Withdrawing a guilty plea is notary-ly easy thing to do.

The pun was, of course, inevitable.  It was also fully intended.  In fact, it is, at least for me, repetitive as back in 2013 I was asked to do a seminar on the ethics of being a notary public — they have their own ethics code — and I called it “Notary-ly Common Topic: The Intersection of Lawyer and Notary Public Ethics.”

I’m writing today about a relatively straightforward criminal case arising out of federal court in the Northern Mariana Islands but that has at least four interesting lawyer ethics percolating under the surface of it.  The decision also has one of the most elegant and timeless statements penned by the district judge authoring the opinion that I’ve read in a federal court opinion.  It is either one of the most useful statements of insight into the human condition or one of the best pieces of universal (but indirect) advice to offer to anyone – including lawyers — or possibly both.

In case you want to stop reading at this point, I’ll just share with you the district judge’s statement which, for many reasons (no matter when you manage to read this) will be timely:

Probably every adult feels that there is some important decision she has made that she wishes she could do over.  But that does not mean she did not make that decision voluntarily and did not know what she was doing at the time.

To be exceedingly candid, I’m also writing this post about this case because an incredible lawyer, and a giant in the field of legal ethics issues, Bill Freivogel, brought the case to my attention and encouraged to me to think I might have something to say about it that would be worth reading.

The case is U.S. v. Li and you can grab the PDF of it here: United States v. Li (D. N.Mariana Is., 2018).  In sum, Li was a notary public.  He managed to mess up a document he was notarizing for a passport application for a minor child, and the application was rejected for that discrepancy.  When folks reassembled to try to fix it and reapply, the father had already flown back home to China.  Despite the fact that it was contrary to the ethics code for a notary public, and despite the fact that the form was requiring him to speak under oath, Li signed the form misrepresenting under oath that the father was physically present the second time when he was not.

It seems clear that Li did this thinking that it was his own mistake that created the problem and that this would fix the error.  How the falsehood came to light is much less clear, but it did and Li was charged with two federal criminal counts related to false statements on a passport application.

A week before the case was set for trial, the parties submitted a plea agreement and proceeded to a change of plea hearing.  At that hearing, Li’s attorney – Holmes – was present as was a more senior attorney from Holmes’ law firm.  The opinion walks through the fairly detailed line of questioning the federal judge presented to Li designed to ensure that the record was crystal clear about the voluntariness of the guilty plea.  These questions solicited many clear answers demonstrating voluntary and knowing decision-making, including Li’s statements that he was fully satisfied with his attorney’s advice and legal representation.

Two months after the guilty plea was entered and about two months before the date set for sentencing, a new lawyer for Li filed a notice of appearance.  About 45 days later, Holmes moved to withdraw from representing Li citing “professional reasons.”  That motion was denied without prejudice based on failure to demonstrate good cause.

Two things then occurred right about a week before sentencing: Li, through the new counsel, filed a motion to withdraw the guilty plea and Holmes renewed the motion to withdraw now pointing to statements in a pre-sentence report that were alleged to create a conflict between her firm and Li.  This renewed motion to withdraw was granted.  (The opinion does not provide a ready explanation or insight into what the nugget was in that pre-sentence report that Holmes was forced to surface in order to be let out of the case.)

The order then details what Li argued as his grounds for seeking now to withdraw his guilty plea – it largely involved accusations that his attorneys would not listen to him and coerced him – through time pressures, denigrating his chances at trial, and hammering the potential of a prison sentence of more than a year, even allegedly going so far as to tell Li that he would be sexually assaulted if he had to do prison time.

The district court, however, was entirely unconvinced by Li’s allegations and walked through an objective view of what the attorney time records, and other underlying documents, showed about the events that occurred surrounding the plea negotiations.

Three of ethics issues here are, I think, readily recognizable.

The case is at least an indirect reminder for attorneys that RPC 1.2 doesn’t provide crystal clear guidance on all decision-making as between clients and attorneys but leaves no room for doubt that the decision whether to plead guilty in a criminal matter is always the client’s to make.

The case also is a good, indirect reminder to attorneys who have support staff who are notaries that your obligations under RPC 5.3 can be considered to include having some measures in place to provide reasonable assurance that they know how important complying with the law and their own code of ethics as to notarizing documents can be.  (For the record, there was no indication in the opinion itself that Li had any employment situation where he was working for an attorney.)

Also, the case reveals how sometimes – despite the best efforts of the drafters of the rules – the guidance given to attorneys seeking to withdraw from representation doesn’t always work as designed.  ABA Model Rule 1.16 cmt. [3] tries to provide guidance to attorneys about situations when they should begin by stating only that “professional considerations” require withdrawal and indicating the hope that courts will accept that “statement as sufficient,” but courts do not always go along and end up putting attorneys into a situation where they have to disclose information the client might rather not have aired.

The fourth ethics issue, however, is not as obvious but is, I think, the most interesting and compelling.  The district judge, without explicitly saying so, made clear that if the lawyers had scared Li into pleading guilty “by conjuring the nightmare of sexual assault in prison,” that would have been the kind of thing that could have “put their bar license on the line.”  I’m torn on that front.  Obviously, if the lawyers had actually threatened to cause that to happen or otherwise crossed lines into coercing someone against their will to plead guilty, then I’d agree wholeheartedly.  But, if a lawyer representing someone facing potential jail time, and knowing their client had the chance to take a plea that was likely to result in no jail time at all, engaged their client in discussions about the possibility of going to prison and the realities of the problems in the U.S. prison system including the statistics on violence and sexual assault that happens there on a daily basis, would that really be unethical conduct?

I tend to think the exact opposite.  I think that a lawyer would certainly be entitled under Model Rule 2.1 to discuss as “other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”  In fact, depending on the client and the likely prison in play, a lawyer might well be ethically obligated to discuss such issues under Model Rule 1.4(b)’s obligation “to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

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.

 

 

Idaho why lawyers are so often tripped up on this.

I’m writing from Boise where tomorrow I’m delighted to have the chance to speak on legal ethics for the Idaho Prosecuting Attorneys Association.  (I’m also delighted that the weather is unseasonably warm at the moment.)  Last year I had the chance to do a similar presentation for the Tennessee District Attorneys General Conference.  Prosecuting attorneys throughout the country are finding themselves more frequently in the cross-hairs of disciplinary proceedings.

But today’s post isn’t really about that, but it does help explain the selection process.  As I find myself drawn to write about a recent instance of discipline imposed on a private attorney in Idaho that involves behavior that I’ve counseled lawyers about so I know it happens to be relevant beyond just the Idaho Bar.

The case involves the issuance of a suspension order against Attorney Beckett issued at the end of January 2018, but for which the 28-day active suspension period will run during the month of February.  You can read the press release put out by Idaho State Bar Counsel here.

The underlying case was a personal injury lawsuit, and Beckett was able to get the case successfully settled for his client.  His client, though, wanted immediate access to parts of what would be forthcoming from the settlement.  Perhaps simply motivated by an effort to be accommodating, or more likely because of a failure to properly communicate with the client and manage expectations regarding how long such things take, Beckett agreed to provide two advances of the forthcoming settlement funds to the client out of his own money and from money belonging to a separate company Beckett owned.

As the press release explains, he didn’t do that in a way that was at all proper because she didn’t manage to keep the funds properly segregated to avoid commingling them with money in other accounts and also didn’t communicate to the client the available alternatives.  Despite the fact that, as the press release makes clear, Beckett didn’t charge any interest or fees for the transaction and that no other clients were harmed in any way, the conduct violated Rule 1.15 and 1.4 of the Idaho Rules and merited a 60-day suspension, with 28 days of active suspension, and a six-month probationary period.

What is interesting is that the press release makes no mention of Rule 1.8(a) governing business transactions with clients.  When I have had to counsel lawyers about inquiries from clients along these lines, that is the Rule most pertinent to the discussion for a path to actually doing what the client wants if the lawyer is insistent on providing an accommodation.

Idaho, like Tennessee, has a Rule 1.8(a) patterned after the ABA Model Rule.  Tennessee’s, for example, provides that a business transaction with a client – which is what a loan like what Beckett did would be — cannot happen unless

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Now, working through that rule is not 100% of the battle altogether, because the risk still exists that a bar counsel would argue that other provisions in the same rule, RPC 1.8(e) and (i) in Tennessee for example, would still work to prohibit such a business transaction altogether if the case has been settled but no order of dismissal ending the litigation has been entered.

Those provisions provide:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

and

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

RPC 1.8(i) has always struck me as a prohibition that can be drafted around in the transaction documents to sever any connection between the litigation and the loan, but (e) is trickier if the litigation, despite being settled is technically still “pending” at the time of the client’s inquiry.

Practicing law like it’s espionage. NYC Bar Formal Op. 2017-5

This week the New York City Bar has put out a very important, and I think very helpful, ethics opinion to address a real, practical concern for lawyers: what, if anything, can be done to protect confidential client information when traveling and crossing the border into the U.S.?

NY City Bar Formal Op. 2017-5 lays out the issue as follows:

An attorney traveling abroad with an electronic device (such as a smartphone, portable hard drive, USB “thumb drive,” or laptop) that contains clients’ confidential information plans to travel through a U.S. customs checkpoint or border crossing. During the crossing, a U.S. Customs and Border Protection (“CBP”) agent claiming lawful authority demands that the attorney “unlock” the
device and hand it to the agent so that it may be searched. The attorney has not obtained informed consent from each client whose information may be disclosed in this situation.

The opinion makes the point that with the change of administration such searches of travelers and their data has increased exponentially:

In recent years, searches of cell phones, laptop computers, and other electronic devices at border crossings into the U.S. have become increasingly frequent. According to the Department of Homeland Security, more than 5,000 devices were searched by
CBP agents in February 2017 alone. By way of comparison, that is about as many U.S. border searches of electronic devices as were undertaken in all of 2015, and just under a quarter of the
approximately 23,877 U.S. border searches of such devices undertaken in 2016.

The entirety of the opinion is worth a read to see how it offers its guidance about things a lawyer might do at the time of demanded search to protect client confidential information, and to hear its additional important message that lawyers have an obligation under RPC 1.4 to contact all affected clients after such a search takes place.

The aspect of it that I want to focus on, however, is to expand on some of the practical advice it offers as to things a lawyer could do before going through customs at the border to lower risk of disclosure.  Particularly, this passage:

The simplest option with the lowest risk is not to carry any confidential information across the border. One method of avoiding the electronic transportation of clients’ confidences involves using a blank “burner” phone or laptop, or otherwise removing confidential information from one’s carried device by deleting confidential files using software designed to securely delete information, turning off syncing of cloud services, signing out of web-based services, and/or uninstalling applications that provide local or remote access to confidential information prior
crossing to the border.  This is not to say that attorneys traveling with electronic devices must remove all electronically stored information. Some electronic information, including many
work-related emails, may contain no confidential information protected by Rule 1.6(a). Even when emails contain confidential information, the obligation to remove these emails from the
portable device before crossing the border depends on what is reasonable. As previously discussed, this turns on the ease or inconvenience of avoiding possession of confidential
information; the need to maintain access to the particular information and its sensitivity; the risk of a border inspection; and any other relevant considerations.

Now, as to that sentence about some work-related emails may not contain confidential information protected by RPC 1.6(a), it is worth remembering that New York has a different RPC 1.6(a) than most jurisdictions as it comes closer to retaining the old “confidences and secrets” regime.  In most other jurisdictions, where RPC 1.6(a) covers any information related to representation of a client, then it is difficult to imagine any work-related email involving client matters that wouldn’t be protected as confidential under RPC 1.6(a).

And, for that reason, when I’ve had to help people try to work through this question, my advice has been consistent with what the New York City opinion is saying albeit perhaps stated more succinctly – delete the mail application from your smart phone until you get through the border.  Then reinstall it.  As long as your work email is stored on a server somewhere, then you should have no loss of data at all.

The only inconvenience caused is that for the time between deleting it and crossing through the border, you will have no access to email. Using the balancing factors compared to the risk of the violation of client confidences, this seems like a small inconvenience.  Simply deleting the mail application for a period of time also has the benefit of not placing the lawyer in the position of trying to “reason” with customs officials and argue with them over whether they need to be doing what they are doing.

As to other kinds of electronic data, the solutions are not as simple as with email.  Text messages are particularly concerning as deleting those or removing access to those from your device for even a short period of time would result in the loss of that data.  Generally speaking, the New York City opinion does a good job at explaining some of a lawyer’s options.  One option that the opinion doesn’t exactly spend a lot of time discussing is obtaining the consent of clients in advance.  One potential way of doing so could be standardizing provisions into engagement letters with clients to address this topic.

This unfortunately appears to be a topic that will only become more difficult to deal with for lawyers who travel frequently.  As an example, within the last month there have been stories in the media that Homeland Security is contemplating requiring all reading material be removed from carry on and put in bins for the purpose of potential review by TSA agents.  Travel is already a stressful endeavor, but as a lawyer if that were to come to pass there would be almost no way to take anything on a flight to have or review without running a real risk of loss of client confidentiality.

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.

Can lawyers learn anything from the ending of the Academy Awards?

Well, of course, they can.  Or at least that is the conceit I’m going to stick to in order to write this post about a lawyer’s obligation to talk to their client about mistakes and make it seem topical and culturally relevant.

By now, unless you live a very, very cloistered life you’ve at least heard about the unprecedented and crazy ending to this year’s Oscars.  Many of you, like me, were watching it as the event unfolded with Bonnie and Clyde as the presenters for the Best Picture award to end the night, Clyde opening the envelope, noticing something wasn’t right, being reluctant to say anything, and then showing to Bonnie… who then blurted out La La Land.  After that all of the folks associated with that film, made their way up to the stage and one of them began giving an acceptance speech.

Meanwhile, in the background on stage, people associated with the broadcast in some fashion are disseminating information somewhat frantically and, quickly, it falls upon one of the members of the La La Land team — incredibly graciously — to speak out and let the people responsible for the film Moonlight, that they have actually won Best Picture and not the film that was announced.  It is then stated out loud by one of the La La Land contingent that this is not a joke and the card reflecting Moonlight as the Best Picture winner is revealed.

As the Moonlight folks make their way to the stage, Clyde then proceeds to explain what had happened, that he had noticed something was wrong, wasn’t trying to be funny, but then when he showed to Bonnie, Bonnie announced La La Land as the winner of Best Picture.

The folks on behalf of Moonlight then did get to make an acceptance speech and then the host of the program, Jimmy Kimmel, said words to the effect that “he knew he’d screw this show up” and that they wouldn’t have to invite him back.

While it was a pretty atrocious moment for all involved, it made for really amazing television.  We have all now learned through media reports and from its own statement to the press that the most culpable in the creation of the mistake were folks with the accounting firm which tabulates the votes, keeps the results confidential, and distributes the votes.  We’ve also now learned that a two-envelope system that actually makes some pretty good logistical sense with all the “stage right” and “stage left” of the theater created an entirely unnecessary risk in terms of handing over a wrong envelope.

But, and here I go with the conceit, this incredibly high-profile event also teaches several great lessons about mistakes that anyone can take to heart, including lawyers — ways to be more likely to avoid mistakes, ways to deal with mistakes once made, and lessons not limited to being about mistakes — but before laying those lessons out, it is important to stress something about when a client is negatively impacted by a lawyer’s mistake.

Under the most reasonable reading of the rules of ethics, a lawyer in any jurisdiction that has a rule analogous to ABA Model Rule 1.4 has an ethical obligation — when a mistake of real significance has been made by the lawyer in a matter –to communicate what has transpired to the client.  Lawyers who don’t realize the ethical obligation though can have self-interested reasons for promptly telling a client about a mistake — to establish a clear time-frame for a statute of limitations on any claim against the lawyer by a client to begin running.  This is a particularly prudent course to take in a jurisdiction like Tennessee where there is a relatively-short statutory period and where precedent establishes that the time for a suit is not tolled merely because the lawyer continues to represent the client.  Thus, in addition to being a requirement of the rules, a lawyer who has committed an error in the handling of the case could most certainly see her way to figuring out that communicating about it quickly to the client, particularly if a simultaneous reasonable plan for correction can be communicated as well, is the right thing to do from a purely personal, selfish standpoint.

The lessons for lawyers?  I think there are, at least, six of them that can be learned from Sunday night.

One.  How to acknowledge a mistake:  The accounting firm did it exactly the right way – complete candor, no hedging, and with a true sense of contrition.  Here was the first statement made early the morning after the Oscars:

“We sincerely apologize to ‘Moonlight,’ ‘La La Land,’ Warren Beatty, Faye Dunaway, and Oscar viewers for the error that was made during the award announcement for best picture. The presenters had mistakenly been given the wrong category envelope and when discovered, was immediately corrected. We are currently investigating how this could have happened, and deeply regret that this occurred.

“We appreciate the grace with which the nominees, the Academy, ABC, and Jimmy Kimmel handled the situation.”

In subsequent media communications explaining the two-envelope procedure and who was where and did what, the United States Chairman of the accounting firm has continued to give accounts that are straight-forward and apologetic without attempting to deflect any blame.  (Lawyers should remember though that you are going to need to make sure you have the client’s permission to speak publicly if that becomes necessary about your mistake because of the constraints of client confidentiality under Rule 1.6.)

Two.  Don’t be the guy publicly throwing someone under the bus:  Clyde.  The whole “let me further interrupt these poor people from getting to have their moment by making sure everyone knows that as between me and Bonnie, Bonnie deserves the blame” is a bad look.

Three.  Make sure you’ve actually made a mistake before saying you screwed up:  It is particularly important for lawyers not to do what Jimmy Kimmel did and start taking responsibility for an error if you truly weren’t involved. Kimmel was surely trying to be gracious in the situation, but lawyers can be quick to describe things they’ve done in an overly critical way — and if they do so publicly or hastily in an email — those words can come back to haunt in a deposition even if the self-castigation was unwarranted.

Four.  Trust your gut instincts:  Clyde’s gut was actually correct.  He was smart enough to know that “Emma Stone” is not the name of a movie, but he didn’t trust his instinct enough to make more control of the situation than he did by saying out loud that he had been given the wrong envelope.  Had he done that, so much of this could have been avoided.

Five.  Think before you act:  Looking at you Bonnie.

Six.  How to be more likely to avoid mistakes in the first place?  Pay attention – the job of an attorney is important.  This lesson comes about as the pieces have been better put together and it appears that the particular employee of the accounting firm that handed over the wrong envelope had pretty closely in time before that screw up been taking a photo of Emma Stone after she won Best Picture.  And posting it to his Twitter.  A Tweet which he subsequently deleted, but which others got a screen capture of and saved so it can still be viewed on the Internet. 

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.

 

“Sleeping,” sleeping, and Cronic sleeping.

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coming to praise rather than to bury (Part 1 of 2)

For a change of pace, I write today about a very well constructed ethics opinion out of New York.  (To keep this positivity train chugging along for at least one more day, my plan for tomorrow is to discuss a federal court decision out of Florida impacting attorney ethics that is also praiseworthy and that should be fodder for challenging a similar prohibition on how lawyers can market themselves in my state.)

Last month, the New York City Bar released Formal Opinion 2015-6, addressing several unpleasant issues relating to duties to clients that a lawyer must wrestle with in already difficult circumstances, where an accident or disaster has destroyed a client’s file or where an accident or disaster has compromised the security of the client’s confidential information.  The opinion makes reference to a particular relatively recent event as an example of how this could happen – a February 2015 fire in a Brooklyn warehouse (presumably this one), that destroyed some attorney files among other private materials.  The committee also offers other examples where the loss of client files seems more like an afterthought compared to human tragedy involved, such as hurricanes and terrorist attacks.  In addition to offering guidance for (1) when a lawyer has to notify a current or former client about files being destroyed and (2) what a lawyer has to do after it has happened in terms of attempting reconstruction of a file, Formal Opinion 2015-6 also discusses the lawyer’s duty to notify about potential compromise of confidential information in such circumstances.

In a 2010 opinion, this same NYC Bar committee addressed when a lawyer could ethically destroy file materials after a case ended.  That opinion divided the world of a lawyer’s client file into 3 categories of documents: (1) documents having “intrinsic value” or that “directly affect property rights;” (2) documents the lawyer “knows or should know may still be necessary or useful to the client, perhaps in the assertion of a defense in a matter for which the applicable limitations period has not expired;” and (3)  documents that “furnish no useful purpose in serving the client’s present needs for legal advice.”

Echoing the treatment of the answer to “when can you destroy?” provided in the 2010 opinion, Formal Opinion 2015-6 says that as to Category 1 documents, absent a contrary earlier agreement between lawyer and client, the lawyer will have an affirmative obligation to notify the client about the destruction of such documents.  As to Category 3, the answer is as simple, albeit flipped – unless prior agreement to the contrary, no duty to notify.  Recognizing that most of the analysis about duty to notify flows one way or another from RPC 1.4 on a lawyer’s obligations to communicate with clients, the committee reminds that, if a client asks about their file in the wake of such an event, the lawyer’s ethical duty to respond to reasonable requests for information would entail promptly responding to the client to let them know of the inadvertent destruction even of such documents of “relatively little importance” as Category 3 materials.

As to Category 2 documents, Formal Opinion 2015-6 rightly recognizes that the blueprint provided in the 2010 opinion about post-representation destruction cannot be readily applied to a situation where such materials are destroyed during an ongoing client engagement.  Thus, if the client’s matter is still active, then the lawyer is going to have a duty to notify the client about destruction of Category 2 documents.  If the accident or disaster only has hit files for a closed matter, then the rubric from the 2010 opinion works and the lawyer has to undertake a determination about whether the “client foreseeably may need” the documents to decide what to do.  The committee, smartly, also makes the practical and prudent point that the safest route on Category 2 documents will always be to go ahead and notify the client of the inadvertent destruction.

Turning to any duty to reconstruct the file, the committee explains that the lawyer will have to first assess whether any of the files destroyed are still “needed to continue providing competent and diligent representation on open matters” and, if the answer is yes, then “the lawyer must make reasonable efforts to reconstruct the destroyed file.”  By, for example, trying to get copies of documents that would have been in the file from the court, co-counsel, opposing counsel, or the client herself, or some combination of those or similar sources.  Formal Opinion 2015-6 then indicates that when the duty to attempt to reconstruct has been triggered, a lawyer who is unable to do so sufficiently to be able to continue to provide competent and diligent representation would be obligated to notify the client of that inability.

If I can quibble with the committee in just one respect it would be that this would have been a good place to expand upon the relationship between notifying about the destruction and performing the reconstruction and the timing of those events.  For example, if the lawyer reasonably believes that they can almost fully reconstruct the file, can they get that accomplished first, quickly, and then provide notice to the client simultaneously of the prior destruction and the believed-to-be-successful reconstruction?  Or does the committee mean to say truly that the timing is such that the lawyer must inform of the destruction before the lawyer will know of any chance of success in reconstructing to be able to continue the representation appropriately?

Finally, Formal Opinion 2015-6 correctly answers the question about a lawyer’s duty to notify clients of the potential compromise of confidential information in the wake of such an accident or disaster.  Returning again to the Brooklyn warehouse fire example, and the clear visual impression of various papers scattered about around the fire scene such a scenario provides, the committee explains that when the duty to notify of destruction would arise so too will the lawyer face a duty to notify clients that confidential information may have been compromised.  If I am permitted to quibble with just two items, this would be the second one.  The committee appears to imply that the duty to notify of compromise confidential information wouldn’t apply to Category 3 documents, but I’m dubious that any differentiation on categories would be as justifiable on the question of potential exposure of confidential information to third parties.

While addressing only accidents and disasters, it is not difficult to see how this opinion’s analysis of the duty to notify of compromise of confidentiality would be the same if the question instead was one of digital disaster — an electronic data breach at a law firm.  And, along those lines, another question that the committee leaves unaddressed as beyond the scope of its current effort — “the extent of a lawyer’s duty to take affirmative steps to protect confidential information in anticipation of a disaster” — is even more challenging to contemplate as to data breach.  Formal Opinion 2015-6 at least hints in fn 3 at possible ways to anticipate and protect against physical destruction of file through accidents or disasters – off-site storage of backup tapes and cloud storage.  The answer to what will come to be expected of lawyers and law firms in trying to anticipate and protect against data breaches will, no doubt, be addressed by this or another committee (or twelve).

Hopefully, a consensus will develop around an acknowledgment that while it is generally quite true that an ounce of prevention is worth a pound of cure, it is equally if not more correct that:

Sometimes there is nothing you can do. – Neil Gaiman, Neverwhere