Just the normal scrutiny.

I need something fun in my life at the moment to help deal with some of the insanity that is all around us all.

So, let’s tell something of a non-linear story about how haphazardly the disciplinary rules can be enforced as against lawyers. (Okay, so maybe you and I see “fun” differently.) Typically, many folks who do what I do for a living will tell you that the biggest divide in disciplinary enforcement is between how solo practitioners and lawyers in very small firms are more often singled out and disciplined than are lawyers who practice in large firms.

But this is a story of someone who now appears to be a solo practitioner, and who, as we will now discuss, is engaging in something of a speed-run through the rules of ethics to see if he can violate all of them in one 2-3 week period. But this solo practitioner, I’d be willing to bet (were I a betting man) will not face the consequences for his conduct that any other solo practitioner might face.

This is a story that, I think, reveals that the real imbalance in rules enforcement is between those who are powerful and those who are not. Yes, dear reader, this is a story about the absolute trainwreck of a lawyer who is the personal attorney to the outgoing President of the United States.

If you are truly a glutton for punishment, you can go listen to the complete audio recording of the hearing on November 17, 2020, during which this attorney demonstrated ignorance of enough important legal concepts to raise questions about compliance with Rule 1.1 regarding competence, but, more troublingly, also made quite a few statements to the court that could trigger discipline for untruthfulness under Rule 3.3 and Rule 8.4(c) and all in the pursuit of claims and contentions that are so unmeritorious as to run afoul of Rule 3.1.

But, perhaps even more remarkably, this attorney’s participation at the hearing only came about, at least in part, because he was willing to make false statements in his pro hac vice motion for permission to appear.

(As a side note, literally as I’m trying to write this post, this lawyer is holding a press conference, sweating his hair dye down both sides of his face, and continuing with just objectively, provably false statements that would also seem to trigger real ethical issues under Rule 3.6 if his client wasn’t also hastily withdrawing lawsuit after lawsuit through voluntary dismissals. )

Image

(Now, a different lawyer, part of the same team, is engaged in rhetoric that appears to be inciting militias to take the election outcome into their own hands. She was followed by another, different lawyer, accusing unnamed election officials of committing fraud. Again, all of these are statements being made that fly directly in the face of actual evidence. The hair dye sweat image is funny, but turns out nothing else about this is fun.)

In making his application for pro hac admission in a federal court case in Pennsylvania, and thus deciding to appear in federal court again for the first time in 30 years, this lawyer filed a motion that indicated that he was licensed and in good standing in a number of different jurisdictions, including D.C. But as this article walks you through, a number of people have confirmed that the attorney is actually current administratively suspended in D.C. for failure to pay certain fees.

That’s not how these things are supposed to work and falsely representing one’s status to a federal court to gain pro hac admission would expose regular lawyers to a significant risk of discipline. Among other rules implicated by that kind of conduct, RPC 7.1 requires lawyers to refrain from making false statements about themselves or their services.

And to keep to my commitment that this post be a non-linear story, I will close by saying that the press conference mentioned above will likely go down in history as being most memorable for the “My Cousin Vinny” reference, but that little anecdote itself was in furtherance of just the titanic levels of mendacity on display from this lawyer. The anecdote involved reference to the portion of the movie where Joe Pesci’s character impeaches the credibility of an eyewitness during cross-examination and pointing out how her version of events was unbelievable once she demonstrated that from a similar distance she could not tell how many fingers Joe Pesci’s character was holding up. Yet, the only way the story was at all germane was because this lawyer was trying to use it in aid of lying about how far away ballot count observers were when allowed to observe the counting of ballots.

Will any of this end up in the imposition of any discipline or consequences? I’m highly cynical. Candidly, given the lengths he is willing to go, and the lengths his client is willing to go, to subvert democracy, the United States will be lucky if this lawyer just continues to be subjected to public ridicule and derision.

WhatsApp at Atrium? A lot, but also WhatsApp with you?

Now, I’m certain the 5 or 6 of you still left who haven’t been alienated by the long hiatus are a bit miffed about the lack of content over the last couple of weeks.

Fair, but technically there has been new content posted to the blog first on January 10 and then on January 12, just not by me. Two interesting comments on this post of mine about Atrium Law were left by someone who — other news sources tell me – may well have been one of the lawyers laid off by Atrium in the past few weeks.

Now I’m not really in the breaking of legal news business as much as the commenting on breaking legal news business so the fact that I life and work conspired to cause me to miss the opportunity to be among the first to speak on that development is not so bad. My delay allows me to instead point you to a number of good pieces that have been written about the goings on over at Atrium. Try here, here, and here.

For today, I want to try getting slightly out in front of a different issue that needs to be relevant to lawyers struggling with finding the right balance for how to engage in electronic communications with clients on various platforms. While “scary” is an overused term in a world as unstable as ours and where wealth is unevenly distributed and people all over the world truly live in scary conditions, concerns associated with the security of communications platforms can at least be “scary” at the “world of lawyering” level.

With WhatsApp being a pretty prominent texting platform, particularly for international organizations, the news of one or possibly two very prominent apparent hacks through use of that platform should make lawyers very cautious about using it to communicate with clients. The one that seems more concrete is the news regarding Amazon’s CEO having been hacked by a Saudi Arabian royal through the sending of a link through WhatsApp. You can read a good article about that trending story here. That article also helpfully reminds users of the fact that a similar-sounding vulnerability was acknowledged and patched by the app in November 2019.

The more speculative story making the rounds ties together these stories about potentially improper use of personal devices and apps to pursue official White House business and the known friendship Jared Kushner and the particular Saudi Arabian royal involved in the alleged Jeff Bezos hack.

Now, others have written long ago about reasons to be concerned about whether this particular app can be used ethically at all given other issues that are known risks, like this article that was in Above the Law more almost a year ago.

Prominent news stories such as these raise the specter of concern over less obvious risks of use. Such risks tied in with the fact that almost every state now has adopted some version of the “ethical duty of technical competence” concept through embrace of language in paragraph [8] of the Comment to ABA Model Rule 1.1 just adds more fodder for lawyers to be wary of the risks associated with third-party platforms when communicating with clients and to be deliberate about deciding whether to address such concerns in advance through language in engagement agreements.

My favorite post of 2019

For the second straight year, I’m ending the year with an homage to a concept (ripping off an idea) pursued by Nate DiMeo the writer and performer of The Memory Palace podcast. I’m going to re-post what was my favorite post from the past year.

Deciding what to put out there again this year was fairly easy as it is a post that (I think) offers the most solid and original idea about anything related to ethics that I offered up this year. It also continues something of a theme of last year’s repeat offering as it focuses on what the profession should be moving toward and, thus, also is a nice way to usher in a new year — particularly a new year where the numbering offers plenty of opportunities for puns about vision.

Of course, as often happens when I think I have offered up a solid and original idea, it ends up pretty much entirely ignored. So, let’s give this one another chance to gain relevance.

Loosing a big (maybe?) idea into the world.

I had originally promised myself that the articulation of this thought would debut here at my blog. I almost managed it but I raised this notion in the real world lately among some very bright lawyers. So, before I do it again somewhere other than the Internet, I’m following through to put this idea out through this platform for anyone who wishes to chew on it to chew on it.

The only background that I think you need (even if you are not a regular reader of this space) is that there is much activity going on across the country in terms of real efforts at proposed change to the way lawyer ethics rules address certain topics that are largely viewed as barriers to information about the availability of legal services.

Two of the potentially most important, and relatively fast-moving, endeavors are the work of the California Task Force on Access Through Innovation of Legal Services, the APRL Future of Lawyering project. But there is movement happening in a number of different states to propose changes to the ethics rules to loosen, if not outright delete, restrictions on monetary and other arrangements between lawyers and people who are not lawyers, that are currently placed in rules patterned after ABA Model Rule 5.4 (generally prohibiting fee-sharing with people who are not lawyers) and 7.2 (restricting the ability of lawyers to make payments to others for referrals to, or recommendations of the lawyer).

It is anticipated that there will be some significant level of outcry over any such proposed changes on the grounds that removal of such rules erodes the protection against lawyers having their exercise of independent professional judgment interfered with. Most every time I engage with anyone on that topic, I find myself making the point that, even without those provisions, the rules still require lawyers to maintain their independent professional judgment.

But, here’s the idea I am letting loose into the world: perhaps we should make that obligation more prominent. At present, outside of any particular context, the only rule that plainly starts down this path is the first sentence of Rule 2.1 which reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Should we, as part of the coming necessary reform of the ethics rules, revise the first rule? Perhaps like this?

Rule 1.1: Competence and Independence

(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer representing a client shall not permit any person to direct, regulate, or otherwise interfere with the lawyer’s exercise of independent professional judgment.

If that rule existed, then in all places in which restrictions considered to be barriers to access to legal information but which are justified because of the risk to lawyer independence could be replaced with a pointer back to the lawyer’s obligation under Rule 1.1(b).

Loosing a big (maybe?) idea into the world.

I had originally promised myself that the articulation of this thought would debut here at my blog. I almost managed it but I raised this notion in the real world lately among some very bright lawyers. So, before I do it again somewhere other than the Internet, I’m following through to put this idea out through this platform for anyone who wishes to chew on it to chew on it.

The only background that I think you need (even if you are not a regular reader of this space) is that there is much activity going on across the country in terms of real efforts at proposed change to the way lawyer ethics rules address certain topics that are largely viewed as barriers to information about the availability of legal services.

Two of the potentially most important, and relatively fast-moving, endeavors are the work of the California Task Force on Access Through Innovation of Legal Services, the APRL Future of Lawyering project. But there is movement happening in a number of different states to propose changes to the ethics rules to loosen, if not outright delete, restrictions on monetary and other arrangements between lawyers and people who are not lawyers, that are currently placed in rules patterned after ABA Model Rule 5.4 (generally prohibiting fee-sharing with people who are not lawyers) and 7.2 (restricting the ability of lawyers to make payments to others for referrals to, or recommendations of the lawyer).

It is anticipated that there will be some significant level of outcry over any such proposed changes on the grounds that removal of such rules erodes the protection against lawyers having their exercise of independent professional judgment interfered with. Most every time I engage with anyone on that topic, I find myself making the point that, even without those provisions, the rules still require lawyers to maintain their independent professional judgment.

But, here’s the idea I am letting loose into the world: perhaps we should make that obligation more prominent. At present, outside of any particular context, the only rule that plainly starts down this path is the first sentence of Rule 2.1 which reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Should we, as part of the coming necessary reform of the ethics rules, revise the first rule? Perhaps like this?

Rule 1.1: Competence and Independence

(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer representing a client shall not permit any person to direct, regulate, or otherwise interfere with the lawyer’s exercise of independent professional judgment.

If that rule existed, then in all places in which restrictions considered to be barriers to access to legal information but which are justified because of the risk to lawyer independence could be replaced with a pointer back to the lawyer’s obligation under Rule 1.1(b).

When the job requires you to do the impossible.

I’d long thought that the ethical issues associated with representing clients held in Guantanamo would be the most flagrant example in my lifetime of our government purposefully making it impossible for lawyers to fulfill obligations to their clients.  Sad to say that I may just have been wrong about that.  (P.S.  I only started this blog in 2015 and have never really written about the dilemma created for lawyers trying to represent detainees in Guantanamo because it felt like most everything worth saying about it had already been said by others.  You can still read one the best legal journal articles providing an overview of the dilemma here.  But, it is worth noting that the absurdities of the overall situation have not dissipated and it can be argued that the situation for defense lawyers in those proceedings is now worse than it has ever been.)

The situation created by our government’s forcible separation of families seeking asylum at our border has created a dynamic that might be just as bad or, perhaps, worse.

This weekend I had the chance to read some about the bizarre scenes playing out now in Immigration Court in our country.  Perhaps the two most poignant accounts are this piece on a 1-year old who had to appear, albeit with a lawyer, and this video recreation using actual immigration court transcripts of how surreal this whole thing is.

Because this is a blog about legal ethics, I will limit what I have to say to the perniciousness of the impact this policy has on lawyers who are attempting to represent an immigration client — which while a horrible situation is about seventh on the list of importance in terms of the overall horribleness (which includes but is not limited to all of the children who have to deal with immigration court without a lawyer at all.

A lawyer has an ethical obligation to provide competent representation to a client (see RPC 1.1), a lawyer has an ethical duty to communicate with the client as to information that is important for the client to make informed decisions about the representation (see RPC 1.4), a lawyer has an ethical duty – even when dealing with a client with diminished capacity — to try to treat the client as much as is possible like a client with normal capacity (see RPC 1.14).  Almost all of those ethical duties become close to impossible to accomplish when the lawyer’s client is one to five years of age, not allowed to see their parents, not sure why they aren’t allowed to see their parents any longer, unable to effectively communicate about complicated legal questions even in their own language much less in the language the lawyer speaks, and, for the most part, simply altogether unable to appreciate what is going on at the moment.  And, none of what I just said even takes into account the possibility that the client is also being forcibly drugged to a point of sedation in order to try to address crippling anxiety brought about by the forced separation from their parent or parents.

Opportunities to discuss RPC 1.14 in a meaningful way are not all that frequent, but one of the big things that rule seeks to do is to insure that the lawyer try to empower the client as much as possible despite the client’s diminished capacity as much as possible.  It does this front-and-center in the black letter of the rule stating:

(a)  When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority . . . or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Thus, for example, it does not trumpet pursuing the appointment of a conservator or guardian for a client as a primary course of action.  Instead, it establishes in the rule that such efforts are appropriate only when there is something more going on than just the fact of diminished capacity:

(b)  When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

Yet, in the situation these immigration counsel are grappling with, it seems impossible to figure out how a lawyer could do anything other than want to seek the appointment of a guardian or guardian ad litem to assist the client with the decision-making that has to occur.  Of course, immigration courts – unlike other courts in our judicial branch — are creatures of the executive branch.  When the head of the executive branch is publicly railing against due process at all in the immigration courts, one fears that an already nearly impossible task for the lawyer will be made all the worse by a system that will be less-than-friendly toward any efforts to have such a person appointed at all.

In Tennessee, we have a version of RPC 1.14 that goes a further step in Comment [9] – and would likely describe much of what lawyers in this situation will have to do by necessity — act on an emergency basis on behalf of a client with seriously diminished capacity without meaningful input:

[9]  If the health, safety, or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.  Even in such a situation, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available.  The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm….

The only other hope for the situation is that the lawyer representing the child may be able to count on the immigration judge to try to make every effort to accommodate and account for this inherent failure in the process.  Again, given the dynamic going on in the system itself right now, this does not seem like a very realistic hope.  Certainly not one on which the lawyers involved can count.

 

 

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.