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.

Friday follow up: undo the good and just leave the bad.

So, not quite six weeks ago, I wrote about a development from Tennessee that was something of a mixed bag.

Our Board of Professional Responsibility put out a proposed Formal Ethics Opinion for public comment that, in my opinion, was not a good opinion fraught with quite a number of significant flaws. (If you missed that post, you can check it out here.)

The substance of the draft was the bad part of the bag. But, for the first time under a new policy, the Board actually put a draft opinion out publicly for comment prior to formally adopting it. That, of course, was the good stuff in the bag.

Presumably, the Board’s rationale for putting the draft FEO out for comment was to give itself an opportunity to receive feedback before making a final decision about whether to issue the opinion as-is or at all or in some revised form. As the prior post indicated, the deadline for the submission of public comments was April 10.

Cut to earlier this week on April 23. That was the date that the Board put out the Spring 2019 edition of Board Notes. It is a semi-annual publication which is a collection of a lot of things, including reports on discipline, statistics about the handling and processing of cases, articles about rule changes or other items of interest, and occasionally formal ethics opinions that have been adopted since the prior issue of Board Notes.

But while Board Notes is a valuable resource, it is something that most folks only receive by way of an email and that a significant number of people pay no attention to whatsoever. (So, in a lot of ways, it is like this blog, except for the receiving it by email part.)

Without any fanfare or explanation, Formal Ethics Opinion 2019-F-167 was included in Board Notes. That was how Tennessee lawyers had the chance to first learn that the draft FEO put out for public comment had now been adopted. (Actually, if you received but have deleted the email, or if as is pretty statistically likely you are not a Tennessee lawyer, you can always go here at the Board’s website to read issues of Board Notes.)

If you are a diligent reader of all of the links, you will see that Formal Ethics Opinion 2019-F-167 has been adopted without change from its draft form.

Now, perhaps the Board received overwhelmingly positive feedback from the bar on the draft opinion and so felt confident that it got it right. Or maybe it received very little feedback about the draft opinion and decided it probably got it right and no one really cared either way.

At this point, it is impossible to know because there is nowhere on the BPR website or anywhere else that the bar (or the public) can go to presently to see what public comments were received about the opinion.

I happen to know that the Board received at least one comment – a negative one – and that it came from lawyers who actually do focus their practice on defending products liability cases because they shared a copy of the comment they sent in with me. The substance of their concerns made me feel a lot better about the thoughts I shared because they were able to more cogently point out the nature of the evidence that actually does matter in a products liability case. (They also happened to be lawyers who practice in other offices of my law firm, which I mention for the purposes of transparency.)

Perhaps, ultimately, the Board will make the comments received on the draft FEO publicly available somewhere. I hope so. Otherwise, if there won’t be transparency in terms of the bar’s reaction to proposed opinions, then there really isn’t much positive about even putting them out for comment in the first place.

In fact, there is real institutional downside for the Board in leaving members of the bar wondering whether the Board does not actually care about evaluating the feedback it receives on its proposed opinions.

If the Board isn’t going to make the comments it receives available for the bar to read, then it likely should not go to the trouble of putting drafts out for comment in the first place.

If the Board simply intends to plow forward with draft opinions regardless of perceived flaws, then it definitely should just scrap the whole endeavor.

One thing that lawyers and judges have in common.

People often think of lawyers and judges differently.  And, to a large extent, they should.  In almost every situation, someone cannot become a judge without having been a lawyer first.  But once a lawyer transforms into a judge, their role in the judicial system becomes radically different and they now have a new set of ethics rules to which they have to comply.

Yet, lawyers who become judges are still human beings and lawyers who become judges can be plagued by some of the same flawed aspects of being human as lawyers who never become judges.

This post for your Friday wants to offer up 4 very recent examples – 2 involving lawyers and 2 involving judges – of human beings all demonstrating the same variation of a common flaw:  Not knowing when to simply not say stupid things out loud (or in digital format).

On back-to-back days earlier this week, The ABA Journal online had stories about two different lawyers (who likely would have hit it off if they knew each other) getting in trouble for communications to or about clients that were roughly equally ill-advised although they involved the use of two different means of electronic communication.

The first was a New Jersey lawyer who has now been publicly censured over a text communication to a criminal defense client.  The client in question had ceased paying the lawyer and the lawyer had tried on two occasions to be granted leave to withdraw but was unsuccessful as the court denied the withdrawal motions.  Despite being stuck with having to pursue the representation (or perhaps because of it), the lawyer sent a text to his client that the ABA Journal described as follows:

In a text, Terry told the client he wouldn’t prepare in the weekend before the trial without getting paid first. Then he wrote, in all capital letters: “HAVE FUN IN PRISON.”

That text ultimately did manage to get the lawyer out of the case as the client showed it to the judge and the judge then removed the lawyer as counsel.  But it also resulted in the public censure.  At core, the ethics rule the lawyer was deemed to have violated was a conflict of interest rule by placing his own personal interest in getting paid ahead of his obligation to diligently represent the client.

The second was an Iowa lawyer who allowed himself to get too worked up on Facebook — enough to publicly disparage a client.  While, as things currently stand, the lawyer has only been the subject of negative publicity, it remains a real possibility that a disciplinary proceeding could be part of the lawyer’s future.  The ABA Journal treatment of the core of what happened is pretty succinct so I’ll just offer it up for your reading:

In the post, Frese told of a meeting to help prepare a client for trial on federal drug and gun charges. The client told Frese he would have a hard time connecting with blue-collar jurors because he hadn’t “had to work for anything in your life.”

Frese wrote that he was “flabbergasted” by the comment because anyone who knows him is aware of his modest background. Frese wrote that the man is an “idiot and a terrible criminal.”

“He needed to shut his mouth because he was the dumbest person in the conversation by 100 times,” Frese wrote. “You wonder why we need jails huh?”

The lawyer deleted the post in question after he was contacted by the Associated Press about it.  The article points out that the AP was able to piece together from what was written exactly who the lawyer was talking about even though the lawyer didn’t use the name of the client in the post.  The Iowa lawyer’s story highlights one of many reasons why lawyers shouldn’t be writing about their client’s matters without express and clear consent from their client.  Of course, technically, the lawyer made the situation even worse by what it is reported that he said to the AP when contacted:

Frese told AP that he told the client he was in jail because he was terrible at what he did, and they left the meeting on good terms. He didn’t immediately respond to a voicemail from the ABA Journal seeking comment.

On the judicial front, Law360 had two examples reported on the same day of judges demonstrating problems with communications as well.  One of the judges in question also hails from New Jersey.  That judge, as Law360 explained, was censured for inappropriately making certain when communicating to court staff about his own personal child support case to emphasize his status as a judge.  This came across as an obvious attempt to use his judicial office to achieve special treatment.  The other judge highlighted in Law360 this week ended up later engaging in actual conduct that was much worse than the original communications but still also managed to allow the ready access of text messaging to start him down the bad path.  As with most Law360 articles, you will need a subscription to read the full article, but you can get a strong sense of the Jeopardy category of wrongdoing from the opening blurb which explains the circumstances for which he was now offering an apology to a state ethics body in an attempt to avoid discipline:

An ex-Pennsylvania judge facing discipline for exchanging sexually explicit text messages and eventually sleeping with the girlfriend of a man participating in a court-mandated rehab program he oversaw ….

These are, unfortunately, not earth-shattering examples of “new” problems in the human condition.  They do though tend to highlight how much easier modern technology makes it for well-educated professionals to somehow make really poor judgment calls when technology makes it easy to do so and to do so rapidly.

 

Client Number Three – Seven lessons learned

I can’t believe I’m doing this as neither of these people deserve any benefit of the doubt or serious treatment afforded for their contentions.  But, based on spending time on the web reading comments (despite the always-spot-on advice “don’t read the comments”), there are so incredibly many people who do not understand these concepts and, thus, yesterday’s events do present a good teachable moment about privilege and confidentiality.

Lesson the 1st – it can never be said too many times that the concept of, and the scope of, attorney-client privilege and the ethical duty of client confidentiality are different.  Attorney-client privilege is an evidentiary concept and a privilege with respect to testimony and compelled production of communications in connection with litigation.  Client confidentiality is an ethical duty that imposes shackles on lawyers with respect to voluntary disclosure of information about clients or information about the representation of clients.  If you are familiar with Venn diagrams, then you can think of attorney-client privilege as a smaller circle within the much larger circle that is confidential client information under Model Rule 1.6 and its state analogs.  Client confidentiality is also different because while it imposes real restrictions on attorneys voluntarily disclosing information, it can fall to a court order requiring disclosure.  (See, for example, Model Rule 1.6(b)(6)).

Lesson the 2nd – both privilege and confidentiality will adhere to communications between an attorney and a prospective client during conversations or written communications while deciding whether or not to form a relationship.  Under the ethics rules, most states have adopted a specific rule to drive this point home patterned after Model Rule 1.18.  New York’s version of that rule reads, in pertinent part, as follows:

(a) Except as provided in Rule 1.18(e), a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Lesson the 3rd – the identity of a client, though rarely a piece of information that is itself privileged, is always confidential information under the ethics rules.

Lesson the 4th – if a prospective client communicates with an attorney in order to see if they might want to form an attorney-client relationship, those communications should not involve the actual giving of legal advice to the prospective client.  If they do, then the person is not a prospective client anymore because they have now become your client even if only for a limited time period.  If a person asks you for legal advice, and you have given them the legal advice they asked for, then they are your client.  (A much more pedestrian way this can be a problem for lawyers is along these lines:  A lawyer who decides not to take on a plaintiff’s case because the lawyer has concluded that the statute of limitations on the claim has run and the lawyer tells the plaintiff that conclusion.  The lawyer turns out to be wrong about that conclusion, but the plaintiff relies on the advice, later realizes that it was wrong, and then sues the lawyer for malpractice.  Lawyer is going to be unable to defend the malpractice claim on the basis that they were not the plaintiff’s lawyer because they gave the plaintiff legal advice.)

Lesson the 5th – you don’t have to pay a lawyer any money at all to be a client.  Communications can be protected by the attorney-client privilege without respect to whether any money ever changes hands.  And, most certainly, client confidentiality adheres without regard to payment to the lawyer.

(NB: Here endeth the legal ethics lessons.  These two bonus lessons are not about legal ethics.)

Lesson the 6th – there is no point in discussing journalistic ethics when talking about Client Number Three.  He ain’t a journalist.

Lesson the 7th – if a lawyer with only two clients takes on a third client and the common subject-matter of representation of the other two clients involves facilitating hush money payments regarding sexual improprieties, you don’t have to be Sherlock Holmes to begin to think you know the kind of services the third client was seeking.

 

 

“No. No you’re not.”

So, you may recall back in October 2017 I had an itch and intended to write about a lawsuit in Pennsylvania that would fit in with the recent (seemingly) increased willingness of lawyers to sue other lawyers over their ads, but since I was beaten to the punch, instead I gave you a pointer to a very good piece somewhere else about it.

If that doesn’t ring bells, you can go see that again here.

I bring that lawsuit against a firm with a significant presence here in Memphis, Morgan & Morgan, again because there has been a new development.  And, particularly, a new development that talks about something that has always bounced around my brain when I hear a particular advertisement in that firm’s stable.

First, the recent development in that lawsuit, where a local Pennsylvania law firm sued Morgan & Morgan saying that its advertising was false and deceptive because, among other things, Morgan & Morgan only has one lawyer located in Philadelphia who is claimed by the plaintiff in the suit to have little experience handling personal injury litigation.  The federal district court has declined to dismiss one aspect of the lawsuit – the allegation that the founder of Morgan & Morgan, John Morgan, is lying when he says in an advertisement that he is “your lawyer.”

Now, why this strikes me in a way I find so interesting.  Nearly every time I have heard the line in a particular radio advertisement it has struck me as such an unwise, and unnecessary, thing to say from a legal ethics standpoint.

The line is this:  “Remember this, I’m not just a lawyer.  I’m your lawyer.”

It’s a nearly Pavlovian reaction for me at this point – I hear that, and I say (out loud if I’m alone or just in my head if there are people around):

“No.  No, you’re not.”

And, then, my mind wanders a bit down the path of mulling why that statement in that advertisement feels like such an unnecessary, “own goal” kind of thing to do to yourself.

Your firm has a giant plaintiff’s practice.  Your firm is going to have lots of people make appointments and undergo consultations, and your firm is going to turn a lot of those people away.  Sometimes it might be for conflicts reasons, sometimes it might be because you don’t think they have a case worth your time.  But, either way, you’ve unnecessarily opened yourself up to, at the very least, a disciplinary complaint from someone who claims you broke your promise and violated RPC 7.1 since you actually said you were their lawyer.

Admittedly, that isn’t the exact line of thought used by the federal judge in the Pennsylvania litigation — rather, it is the notion that . . . well, let me simply quote the Court instead of interpreting:

Rosenbaum alleges John Morgan, an attorney with Morgan & Morgan, appears in advertisements stating “I’m your lawyer” and describing “himself to the consumer as a trial lawyer with over thirty years of experience” which “convey[s]” the message John Morgan and Morgan & Morgan will handle the prospective clients’ claim.  Rosenbaum alleges, in reality, John Morgan is not licensed to practice law or to legally represent clients in Pennsylvania but the advertisements do not advise prospective clients of this fact….

Accepting as true Rosenbaum’s allegations, John Morgan’s statement “I’m your lawyer” may be literally false or have the tendency to mislead viewers into believing John Morgan, himself, will represent them….

If you’d like to read the full opinion which dismisses much of the Lanham claims, you can read it here.

That part is interesting and could, of course, be argued over and thoroughly parsed since the principals of imputation of conflicts and other matters would make the statement arguably truthful in the event that someone hires the firm, at least.

But, my qualm is the importance of that italicized language right up there.  My qualm remains true even for jurisdictions in which the lawyer making the claim is licensed.   I remember doing quite a few seminars many years ago that were focused on trying to help lawyer not accidentally end up with client they didn’t want because they were not clear enough in communicating to someone that they were not their lawyer.  (There is even a now-quite-long-ago law review piece on the topic that is very good called “Accidental Clients” written by Susan Martyn.)

Admittedly, I’m not an expert in legal marketing but it still strikes me as such an unnecessarily dangerous and damaging statement that is far-too-readily capable of being characterized as false and misleading to a consumer of legal services and far-too-difficult to characterize as the kind of “puffing” that should be treated as meaningless.

Your mileage may vary, of course.

 

Where are we when even ABA Ethics Opinions are marketed with a “clickbait” approach?

So, as promised (and even though there have been even further developments down in Florida), today I am writing about the latest ABA Ethics Opinion and whether it might provide any solace and protection for a lawyer who is being dragged by a former client online and wanting to defend herself by responding online to try to set the “record” straight.

The ABA Ethics Opinion in question is Formal Op. 479, and the answer is “no, no it doesn’t.”

Before I elaborate on that, I really do want to vent a bit (hopefully without sounding too much like Andy Rooney because I’m only 44) about the way people rolled out the release of this ethics opinion.

The ABA Journal online gave it a headline reading: “Can news on social media be ‘generally known’?  ABA Opinion considers confidentiality exception”

This then was, of course, picked up in other places, Law360 went with “Social Media Can Create Confidentiality Exception, ABA Says.”

Then I saw some lawyers on social media (lawyers who certainly should know better since they were actually involved in the opinion itself) teasing the opinion in a similar fashion.

If you actually read the opinion, you wonder what in the world anyone was even talking about.  The term “social media” does appear in the opinion.  Once.  On p. 5, in this sentence, “Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media.”

That is not a groundbreaking statement of any sort.  It’s common sense.  It also is nowhere near the actual, helpful or relevant, takeaway of the opinion.

The takeaway of the opinion is clearly the following (forceful) reminder about how stark the obligation of lawyers to protect confidential information about even a former client is:

Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.  Information that is publicly available is not necessarily generally known.  Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).

Don’t get me wrong.  It is actually a really good ethics opinion, and it gives timely advice that lawyers need to take to heart to make sure they stay in compliance with their obligations.  It’s just a shame it was rolled out with a “click-bait and switch” message.  We’d all have been better off if it had been rolled out with the headline:  “ABA Opinion reminds lawyers that just because information about a former client has been publicized doesn’t mean it is ‘generally known.'”

And, to actually deliver on my promised topic, here’s why nothing about this opinion is going to help any lawyer who finds herself in a situation where a former client has posted something, somewhere disparaging the lawyer in a way that the lawyer thinks is unfair and she wants to respond to clear up the record by disclosing other information about the representation that puts it in context: the details that the lawyer wants to reveal to provide context won’t have been disclosed by the former client and, thus, even if the lawyer could try to claim that what the former client has said is now “generally known,” the bits he hasn’t said most certainly are not.

Thus, unless and until some exception is created in the ethics rules to allow responses to online criticism under Rule 1.6 (which I’m not necessarily advocating for), lawyers who opt to get into it with former clients (or even clients) online will need to be very careful about what they say.  Otherwise, they will find themselves in trouble – as did this South Carolina lawyer who was brought to my attention by the always wonderful Roy Simon  (Admittedly, the SC lawyer had more problems than loose lips online, but that was one of the problems all the same.)

(And, so as not to be accused of my own “bait and switch” situation, I will take a stab at juxtaposing this opinion with Opinion 478 which also came out recently.  If the treatment of the two opinions was consistent, 478 would have been rolled out by the ABA Journal with the headline:  “ABA Ethics Opinion tells judges not to go online.”

“Boies will be boys was never a good response” or “Advance waivers are still better than unwanted advances”

(I’ve apologized once before for a Bullwinkle-style title and here I am doing it again.  The underlying societal issues are not funny in the least but it’s been a hard week for many folks and a little bit of levity can help you make it through.)

If you are inclined to read this blog from time to time, then you likely already have read or heard something about the mess David Boies has found himself in related to his firm’s simultaneous representation of The New York Times and his efforts to assist another client Harvey Weinstein in working with a black-ops style investigation outfit to try to stop an NYT story about Weinstein.

If you haven’t read anything about it, there is a wave of reporting to catch up on.  You can start with this ABA Journal article which gives easy jumping off points to this article in The Atlantic, and this The New York Times article, and this further ABA Journal article addressing additional issues after the NYT fired Boies’s firm.

The whole situation weaves a tale more than worthy of a law school essay exam question.  I could likely manage to spend the full three hours of the Ethics Roadshow talking about the ethics issues raised in the scenario.  (I probably won’t, but you’ll never know for sure unless you attend in one of the six cities where it will be taking place.)

While there are quite a few angles ripe for discussion, I just want to talk a bit today about the advanced waiver angle involved.  As most of the articles discuss, in addition to minimizing his role in assisting Weinstein, Boies pointed to language in his firm’s engagement letter with the NYT as authorizing certain conflicts in advance.

The topic of whether and when a lawyer can obtain an advanced waiver from a client to a future conflict is still a surprisingly controversial one in ethics and lawyering circles.  There are some who ardently fight for the position that no conflict can be waived in advance, even by sophisticated clients.  I don’t count myself among their number and, instead, believe that the availability of advance conflicts waivers is an important part of modern law practice from an ethics standpoint.  Along those lines, I believe that Tennessee, and other states that have language in a Comment to RPC 1.7 patterned after the Model Rules get the ethical guidance on the situation correct.

Tennessee’s Comment [22] to RPC 1.7, for example, explains how things generally should work when a lawyer requests a client to waive conflicts that might arise in the future:

The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.  The more comprehensive the explanation provided to the client of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding.  Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict.  If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.  Nevertheless, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent to a future conflict is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject matter of the representation.

This Boies/Weinstein/NYT saga, however, isn’t particularly all that helpful in terms of providing guidance into the question of whether any advance conflict waiver obtained by Boies complied with New York’s ethics rules, but it is extremely helpful in reminding that whether or not an advance conflict waiver passes muster under the ethics rules is just one aspect of the situation that lawyers and law firms need to keep in mind (and though it is a bit sacrilegious to say it might not always be the most weighty aspect of the situation).

The Boies/Weinstein/NYT saga is extremely helpful as a reminder that whether to take on a representation that can only be justified to another client on the basis of an advance waiver is extremely tricky as a business decision.

Boies’s firm included an advance waiver in its engagement letter with the NYT undoubtedly to try to maximize the number of clients it could have has now managed to lose both the NYT and Weinstein as clients.

The loss of Weinstein under all the circumstances might be a net positive, but the loss of the NYT likely stings and would have stung even if it hadn’t ended up managing to say this publicly in the process of cutting ties with Boies:

We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.

Whether or not an advance waiver is consistent with the ethics rules, an offended client can always still decide to drop the lawyer or his firm and what that mess might looks like if or when that comes to pass might be the most practical way for lawyers to think through these issues.

 

Advocating for attorney advertising.

So, back in August, I mentioned that I was going to have the opportunity to debate issues of lawyer advertising before an audience of top-notch Canadian lawyers in November.  This post is something of a coda to that post as I want to, very briefly, say a word or two about that talk.

It was, as I anticipated, a highly rewarding experience and all of the attorneys affiliated with The Advocates’ Society with whom I had the opportunity to meet and speak were delightful.

During the presentation, my job was to be the one to give voice to things that those assembled might not want to hear.  So, to start things off, I broke the news to them all that we don’t pronounce Hermitage, as in The Hermitage Hotel, in the fancy manner they were wont to do.  After having dealt that disappointing blow, I gave my pitch about what regulation of lawyer advertising should be, and what it shouldn’t be.

I tried to do so with a focus on things beyond just the protections afforded under our First Amendment for commercial speech because they don’t have anything quite the same under their nation’s law.

Those points – which I will happily repeat as many times as anyone ever gives me the chance to do so — are:

  • Ethical restrictions on lawyer advertising ought to pretty much start and end with prohibiting statements that are false or actually misleading.
  • It is pretty much a universal truth that the only people who complain about lawyer advertisements are other lawyers.
  • Those tasked with regulating attorney conduct don’t particularly like spending time adjudicating squabbles between lawyers about ads.
  • Consumers don’t get worked up about lawyer advertising at least in part because they get it.  If you are paying to advertise something, you are going to emphasize its good points.
  • But consumers also don’t get worked up about it because they don’t view it the way lawyers do.  There are still people out there who simply did not know they could hire a lawyer without having to pay money or who don’t know their problem might be something a lawyer could even help them with at all.
  • Some times the way those people learn this information is because they see some kind of lawyer advertisement in one place or another and, when they do, they don’t particularly think about whether or not it is something that you would think is “dignified.”
  • If you are motivated to want to impose stricter regulations on lawyer advertisements because of a concern that there is not enough public respect for our profession and advertisements that you think should be “beneath” lawyers fosters such disrespect, then I have a suggestion of how you could better direct your energies.
  • Imagine how much more could be done to foster better respect for our profession and what we do if we all focused our energies on encouraging communication of what it is that lawyers do, the role we play in society, and what we bring to the table that can help people in times of need for legal services, including helping educate them that their problem is one that could be helped by the work of a lawyer?

(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.

 

 

Friday Flashback – Folks still forgetting The Streisand Effect

In my early days (If a blog that has only been around for just a smidge over 2 years can be characterized as having early days.), I wrote a post with a reference to “The Streisand Effect” and the need for lawyers and law firms who are thinking about trying to take actions to shut down unfair criticism online to give real thought to whether they are just amplifying the negative publicity.  If you are interested in reading that post, you can get there from this link.

My guess is that reminding people about the concept of The Streisand Effect will never get old.  This time though, to save people a step, I’ll simply share the quote from the Wikipedia entry itself rather than making you click a link to see what we mean when we refer to The Streisand Effect:

The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. It is an example of psychological reactance, wherein once people are aware something is being kept from them, their motivation to access and spread the information is increased.

It is named after American entertainer Barbra Streisand, whose 2003 attempt to suppress photographs of her residence in Malibu, California, inadvertently drew further public attention to it. Similar attempts have been made, for example, in cease-and-desist letters to suppress numbers, files, and websites. Instead of being suppressed, the information receives extensive publicity and media extensions such as videos and spoof songs, often being widely mirrored across the Internet or distributed on file-sharing networks.

In this story at The American Lawyer (which it seems almost entirely unnecessary to state has a significantly larger readership than this here little blog), a reader will probably learn a few things.

First, the existence of a four lawyer construction firm in Houston, Texas named The Cromeens Law Firm.

Second, the existence of a negative review of the firm on Yelp as well as some others on Google.  Which armed with that first piece of new information and the second piece of new information becomes really easy to find and read.

Third, that the four-lawyer firm is worried enough about these reviews that it is willing to spend some part of its time not focused on matters for its clients but rather in pursuing a lawsuit against unknown defendants to try to make the reviews go away.

Your mileage may vary, but my view on such matters continue to be that: (a) more people will read the reviews now than they ever would have before; (b) the lawsuit is very unlikely to succeed in making the reviews disappear; and (c) contractors and subcontractors who might be making decisions in and around Houston about whether to retain these construction lawyers probably weren’t likely to be all that influenced but unless the goal of this suit is to make stories about it end up being pretty high on the list of things that turn up in an online search about your law firm, this probably doesn’t end up being a net positive.

Now, in fairness, if the negative reviews you are trying to get to go away are at the very top of what people see if they search for you online, then a suit like this might accomplish the rare “reverse Streisand” by replacing those with higher results referencing the lawsuit at least, but when I checked today several of the first hits for this law firm’s name were good ones, so . . .