Another for the annals of ethics opinions of questionable origin

I want to quickly discuss an ethics opinion out of New York state.  No, not that one.  I’m not going to delve into the brouhaha over the one from March 2016 that only got publicity in August 2016 that involves saying it is ethical for a firm to charge clients for work performed by unpaid interns as long as it is all disclosed to the client.

Not going to delve into it to discuss it because of course it is ethical as long as the amount that is being charged isn’t so high as to be unreasonable under RPC 1.5.  After all, say a firm fires an associate for cause and doesn’t ever end up paying the associate any of the last month of their salary.  Does that mean the firm can’t bill the clients for which that associate worked at the agreed upon hourly rates for that same time period?  Of course not.

Whether it is moral or right to take on unpaid interns and then bill clients for the time those unpaid interns spend on client matters is another question altogether, and it is also an interesting federal labor law question but., in my opinion, it isn’t a very difficult legal ethics question.  It is an ethics question that I can understand why someone would ask for guidance because doing it might make a lawyer feel queasy, but it isn’t all that difficult an ethics question in the end.

That is not at all true about the New York state ethics opinion I do want to discuss, NYSBA Op. 1103 from July 2016 that answered the following inquiry:

May a lawyer undertake to represent a client, Corporation B, in litigation with Corporation X, where it is in the economic interest of a former client, Corporation A, for Corporation B to lose the litigation?

Seriously?  There are some truly difficult conflicts questions that lawyers have to navigate, but this one ought not make it into a top 50 list.  And, the reason the answer is easy isn’t at all counter-intuitive, so why ask?  If this kind of thing were even a close call, then there would be no difference in treatment under the ethics rules between clients and former clients.

The more fleshed out facts that the opinion leads off with are as follows:

Corporation A and Corporation B are competitors.  They are engaged in the same industry, in the same geographic area, providing similar services to the same customer base.  The inquirer previously represented Corporation A in a matter than has been concluded (“Matter 1”).  The inquirer now proposes to represent Corporation B in litigation with Corporation X (“Matter 2”).  The inquirer states, and we assume for purposes of this opinion, that Matter 1 and Matter 2 are not factually related.  However, if Corporation B is unsuccessful in this suit, it might be forced to cease operations, which would benefit Corporation A.

In case the point passes by in quick reading, here is a less generic version of the same inquiry with a fun, familiar fictional scenario.  (At least fun for me.)

Mr. Plow and Plow King both provide snow removal services to the town of Springfield.  Lionel Hutz represented Mr. Plow in the past in connection with a piece of employment litigation.   (Maybe a former employee, Bart, sued Mr. Plow for failing to pay him overtime and Mr. Plow defended by explaining that you can’t employ children and, therefore, it would be illegal to pay him.)  That matter concluded and Hutz no longer represents Mr. Plow.  Now Hutz is being asked to represent Plow King in connection with litigation being brought by Moe’s Tavern.  Moe’s Tavern contends that Plow King failed to properly remove snow from their parking lot and the result was that Nick Riviera crashed his car into the building wiping out the taps at Moe’s Tavern for a month and is suing Plow King for $2 million dollars.  If Plow King loses the suit, it likely will go bankrupt and go out of business.

So the question would be whether, since Mr. Plow would love it for Plow King to go out of business,  does that mean that it would be unethical for Hutz to represent Plow King?  This again falls into that category for me of — how did anyone decide that this was a question that needed to be asked?

Of course it wouldn’t be unethical for Hutz to take on the Plow King representation.  Mr. Plow is just a former client.  It wouldn’t even truly be ethically prohibited if Mr. Plow were still a current client.  Might be a representation his firm wouldn’t undertake for business reasons, but it wouldn’t be an ethical issue in terms of an RPC 1.7 conflict.  So when Mr. Plow is but a former client, this isn’t something that ought to take more than five seconds of analysis in terms of working through RPC 1.9 to get to the right result.

Thankfully the opinion gets the analysis on this issue absolutely correct.  It makes the point that — perhaps in other circumstances would be crucial to get right, that “market rivalry” doesn’t rise to the level of causing a matter for a new client to be considered materially adverse to a former client.  But it also drives home the other overriding point – when we’re talking about a former client after all — that makes this such an unnecessarily posed question in the first place.  The scenario being inquired about isn’t one where the two matters are at all the same or substantially related, so it wouldn’t be precluded by RPC 1.9 even if it did involve doing something “materially adverse” to the former client.

So, in the end, it is a fine opinion as far as the analysis goes, it is just a bit silly that this kind of question was posed at all.  But, it did give me the chance to write a little Simpsons fan fiction so… a festive Labor Day to all.

Proposal to adopt Ethics 20/20 Revisions in Tennessee Put Out For Public Comment

Back in August 2012, the ABA House of Delegates approved revisions to the ABA Model Rules proposed by the ABA Ethics 20/20 Commission.  Very few of the proposed revisions included in the ABA Ethics 20/20 package are earth-shaking revisions, as many of them only involve change to language in the Comment accompanying certain rules.

The overall bent of the revisions, however, are to address aspects of the impact that technology has on modern law practice, highlight for lawyers their duty to, at the very least, keep abreast of and be competent regarding the types of technologies they use in their practice, and address a few other issues with good guidance regarding how aspects of globalization and the increased use of outsourcing interact with our ethical obligations.

More than twenty-five states have now adopted all or significant parts of the Ethics 20/20 package of changes.  Most recently Washington state has done this, with its revisions to become effective September 1, 2016.  Here in Tennessee, the TBA has filed a petition proposing adoption of almost all of those rule changes, and our Court has now put the TBA petition out for public comment with a November 17, 2016 comment deadline.  (There is also an Errata that the TBA put out to fix a redlining error made by the stupid Chair of the TBA Standing Committee on Ethics and Professional Responsibility when it was pointed out that we’d forgotten to pick up some changes to our RPC 5.5 that went into effect back in January 1, 2016.)

In my opinion, the most important, and most helpful, part of the Ethics 20/20 revisions takes place in RPC 1.6 by explicitly acknowledging the need to reconcile the duty of confidentiality with the duty to avoid conflicts of interest and the fact that, in reality, this means that lawyers need to be able to disclose some otherwise confidential information when looking at moving law firms or when firms are looking at proposed mergers in order to make sure to identify and address potential conflicts of interest under RPC 1.7.

The Tennessee proposed revisions would pick that change up.  Thus, if adopted, like the ABA Model, our RPC 1.6(b)(6) would now provide an exception to RPC 1.6(a) confidentilaity:

(6) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

If adopted, the TBA’s proposed revisions would also move the language about duties of safeguarding confidential information from the Comment to RPC 1.6 up into the black-letter of the rule itself.  Although our version of that rule would be place into a new RPC 1.6(d), instead of Rule 1.6(c) as in the ABA Model Rules because we already have a RPC 1.6(c) that deviates from the ABA Model Rules approach by imposing certain duties of mandatory disclosure of confidential information.

What we do not propose to pick up, however, are certain aspects of the Ethics 20/20 changes that were made to ABA Model Rule 4.4.  This is because, in Tennessee, we have a more robustly detailed version of  the rule that specifically addresses the duties of lawyers when they receive confidential information that they know or should reasonably know was inadvertently transmitted to them or that they know or should reasonably know was provided to them by someone not authorized to have the information in the first place.

Based on the November 2016 comment deadline, there is reason to be hopeful that these proposed revisions might become effective in Tennessee as early as January 1, 2017.  But, stay tuned.

ABA Formal Opinion 16-474: half (or more) of a pretty good opinion

Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued its latest formal opinion – Opinion No. 16-474 addressing the topic of “referral” fees under the ABA Model Rules and, specifically, the intersection of Model Rule 1.5(e) and conflicts requirements under Model Rule 1.7.   Along the way, the opinion also stakes out a position on timing in terms of when the necessary written agreement required under Rule 1.5(e) must be created.

In its evaluation of the intersection of the conflicts rules and 1.5(e)’s requirements, the ABA opinion does a spot-on job of explaining why a lawyer who is going to share a fee, even under the assumption-of-joint-responsibility prong (i.e. something that without the assumption of responsibility would be pure referral fee prohibited under the ethics rules), has to recognize that they are representing the client and, therefore, can’t be involved in the arrangement without also being in compliance with the conflicts rules.

Though really just nitpicking, I do wish the opinion had taken the opportunity to explicitly address a relevant, related topic that I hear lawyers ask about from time-to-time (and that I think, and am happy to be corrected if wrong, the ABA has not previously addressed in a formal opinion) — if you have a conflict preventing taking on a prospective client, is it somehow unethical to give that person a referral to other competent counsel.  Absent truly extraordinary circumstances, if all the lawyer is doing is making a referral to another lawyer of the matter – without any component of fee sharing — then the answer should be that no conflict problem is created at all, and Formal Opinion 474 would have offered a nice opportunity to drive that point home through juxtaposition with any one of the three variations on The Flower Shoppe hypo offered up.

The logic that the opinion offers as to the “timing” question regarding when a writing must be created appears to have two parts to it.

The first is to stress the use of future tense in the text of the rule and in paragraph [7]  of the Comment.  (Rule 1.5(e)(2) – “including the share each lawyer will receive” & Cmt. [7] – “the client must agree to the arrangement, including the share that each lawyer is to receive”)  That logic only goes so far, however.  The language that the opinion stresses to make its point is a part of a rule that speaks separately about the act of the client agreeing to the arrangement and the act of the arrangement being memorialized in a writing.  Thus, placing so much emphasis on the use of “will receive” and “is to receive” isn’t a shatterproof construct beyond proving that a written memorialization that happened after the fee was paid out would be stretching it.

The second piece of the puzzle is the notion — supported by some case law citations in a footnote of the opinion –that the creation of a written agreement to indicate that the lawyer had undertaken joint representation is a meaningless act if it only happens after the representation has come to an end.  That also is a position that is not 100% true.  Given that many courts have allowed litigants to settle a case and then file suit against their lawyers for malpractice – claiming that but for a lawyer’s error, they could have gotten a better outcome — even an 11th hour written agreement to be jointly responsible for the outcome could be a quite meaningful financial commitment by a lawyer.  Further, the opinion stresses only one side of the coin – an arrangement based on assumption of joint responsibility.  If two lawyers and a client are late in papering up a fee sharing agreement based on proportional work performed, then there seems even less reason to insist that Rule 1.5(e) be read to take a later is not better than never approach.  It is also worth noting that even in the absence of such a writing, there are courts that have indicated that the lawyers involved may still be held to their agreement on sharing of fees.  See generally Daynard v. Ness Motley Loadholt Richardson & Poole, P.A., 178 F. Supp. 2d 9 (D. Mass. 2001).

Obviously, the better practice is for the written memorialization of the fee sharing arrangement to be created promptly in connection with the agreement itself, but as with many issues there ought to be some recognition that there is a difference between handling something in a way that is less than ideal and a declaration that conduct is unethical because the agreement, including the confirmation in writing of client consent, “must be completed before or within a reasonable time after the commencement of the representation.”

 

ABA Law Connect post-mortem. ♫ Five. Five dollar. Five dollar not long. ♫

This is going to be a short update offered on a Friday for any weekend reading needs you may be facing.

A bit back (on Back to the Future day actually) I mentioned (almost as only an aside) the pilot project that the ABA was launching in cooperation with Rocket Lawyer to offer a limited-scope representation service where consumers of legal services could seek a quick answer to a specific legal question, and a follow up, from participating lawyers for $4.95.

Yesterday, The American Lawyer (which usually has its stuff behind a firewall) put up a publicly-available piece about the ABA’s decision to walk away from the joint venture.  Although just coming to light now, the American Lawyer piece indicates that the ABA dropped the Rocket Lawyer partnership in January 2016.

The fact that this fizzled out as quickly as it did could be a real indication of where lines may be drawn that simply cannot be overcome in the near future — which is a sentiment you could glean from one of the quotes from the Executive Director of the California State Bar near the end of the piece — or it may just be an anomalous event heavily influenced by other circumstances.  It, of course, cannot help but be connected in terms of timing at least (as The American Lawyer piece rightly noticed) to the contentious proceedings in the ABA House of Delegates over the adoption of proposed guidelines for states to use in seeking to regulate the conduct of nontraditional legal providers.

Either way, any post-mortem on ABA Law Connect ought to be a useful opportunity to make what should be a fundamental, and non-controversial, point.  The idea of any service where a lawyer makes herself available to answer a discrete question from a client, without a continuing obligation to provide further representation, is absolutely something that can be done in compliance with the ethics rules in any jurisdiction that a rule in place patterned upon ABA Model Rule 1.2(c).  That rule provides:

A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

The primary fly-in-the-ointment in any given proposed limited-scope situation is whether a limitation is “reasonable.”  In the words that show up in Comment [7] to RPC 1.2 (albeit only with reference to a not-so-state-of-the-art method of communication):

If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation.  Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.

Presumably, ABA Law Connect was set up so that its underlying agreements (whether click-wrap or otherwise) had all participants involved acknowledging that there may be some questions for which answers cannot be provided in a limited scope representation universe because they are too complicated.

The other thorny issue that can often make or break participation by a lawyer in an arrangement designed to provide a high-volume of limited-scope representations is conflicts.  While the ethics rules contemplate the ability to limit the scope of a representation, the limited-scope client is still a client for purposes of RPC 1.7 and then becomes a former client for purposes of RPC 1.9.

The ABA Model Rules, already provide relief for lawyers from this conflict burden as long as they are providing these kind of “short-term limited legal services” through a “program sponsored by a nonprofit organization or court.”  (ABA Model Rule 6.5.)  The Rocket Lawyers of the world, however, are in the business of being for-profit endeavors and, thus, cannot offer the limited conflict of interest exposure that can be offered by the same bar associations that denounced ABA Law Connect as jeopardizing their revenue stream.

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

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

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

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

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

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

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

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

A reminder (for you) about the importance of coverage issues and (for me) that there is a second side to most stories.

This is an update on the California lawyer who successfully compelled arbitration of a client’s salacious claims that he treated her as essentially a “sex slave” that I wrote about here.

While I talked about that case as an example of the growing power of arbitration provisions in the arena of attorney-client contracts, I did not mention two things that could have, should have, been mentioned.  One was shortsighted in a way I strive not to be — which is that I failed at the time to acknowledge explicitly that nothing had been proven and that there may well be a second side to the story that the accused lawyer had not yet told.  The second thing I failed to mention was just an ancillary point at the time — the opportunity to note that if the lawyer had lost on the arbitration argument it might have meant he would be looking at his carrier claiming not to have to provide coverage.

A lawsuit filed in federal court by the lawyer’s carrier seeking a declaratory judgment and rescission of an insurance policy gives me an opportunity to address both things.  Law360 had an initial story about this that prompted me to find and read the federal declaratory judgment suit brought by the carrier.  Unlike your run-of-the-mill declaratory judgment suit, it makes for an interesting read.

In addition to arguing — relatively undaunted by the fact that court hearing the underlying suit decided the allegations arose from the attorney-client relationship — that there should be no coverage for the claim because it does not involve the delivery of any legal services, the declaratory judgment action seeks rescission of the insurance policy on the basis that the lawyer failed to disclose known circumstances that amounted to a claim, or could have amounted to a claim, at the time the firm applied for the insurance policy.

It is the carrier’s pleading setting out those circumstances that the potential second side to this lawyer’s story comes to the fore.

The lawyer and his law firm put in their application with their insurance carrier for coverage on January 12, 2015, resulting in a claims-made policy period commencing on February 28, 2015.  The insurance company fills us in on the fact that they have now learned that a woman – who may or may not be Jane Doe, the insurance company will not say definitively — had filed a bar complaint against the lawyer and that, in connection with that, back on March 25, 2014 the lawyer pursued a court ordered domestic violence restraining order against the woman.  The declaratory judgment action suit details 8 aspects of what was in the lawyer’s request for the restraining order that appear to indicate knowledge of a potential claim by someone that should have been disclosed in the insurance application, but was not.

  • The lawyer had a “dating relationship” with a woman described as an “ex-girlfriend” but the lawyer had “broken it off three times.”
  • The lawyer alleged the woman “had previously attempted to extort me.”
  • The woman had filed a bar complaint on March 20, 2014 that indicated she had quit being lawyer’s client because she “no longer felt [lawyer] was negotiating the best deals for me.”
  • The woman had demanded $40,000 and an apology from the lawyer and, in an email to her before the bar complaint, the lawyer agreed to pay $30,000 and make a written apology.  But then the woman said lawyer must go on a trip with her for 10 days or she would “go to the bar on me.”
  • The lawyer says the woman then made demands for sex.  And the lawyer had his lawyer send a “cease and desist letter.”
  • The woman then sent mass e-mails to other lawyers at lawyer’s firm with “false and malicious statements intended to hurt me professionally and personally, and damage my relationship with my colleagues, and in the entertainment community generally.”
  • According to the lawyer, the woman also said “we would be at war.”

In light of those accusations, made by the lawyer himself in court filing seeking a restraining order, and the fact that he was seeking to have a court bar the woman from coming within 100 yards of him, his home, and his workplace, the insurance carrier makes the point that, regardless of whether this woman happens to be “Jane Doe” or a different woman that the lawyer failed to disclose the existence of these circumstances, and the carrier seeks rescission of the insurance contract on the basis of the failure to disclose.  Of course, if the two women are really just one woman, then the insurance company’s argument seems significantly stronger.  The “Jane Doe” lawsuit filed against the lawyer started on April 10, 2015,

Yet, if the two women are really just one woman, then the flavor of the underlying lawsuit changes a good bit.  If the woman who filed the bar complaint is the same woman who has made the “sex slave” claims, then there is now a plausible basis for significant questions about the suit.  This second side of the story would merit watching — for while there would still be underlying ethical concerns for the lawyer in terms of having admitted had a sexual relationship with a client, this alternate version of events makes him seem a lot more sympathetic than the picture painted in the lawsuit — but the second side of the story may not play out publicly any time soon because … wait for it … lawyers for the firm (as explained in the Law360 article) indicate a belief that there is an arbitration provision in the underlying insurance contract and that the coverage dispute should be arbitrated.

“Damn near never…”

I mentioned back near the end of July 2015 that I would be participating on a panel at the Association of Professional Responsibility Lawyers’ Annual Meeting in Chicago.  It is always an honor to get to speak at an APRL meeting, and it was particularly an honor to share the stage with Eliza Rodrigues of Sedgwick, Gabe Miller of Advocates United, and Charles Mokriski of Proskauer Rose.

Fortunately, if you are interested in reading a pretty extensive write-up of some of the ground we covered during our session exploring the role of internal ethics counsel in law firms, the ABA/BNA Lawyers’ Manual on Professional Conduct has it and it is available without subscription here.

With such turns of phrase by me as a “messed up” rule and “Damn near never…” I managed to sound a lot more Southern then I tend to think I am . . . so lesson learned.

We never did manage to get into much of a discussion of the varying, and seemingly contradictory, approaches courts across the nation are taking to disqualification motions involving advance waiver language and other waiver issues.

C’est la vie.  Y’all.

Traps for the Unwary – RPC 2.2: Lawyer as Intermediary

Press releases on public discipline issued by the BPR can be something of an art form and sometimes, but not always, don’t tell the whole story.  So setting aside any tea-leaf reading that might otherwise go into this one involving what sounds like a situation in which a lawyer was perhaps unknowingly used by clients to assist with some hinky efforts to shield assets, the reference to RPC 2.2 as being among the rules violated raises a fine opportunity to remind Tennessee lawyers about another trap for the unwary.

Tennessee is one of only two U.S. jurisdictions (Mississippi is the other) that still has such a rule on their books.  RPC 2.2 is pattered upon an ABA Model Rule that was quickly scuttled after adoption by the ABA.  As such, the existence of RPC 2.2 in Tennessee presents both a blessing and a curse.

If you are aware of it, and understand when it applies, it is a blessing because it makes excruciatingly clear what needs to be in your engagement letter with your various clients, what you need to say about your role, what your duties and obligations are, and when you have to terminate representing any of the clients because the situation has blown up.  If you are not aware of its existence, then it’s a curse because, given its very detailed requirements, a lawyer could find themselves incorrectly looking to RPC 1.7 and complying with those provisions to try to obtain informed consent to a joint representation only to learn later that s/he followed the wrong rule altogether.

For the lawyer involved, and the fact that this whole set-up apparently turned out to involve a gratuitous transfer, this might have become a second-level trap as Comment [4] to RPC 2.2 indicates that where what is going on is a gratuitous transfer, RPC 1. 7 and not RPC 2.2 is the relevant rule with which to comply.

But, for everyone other than the lawyer involved, this still presents a decent teachable moment to remind Tennessee lawyers that if you are undertaking to represent multiple parties in an undertaking that involves “provid[ing] impartial legal advice and assistance” to multiple parties who “are engaged in a candid and non-adversarial effort to accomplish a common objective with respect to the formation, conduct, modification, or termination of a consensual legal relations between them,” then your engagement would be as an intermediary and RPC 2.2 is the rule on point.  RPC 2.2 thoroughly details how to determine whether you have a conflict that would prevent undertaking the representation at all, what you need to do to go about getting informed consent of the multiple clients involved, and what the rules of the road are for the engagement going forward.

TN Supreme Court rejects proposed resolution of disciplinary case as too lenient

This week sees a rare instance of media publicity regarding something perceived to itself be a rare event (but for which it is difficult to prove that the perception is also reality) – the rejection of a negotiated conditional guilty plea in a lawyer discipline case that had been approved by a hearing panel, and the BPR.  The Knoxville daily newspaper has the story about the Court’s rejection of a deal for a Knoxville lawyer who would, under the terms of the conditional guilty plea, have been suspended for 1 year, with 30 days of active suspension and 11 months of probation thereafter.  Again, thanks to the Knoxville News Sentinel, you can also take a look at the Court’s order indicating the punishment should be increased here.

Although all aspects of the record of disciplinary proceedings are technically public after the BPR files a formal petition for discipline, they are not all that easily accessible compared to many other kinds of court records.  So, traditionally, unless you are one of the lawyers involved in the process (as the target or as someone representing the target), you’re not all that likely to learn about the outcomes of the proceedings until they have wrapped up and the BPR puts out a press release about the discipline imposed.  As a result, all that many of us who practice in this area have to go on is our own experience in representing clients, mine has led me to believe that instances where the Court ends up rejecting agreed discipline that passed muster with a hearing panel and the BPR is a rare event.

This particular instance likely came to light given (1) the overlap with some federal court proceedings flowing from a simultaneous, but secret, investigation of this lawyer by the U.S. DOJ, and (2) the fact that this lawyer is currently involved as a lawyer for clients in some high-profile litigation going on in Tennessee.

The underlying allegations involve a sexual relationship between the lawyer and an indigent, allegedly addicted client the lawyer had been representing as court-appointed counsel and a claim by the lawyer to suffer himself from sexual addiction.  As good a time as any to remind lawyers in Tennessee, that instead of having a rule on this issue patterned after the ABA Model Rule 1.8(j) that is limited to clients (and would not for example have reached this kind of conduct if the relationship had been with the client’s spouse), we treat a lawyer’s sexual relationships under RPC 1.7 as a subset of “personal interest” conflicts that can create a material limitation on the ability to represent a client and elaborate at length on the problems created in Comments [12], [12a], and [12b].

A recent experience speaking about legal ethics to regular people

I had the opportunity recently to make a legal ethics presentation to a group of regular people, i.e., people who were not lawyers.  (It takes effort not to call them “nonlawyers.”  I admitted that to them at the outset while acknowledging how egocentric the term sounds when lawyers use it to mean anyone else.  Even physicians manage to give people a better sounding title than that — “lay people.”)

The topic requested was legal ethics for people who were not lawyers.  I went with “15 Things You Might Not Know About Ethics Rules for TN Lawyers.”  I tried to cover some of the more relevant aspects of how our rules can impact people who hire attorneys but, what I was most looking forward to was which ones garnered the most interest.  Based on reading the room, the two aspects people seemed the most surprised/genuinely interested to hear were: (1) there are some conflicts lawyers confront that simply cannot be waived and about which the lawyer isn’t even supposed to ask the client for consent; and (2) if you are represented by an attorney in a matter, you don’t have the power to give the attorney on the other side of the matter permission to communicate with you, only your lawyer can approve that happening.

I suspect the surprise as to the latter stems from how RPC 4.2’s requirement for the consent of the other lawyer can come across as, at least, counter-intuitive if not downright dismissive of someone who is the principal in a principal/agent relationship.  It helps though to explain the genesis of the concern as the risk of overreaching or shenanigans on the part of other lawyer and to explain that the client still ultimately has the power because she can instruct her own lawyer to grant the consent necessary.

I suspect the surprise with the first aspect though is a bit more telling about how many lawyers approach conflicts in modern practice.  My guess is that there might be a handful of lawyers out there that also forget that RPC 1.7(b)(1) means that unless you can reasonably believe that you can still provide competent and diligent representation to affected clients despite the conflict you can’t even ask for consent.