One good item and one bad item for your Friday

Some days the inspiration kicks in and other days it most certainly does not. If this were Instagram, I’d likely try to spout some sort of perspiration to inspiration platitude. But this isn’t, so I won’t.

I will though write about two items that somehow caught my attention this week and even though I can’t spot anything about them that involve any significant commonality we’ll discuss them together.

First, the good item. Within the last month or so, the New Hampshire Bar Association has published a pretty good ethics opinion to provide guidance to lawyers that find themselves representing clients who end up seeking out crowdsourcing to help pay their legal fees in connection with matters. You can read the full opinion — and in my opinion it is worth the time to do so — at this link. If you lack the time (or just generally are inclined to do the opposite of what I suggest in most circumstances), then I would offer that the two best portions are the guidance on having to be wary about (and make sure you fully counsel your client about) providing any sort of informational updates to those who provide funds whether as a “perk” or “reward” for participation or otherwise and the reminder that funds raised explicitly for the purpose of paying for legal fees and legal expenses cannot then be used to provide the client with financial assistance for living expenses if the lawyer essentially appears to be the one raising the funds or so involved in the effort to raise the funds publicly because of the prohibition in RPC 1.8(e) on lawyers offering that kind of financial assistance.

The opinion does not take the next step though of offering the relatively obvious practical advice that the most flexible way to crowdsource would always be to seek funds for a client to allow them to financially survive their circumstances without promising that all or even any of the funds would go to attorney fees. Once raised and available to the client, the client could then use them for whatever purpose they wish, including paying their lawyer.

Now, the bad item. Being a lawyer, particularly practicing certain types of law, can lead to getting into bad binds and sticky situations. When the lawyer ends up somehow coming into possession of something that is a crime to have under any circumstances, the options are highly limited often to there being only one correct approach and what that is can be counterintuitive.

Matter of Bickman out of New York (but really out of Indiana as it is just a reciprocal discipline case in New York) demonstrates one way in which a lawyer in such circumstances can get themselves into trouble by not threading the needle. The opinion succinctly lays out the gist:

On December 14, 2015, respondent, as outside counsel for a private high school, along with the school’s headmaster, met with the father of a 15-year-old student who informed them of inappropriate communication made by a teacher to his daughter. At respondent’s request, the father gave respondent his daughter’s laptop computer containing sexually explicit images and messages sent by the teacher. The teacher was later fired and eventually sentenced to 14 years in prison on federal criminal charges.

After advising the school’s headmaster that the Department of Child Services (DCS) should be notified, respondent discussed a potential settlement agreement with the attorney for the family which included, in relevant part, a confidentiality provision prohibiting disclosure of the agreement or information regarding the matter to anyone other than their attorney. Pertinently, the agreement was never executed but it would have prohibited cooperation with law enforcement. At one point, when the family was contacted by DCS, respondent told the family that any cooperation with the agency would violate the confidentiality clause. Although he later retracted that position, the family had cancelled its appointment with DCS.

Additionally, respondent instructed a computer specialist at his law firm to make copies of the offending content on the victim’s computer and place them on a thumb drive. Respondent, who believed he was preserving evidence that could have been considered child pornography (and that there was a possibility that the evidence would be deleted from the computer as other images had been deleted), placed the thumb drive in a sealed envelope in a cabinet in his office and returned the laptop computer to the school (which in turn returned it to the father).

Indiana publicly censured the lawyer some time in 2020 for violations of RPC 1.1 and RPC 8.4(d), and the same discipline was imposed by New York on a reciprocal basis in 2022. Interestingly, all of the focus in the opinion in terms of the unethical conduct is upon the concept that the settlement agreement would have stopped the clients from cooperating with law enforcement. The opinion lays out, however, facts that the lawyer repeatedly was less than truthful with law enforcement during interviews about the fact that he possessed a copy of the illicit material. Though the lawyer likely doesn’t feel like it, he appears to be fortunate that the proceedings did not spin out into ones for potential direct criminal liability or, if not that, then additional violations premised upon RPC 8.4(b).

Just another follow-up Friday.

Yes, if you are about the same age as me, you can sing that title to The Bangles tune of “Just another Manic Monday …”

So, this is a weirder follow up post as it follows up on something I posted in October 2021 but involves substantive content that came into existence in July 2021 and, thus, I really should have known about and mentioned in my October 2021 post. Does that feel like the sort of confusing timeline of events you might encounter if you are watching Archive 81 on Netflix and paying full attention or the sort of confusing timeline you could encounter if you are watching Dopesick on Hulu and a bit distracted so as not to see the numbers flash on the screen? If so, fair.

So here is the elaboration. Back in October 2021, I shared the video of my FRED talk from the APRL Annual Meeting discussing a variation of a kind of scam about which lawyers really need to be aware. What I didn’t know when I gave that talk is that The North Carolina State Bar had put out a comprehensive ethics opinion on the same topic in July 2021. That opinion, 2021-2, can be viewed in full here.

It is a particularly well-done and well thought out analysis of a number of varieties of the ways in which versions of this trust account scam can happen. But it is also noteworthy because it has a very good list of some “alerts” that exist out there that lawyers can digest and bring themselves up to speed. This excerpt from that opinion might be among the best takeaways from it:

State and federal agencies have alerted the public to the existence and persistence of these counterfeit check scams for some time. See, e.g.Counterfeit Check Scams, North Carolina Department of Justice, https://ncdoj.gov/protecting-consumers/sweepstakes-and-prizes/counterfeit-check-scams/; How to Spot, Avoid and Report Fake Check Scams, Federal Trade Commission, https://www.consumer.ftc.gov/articles/how-spot-avoid-and-report-fake-check-scams. Similarly, state and national bar associations, lawyer regulatory bodies, and malpractice carriers have reported on and alerted lawyers to the reality that such scams often target members of the legal profession. See, e.g.Six Indicted in $32M Internet Collection Scam That Snagged 80 Lawyers, ABA Journal (Nov. 22, 2010), https://www.abajournal.com/news/article/six_indicted_in_32m_internet_collection_scam_that_snagged_80_lawyers/; Counterfeit Check Scams Continue to Target Law Firms, California Bar Journal (January 2012), https://www.calbarjournal.com/January2012/TopHeadlines/TH6.aspx; New York City Bar Formal Ethics Opinion 2015-3, Lawyers Who Fall Victim to Internet Scams (April 22, 2015), https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-3-lawyers-who-fall-victim-to-internet-scams; Laura Loyek, Counterfeit Check Scams are Still Snaring Lawyers, Lawyers Mutual North Carolina (March 22, 2019), https://www.lawyersmutualnc.com/risk-management-resources/articles/counterfeit-check-scams-are-still-snaring-lawyers; Joanna Herzik, Scams Continue to Target Texas Attorneys, Texas Bar Blog (July 14, 2020), https://blog.texasbar.com/2020/07/articles/law-firms-and-legal-departments/scams-continue-to-target-texas-attorneys/; E-Mail Scams and Lawyer Trust Accounts, Illinois Attorney Registration and Disciplinary Commission, https://www.iardc.org/information/alert.html. The North Carolina State Bar has also published a number of warnings to the legal profession in North Carolina about these scams. See, e.g.New Variation of Fake Check Scam Targets Law Practices, North Carolina State Bar (December 6, 2010), /news-publications/news-notices/2010/12/fake-check-scam/; Bruno Demoli, Bruno’s Top Tips: Protect Yourself from Financial Con-Artists, North Carolina State Bar Journal (Fall 2011 pp. 34 & 37); Alert: Beware of Scams that Target NC Law Practices, North Carolina State Bar (January 8, 2016), /news-publications/news-notices/2016/01/scams-targeting-nc-law-practices/. These publications describe the scenarios associated with the scams and identify the relevant warning signs to assist lawyers in detecting and avoiding such scams.

So, if you have time, you should give it a read. And, if you don’t understand either of the television show references I made above, and you have even more time on your hands and subscriptions to those platforms, go watch those shows as they are both very, very good.

2020 too?

This past year has certainly been … something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice versa, and being bolstered along the way by a surprisingly large number of attorneys willing to file politically-motivated lawsuits that in normal circumstances I’d like to think wouldn’t pass muster under Rule 11 or RPC 3.1.

These anti-democracy lawsuits continue relentlessly with a parade of lawyers who don’t seem at all deterred by sanctions imposed against other lawyers.

So what will 2022 bring? Other than hopefully the end of the pandemic. Surely we will get that. Surely.

Here is where I go out on a limb and make a prediction or too about the world of legal ethics over the next year.

First, given the focus of media attention on lawyers who continue to help high-profile clients pursue questionable legal objectives — not all of which involve subverting democracy of course — I think there will be significant attention and action taken on further defining prohibitions on lawyers assisting unworthy clients in illegal endeavors.

Along those lines, with a particular focus on combatting lawyer-involvement in money-laundering activities, the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Regulation circulated thoughts on potential ways to address that issue better in the ethics rules in a memo put out seeking public input on December 15, 2021. The memo previews a number of possible ways that the comments to the rules could be amended to better define obligations of lawyers in doing due diligence on clients and toward having lawyers have obligations to report suspicious activity.

Interestingly, the memo floats no proposed changes to any rules but only in the guidance offered in comments to rules. Thus, for example, there would be no effort under such a proposal to remove any ethical barriers that currently exist to forcing attorneys to support suspicious transactions beyond what already would be required by law. The potential revisions include:

  • Addition of a new Comment [11] to RPC 1.0 indicating that, as to a lawyer’s knowledge, that it “may be derived from the lawyer’s direct observation, credible information provided by others, reasonable factual inferences, or other circumstances.” And that a lawyer “who ignores or consciously avoids obvious relevant facts may be found to have knowledge of those facts.”
  • Adding several new sentences of guidance to Comment [5] to RPC 1.1 including: “In some circumstances, competent representation may require verifying, or inquiring into, facts provided by the client. Ignoring or consciously avoiding obvious relevant facts, or failure to inquire when warranted, may violate the duty of competence.”
  • Adding significant new language to the Comment to RPC 1.2 including: “To determine whether further inquiry is warranted regarding whether a client is seeking the lawyer’s assistance in criminal or fraudulent activity, including money-laundering or terrorist financing, relevant considerations include: (i) the identity of the client; (ii) the lawyer’s familiarity with the client; (iii) the nature of the requested legal services; and (iv) the relevant jurisdictions involved in the representation (when a jurisdiction is classified by credible sources as high risk for criminal or fraudulent activity).”

You can read the entire memo here and, if you happen to be planning to be in Seattle in February, you can plan to participate in a public roundtable discussion about the potential proposals.

Another area that I predict will be the subject of significant attention in 2022 is whether changes to RPC 5.5 are needed to better address modern legal practice. The restrictions imposed on the ability of a lawyer duly licensed in one state to represent clients in other states or to handle matters because they involve laws of a different state have been questioned, off-and-on, over the years, but the last almost two years of practice in a pandemic has helped push things to a potential boiling point. Perhaps never before has it been easier to make people see the relative-absurdity that RPC 5.5 can prohibit a lawyer with 20 years of business law experience licensed in South Dakota from representing a client in North Dakota who needs a contract drafted but would not prohibit a lawyer licensed in South Dakota who has never handled a tax matter in 20 years of litigation experience from representing a South Dakota client in a tax dispute. I anticipate that 2022 will bring efforts from a number of different groups to seek to modify RPC 5.5 to better offer “full faith and credit” to a lawyer’s law license.

In the meantime, thank you ever so much for your readership, stay safe, and I will see you again in January 2022.

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.