034 (9th Cir. 2016)) and having unsuccessfully asked the U.S. Supreme Court to weigh in, is back in the limelight with a new ruling from the Ninth Circuit on March 30, 2017, denying his “emergency” petition for a writ of mandamus to be permitted to represent Cliven Bundy, a pretty infamous character himself.

Literally, one week after the Supreme Court opted not to hear him, Mr. Klayman filed an emergency writ – ostensibly contending that he was speaking for Bundy — saying there were “fundamentally changed circumstances that underscore [his] compelling need to have a full legal defense team, including Klayman, ready and able to represent him at trial.”  The first part of how irregular this would be is immediately explained by the Ninth Circuit as follows:

First, Klayman purports to be representing Bundy in his request for a writ of mandamus,  Bundy has counsel of record, Nevada attorney, Bret O. Whipple.  Whipple, however, did not sign the motion, file an affidavit, or otherwise join in any way Bundy’s latest motion.  Indeed, Bundy, in his reply filed on March 23, explains that his current attorney refused to file a new pro hac vice application on behalf of Klayman because Whipple did not want to “tarnish his reputation.”

That’s kind of a record-scratch moment for most attorneys.  If your local counsel believes that participating in your efforts would tarnish their reputation . . . well, some soul-searching would seem to be in order.

The Ninth Circuit pointed out an additional procedural problem with claiming that there were new emergency circumstances but not first going back to the district court thus recognizing that the writ of mandamus is effectively requesting relief because the district court did not sua sponte decide to change its mind on Klayman’s admission, but then quickly proceeds to the “merits” of the motion in a blistering example of laconic understatement:

So construing Bundy’s motion, and because the district court and government filed answers to the petition, we will proceed to the merits.

There are no merits.

I mean, ouch.  Right?  The Ninth Circuit did go forward though to explain in more detail that none of the three claims of supposed “changed circumstances,” were anything of the sort.

Along the way, the Ninth Circuit said a few further things that, I think, actually do justify focusing on this ruling as being something other than piling on the lawyer at the heart of it.

Among the reasons Klayman offered as being the emergency requiring mandamus was that Bundy’s existing Nevada counsel of record somehow did not have any federal trial experience.  The short version of the Ninth Circuit’s rejoinder to that allegation was:

The assertions made by Bundy about his counsel are demonstrably false.  Either Klayman has failed to ascertain the facts by, for example, talking with Whipple or looking at Whipple’s website, or he has deliberately misled this court.  Neither option paints Klayman in a good light.  At best, Klayman has shown such a casual acquaintance with the facts that he is guilty of at least gross negligence in his representation to this court.

The Ninth Circuit went on to explain succinctly, but positively, the extensive federal criminal experience of Mr. Whipple.  In so doing, it dropped in a footnote one of the points that makes this whole endeavor worth writing about.  A point that lawyers need to bear in mind when they think about the role of technological competence in their practice:

This court had little difficulty confirming most of these facts from Whipple’s website, his LinkedIn account, and PACER. . . .That Klayman, evidently, failed to use the most primitive modern tools to verify his serious accusations that counsel of record was not qualified is inexcusable.

When websites and LinkedIn accounts are referred to by a federal Court of Appeals as among “the most primitive modern tools,” lawyers need to take note about what that can mean for their practice in a variety of respects.

The second point that is worth noting over and above how it relates to Mr. Klayman himself is the interplay between the Sixth Amendment right to counsel and the ability to impose rules on pro hac vice admission.  One member of the Ninth Circuit did dissent from this ruling, on the same grounds for dissent from the prior appeal of the pro hac vice denial – Bundy’s Sixth Amendment right to counsel.  This point is addressed by the Ninth Circuit in a footnote as well and that seems hard to argue with:

We do not evaluate constitutional rights in a vacuum.  Bundy may add whatever counsel he wishes so long as they satisfy Nevada’s minimal pro hac vice rules.  Klayman has not satisfied those rules, so Bundy will have to look to other Nevada-qualified counsel to aid his defense.

 

 

North Carolina – Good intentions leading to a pretty seemingly bad rule.

So North Carolina has got quite a bit going on these days.  Last night UNC won the NCAA Men’s Basketball championship.  A few days ago, its general assembly kind of, sort of, repealed the bathroom bill that brought it much negative publicity and cost it some sporting events.  And, in March 2017, it adopted a first-of-its-kind ethics rule that seeks to require all lawyers — not just prosecutors — to reveal any evidence of the innocence of someone that comes into their possession after the person has been convicted.

Tennessee, I am proud to say, is among the “Sweet Sixteen” of other states that have adopted the ABA Model Rule 3.8(g) and (h) language that imposes this kind of duty upon prosecutors, but North Carolina’s act of going further to say that all attorneys have this obligation — at a mandatory level and when not doing so could somehow lead to discipline — seems very misguided to me.

Now because this is being written on the Internet, and because taking things out of context and ascribing intents and beliefs not intended to things written on the Internet is pretty much a sporting event itself these days, I feel beholden to make the point that — obviously I am not in favor of anyone being convicted of a crime they didn’t commit and I very much count myself in the category of folks who agree with the “it’s better that 10 guilty people be set free than 1 innocent person be imprisoned” line of thinking.  Also, I absolutely think that if an attorney comes across solid evidence that would indicate someone has been convicted of something they didn’t do, then an attorney ought to be encouraged to try to do something about that.

Nevertheless, I am not at all a fan of the idea of constructing an ethics rule that would require a lawyer to do so on pain of discipline.  Not even in the abstract because the architecture of such a rule would have to weigh in the balance too many other ethical obligations a lawyer might have that would compete.  I’m also not a fan of North Carolina’s specific effort to do so — North Carolina RPC 8.6 — which actually does attempt to  balance those competing obligations and in so doing, I think, actually proves the inherent pointlessness of this line of proposed rulemaking.

So, step by step, here is black-letter of North Carolina’s Rule 8.6.  The first paragraph establishes the initial scope of the duty.

(a) Subject to paragraph (b), when a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted, the lawyer shall promptly disclose that evidence or information to the prosecutorial authority for the jurisdiction in which the defendant was convicted and to North Carolina Office of Indigent Defense Services or, if appropriate, the federal public defender for the district of conviction.

So, as a starting point, this duty would override obligations of client confidentiality that would otherwise require a lawyer to remain quiet.  But obviously that creates some problems.  So, the next paragraph carves out exceptions to the obligation.

(b) Notwithstanding paragraph (a), a lawyer shall not disclose evidence or information if:

(1) the evidence or information is protected from disclosure by law, court order, or 27 N.C. Admin. Code Ch. 1B §.0129;

(2) disclosure would criminally implicate a current or former client or otherwise substantially prejudice a current or former client’s interests; or

(3) disclosure would violate the attorney-client privilege applicable to communications between the lawyer and a current or former client.

So, the exceptions still do not allow Rule 1.6 concerns to prevent disclosure (unless, I guess, breaching certain 1.6 client confidences would be considered “otherwise substantially prejudic[ing] a current… client’s interests”), but the exceptions to protect the subset of Rule 1.6 communications that would also be protected as attorney-client privilege and protect a lawyer in the event that complying with Rule 8.6(a) would require them to put one of their own clients or former clients in jeopardy of criminal prosecution.  Thus, Rule 8.6(b) essentially makes certain that Rule 8.6(a) will not apply to the most reasonably likely scenarios in which any lawyer who isn’t a prosecutor is going to learn of information indicating that someone has been wrongfully convicted.

The next paragraph, for good measure, also provides the same kind of “good faith”/exercise of professional judgment safeguard in place for private lawyers that Rule 3.8 provides for prosecutors:

(c) A lawyer who in good faith concludes that information is not subject to disclosure under this rule does not violate the rule even if that conclusion is subsequently determined to be erroneous.

The final paragraph then proceeds to make clear that no duty to disclose arises when the lawyer knows that the right people essentially already know.

(d) This rule does not require disclosure if the lawyer knows an appropriate governmental authority, the convicted defendant, or the defendant’s lawyer already possesses the information.

So, in the end, and as Professor Bruce Green is quoted as saying in a few of the news articles about the development, “it carves out so much that it’s hard to known when it will apply.”  I think that’s a kinder way of saying:  Other than whatever encouraging effect it might have on some small set of lawyers who wouldn’t otherwise step up and do the right thing to let authorities know about something if doing so wouldn’t violate their duty to another client or former client, this rule is not really going to accomplish much and is probably largely unenforceable.

And while that encouraging effect might be a laudable goal, pursuing it through this kind of rule seems the wrong way to go about it.  If you are truly going to insist on something like this in a jurisdiction, it would be better pursued as a purely aspirational rule.  We already have one of those with respect to the obligation to do pro bono.

It doesn’t all even out in the Walsh.

Selecting just the right item to write about is not easy.  This is not going to be an instance of accomplishing it.  This is going to be an instance of writing something just because I truly find the outcome astounding (or at least I found the outcome astounding when I first read a blurb about the situation, but now having read the full Court opinion I’m less astounded).

A little less than a week ago, the Wisconsin Supreme Court released an opinion in which it accepted a lawyer’s effort at consenting to the revocation of his law license.  An outcome that is, as I understand Wisconsin procedure, technically not a disbarment, but also not quite the same thing as the surrender of a law license that we have here in Tennessee.

The headlines/blurbs I encountered as a first way of hearing about the story were of the Law360 variety — Atty’s Scanty Records Preclude Client Repayment, Court Says.   The disheartening takeaway one gets from reading that story reporting on the opinion is that a lawyer got away with trust account malfeasance by failing to keep the records that would be necessary to prove up the wrongdoing.  Knowing how tough disciplinary authorities can be on trust accounting violations, this was one where I had to find the time to read the actual opinion.

You can do so right here.  If you want to do so right now, I’ll wait until you get back.

Ok.  So now that you’ve read it too, what about the one client and his $1,500?  The second part of the complaint/investigation?

Attorney Walsh agreed to represent O.B. in attempting to have his felony convictions expunged or to seek a pardon for those convictions.  According to his fee agreement with O.B., Attorney Walsh accepted an advanced flat fee of $1,500 at or near the time of entering into the representation and deposited the advanced fee into his law firm’s business account.  Attorney Walsh claimed to the [Office of Lawyer Regulation] that he had done work on O.B.’s behalf and was able to describe some of that work.  According to the OLR’s summary Attorney Walsh promised O.B. in July 2015 that he would be following up on a lead that required research, but warned that O.B. would likely be out of luck if the research did not yield favorable results.  Attorney Walsh, however, failed to communicate the results of his research to O.B.  He then failed to provide O.B. with any of the notices that were required when an attorney placed an advanced fee into the attorney’s business account and utilized the alternative advanced fee procedure outlined in [a particular Wisconsin rule].  Indeed, Attorney Walsh failed to provide O.B. with a final accounting that showed how he had earned the $1,500 flat fee.

For a while I thought I could manage to work through the giant, headline-grabbing angle given that none of the clients associated with any of the things involving fluctuations in the bank records contend they are out money and since there weren’t sufficient records available to truly prove what was what, the Wisconsin disciplinary counsel opted not to seek restitution.  so while not quite “no harm, no foul,” but “definitely a foul, and he’s offering to give up his license without a fight so we’ll just take it and be done with it.”  Though it does appear that the lawyer first tried an approach that would be more like Tennessee’s law license surrender approach by first filing a petition for the voluntary resignation of his license.  Like surrender here, the existence of a pending disciplinary investigation can thwart that in Wisconsin so he tacked to filing a petition for consensual revocation.

But, there was at least that one client standing right there in these proceedings saying that they were out $1,500 as a result of this character.  How could the Wisconsin disciplinary counsel not pursue getting that person their money back?  And how could the Wisconsin Supreme Court manage to shrug its shoulders at that outcome?

Similarly, given the lack of billing records, the [Office of Lawyer Regulation] cannot determine with any reasonable certainty that [the client] should receive a refund of any particular amount of his advanced fee from Attorney Walsh.

Talk about the opposite of a “tie goes to the runner,” kind of ruling.

Which leads me back full circle to being astounded at that outcome up Wisconsin-way.  It’s an outcome that sends a really clear – but unfortunate – message to Wisconsin attorneys that are truly willing to just disregard obligations — make sure you don’t keep records as well.

That’s not a Rule 8.4(c) violation. THAT’s a Rule 8.4(c) violation.

In February 2017, more than a dozen law professors filed an ethics complaint against Kellyanne Conway, Counselor to the President, alleging that she violated the attorney ethics rules applicable in D.C. through several false public statement she made — most notably, her repetitive statements about a terrorist incident that never actually occurred – the “Bowling Green Massacre.”  Now, many people were not aware of the fact that Ms. Conway is an attorney — she doesn’t work as an attorney in the present administration.  (In fact, her D.C. law license is already administratively suspended.)  The core rule that the professors contend Ms. Conway violated is Rule 8.4(c) which makes it a violation for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Unlike many other ethics rules, Rule 8.4 does not contain language limiting its scope to when “representing a client.”  While I am not a fan of Ms. Conway, I very much disagree with the notion that her public statements in her political role are the kind of conduct to which Rule 8.4(c) should be applied.  A reporter with The Blaze was kind of enough to let me comment in an article about the ethics complaint against Conway where I elaborate more fully on why I disagreed.  You can read the article with, including my extensive comments, here.

Now, I feel compelled in fairness, instead of just knocking something down the opinion of others, to try to offer a good example of lawyer conduct that I think would fit as a Rule 8.4(c) violation but that doesn’t involve representing a client.

So, let me try a scenario.

Say you are a lawyer, and you are undergoing a job interview.  If you lie in response to questions that are important to whether or not you get the job, that would be fodder for a Rule 8.4(c) violation.  Or, maybe to make the violation even more palpable (if not clearer), let’s say you are seeking a public job.  Perhaps, a really high-profile one, involving the government.  And you lie during your job interview or on the application you have to submit for the position as part of a background check.  That would definitely trigger Rule 8.4(c) in my view.

Heck, while I am just freewheeling on this whole scenario, let’s really ramp up the stakes.  Let’s go with an attorney position in the federal government where your appointment has to be confirmed by the U.S. Senate.  And, let’s say you lie in response to written questions posed to you by a Senator or you give a false and misleading response to a Senator’s question during a confirmation hearing or, gosh, maybe you do even both of those things.  That would definitely be a Rule 8.4(c) violation.  And, given that there would be also be lying under oath involved and lying to Congress involved, Rule 8.4(b) would actually come into play as well.  That’s the rule that prohibits a lawyer from “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

So, yes, that would to me be a very solid foundation for multiple Rule 8.4 violations.  And, in my scenario, the lawyer engaged in dishonesty, deceit, and misrepresentations would not even have to have been undergoing the job interview to be the Attorney General of the United States, but if it helps to put flesh on the bones of the hypothetical to think I was talking the whole time about the current U.S. Attorney General then, well, have at it.

[And, as to the title of this post, you’re going to have to read that title in a Paul Hogan as “Crocodile Dundee” Australian accent.  And if you aren’t familiar with him or that movie, it was a lot more popular back in 1999 when Mr. Sessions said this to explain his vote to impeach a different President of the United States.]

Can lawyers learn anything from the ending of the Academy Awards?

Well, of course, they can.  Or at least that is the conceit I’m going to stick to in order to write this post about a lawyer’s obligation to talk to their client about mistakes and make it seem topical and culturally relevant.

By now, unless you live a very, very cloistered life you’ve at least heard about the unprecedented and crazy ending to this year’s Oscars.  Many of you, like me, were watching it as the event unfolded with Bonnie and Clyde as the presenters for the Best Picture award to end the night, Clyde opening the envelope, noticing something wasn’t right, being reluctant to say anything, and then showing to Bonnie… who then blurted out La La Land.  After that all of the folks associated with that film, made their way up to the stage and one of them began giving an acceptance speech.

Meanwhile, in the background on stage, people associated with the broadcast in some fashion are disseminating information somewhat frantically and, quickly, it falls upon one of the members of the La La Land team — incredibly graciously — to speak out and let the people responsible for the film Moonlight, that they have actually won Best Picture and not the film that was announced.  It is then stated out loud by one of the La La Land contingent that this is not a joke and the card reflecting Moonlight as the Best Picture winner is revealed.

As the Moonlight folks make their way to the stage, Clyde then proceeds to explain what had happened, that he had noticed something was wrong, wasn’t trying to be funny, but then when he showed to Bonnie, Bonnie announced La La Land as the winner of Best Picture.

The folks on behalf of Moonlight then did get to make an acceptance speech and then the host of the program, Jimmy Kimmel, said words to the effect that “he knew he’d screw this show up” and that they wouldn’t have to invite him back.

While it was a pretty atrocious moment for all involved, it made for really amazing television.  We have all now learned through media reports and from its own statement to the press that the most culpable in the creation of the mistake were folks with the accounting firm which tabulates the votes, keeps the results confidential, and distributes the votes.  We’ve also now learned that a two-envelope system that actually makes some pretty good logistical sense with all the “stage right” and “stage left” of the theater created an entirely unnecessary risk in terms of handing over a wrong envelope.

But, and here I go with the conceit, this incredibly high-profile event also teaches several great lessons about mistakes that anyone can take to heart, including lawyers — ways to be more likely to avoid mistakes, ways to deal with mistakes once made, and lessons not limited to being about mistakes — but before laying those lessons out, it is important to stress something about when a client is negatively impacted by a lawyer’s mistake.

Under the most reasonable reading of the rules of ethics, a lawyer in any jurisdiction that has a rule analogous to ABA Model Rule 1.4 has an ethical obligation — when a mistake of real significance has been made by the lawyer in a matter –to communicate what has transpired to the client.  Lawyers who don’t realize the ethical obligation though can have self-interested reasons for promptly telling a client about a mistake — to establish a clear time-frame for a statute of limitations on any claim against the lawyer by a client to begin running.  This is a particularly prudent course to take in a jurisdiction like Tennessee where there is a relatively-short statutory period and where precedent establishes that the time for a suit is not tolled merely because the lawyer continues to represent the client.  Thus, in addition to being a requirement of the rules, a lawyer who has committed an error in the handling of the case could most certainly see her way to figuring out that communicating about it quickly to the client, particularly if a simultaneous reasonable plan for correction can be communicated as well, is the right thing to do from a purely personal, selfish standpoint.

The lessons for lawyers?  I think there are, at least, six of them that can be learned from Sunday night.

One.  How to acknowledge a mistake:  The accounting firm did it exactly the right way – complete candor, no hedging, and with a true sense of contrition.  Here was the first statement made early the morning after the Oscars:

“We sincerely apologize to ‘Moonlight,’ ‘La La Land,’ Warren Beatty, Faye Dunaway, and Oscar viewers for the error that was made during the award announcement for best picture. The presenters had mistakenly been given the wrong category envelope and when discovered, was immediately corrected. We are currently investigating how this could have happened, and deeply regret that this occurred.

“We appreciate the grace with which the nominees, the Academy, ABC, and Jimmy Kimmel handled the situation.”

In subsequent media communications explaining the two-envelope procedure and who was where and did what, the United States Chairman of the accounting firm has continued to give accounts that are straight-forward and apologetic without attempting to deflect any blame.  (Lawyers should remember though that you are going to need to make sure you have the client’s permission to speak publicly if that becomes necessary about your mistake because of the constraints of client confidentiality under Rule 1.6.)

Two.  Don’t be the guy publicly throwing someone under the bus:  Clyde.  The whole “let me further interrupt these poor people from getting to have their moment by making sure everyone knows that as between me and Bonnie, Bonnie deserves the blame” is a bad look.

Three.  Make sure you’ve actually made a mistake before saying you screwed up:  It is particularly important for lawyers not to do what Jimmy Kimmel did and start taking responsibility for an error if you truly weren’t involved. Kimmel was surely trying to be gracious in the situation, but lawyers can be quick to describe things they’ve done in an overly critical way — and if they do so publicly or hastily in an email — those words can come back to haunt in a deposition even if the self-castigation was unwarranted.

Four.  Trust your gut instincts:  Clyde’s gut was actually correct.  He was smart enough to know that “Emma Stone” is not the name of a movie, but he didn’t trust his instinct enough to make more control of the situation than he did by saying out loud that he had been given the wrong envelope.  Had he done that, so much of this could have been avoided.

Five.  Think before you act:  Looking at you Bonnie.

Six.  How to be more likely to avoid mistakes in the first place?  Pay attention – the job of an attorney is important.  This lesson comes about as the pieces have been better put together and it appears that the particular employee of the accounting firm that handed over the wrong envelope had pretty closely in time before that screw up been taking a photo of Emma Stone after she won Best Picture.  And posting it to his Twitter.  A Tweet which he subsequently deleted, but which others got a screen capture of and saved so it can still be viewed on the Internet.