You either die a hero or live long enough to be the villain

So this intrepid blogger is on vacation and this post and perhaps one other this week will have been pre-written and scheduled for publication.  So here’s hoping nothing has transpired in the world to make this seem tone-deaf.

Samson Habte, an excellent reporter with the ABA/BNA Lawyers’ Manual on Professional Conduct, was kind enough to speak with me and use a few quotes of mine in a well-done piece he wrote last week on the latest appellate court ruling evaluating the validity of the in-firm privilege.  This ruling is particularly important because it comes out of the New York, which was where the original case that created the fiduciary duty exception to the privilege (outside of the context of law firms) arose which then influenced that In re Sunrise case.

You can read the full article here at this link.  (The fine folks over at The Law for Lawyers Today have also written a good blogpost recently on the NY ruling here.)

I have been following this issue for many years, including dating back to when I was fortunate enough to be one of the original co-chairs of the ABA Firm Counsel Project.  One of the very first roundtable sessions that now-defunct group organized focused on the state of play of the privilege for designated in-house counsel in law firms.  Back then, in the late years of the first decade of the 2000s, we were still in the midst of a trend of bad rulings on the issue.

One of the topics of discussion that the reporter and I covered and that didn’t quite make it into the article is what we discussed right after my “wrongheaded” quote.  I am, generally speaking, a huge fan of the Association of Corporate Counsel.  That organization, the ACC, has played a very significant role in protecting the attorney-client privilege from erosion in the context of government investigations and the minefield that has been created over the years by the Department of Justice and a series of memoranda over the years that would be used as an attack on the privilege in the corporate context by laying the groundwork for a position that corporate entities in investigations needed to roll over and agree to waive the attorney-client privilege if they wanted to get any credit for cooperation.

So, to a large extent that is the context of my remarks both as to “wrongheaded”-ness and the statement about how “disappointing” it would be for the ACC to start pushing for its in-house counsel to demand in engagement agreements that law firms agree in advance to waive their right to an in-firm privilege if they want to be retained.

If the ACC follows through with that course of action, we will find ourselves in a world where one of the biggest champions of the attorney-client privilege and a stalwart defender against the powerful Justice Department over the years has now become that what it used to fight against — a powerful entity applying coercive pressure for a purpose that would only undermine the privilege.

Ironic, yes, but also a truly disappointing turn of events.

Astonished and admonished.

So, on days like today, it is very difficult to have a forum (even one as small as this one) and not talk about truly important problems plaguing society, but no one comes here for my thoughts on those things so I’ll refrain.

Staying in my lane, here is another example of a problem lawyers are still having trouble grasping.  The exceptions to client confidentiality under RPC 1.6 (which can also be looked to as a way of justifying disclosure of information about representation of a former client under RPC 1.9) are not likely to give you permission to debate a dissatisfied client publicly, online.  This latest example of the problems arising for a lawyer who does so comes via the fine folks at the Legal Profession Blog who first wrote about it yesterday.

A D.C. lawyer has been informally admonished for trying to refute allegations published on the web by a former client.  The former client was complaining about overbilling, and the lawyer’s allegedly negligent/improper handling of a mediation for her.  Even though the DC Office of Disciplinary Counsel ultimately cleared the lawyer of the alleged violations as to fees and actual handling of the matter, the informal admonishment was in order because of what the lawyer disclosed online in responding to the former client’s complaints.

As the informal admonishment letter to the lawyer explains:

We do find, however, that in including detailed information about your client and the client’s case in your responses to her website postings, you violated your obligations under Rule 1.6 to protect her confidences and secrets — obligations that continued after your attorney-client relationship ended.  See Rule 1.6(g).  The information that you included in your responses to the client’s posts included information about the client and the client’s case that were protected under Rule 1.6.  Although you did not refer to the client by name, you included the name of the client’s employer, the dates on which certain events occurred, and other detailed information that could lead back to your former client.  You did not have the client’s consent to publish or disclose this information.  Nor did your disclosures fall within any of the exceptions to Rule 1.6, including the exception under 1.6(e)(3) that permits a lawyer to use or reveal client confidences or secrets “to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer . . .” (emphasis supplied).

Now, D.C.’s version of the Rule 1.6 “self-defense” exception makes the inability to do what this lawyer did more clear cut than in many other jurisdictions.  (It also didn’t help this lawyer’s cause, as the letter goes on to explain, that during the disciplinary investigation process, he went back to the online site to post information claiming he’d been exonerated — conduct the letter indicates was a violation of Rule 8.4(c) and that violation is wrapped into the admonishment as well.)  But even in jurisdictions that do not have the “formally instituted” language of D.C., lawyers face an uphill climb trying to respond to online complaints of former clients as I’ve mentioned before a time or two.

It is also worth remembering that, in most jurisdictions, unlike the “confidences and secrets” language still used in D.C., RPC 1.6 extends to any information regarding the representation of a client.  Remembering that, and the fact that a paragraph of the Comment to the rule most places alerts lawyers that the prohibition on revealing information “also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”

Although the Legal Profession Blog has a bad link, you can get the full letter to the D.C. lawyer here.  And, candidly, I’m a bit astonished by that.  Here, in Tennessee, this kind of informal discipline is private.  Not so in D.C.  Learn something new every day.

(Updated – it was brought to my attention that I also had provided a bad link to the letter.  I’ve corrected the link.  Apologies.)

Dishonesty in settlement negotiations

This is a topic I’ve spoken about on a number of times over the years as it can make for a pretty decent CLE presentation.  Any such presentation almost always involves use of a hypothetical to explore issues that seem (or at least can sound) academic to a large extent.  The usual jumping off point is the language set out in Comment [2] of Model Rule 4.1 that speaks of “generally accepted conventions in negotiation,” and that indicates that “a party’s intentions as to an acceptable settlement of a claim” is a type of statement “ordinarily not taken as statements of material fact.”  From time-to-time there are real world situations that can be used to demonstrate that lawyers can end up paying a real price for making a known, false statement in connection with settlement negotiations, as opposed to things that are just chalked up as being “puffery.”

In my reading stack for a couple of months now has been a situation though that falls into the category of dishonesty in settlement negotiations, but looks like nothing I’ve quite seen before.

In late February 2016, the ABA Journal online had an article about a Seattle judge imposing $32,000 in sanctions against two lawyers who were representing Pierce County, Washington in the defense of a false arrest lawsuit.  The sanctions were imposed for the lawyers’ role in “misleading settlement negotiations,” and not telling opposing counsel that there client had rejected a proposed settlement dollar amount.  Which, at least sounds bad on its face, of course, but at that same time — given the fluidity of settlement negotiations — doesn’t necessarily sound all that far away from what the rules speak of as a generally-accepted convention of negotiations.

Both the ABA piece, and this more expansive article from The News Tribune , elaborate a bit on the details, but that elaboration only makes it seem a bit more remarkable to me that these lawyers were sanctioned.  And, since it is a Friday and to cut to the chase it is for this reason, yes it does look like the client contact for these lawyers did tell the lawyers that he would not agree to a $250,000 settlement payment, and that the lawyers continued the effort to negotiate other important aspects of the proposed deal for about a week without telling opposing counsel that the client was saying it wouldn’t agree to the monetary component, but an important aspect of the context is left out of the ABA Journal story for example:  The client who had said it wouldn’t do $250,000 had actually previously offered to settle the case for $210,000.  In a vacuum, it does not seem beyond the pale that lawyers, knowing that the gap to surmount was just $40,000, would continue to work on getting some non-monetary concessions in hopes that they might have a client that would change its mind when it saw additional bells and whistles.

So, why the sanctions really?  I can only guess, but my guess is that the rest of the context matters probably even more and you will get a feel for that context if you read the two stories already linked and this earlier July 2015 story in The News Tribune.

The false arrest suit involves a woman who has been arrested for child molestation, and the charges against her dismissed, twice; one of the dismissals was specifically premised on a finding of prosecutorial vindictiveness.  There is also a separate federal lawsuit filed by the same plaintiff over things done since the first lawsuit was filed, and the elected prosecutor for Pierce County who hired the lawyers to defend the false arrest suit because of his office’s conflict of interest is also facing ethics charges and whistleblower complaints over various aspects of the efforts to prosecute this plaintiff and, if that weren’t enough, also a recall petition.

Oh yeah, and like a week after the sanctions ruling, the same prosecutor appeared on Nancy Grace in the middle of a murder trial to talk about the murder trial his office was prosecuting, prompting a motion for a mistrial in that case.

With the popularity of the “Making a Murderer” documentary, I’m not sure what this one would be called — perhaps just “Making a Mess,” but it sounds like it would make a good sequel.

A word about B**chslaps

It’s a stupid and demeaning term.  In both contexts, whether you replace the asterisks with the original two letters, it, or the other two letters, en.  It is unfortunate that the second term was ever coined by this guy, and it is remarkable to think that this guy has included it for many years as a recognized and defined term in Black’s Law Dictionary.

My opinions on that front are what they are, and the reality is what it is.  As the once-prominent fictional lawyer Richard Fish would say, “Bygones.”

An associate professor at the Washburn School of Law has an article out, for now just available through SSRN, that you can read here.  It is an interesting read.  To me, the most interesting part of it was how I managed to agree pretty much completely with the central premise — judges should not issue opinions that include language that is designed to try to remedy a lawyer’s behavior (or deter other lawyers from engaging in the same behavior) through belittlement and, simultaneously, disagree with so much of the article itself.

Absolutely, judges should see the act of engaging in a “b**chslap” as beneath her/him, and it ought to be something that our profession, the loam from which judges grow, discourages for lots of different reasons.  The simplest basis for doing so would be the general principle I keep coming back to like something of a broken record . . . don’t be an ass.  Another pretty good concept from which to work to vigorously argue against the prevalance of the issuance of such rulings is an often articulated rule of satire…. always punch up, never punch down.

But, the article.  So many things with which to beg to differ.  Bullying?  Or even workplace bullying?  I get the instinct — frankly even the rule of satire I just reference speaks in terms of “punching down” as being an act of bullying — but, for some reason (n.b. it is probably fn. 1’s slightly over-the-top dedication of the piece “to all those who suffered under the thumb of a schoolyard or workplace bully”), the author’s decision to frame that as the issue in this article leaves me feeling like it diminishes the importance of the bullying topic in modern life.  Plus, if an author were truly insistent on taking that tack, then it is tough to justify deciding not to scrutinize the judge v. judge instances that are briefly discussed at page 11 and fn. 59 and then promptly cast aside.  Those instances, particularly in the context of reviewing courts, are (if anything in this arena is) actual workplace bullying.

As to the underlying questions of judicial ethics, I certainly agree that many of the examples referenced in the article raise serious questions of violations of provisions similar to Rule 2.8(b) of the ABA Model Code of Judicial Conduct.  Nonetheless, as to the notion that two new comments are needed to somehow empower judicial disciplinary authorities to take action, I again beg to differ.   The necessary judicial ethics provision is already there to remedy judicial conduct that crosses the line.  Adding explanatory comments won’t necessarily help things because, if there is a problem of enforcement flowing from the existing rules, it would seem to me to be a reluctance to use that provision because of the significant void-for-vagueness constitutional issue that also plagues those who would seek to make “professionalism” a discipline issue for lawyers.

I also disagree with the stated idea that taking the lawyer to task in a public opinion cannot be “other appropriate action” consistent with Rule 2.15 and the implied, if not actually stated, assertion that a judge should pursue such a communication about disappointment with a lawyer’s behavior through a private channel.

The author should acknowledge that any truly private communication from unhappy judge to poorly-performing lawyer while the case was ongoing would raise real ethical concerns for both parties over rules restricting ex parte communications between judges and lawyers.  Thus, presumably, the author would anticipate the court having to wait until the matter is concluded to reach out to the lawyer involved to privately chide them, but the timing of that would leave much to be desired in terms of likely effectiveness.  Although Rule 2.9 of the ABA Model Code permits otherwise prohibited ex parte communications when expressly authorized by law, the language of Rule 2.8 seems a far cry from providing clear cover for a private one-on-one chat session.

In fact, if there were to be any tinkering with the judicial code of ethics to address public belittling, I’d posit that undertaking to make crystal clear that rather than excoriate a lawyer in a published opinion for misconduct which the judge does not believes rises to the level of a required disciplinary report, the other appropriate action that the judge could take would include a truly private discussion with counsel notwithstanding the bar on ex parte communications under Rule 2.9.

I also am unconvinced by the author’s conclusion that judicial ethics rules must be insufficient because judges don’t seem to be punished for such writings.  Or, to quote from the author, “the current system of judicial ethical enforcement has proved either unwilling or unable to address the propriety of judges issuing benchslaps.”  The author appears to be  glossing over the fact that, disciplinary entities, for the most part are not in the business of commencing their own cases and instead react to the filing of complaints about judicial misconduct.  That can be one very likely reason  — no one ever complained to the appropriate authority — that none of the prominent examples the author focuses on in his article resulted in any punishment.

And, I’m going to presume the author is correct about that, as I don’t know (and suspect the author does not know either) whether any of those judges may well have received private discipline.  Another reason can be that where that line is, and when it has been crossed, is very much in the eye of the beholder.  One of the examples that the author uses of how a court can appropriately address something in a written opinion without turning into something that is a b**chslap is In re S.C., 138 Cal. App. 4th 396 (2006).  Yet, if you go back and reread the opening lines of that decision the author quotes from, and imagine the decision being issued in 2016 and not 2006, I suspect it too would get prominent attention at Above The Law as an example of the genre.

Finally, I fundamentally disagree with the idea that making it easier for lawyers to pursue appeal when attacked in this manner is not the answer.  In terms of workable, practical answers, it strikes me as the best, realistic answer.  There needs to be clarity that lawyers do so on their own dime and not at their client’s expense if the client otherwise has no interest in pursuing an appellate remedy, but clearer availability of obtaining appellate review could go a long way toward discouraging the belittling judicial conduct.

The best answer (though probably not at all realistic) would be for media coverage of such instances to adopt the critical tone of Judge Edith Jones’s email quoted in a footnote of the article.  If the judges who are prone to belittle with their rhetoric weren’t celebrated in the media for doing so, then they might be much less inclined to continue to crank out such writings.  In the meantime, perhaps the article and the public discussions of it and attendant publicity of the topic it is generating, will help such judges become more inclined to pursue the better angels of their nature and remove such items during the drafting process after they have had the private, cathartic benefit of having drafted the language in the first place.

I’ll never understand why athletes hire non-lawyer agents.

Thanks to ESPN I’ve long known more about Johnny Manziel than I care to.  But, this past week, I learned something I really should never know — why his agent decided to fire Manziel as his client.  Up until this past week, Erik Burkhardt was Manziel’s agent.  Burkhardt is a law school graduate, but from the best I can determine is not licensed to practice law in any state.  (I will admit that I’ve only searched the rolls in the two states that would be most likely — Texas where the sports agency Burkhardt works for is officed and Florida where Burkhardt attended law school — but the fact that media outlets describe him as just a “law school graduate” leaves me comfortable that he’s not actually a lawyer.  Someone can feel free to correct me if I’m wrong.)

You do not have to be a lawyer to be a registered agent with the NFL Players Association — as is also true in many sports leagues.  But when it comes to professional athletes, who all can easily afford the services of even the attorneys in the U.S. who charge the highest of hourly rates,  the notion of hiring agents who aren’t lawyers bound by all of our rules of ethics has always puzzled me a bit.

Manziel, who is currently dealing with a plethora of problems, and probably doesn’t care too much at the moment that his agent decided to publicly fire him, but since he hired a non-lawyer who doesn’t have to worry about RPC 1.6 and RPC 1.9, if he ever gets around to caring about there isn’t much he can do.

Because of the obligations of confidentiality that lawyers must work under, I’d like to think that no reputable attorney would issue such a press release — or any press release at all — to say they’d fired one of their clients.  If they did, they could find themselves subject to discipline.

In Tennessee this past week, the Tennessee Supreme Court issued a pretty significant decision in a lawyer discipline case, not only because it was another example of the Court doing something relatively rare which is making a decision to increase discipline that had been consented to by the respondent and disciplinary counsel.  (I’ve written about another such rare instance before.)  The Vogel ruling will do doubt be most significant as precedent because it is the first decision of the Tennessee Supreme Court treating the issue of a lawyer’s sexual relationship with a client as a “material limitation” conflict under our RPC 1.7(a)(2).  The sexual misconduct aspect of the case will, of course, also be the focus of most of the attendant publicity, but it shouldn’t be overlooked that the lawyer involved also was disciplined for violating his obligations of confidentiality as to a different client as well.

The lawyer’s violation in that regard was one that many lawyers might not immediately grasp as improper — it certainly wasn’t a press release sort of scenario.  The lawyer had filed a motion to withdraw as counsel for a client and managed to do so in the appropriate fashion by not saying anything other than making reference to the fact that the rules required withdrawal.  The trial judge granted the motion to withdraw.  The former client then wrote a letter to the judge in the case complaining that she did not know why her lawyer had withdrawn.  The judge then communicated to the lawyer and instructed him to send his former a client a letter to explain.  The lawyer did so, but unfortunately and perhaps being more concerned with making sure the judge knew the lawyer had done as asked than focusing on the requirements of RPC 1.9, the lawyer copied the judge on the letter.  The Tennessee Supreme Court did a fine job of explaining why that was not something RPC 1.9 permitted.

Had Johnny Manziel retained a lawyer as his agent, then RPC 1.9 most certainly would not have permitted that person to pile on this past week.  A lawyer, if contacted by the press, might have confirmed the situation with a “Mr. Manziel and I have parted ways.  I wish him all the best in the future.”   But, a lawyer would never be able to ethically offer up the kind of “I’ve done all I can do, the guy won’t take my advice, and I don’t want anything that happens after this point to taint my own brand” statement Manziel’s agent put out into the world.

Airing the profession’s dirty laundry

Ok, let’s talk about the 60 Minutes piece that aired this past Sunday.  If you haven’t watched it, by all means you should — it is worth the 20-30 minutes of your time.  You can watch it here.  As always, I’ll wait until you get done and come back.

Now, it seems beyond dispute that the 60 Minutes broadcast plays as a story likely to blacken the eye of the profession.  It’s also the kind of piece that, as it gets legs, tends to lead inexorably to vigorous discussions about the need for new and better regulations to crack down on using lawyers for such transactions.  Further, the story is a bad look for all of the lawyers involved in terms of publicity (with the exception of the lawyer who said no and should be well primed to do a Diet Snapple commercial or two) and that the ABA comes out at the end looking particularly bad.  Not just because of the level of enthusiasm that its former president showed for pursuing assisting the arrangement on a going forward basis (and, call me cynical, but the written statement about what the cameras would have shown if they’d kept rolling after the meeting ended rings hollow in my ears) but also for the juxtaposition of the ABA’s constant position in opposition to the Senate legislation which Senator Levin was given camera time to speak about having pursued on many occasions without success.  In the interest of being fair though, here is the link to the statement the ABA has put out in response to the 60 Minutes piece and that does rightly focus on the fact that the ABA’s perspective in terms of opposing legislation has been driven by seeking to protect the attorney-client privilege.

There are, of course, really weighty ethics issues raised by this rare sort of “behind closed doors” opportunity to see what happened at these consultations but before I roll up my sleeves to offer some of my own thoughts on those issues, I want to highlight one aspect of the story that the broadcast piece mentioned once but then blew right past because I think it deserves larger prominence for a positive it shows regarding the state of our profession.

Very early in the broadcast, Kroft mentions that this Global Witness outfit started out by contacting 50 law firms by telephone using their prepared script to try to set up in-person meetings to explore the potential representation.  From the brief image up on the screen, the script for the telephone portion would appear to have had the same core facts designed to make the situation raise red flags as the story told in person.  Kroft quickly then says that Global Witness was able to obtain sit-down meetings with 13 law firms and then stressing that of those 13, and of the 16 lawyers that they met with from those 13 law firms, only 1 turned them down.  (“Diet Snapple – it gives you the courage to make the right choice!” or “Diet Snapple – I drink it because my standards are higher.” – Hey, Madison Avenue, call me – I’m a veritable gold mine.)

1 out of 16 or even 1 out of 13 sounds like a very bad rate of success in terms of firms and lawyers seeing the “red flags” and declining to get involved.  But that isn’t the real ratio, the more positive takeaway is that some 37 law firms appear to have been savvy enough and focused enough on ethics (or at least loss prevention) to balk even before agreeing to an in-person meeting in the first place.  That’s a good thing and deserves to be given some media attention.  Further, the only 1 out of 13 turned them down is something of a skewed number when the story only focuses on the 13 of the 50 firms that were already inclined toward trying to pursue this business, i.e. didn’t reject the scenario outright over the telephone alone.

Now that I’ve mentioned the good, let’s dwell a bit more on the bad.  A government minister from a West African nation rich in minerals who is now rolling in dough from arranging for companies and corporations to obtain mineral rights is the potential client?!?!  Then the representative for that person indicates that they aren’t willing to tell you which one?!?!  Only 1 of the lawyers we are shown explicitly mentioned the Foreign Corrupt Practices Act by name, which is disappointing enough.  But it is equally remarkable (at least to me) that none of the lawyers appear to have spent a moment being concerned about the Specially Designated Nationals list or any of the other aspects of the fact that there is a giant list the Treasury Department keeps of certain countries, entities, and individuals with whom it is illegal for a U.S. citizen to do business in any respect.

If the potential client’s agent is telling you that the person involved is in a West African country but they won’t tell you which one and they are not inclined to want to necessarily even share the person’s name, how in the world could you or your firm ever expect to be able to run any appropriate check to make sure you aren’t dealing with someone in a country, or someone who themselves are on, the SDN list?

And speaking of things you are setting yourself up to never be able to do, whither these firms’ conflict checks?  Maybe 60 Minutes just edited out any of the conversations where these attorneys talked about how difficult it would be to run an appropriate conflict check if they won’t be told the country of residence or name of the individual whose money and assets they would be attempting to shield?

Now, as to the core legal ethics issue presented by the various consultations we are permitted to witness because of the hidden camera, where is the line between counseling a client about compliance with the law versus assisting a client on a path to accomplish fraudulent or illegal conduct? That issue is primarily addressed in Model Rule 1.2(d).  That rule provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Comment [9] of that Rule provides a bit of elaboration with its last sentence: “There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.”

Now, I have my own opinion of how close the various lawyers caught on the hidden camera footage were to crossing the line that separates the two sides of this “critical distinction,” but there isn’t much point ruminating about that given that the interactions weren’t actually “real,” and that they involved a proposed scenario that sounded shady enough that almost 75% of the law firms approached initially were able to recognize it and turn it away without agreeing to an in-person meeting.  I suspect if you asked most viewers of the 60 Minutes piece — especially those without law degrees — many of them would tell you they found those conversations to be much more along the lines of “recommending the means by which a crime or fraud might be committed with impunity.”

I do think it is worth pointing out though that Tennessee has an even stricter variation of RPC 1.2(d) as we add the words “or reasonably should know” after “knows” and before “is criminal or fraudulent.”  If the lawyers under the 60 Minutes spotlight had been Tennessee lawyers, it would be very difficult to defend the path they appeared to be pursuing as they wouldn’t be able to fall back on a claim that they didn’t “know” of criminal or fraudulent conduct; rather they would be battling over whether the criminal or fraudulent nature of the endeavor being explored was something that they reasonably should have known.

Legal Ethics Issues in “Making A Murderer”– Part 2 of ?

Two recent events have brought me back around to wanting to talk about ethics issues raised by this fascinating documentary.  One event is public and absurd.  The other event was semi-private and surprising (at least to me).  As neither of the recent events are actually the thing I wanted to talk about a couple of weeks ago when I wrote my first post about this documentary, I will try to dispense with them with relative speed.

First, this story that made the rounds this week further cements the notion that the former prosecutor is really something else.  While, strictly speaking, it is hard to think of an ethics rule directly implicated by his letter to the person he put in prison for murder trying to cajole an admission of guilt so that he (the former prosecutor) can write a book revealing the true story, the mere act of writing such a letter certainly isn’t a strong look for the lawyer.  Perhaps the saddest aspect of it is the desperation of the “this was your absolute last chance to tell the truth and you blew it…. but let me know if you change your mind because I’m probably still going to be interested” approach to coercion.

Second, I found myself enmeshed in an interesting APRL listserv discussion when some lawyers who were taken aback at the “disclosure” made by Avery’s former lawyer, Bob Oedenkirk as Saul Goodman Dean Strang in an appearance on ABC’s Nightline that he worries that Avery “might” be guilty.  A number of lawyers expressed belief that even with the passage of almost ten years, it was bad for the profession for the lawyer to publicly express any such misgivings about a former client, particularly for as long as there are still folks pursuing proceedings to try to have the former client exonerated.  I was a bit taken aback for what I’ve now been able to figure out are three reasons.  First, and the most embarrassing for me because I didn’t realize it until I had already weighed in on the listserv was that I forgot that Tennessee’s RPC 1.9 differs significantly from the ABA Model Rule approach in applying the exception for “generally known” information to both adverse use and disclosure of confidential information of the former client.  Second, having watched all of the documentary, he didn’t seem to me to be saying anything in the Nightline piece that he hadn’t already said in the documentary itself — thus the current disclosures would be merely repetitive of disclosures that presumably had to have been consented to by Avery for broadcast in the first place.  The third reason though finally provides a segue into the original thing I wanted to talk about — given how detestable the conduct of at least one of the other defense lawyers in the drama appears — Strang came across to me as exactly the sort of lawyer you’d hope to have on your side.

That other defense lawyer is, of course, Len Kachinsky.  The second court-appointed lawyer for Avery’s nephew, Brendan Dassey.  The notion that Kachinsky never was disciplined for the way he handled his representation of Dassey is exceedingly difficult to fathom.  A lawyer’s duty to be the client’s zealous advocate is at its highest when the client in question is accused of murder.  Add into the mix details such as the client is a juvenile with well below average intellect and social coping skills, and you’d expect the likeliest ethical failings to come from a lawyer crossing lines that shouldn’t be crossed in the name of trying to protect that client.  Yet, Kachinsky now stands as an example of a lawyer managing to violate ethical duties to his client in the course of undertaking what appears to be the polar opposite of zealous advocacy.

As we learn in the course of the documentary, Kachinsky spoke to the t.v. cameras [as shown in Episode 4] before ever speaking to his client and made a much more damning statement about his client than Strang can ever be accused of making about his former client: indicating that his client was “morally and legally responsible” for the murder.  While that alone was unforgivable, it was not as impactful a transgression in the end as was his role, both active and passive, in coercing his own client into giving another “confession” to the police outside of his presence which also managed to lead to an admissible telephone conversation between his client and his client’s mother.

This story from The Guardian lays out much if not all of the detail necessary to take in something of the big picture of the problems with Kachinsky’s performance.  I certainly won’t condone anyone who has harassed or threatened the man as the article indicates has happened and, of course, cancer is awful and thankfully the article reports that his is now in remission.  But as to his explanations for his handling of the case, I’m not inclined to give him any more benefit of the doubt than he afforded to his minor client.

With all that being said, that article also happens to be the first time I’ve heard Kachinsky indicate that he was not aware at the time of the conduct and tactics of the private investigator that he hired.  Kachinsky’s portrayal of that private investigator as a “loose cannon” tees up an interesting discussion about a lawyer’s obligations with respect to the conduct of such a non-lawyer assistant under RPC 5.3, so it seems there will be a part 3 on this topic in my future.

Verbal attacks on judges – “possibly” the worst approach to advocacy

I have written in the past on this blog, and in other publications, about instances of lawyers getting into disciplinary trouble over their treatment of judges presiding over their clients’ cases.  To the extent bullying and insulting a judge is a purposeful approach to advocacy for a client, it’s a flawed approach.  This behavior isn’t unique to lawyers, of course, but tends to be something that you otherwise only see in the world of sports where coaches and players can think that chewing out or belittling a referee will somehow help them get better calls in the future.

To the extent this kind of conduct isn’t really a thought out approach but a natural extension of a particular lawyer’s way of dealing with stress or people in general, it tends to be reflective of significant personal flaws in need of remedy.  Even then, it still isn’t an effective form of advocacy.  Nevertheless, the approach ends up being implemented consciously or unconsciously by a surprisingly high number of lawyers.

The most recent example I’ve come across in my reading pile is an Indiana lawyer who has been suspended for no fewer than 60 days over his conduct in a paternity and custody case.  The published order makes clear that reinstatement after the 60 days is not a given, but will depend on the lawyer’s ability to demonstrate “remorse, rehabilitation, and fitness to practice law.”  The Indiana lawyer’s beef with the judge turned on a ruling against his client’s motion for change of venue.  As the suspension order explains, the lawyer, in a filing seeking to convince the trial court to reconsider its ruling on venue, criticized the judge for a “stubbornly injudicious attitude” and for “taking off on detours and frolics that ignore the fact that there are laws in Indiana that the court is supposed to follow and uphold.”

Counterproductive criticism hurled at the judge was not the only (and actually not even the worst) conduct for which the suspension was imposed, however.  The order also makes clear that the Indiana lawyer treated opposing counsel even more harshly than the court — threatening to file a disciplinary complaint unless opposing counsel agreed to the change of venue request and accusing opposing counsel of arranging venue in the first instance through fraud and trickery.  The Indiana lawyer also demonstrated his ability to be a triple threat by accusing opposing counsel’s clients of using the court system to further an agenda that was “possibly homophobic, racist, [and] sexist.”

The order went down last week.  Thus week the Indiana lawyer demonstrated, quite superbly, why sometimes lawyers should not speak to the media beyond just declining to comment on a story.  Today’s ABA Journal online story indicates that the lawyer in question explained that “he didn’t actually accuse opposing counsel of fraud, deceit and trickery, for example, because he is careful to use the word ‘possibly’ before making allegations….”   Giving that statement to the media was “possibly” an ill advised move.   His final quote reported by the ABA though is “possibly” much, much worse:

As far as I’m concerned I’m suspended for the rest of my life because I’m not going to have genuine remorse.

A classic violation of the first rule of holes.

Some lawyers fail to see conflicts of interest, but they aren’t the only ones.

Conflicts are a big issue for lawyers, and a significant issue in the world of legal ethics.  (If you are a lawyer and do not already have his site bookmarked, you really need to add Bill Freivogel’s website to your list of bookmarks.)

Relatively speaking, however, conflicts of interest (other than ones involving inappropriate sexual relationships) tend to be aired out through disqualification motions or as components of legal malpractice or breach of fiduciary duty lawsuits against lawyers and law firms much more often than in disciplinary proceedings.

To some extent, this phenomenon can be explained because lawyers tend to see the obvious conflicts and avoid them and only the more nuanced ones tend to be really problematic.   For example, sometimes it can be difficult to explain the intricacies of what makes up a “substantially related” matter for purposes of evaluating a former client conflict situation under RPC 1.9.  There are a number of other factors, of course, that lead to conflicts matters being a small percentage of disciplinary proceedings.

Sometimes, though lawyers do get disciplined for undertaking representations in violation of the conflict of interest rules.  Earlier this year, the Tennessee Supreme Court suspended a lawyer for six months (after previously giving the lawyer a public censure involving the same conflict of interest) for stubbornly persisting with a representation that was prohibited by a conflict of interest.

Yesterday, the Ohio Supreme Court issued a public reprimand against a lawyer who took on a conflict that should have been really, really hard to miss.  The lawyer represented a bank in a foreclosure action against a husband and wife and obtained a default judgment for the bank.  Within nine months of doing so, the lawyer then undertook to represent the same husband and wife in seeking to vacate the same default judgment he helped the bank obtain.  The lawyer had not obtained consent from the bank to do this.  Fortunately for the lawyer, he had no prior disciplinary history and did the right thing in the disciplinary proceedings by admitting the wrongful nature of the conduct.  As a result, he managed to get out of the disciplinary venue with only a public reprimand.

Lawyers though are not the only people that should see a conflict of interest but simply plow ahead with doing what they want to do.  Although the ethics lawyer component of my law practice is overwhelmingly focused on legal ethics, I have had some experience in matters involving conflicts of interest of government officials/public employees.  Here are links to a couple of news stories broadcast this week in Memphis about what appeared to be a pretty straightforward conflict problem that the government official should have recognized.  The first broadcast can be viewed here.  Fortunately, as the second broadcast indicates, the investigative journalism of the reporter appears to have brought an end to the conflict and, hopefully, will bring some much needed assistance to the economically-challenged residents that were being adversely affected by its repercussions.

(As a bonus, if you manage to  watch either of the two broadcast segments, you’ll have a voice in your head (for better or worse) you can tie to the text on this blog.)

Things not to do in court.

A couple of weeks ago, I read a little about two instances of lawyers, both involving murder cases, getting in a bit of a pinch based on what was portrayed as bad behavior in the courtroom.  One lawyer ended up being escorted from the courtroom for attempting to make a citizen’s arrest of someone.  I think we all ought to be able to agree that attempting a citizen’s arrest of anyone in a courtroom is a bad idea.  I guess the backstory might matter, but here it doesn’t help justify the unjustifiable.  The lawyer in question was part of a team of lawyers representing a California lawyer who is facing murder charges.  One of the investigators working for the prosecution was carrying a firearm in the courtroom (presumably in a holster) and a lawyer from the defense team claimed that the investigator shouldn’t be armed, said he was engaging in a citizen’s arrest, and tried to get bailiffs to assist but ended up simply getting himself escorted from the courtroom.  It’s not the exercise of good judgment, but, fortunately for the lawyer involved, I don’t think it likely gets to anything prohibited by any ethics rules.

The second incident received a bit more publicity, as does seemingly everything that has a social media component, but I don’t find myself having any problem with the lawyer’s conduct.  The Wisconsin lawyer at the center of the story, after successfully obtaining a not guilty verdict for a client in a first-degree murder case, took a “selfie” with his happy client to post to social media to publicize the victory in the courtroom.  The fact that the photo was taken inside the courtroom was the reason for the brouhaha but the photo was taken after the judge had left the bench.  (It wasn’t something that was done in the middle of the proceedings or even in the presence of the judge like you might expect to see played for laughs in a show like The Grinder, for example.).

Now, assuming the Wisconsin lawyer had his client’s permission to post the photo on social media and, in so doing, comment publicly on the outcome (and it appears the client was a willing participant and presumably knew why it was being taken and what would be done with it), I don’t have any problem with the lawyer’s conduct at all.  I have represented media entities in the past on matters involving access to court proceedings.  So, I can recall off the top of my head quite old case law that makes the point that what happens in the courtroom is the public’s business.  (I’m almost 90% certain the quote is something like “what transpires in the court room is public property.”)  (Disclaimer: I have not gone to look at Wisconsin’s lawyer advertising rules at all to see if the lawyer might have been subject to scrutiny under some overly strict approach to preventing lawyer’s from making statements about past results.)

As the story indicates, the judge that had presided over the jury trial, however, did not share my reaction.  When learning about the incident, the judge called the lawyer and demanded he return to court and explain himself.  The article indicates that the judge said his concern was that jurors might have been included in the photo (which they weren’t and anyone looking at the photo could tell that) but also the stated concern that the victim’s family might see the photo.  I’m not sure I’m capable of articulating this next point in the clearest fashion possible, but there’s an unspoken premise behind that concern of the judge’s  — presumably they would either be upset because the prosecution went after the wrong person and the person who murdered their family member still is free or they would be upset because they think the justice system failed them by acquitting a murderer — that the family would react poorly and that unspoken premise would seem to be a much bigger problem to address than upbraiding the lawyer for taking the selfie.

It’s too bad that this lawyer was called on the carpet by the court over this, but, as the end result was that the lawyer deleted the photo from his social media account, and the judge dropped the matter, if it happens again somewhere I wouldn’t be surprised if it plays out much the same way.