Tennessee has adopted the Ethics 20/20 changes effective immediately.

I’ve written a couple of times in the past about the status of the Tennessee Bar Association’s petition seeking to have the Tennessee Supreme Court adopt essentially all of the ABA Ethics 20/20 changes.  Yesterday, the Tennessee Supreme Court entered an order doing just that – effective immediately — which now adds Tennessee to the list of jurisdictions that have adopted that package of ABA Model Rule changes focused on updating certain aspects of the rules to address technology and the role it plays in modern law practice.

I’m pleased to be able to report that as to the issues where our Board of Professional Responsibility had offered counter proposals to certain aspects that would both be contrary to the Ethics 20/20 language and for which the TBA expressed a level of disquietude with the proposals, the Court opted to stick with what the TBA was proposing.

You can read the Court order and the black-line of the changes made to those rules impacted at this link.  As a result of the order, effective immediately, Tennessee now has:

  • a definition of “writing” in RPC 1.0 that refers to “electronic communications” rather than just “e-mail”
  • paragraphs in the Comment to RPC 1.1 that provide more guidance about the need to obtain informed consent from a client before involving lawyers from outside the lawyer’s own firm in a client matter
  • language in the Comment to RPC 1.1 that makes clear that the lawyer’s duty to “keep abreast of changes in the law and its practice” includes “the benefits and risks associated with relevant technology”
  • more modern language in the Comment to RPC 1.4 making clear that not just telephone calls from clients but all modern forms of communication by clients need to be responded to or acknowledged promptly
  • a specific discretionary exception to confidentiality under RPC 1.6(b) for disclosing information “to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in composition orr ownership of a firm”
  • black-letter treatment in RPC 1.6(d) of the duty to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client”
  • a little clearer, and more focused, guidance in RPC 1.18 about what kinds of communications will suffice to trigger a lawyer’s obligations to someone as a prospective client
  • important distinctions described in the Comment to RPC 5.3 as to a lawyer’s supervisory obligations as to nonlawyer assistants within and outside of the lawyer’s firm
  • important guidance in the advertising rules about the appropriateness of working with certain companies providing lead-generation services

In addition to adopting the ABA Ethics 20/20 changes, the black-line materials also reflect some housekeeping revisions we had proposed to catch a few items that needed changing in terms of cross-references from other Tennessee Supreme Court rules that had changed over the last few years.

I know I said I wouldn’t write any more about it but…

Here I am, because it is hard not to write something about the news last week that Brendan Dassey’s conviction was overturned.  Dassey, for those of who you did not watch Netflix documentary Making a Murderer and are willing to take me at my word as to what you would have concluded if you did watch the show, is the only one of the two criminal defendants featured in the documentary who you could walk away from the show just absolutely certain that he did not do what he was convicted of doing.  Dassey will be released from prison in a little less than three months if there is no appeal by the State.

Articles since Friday that I’ve seen discussing the development in Dassey’s case manage to work into the headline that the court (quite rightly of course) called out the conduct of Dassey’s former lawyer, the now infamous Len Kachinsky, as inexcusable.  But, Kachinsky’s epic failings as a lawyer were not actually the justification for overturning the conviction — mostly it appears because Dassey’s current lawyers managed to miss the correct argument to make on that front.

Instead, it was the even more stomach-churning conduct of the police officers in obtaining the “confession” from Dassey that justified the federal court’s action.  You can read the entirety of the 91 page order here if you’d like – though it is infuriating to relive the interrogation even in textual form.

But because Kachinsky really cannot get publicly lambasted enough for his conduct – after all he so very clearly wanted this case to make him famous and he’s gotten his wish though more in the manner that you see in dirty jokes involving genies in lamps with quite mischievous minds — I’ m doing my part by pasting below the pertinent parts of the opinion relating to discussion of just how far off the rails Kachinsky was in his handling of the matter (skipping a part that is really more about the equally vile Michael O’Kelley and his role).  I’ve also edited out the internal citations to cut the length a bit.

C. Leonard Kachinsky, Pre-Trial Counsel for Brendan Dassey

1. Media Interviews

On March 7, 2006, attorney Leonard Kachinsky was appointed to represent Dassey. Kachinsky was excited to be involved in Dassey’s case because by then it had garnered significant local and national attention.  Essentially immediately after his appointment Kachinsky began giving media interviews in which he discussed the case.

Kachinsky first met with Dassey on March 10, 2006. Dassey told Kachinsky that what was in the criminal complaint was not true and that he wanted to take a polygraph test to prove his innocence. After this initial meeting, local media reported Kachinsky as having described Dassey as sad, remorseful, and overwhelmed.  The media reported that Kachinsky blamed Avery for “leading [Dassey] down the criminal path” and said that he had not ruled out a plea deal.  Kachinsky later said that one of his reasons for speaking to the media was to communicate to both Dassey and to his family so that he could get them “accustomed to the idea that Brendan might take a legal option that they don’t like ….”

Over the next few days nearly all of Kachinsky’s work on Dassey’s case involved communicating with local and national media outlets.  On March 17 Kachinsky appeared on Nancy Grace’s national television show.  During that appearance Kachinsky said that, if the recording of Dassey’s statement was accurate and admissible, “there is, quite frankly, no defense.”  Kachinsky later said that he was merely “stating the obvious.”  However, Kachinsky had not yet watched the March 1 recorded interview. All he had seen was the criminal complaint.

In subsequent media interviews Kachinsky referred to the techniques the investigators used in questioning Dassey as “pretty standard” and “quite legitimate.”  One local news broadcast included Kachinsky’s response to statements Avery had made to the media. Avery had said that he knew that Dassey’s confession must have been coerced because there was no physical evidence to support what Dassey had said.  Kachinsky responded that he had reviewed the recorded statement and it did not appear that the investigators were putting words in Dassey’s mouth.  Kachinsky also publicly refuted Avery’s statement that Dassey was not very smart and that it would be easy for law enforcement to coerce him.

In another interview Kachinsky said that, although he believed Dassey had some intellectual deficits, he also believed Dassey had a reasonably good ability to recall the events he participated in. Over the roughly three weeks  following his appointment Kachinsky spent about one hour with Dassey and at least 10 hours communicating with the press.

Kachinsky met with Dassey again on April 3, at which time Dassey again professed his innocence and asked to take a polygraph examination.  Kachinsky hired Michael O’Kelly, with whom he was not familiar, to conduct a polygraph exam.  O’Kelly held himself out as a private investigator and polygraph examiner. Kachinsky informed Dassey of the upcoming polygraph examination in a letter, stating, “the videotape is pretty convincing that you were being truthful on March 1,” and encouraging Dassey not to cover up for Avery.  Shortly before the polygraph examination, the prosecutor sent an email to Kachinsky expressing concern about the pretrial publicity that Kachinsky was engaging in and referring him to the relevant rule of attorney ethics governing such publicity.

2. Defense Investigator Michael O’Kelly

O’Kelly conducted a polygraph examination of Dassey, the results of which were inconclusive. Nonetheless, O’Kelly described Dassey to Kachinsky as “a kid without a conscience” or something similar.  Notwithstanding O’Kelly’s opinion of Dassey, Kachinsky hired him as the defense investigator in the case.

Despite Dassey’s claims of innocence, both O’Kelly and Kachinsky proceeded on the assumption that Dassey would cooperate with the prosecution and become the key witness against Avery. O’Kelly’s primary goal was to uncover information that would bolster the prosecution’s case.  To this end he purportedly developed information as to the possible location of certain evidence.  Kachinsky provided this information to the prosecutor and a lead investigator and informed them that they may wish to speak to O’Kelly.  Although the information led to a search warrant being issued, the search warrant did not yield any additional evidence against Dassey.

Kachinsky decided that he wanted O’Kelly to re-interview Dassey to get him once again to admit to his involvement in the rape, murder, and mutilation of Halbach. Kachinsky wanted to make it clear to Dassey that, based upon the evidence, a jury was going to find him guilty.  Toward that end, he chose May 12 as the date for O’Kelly to interview Dassey—the date a decision on Dassey’s motion to suppress his March 1 confession was scheduled to be rendered.  Kachinsky expected to lose the motion to suppress and believed that the effect of losing such a crucial motion would leave Dassey vulnerable.

Shortly before meeting with Dassey, in an email to Kachinsky O’Kelly expressed contempt for the Avery family. He referred to the Avery family as “criminals” and asserted that family members engaged in incestuous sexual conduct and had a history of stalking women.  He continued, “This is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.” O’Kelly quoted a friend as having said, “This is a one branch family tree. Cut this tree down. We need to end the gene pool here.”  O’Kelly thought that Dassey’s denial of his confession was an “unrealistic” “fantasy” that was influenced by his family.  On O’Kelly’s recommendation, Kachinsky canceled a planned visit with Dassey because Dassey “needs to be alone.”  O’Kelly said, “He needs to trust me and the direction that I steer him into.”

[snip]

After the interview was concluded, Kachinsky understood from O’Kelly that Dassey was now “on board with cooperating in the Avery prosecution and, ultimately, entering a plea agreement.” However, Kachinsky had not watched O’Kelly’s interview of Dassey.  Nevertheless, he approved of O’Kelly communicating the substance of his taped interview of Dassey to the prosecution’s investigating agents.

3. May 13, 2006 Interrogation

Following the O’Kelly interview, Kachinsky arranged for the state’s investigators to interrogate Dassey again.  Kachinsky did not attend the interrogation. The state had not made any offer of immunity or prosecutorial consideration.  Kachinsky did not prepare Dassey for the interrogation, trusting O’Kelly to do so.  The plan was to have O’Kelly watch Dassey’s interrogation from a separate monitoring room. Kachinsky instructed O’Kelly not to interrupt unless Dassey asked to speak with Kachinsky or otherwise asked to stop.

[snip]

Although it probably does not need to be stated, it will be: Kachinsky’s conduct was inexcusable both tactically and ethically. It is one thing for an attorney to point out to a client how deep of a hole the client is in. But to assist the prosecution in digging that hole deeper is an affront to the principles of justice that underlie a defense attorney’s vital role in the adversarial system. That said, Dassey’s attempt to characterize Kachinsky’s misconduct as a conflict of interest under Sullivan is misplaced.

And, of course, Kachinsky has now weighed in with the media about his thoughts on the reversal.  Unbelievably, he’s going with trying to take a little credit for it and claim it vindicates his efforts:

 “In the sense that [the confession] was an instance that I preserved for appeal, before I was off the case, I was in sense gratified because the fact that that was the basis for magistrate judge Duffin’s decision, it shows that I did my job,” Kachinsky said. “Without a confession, the state didn’t really have anything of a case. It was an issue that was clearly available to appeal.”

And, in excellent news for residents of Appleton, Wisconsin – he’s still licensed and in good standing.

Another development on impaired lawyers, Virginia drafts an ethics opinion

Almost a year ago, I wrote a little bit about what was a first-of-its-kind rule adopted by South Carolina to address the obligations of lawyers in a law firm when a lawyer within their midst was becoming impaired as a result of aging.  South Carolina’s adoption of a new RPC 5.1(d) aimed at that specific situation was part of a package 3 court rules but the language of SC’s RPC 5.1(d) specifically provides:

(d) Partners and lawyers with comparable managerial authority who reasonably believe that a lawyer in the law firm may be suffering from a significant impairment of that lawyer’s cognitive function shall take action to address the concern with the lawyer and may seek assistance by reporting the circumstances of concern pursuant to Rule 428, SCACR.

I have admittedly not scoured the landscape since SC adopted that rule, but I am not aware of any jurisdiction that has acted similarly.

Earlier this month, Virginia put out for public comment a draft ethics opinion that, at least, touches on the issue of what lawyers are supposed to do in dealing with an aging lawyer on the decline.  The draft of Virginia’s LEO 1886, titled “Duty of Partners and Supervisory Lawyers in a Law Firm When Another Lawyer in the Firm Suffers from Significant Impairment,” can be viewed here.

The opinion offers two hypothetical situations – one involving an associate with a drug problem and the other involving a 60-year old lawyer suspected to be having declining mental faculties.  This hypothetical reads as follows:

George is a sixty-year old partner in a small, two lawyer firm.  He has been honored many times for his lifelong dedication to family law and his expertise in domestic violence protective order cases.  He has suffered a number of medical issues in the past several years and has been advised by his doctor to slow down, but George loves the pressure and excitement of being in the courtroom regularly.  Recently, Rachelle, his long-time law partner, has noticed some lapses of memory and confusion that are not at all typical for George.  He has started to forget her name, calling her Mary (his ex-wife’s name), and mixing up details of the many cases he is currently handling.  Rachelle is on very friendly terms with the [juvenile and domestic relations] court clerk, and has heard that George’s behavior in court is increasingly erratic and sometimes just plain odd.  Rachelle sees some other signs of what she thinks might be dementia in George, but hesitates to “diagnose” him and ruin his reputation as an extraordinarily dedicated attorney.  Maybe he will decide to retire before things get any worse, she hopes.

The overwhelming majority of the proposed VA opinion focuses however on impairment caused by drug or alcohol abuse – the other lengthy hypo set out in the proposed opinion.  This focus is likely because of the recent wave of publicity focusing upon the high rates of depression and substance abuse among members of our profession.  In fact, the proposed opinion right out of the gate references the 2016 report in the Journal of Addiction Medicine that reported that our rate was “2 to 3 times the general population.”  The opinion does a fine job in elaborating on that scenario, but it reads in the end as if it were treating the aging lawyer question as something of an afterthought.  In fact, the only specific guidance the opinion offers on the second hypothetical comes in its last 8 lines:

In the second hypothetical, it is not clear that George has committed any violation of the Rules of Professional Conduct.  Obviously, George’s impairment, unaccompanied by any professional misconduct, does not require any report to the bar under Rule 8.3(a).  Yet, his mental condition, as observed by his partner, Mary, would require that Mary make reasonable efforts to ensure that George does not violate his ethical obligations to his clients or violate any Rules of Professional Conduct.  This would include, as an initial step, Mary or someone else having a confidential and candid conversation with George about his condition and persuading him to seek evaluation and treatment.

Offering just this, and only this, as guidance is a bit of a shame given just how stark and troublesome the facts of the second hypothetical are and how heart-wrenching you could imagine the circumstances in the hypo being for Mary when we’re told they practice in just a two-lawyer firm.

Who exactly would be the “someone else” if not Mary in that situation who could have the confidential and candid conversation with George?  Admittedly, it isn’t quite ethics guidance but it would also be helpful for Virginia lawyers in the future role of Mary in the hypothetical to hear that how wrongheaded and counterproductive Mary’s thinking as to what might ruin George’s reputation is.  Mary’s act of confronting George privately about her concerns is not the thing that would “ruin his reputation as an extraordinarily dedicated attorney.”  Allowing the situation to go unaddressed is much more likely to lead to outcomes in cases — again when we are talking about a two lawyer firm where it simply isn’t possible to think that Mary can keep track of and cover for anything that goes wrong in George’s practice —  is the much more likely route to ruination of an otherwise stellar reputation.

It will be interesting to see whether the public comment period will result in Virginia trying to elaborate a bit more on the much more difficult of the two hypos.  Here’s hoping.

 

Thoughts only partly relevant to California’s roll out for public comment of rules revisions.

One mistake.  What should be the price of one mistake?  To some extent, the answer to those questions for lawyers and lawyer discipline matters ought to be foreordained in two consecutive paragraphs of the Scope portion of the ABA Model Rules:

[19] ….the rules presuppose that whether or not discipline should be imposed for a violation … depend on all the circumstances, such as the willfulness and seriousness of the violation….

[20]  Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.  In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy …. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.

Most folks who practice in any area where the ethics rules and substantive causes of action may intersect, such as legal malpractice matters, are quite familiar with their state’s version of the language above from [20] that attempts to navigate a thorny path between what the standard of care requires of a lawyer versus what it takes to commit an ethical violation.  The language I’ve excerpted in [19] is, I think, less commonly thought of but is highly important as it indicates an acknowledgement in the ethics rules themselves that conduct can both simultaneously amount to an ethical violation but be of such a low-level nature as to warrant no discipline whatsoever.

For what it is worth, I tend to think that the principle acknowledged in [19] is even more supportable by common sense than the path threaded by the language in [20] is.

An area where all of these concepts intertwine, and that serves as an easy -to-digest example, is an instance in which a lawyer makes a solitary mistake that can also be argued to violate an ethics rule.  Pick your favorite poison, whether it is the missing of a statute of limitations or other deadline for a client or . . . actually those two tend to be the most readily explainable and the most likely to involve facts that also generate litigation over the error.  Assuming that the affected client can satisfy the relevant jurisdiction’s case-within-a-case elements of proof, then the error will likely be actionable as a claim for legal malpractice.  Such an error can also be viewed through the lens of the ethics rules as being in violation of RPC 1.1 – not providing competent representation to the affected client — or RPC 1.3 — not acting with reasonable diligence and promptness for the client — or both.  Yet, even if viewed through that lens, it wouldn’t be unusual for such a matter to be addressed and remedied only through civil litigation or a settlement and not through the pursuit of any disciplinary proceedings.

Related to these thoughts, or at least explanatory of why they would result in the creation of a post, is the fact that California has now taken the long-awaited action of rolling out proposed revisions to its ethics rules that would replace its existing lawyer ethics rules with a set of rules that look more like the ABA Model Rules.  If you want to go read the entirety of the proposed rules, you can go get them at this link.  The public comment deadline on the California proposal is September 27, 2016.

There are a lot of interesting aspects of what California has proposed to adopt (as well as some of the rules they expressly have rejected adopting), and with any luck I’ll manage to dedicate at least one more post on the topic at a later time, but for today the point is to note that California as to proposed versions of Rule 1.1 and 1.3 offer up deviations from the ABA Model Rule language that are quite pertinent to the thought exercise about what should be the price of one mistake.

In both of proposed Rules 1.1 and 1.3, California would have the language of its rules read to rule out the idea that one instance of simple negligence could be an ethical violation of those rules at all.  As proposed, California’s 1.1(a) would read:

A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.

Likewise, proposed Rule 1.3(a) would read:

A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to act with reasonable diligence in representing a client.

If you’re writing on a clean slate, that sure seems like a good way to address these issues.

 

Three short technology stories for a Tuesday

Throwback Thursday is definitely a thing all over the World Wide Web it seems, but maybe Tech Tuesday ought to be a thing?  Though, I guess, for lawyers focusing on technology has to be an every day affair.

Like multitudes of others, I wrote a little bit recently about the Panama Papers and the Mossack Fonseca data breach fiasco.  Fortune now has an article online about a Wired U.K. story that casts a harsh light on the electronic security measures that the Panamanian firm had in place.  Blurbs like these

Mosseck Fonseca’s client portal, according to Wired, runs on a version of Drupal last updated in 2013, and vulnerable to an array of attacks, including one that would allow attackers to execute commands on the site. Another weakness allows access to the site’s back end just by guessing the right web address.

Just as bad is the firm’s webmail portal, which runs Microsoft Outlook Web Access, and hasn’t been updated since 2009. The firm also did not encrypt its emails. As one expert speaking to Wired put it, “They seem to have been caught in a time warp.”

sound very bad when you are talking about a firm that trafficked almost exclusively in “highly sensitive financial information.”  I suspect though that there are lots of other lawyers out there that are hopeful that their technology arrangements will never be subjected to even half as much scrutiny.

One lawyer who is in the middle of a highly public examination of their choices in technology is the lawyer at the heart of this story yesterday.  The lawyer has been sued by her former clients over a theft from them of $1.9 million resulting from hacking of the lawyer’s email account.  The couple had hired the attorney to represent them in the purchase of a nearly $20 million co-op apartment.  Luckily, it appears that the clients figured out what was going on even before the lawyer did and were able to recover almost all of the $1.9 million that was to be the down payment but was wired to the fraudsters.  The lawyer — and you ought to brace yourself here (though I admittedly know lawyers who still use this service) — was using an AOL email account for her real estate law practice.

The lawsuit contends that AOL accounts are particularly vulnerable to hacking and that the hacking was what let the cybercriminals know when certain transactions were going to take place, but as the article makes clear there were other opportunities for the lawyer to realize something was amiss:

It accuses Doran of forwarding bogus emails from the hackers — who were impersonating the seller of the apartment’s attorney — about payments from the Millards without confirming their authenticity last December. The name of the seller’s attorney was misspelled in the email which should have been a tip off that something was amiss.

Finally, the usually on-point Karen Rubin has a well-done post over at The Law For Lawyers Today about a relatively fortunate Oklahoma lawyer who managed to avoid full reciprocal discipline over his inability to figure out how to e-file in bankruptcy court.

The Oklahoma lawyer was permanently suspended by the Western District of Oklahoma bankruptcy court from ever practicing before it again, but the Oklahoma Supreme Court hit him only with a public censure.  Given the current rhetoric surrounding the practice of law and the demands everyone appears to assume lawyers absolutely must satisfy when it comes to using technology, it is pretty startling to read a state supreme court, in that case Oklahoma’s, issue an opinion in a lawyer discipline case that can be read to seem to minimize the obligation to be technologically competent.  But, in fairness, unless the Oklahoma Supreme Court was going to be willing to disbar the lawyer in question — which would seem supremely harsh — then any discipline imposed through reciprocal channels was going to be less than that meted out by the federal bankruptcy court and a public censure sounds about right to me.

 

“Sleeping,” sleeping, and Cronic sleeping.

Three recent cases involving lawyers alleged to have been sleeping during trial (actually only two about sleeping lawyers, one about a lawyer pretending to sleep) leave me feeling like there has to be the germ of a worthwhile point to be made in there somewhere, but after drafting and redrafting this post in spare moments the last couple of days, I’m not sure any longer that had a point to be made but here we are, and I’m pot committed, so …

Those of us who primarily handle civil litigation tend to think that the stakes we deal with are high, and our clients certainly think so and expect us to treat their cases in that fashion.  Those responsibilities can end up keeping lawyers up at night.  Yet, in criminal cases, there are typically more significant repercussions for the participants that can flow from a lawyer’s mistake.  Jail time, capital punishment, etc.

Falling asleep during trial would be universally recognized as a pretty significant error for an attorney make.  Yet, pretending to be asleep during trial could, of course, be a strategic ploy.  The three cases decided in 2016 so far that got me thinking on this topic manage to cover the spectrum of the “slumbering lawyer” problem.

Back on Groundhog Day of this year, a prosecutor in Maine was chided by that state’s highest court for conduct described as “sophomoric, unprofessional and a poor reflection on the prosecutor’s office.”  Specifically, the conduct was pretending to sleep during the defense’s closing argument in a murder trial.  The court determined, however, that neither that conduct, nor other conduct by the prosecutor that the court found problematic, was enough to find prejudicial error to the defendant sufficient to justify reversing the homicide conviction in the case.  The stage craft of pretending to sleep could, as with other kinds of stagecraft, be viewed as amounting to a violation of RPC 4.4(a) on the part of the prosecutor.  Maine’s RPC 4.4(a), like the ABA Model Rule, prohibits a lawyer representing a client from “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden a third person….”

Moving on from fake sleeping, but also back in February 2016, the 11th Circuit affirmed a lower district court’s ruling that a criminal defendant was not prejudiced by his slumbering counsel because the lawyer alleged to have fallen asleep only did so during a non-critical stage of the trial.  Specifically, defense counsel fell asleep while a recorded interview of an accomplice – spanning 71 pages in transcript length – was played to the jury.  The 11th Circuit agreed with the district court’s ruling that the standard for ineffective assistance under Strickland v. Washington and not U.S. v. Cronic was correct and that the trial court did not unreasonably apply Strickland.

The 11th Circuit opinion presents a very dry read including very little detail (even the lawyer involved never has his name mentioned).  From the opinion though, it appears the only actual proof mentioned of an instance of sleeping was the lawyer’s own statement made after cross-examining the witness and in response to the prosecutor asking for a break while defense counsel was cross-examining the law enforcement officer who had authenticated the recording:  “I need to take a break; I fell asleep a couple of times.”  Whether a sleeping lawyer is viewed as providing incompetent representation in violation of RPC 1.1, or acting in a manner not sufficiently diligent under RPC 1.3, or simply not in a position to effectively communicate with the client during trial under RPC 1.4, one would think that, if the lapse into unconsciousness could actually be proven, that the potential would exist for a finding of a disciplinary violation.  Yet, I would be very surprised if discipline ever came to pass.

In contrast, just last week, the Fourth Circuit reversed the conviction and thirty-year sentence of a defendant whose counsel also fell asleep during trial.  The Fourth Circuit case, as with the 11th Circuit case, involved a Section 2255 proceeding, but the difference in this situation being fairly described as one of degree and of the resulting legal standard to be applied.  Everyone who testified during the evidentiary hearing proceedings — except for the lawyer in question — testified to having witnessed the lawyer asleep at least once during trial.  The lawyer’s client after first alleging his lawyer fell asleep twice, eventually testified that his lawyer had slept for as many as 10 minutes a stretch some 10 to 20 times during the trial.  Counsel for other co-defendants each testified that despite now having a direct view of him at all times, they had noticed at least one bout of snoozing.  Perhaps, most damningly, a juror testified that the lawyer was asleep for at least a half an hour almost every day of trial and that the sleeping lawyer had been a topic of discussion during deliberations.  The lawyer, in question, in testimony not lost on the appellate court, said he couldn’t recall sleeping during the trial.

The Fourth Circuit, in what was a first impression matter for it, joined several other circuits in indicating that the Cronic standard — permitting the presumption of prejudice — and not Strickland applies when a lawyer is asleep for a substantial part of the trial.  The Fourth Circuit, however, also explained in a footnote that its ruling should not be treated as meaning only “the most egregious instances of slumber” will serve to trigger the need for the Cronic standard, indicating that being asleep for a critical part of the trial alone could also be sufficient.  Thus, the same fact pattern in the 11th Circuit matter might suffice in the Fourth Circuit if the nap had come not during the paying of an audiotape of a repetitive witness statement but during a critical time in the trial.

The same set of ethics rules mentioned above as to the one-time-napper are, of course, also implicated by repeated siestas during trial, but the odds of such a proceeding being pursued and discipline imposed inherently should be more likely as to the lawyer in the Fourth Circuit case.  Given the pretty broad conspiracy that would be necessary for the lawyer to prove his public explanation that this was a political dirty trick mounted against him because he had run for public office, such a case would likely be difficult to defend.

[P.S. While his other response, equating the allegations against him as an insult to the federal judge who presided over trial, the logistics of the courtroom described in the Fourth Circuit opinion that could explain why the trial court wouldn’t necessarily have seen the sleeping no matter how frequent and the Fourth Circuit’s own pretty strong rebuke of the district judge’s discounting of the witness testimony — “[T]he district court utterly failed to consider the likely possibility that each was saw [the lawyer] asleep or nodding off on different occasions.  Had the court done so, it would have reached the conclusion that [the lawyer] could have been asleep on at least six or seven different occasions.” — that approach isn’t likely as elegant a way of defending himself as it might seem at first glance.]

 

Digital assets and ethical issues – good news from the Tennessee legislature

Last week the Chattanooga Estate Planning Council was kind enough to have me come to speak to them about ethical issues arising from the uncertain world of the law regarding digital assets.  They were gracious hosts and, to the extent there were important ethics issues to really discuss, we managed to cover that most, if not all, such isssues stemmed from the fact that it is incredibly difficult for those working in estate planning to try to accomplish client objectives as to digital assets in Tennessee because we lack legislation to address it.  For that reason, it seemed to me that the two most prominent ethical concerns for lawyers working in that arena are the duty of competence under RPC 1.1 and the duty under RPC 1.4(b) to communicate about what their clients need to know to make fully informed decisions about the representation.

What’s necessary to address the duty of competence is difficult to pare down beyond recognizing that you have to be as fully up to speed on what Tennessee law does, and does not, address to understand the uncertainty and about how federal law (including the Computer Fraud and Abuse Act and the Stored Communications Act) permits service providers to deny requests for access to online information after users and subscribers have passed away.

The most difficult part about the duty of communication under RPC 1.4 is figuring out how to warn a client that no matter how well thought out their estate plan might be on the subject of distribution of digital assets, the client could, by accepting online terms and conditions for use (or updated and revised terms and conditions of use), thwart the plan by ceding ownership of digital assets or authorize service providers or online entities to refuse to honor the contents of such plans.

This week the Tennessee legislature passed legislation so that the time period of such uncertainty now has an end date — July 1, 2016.  Effective at that time, Tennessee attorneys will be able to count on a version of the Revised Uniform Fiduciary Access to Digital Assets Act that solves many problems intrinsic to this area of the law.  You can access the version that will go into effect by downloading the PDFs from this post at the TBA Law Blog here.  It will be codified as Tenn. Code Ann.  35-51-101 et seq.  And if you are interested in seeing all of the areas where it differs from the Revised Uniform Act, you can see the full Revised Uniform Act here.

For those that don’t have the time (or the inclination) to go study the Tennessee Act, among the many important and helpful things it accomplishes, there are three I want to highlight.

First, the term “digital asset” will have a clear definition.

[A]n electronic record in which an individual has a right or interest.  ‘Digital asset’ does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

Thus, for example, my URL and this blog should be recognized as a digital asset of mine under state law.  If you have gone green and only receive your bank statements in digital form, then those statements would be a digital asset even though the money in your bank account that they document would not.  If you’re invested in Bitcoin on the other hand, then the value of your holdings in Bitcoin would be digital assets under the Tennessee Act.

Second, the Tennessee Act generally establishes a hierarchy that puts something called an “online tool” at the top, estate planning documents next, and general terms of service agreements last when it comes to directions to online service providers/custodians about post-death disclosure of digital assets.  Section 5 of the Tennessee Act explains:

(a)  A user may use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications.  If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other dispositive or nominative instrument.

(b)  If a user has not used an online tool to give direction under subsection (a) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other dispositive or nominative instrument, disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.

(c)  A user’s direction under subsection (a) or (b) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.

Online tool, is also a defined term under the Tennessee Act.  “An electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.”  I’m not sure, as a frequent user of the Internet, that I have encountered one of these items yet.

Third, while this legislation goes a long way toward reducing uncertainty for estate planning lawyers in Tennessee, it does not change the fact that lawyers will still have to have cogent discussions with their clients when the topic of providing for distribution of digital assets in their estate planning documents arises.  This is in no small part because blithe acceptance of online terms of service agreements will still have consequences in Tennessee as Section 6 of the Tennessee Act makes clear that the underlying rights of users are still going to be limited to whatever is created in a terms-of-service agreement in the first place.  Thus, there will still be lots of confusion on the part of clients who may think, for example, that they actually own and can leave behind that digital library of e-books they possess, yet the terms-of-service they may have agreed to without reading could indicate that they do not actually own any of those items but possess only a lifetime license to use.

Coming to praise rather than to bury – West Virginia edition

Some, including possibly me, will argue that the greatest thing to come out of West Virginia is the My Brother, My Brother, and Me podcast.  But today, I write about another very positive contribution out of West Virginia, a very good, very thorough ethics opinion that overflows with common-sense with respect to social media issues for lawyers.  West Virginia L.E.O. No 2015-02 provides advice to attorneys that is as good as the McElroy brothers’ “advice” on MBMBAM is funny.

Now, this ethics opinion was actually issued a full month ago but news of it only came to me when it was picked up in other places, like the ABA/BNA Lawyers’ Manual on Professional Conduct.  If all you ever read of No. 2015-02 is the 12 numbered answers the West Virginia committee provides to the questions it poses, you’d know almost all you needed to about how practical, smart, and on-point its opinion is:

  1. Attorneys may advise clients about the content of the clients’ social networking websites, including removing or adding information;
  2. Attorneys may connect with a client or former client on a social networking website;
  3. Attorneys may not contact a represented person through a social networking website;
  4. Although attorneys may contact an unrepresented person through a social networking website, they may not use a pretextual basis for viewing information on a social networking site that would otherwise be private/unavailable to the public;
  5. Attorneys may use information on a social networking website in client-related matters;
  6. Attorneys may accept client reviews but must monitor those reviews for accuracy;
  7. Attorneys may generally comment on or respond to reviews or endorsements;
  8. Attorneys may generally endorse other attorneys on a social networking website;
  9. Attorneys may review a juror’s Internet presence;
  10. Attorneys may connect with judges on a social networking website provided the purpose is not to influence the judge in performing his or her official duties;
  11. Attorneys may advertise on a social networking website provided such advertisement complies with the requirements of the Rules of Professional Conduct; and
  12. A prospective attorney-client relationship may be formed on a social networking website.

In a way, those could be the 12 Commandments of Social Media for Lawyers.  [I’m claiming that title – that’s mine; ©; don’t anyone try to do a seminar with that title before I do; I’ve printed this blogpost out and mailed it to myself in a sealed envelope.]

The rest of the opinion (which spans 24 pages) addressing the details and nuances of these 12 answers is infused with the same kind of practical guidance and wisdom the numbered answers would lead you to expect.  It strikes all the correct notes in terms of understanding issues like: the line between advising clients on how to change privacy settings and engaging in what could be spoliation; the fact that public portions of a person’s online presence (whether they are a represented party, an unrepresented party, or a juror) are fair game; and the fact that judges and lawyers can be friends and interact socially in real life and in just the same way could be friends and interact on social media.

Even better, it highlights a few other nuances not often discussed which is the need for lawyers to remember the potential implications for trial publicity, and compliance with RPC 3.6, when they post content to social media platforms, and that there are some ways that interactions through social media platforms (like, for example, comments on Facebook posts and replies to comments) could amount to real-time electronic communication treated more like a phone call than an email under RPC 7.3.

I think the West Virginia committee managed its task so well, in large part, for two reasons.  First, the opinion makes clear that it starts from the premise that social media and social media websites are just another means of communication.  Second, it was written as a byproduct of a mindset that recognized that the very first of the general ground rules the opinion should address is the role that a lawyer’s ethical duty of competence under RPC 1.1 plays with respect to the social media landscape:

[I]n order to comply with [RPC 1.1], attorneys should both have an understanding of how social media and social networking websites function, as well as be equipt [sic] to advise their clients about various issues they may encounter as a result of their use of social media and social networking websites.

Frankly, this weird regional/archaic spelling of “equipped” is one of my only quibbles with the opinion at all.  The other quibble – and really the only one of substance – is that I think the opinion goes too far in terms of imposing a duty on a lawyer to “verify the accuracy of any information posted on [the lawyer’s] social networking websites,” especially given the difficulty in reconciling that with what the opinion says immediately before that (“Although attorneys are not responsible for the content others post on the attorneys’ social networking websites….”)  If the opinion had just left the obligations to “(1) should monitor their social networking websites [and] (3) must remove or correct any inaccurate endorsements,” then it would have equipt me with almost nothing to quibble with at all.

Go read it.  Then print it out and keep it handy.  It’s good.

South Carolina adopts first of its kind* rule on cognitive impairment.

My paternal grandfather succumbed to Alzheimer’s disease.  As someone who makes a living (such as it is) using his mind (and is pretty certain that he could not feed his family if forced to use his hands for a living), the loss of my mental faculties is one of my greatest fears.  In that regard, I suspect I am quite like a plethora of other lawyers throughout the United States.

Dealing with lawyers on the tail end of their career, and any declining mental acuity that inevitably accompanies the aging process for many human beings, is a troubling issue for law firms of any size, but particularly for smaller firms.  I’m moderating a panel at the AON Law Firm Risk Symposium in Phoenix in October that will be focusing on the ethics, employment, and loss prevention issues associated with the “graying” of the profession.

For all of these reasons, a development out of South Carolina this week is particularly noteworthy to me.  The South Carolina Supreme Court has adopted what, to my knowledge, is a first of its kind (and the reason for the asterisk in the title is that it is possible there is a rule out there like this somewhere but I’m entirely unaware of it) package of rules focused on the issue of lawyers and the onset of “cognitive impairment.”  The measures adopted by South Carolina in this order dated August 24 do three separate, but obviously interrelated things.

First, SC established a new rule, SCACR 428 entitled “Intervention to Protect Clients,” giving authority for the Executive Director of the South Carolina Bar — SC has a unified bar association so that person, unlike say in Tennessee, is a government actor (an important distinction as I discussed in another context here) — to be able, upon receipt of information from someone “expressing concern about cognitive impairment of another lawyer” to appoint “Attorneys to Intervene,” who would in turn have the authority to attempt to meet with the lawyer in question and potentially propose a course of conduct, including actions such as making referral to the “Commission on Lawyer Conduct.”

Second, SC revised its RPC 5.1 to add a new subsection:

(d) Partners and lawyers with comparable managerial authority who reasonably believe that a lawyer in the law firm may be suffering from a significant impairment of that lawyer’s cognitive function shall take action to address the concern with the lawyer and may seek assistance by reporting the circumstances of concern pursuant to Rule 428, SCACR.

Along with that subsection, a new Comment [9] was adopted stressing that the new rule “expresses a principle of responsibility to the clients of the law firm.”

Third, SC imposed an ethical obligation upon judges to take certain steps when they reach a conclusion that a lawyer practicing before them is suffering from this kind of measurable mental decline through adoption of a new Rule 501(G) in the Code of Judicial Conduct.

Whether this will be the start of a trend among states remains to be seen.  It is worth noting that whether specialized rules are adopted or not, in jurisdictions tracking the ABA Model Rules, there are ethical rules already implicated by the situation, not just for the lawyer whose skills are waning, but also for those lawyers who practice with him in a firm or even as co-counsel.  It is, for example, not much of a stretch to read the duties owed by lawyers under RPC 1.1, RPC 1.4, RPC 1.16(a), and RPC 5.1(b) and (c) to perhaps have obligations roughly similar to the new obligations being delineated in South Carolina’s RPC 5.1(d).

It is also well worth keeping in mind that given the economic climate — both market calamities several years ago and things that seem like current market calamities — there is no reason to think that the phenomenon of aging lawyers being reluctant to retire is likely to go away any time soon.  Thus, whether jurisdictions seek to carve out specialized requirements and rules as has South Carolina or not, I feel pretty safe saying these issues will continue to challenge lawyers and law firms for the rest of my lifetime.