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.
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  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.
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 , [12a], and [12b].
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.