As a matter of fact, yes, this potato is still hot. Why do you ask?

In October of this year, I’ll have the honor of again getting to serve as a moderator for a panel discussion at Aon’s Law Firm Symposium.  This year’s event will take place in D.C.  The topic of the panel I get to be a part of will be something of a DQ motion boot camp.  It is still months away, my guess is that we will be focusing on aspects of disqualification motion proceedings that will be harder to predict than the outcome of this case out of Mississippi should have been.

If you know a little something about conflicts, then you are probably have passing familiarity with all of the core concepts necessary to immediately predict the outcome of the scenario that was involved in McLain v. Allstate decided in the S.D. Miss.  I’ll succinctly describe the scenario for you:

Lawyer has had a long term relationship with an insurance company client.  That relationship is not as robust as it used to be as the lawyer is continuing to handle quite a few matters for them but has come to notice that no new matters have been coming from the company for quite a while.  Lawyer is contacted by a potential client who has a matter that would be adverse to this insurance company client.  Lawyer goes ahead and decides to take on the new representation but also terminate the ongoing representation of the insurance company client.  Insurance company brings motion to disqualify, and lawyer argues that insurance company client should be treated as former client and disqualification should occur only if new matter is substantially related to prior matters.

How will lawyer fare?

I have no doubt you answered this correctly.  Not well, the lawyer will not fare well.  The lawyer will get disqualified.  The court will explain that a lawyer cannot drop one client like a “hot potato” in order to transform them into a former client so that you can take on representation of a new client.

Thus, for you Dear Reader, almost all of the contents of the seven-page order disqualifying this lawyer will come as no surprise.

What might come as a surprise to you – it certainly surprised me — is that the federal judge who ordered disqualification actually included a sentence praising the lawyer involved for how he handled the situation. Specifically:

[Lawyer] undertook commendable efforts to insulate himself from a conflict of interest by declining to discuss or investigate McLain’s claims until after [Lawyer] promptly and formally terminated the firm’s relationship with Allstate.

I know people often accuse me of being stingy in terms of doling out praise, but that sentence just leaps off the page as trying too hard to find something nice to say.  Commendable seems a stretch.  Particularly so given that when you work your way back earlier in the opinion itself where it lays out the chronology of events, you will find that the lawyer in question had the new client sign a contract with his firm on October 11, 2016 and, then, on October 12, 2016 sent the letter that attempted to drop Allstate like a tuber of elevated-temperature.

If any aspect of the lawyer’s effort is commendable (and I’m still stretching the utility of the word itself), it would be the whole not-being-very-Machiavellian about it angle.  A truly Machiavellian type would have done more to attempt to manipulate the timeline of events.  Perhaps, having the new client execute an engagement letter, only after the lawyer had time to send the letter to terminate the current client relationship.  I’m not sure that not doing that qualifies as “commendable” exactly.  But it’s something.  As long as it was very close in time, the potato would still be hot and the outcome unchanged, but … like I said it would be something.

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.

A former lawyer of Donald Trump speaks … but shouldn’t have

A long while ago I wrote about a lawyer’s public interview that should never have happened.  Here is a lawyer’s op-ed piece that should never happened, you can read the op-ed if you haven’t already at  this link at The Huffington Post.  Now, because such a disclaimer seems to be in order and beneficial to some extent, I say this as someone who contributed to Senator Sanders campaign during the primary and who has contributed to Secretary of State Clinton’s campaign more recently, but here is a lawyer publicly saying everything people who think Trump’s candidacy represents an existential threat to democracy  should want to hear injected into our current political discourse — but the introductory portions of it, the things that the author attempts to use to give it credence and relevance as someone with real insight into the person being criticized, demonstrate that, at least in this version, the piece should never have been written at all.

Taken at face value, the writer is a former lawyer of Trump’s and he appears to be licensed in a jurisdiction, New Jersey, that (like most jurisdictions) provides for a continuing obligation of confidentiality owed to former clients.  New Jersey’s RPC 1.9(c) provides:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Thus, the first few paragraphs of the piece set this lawyer up for trouble in terms of allegations that what he is doing — and to some extent what he clearly does (the limo conversation and one or two other conversations) — is breaching his duty of confidentiality to a former client.  The statements about things his former client said to him are certain being used to the former client’s disadvantage and certainly are not generally known pieces of information.

This lawyer needed both a good editor and a good legal adviser who could have told him that with some massaging and editing at the outset he could have still written the lengthy 4,000 words or so about the 20 problems with a lead in that acknowledged that he was obligated by ethics rules not to disclose anything he learned during the representation and that everything he is writing about is information he worked hard to track down through publicly-available sources but ….

Actually, once you remove that piece of it – there is no more need for this gentleman’s voice in the public discourse (other than the stakes involved in the electoral process).  It particularly seems unwise for this lawyer to have taken on this risk, particularly given the well-known litigious nature of the target of the column — who actually, for example, had a lawyer send a letter to Trump’s co-author of The Art of the Deal demanding a return of all royalties now that the co-author is speaking out negatively about Trump despite the fact that book came out almost 30 years ago.

California (where this gentleman is not licensed) just put out a formal ethics opinion driving home the point that its confidentiality requirements adhere even to information that has been publicly disclosed.  Worth noting is even under that opinion, California would appear to signal that the rest of this piece, the just-one-more-voice detailing criticisms from publicly-available sources would not be a violation of duties to the former client, as the California opinion explains about the lawyer’s perhaps unnecessary and unwise but not unethical disclosures about a former client’s arrest for DUI at a time after the representation had ceased.  The New Jersey Supreme Court, earlier this month, refrained from disciplining a NJ lawyer over the disclosure of confidential facts of a current client representation that were already public, so maybe this guy will get a pass?

ABA Formal Opinion 473 – mostly good advice all the way around

A few months ago, I wrote a post about a frustrating Tennessee Ethics Opinion that offered guidance on lawyers’ obligations when responding to a subpoena for client information by, in part, treating a subpoena as if it were a court order.

Last week, the ABA issued Formal Opinion 473, Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information, that does not suffer from any such mixed-up approach.  Instead, the ABA opinion does a fairly good job of providing a structured analysis for lawyers to follow in an overwhelming majority of jurisdictions and even manages to strike what seems like exactly the right balance on thorny issues that can arise when the subject matter of the subpoena relates to a former client with whom the lawyer is no longer able to effectively communicate.

Opinion 473 revisits ground previously addressed more than 20 years ago in ABA Formal Opinion 94-385 and revises its prior guidance to address several vexing questions lawyers can face when on the receiving end of a subpoena.

Even though Model Rule 1.6(b)(6) grants a lawyer discretion to disclose confidential client information in order to comply with a court order, there are still complicated questions that a lawyer must answer with respect to taking such action and, more importantly, responsibilities to a client or former client that hopefully can be navigated at an earlier time in the process — presumably, a subpoena or other demand from someone seeking the materials made to the lawyer prior to entry of any such order.  (The opinion – as mentioned below – suffers a bit from not dividing out its guidance for situations in which the lawyer first learns of the situation upon receipt of an order as opposed to something else, but clearly is intended to propose that if the lawyer’s first knowledge comes in the form of an order that the lawyer ought to pursue a similar course of consultation with the impacted client/former client, even if the mechanics of seeking a reconsideration of the court order might be more difficult than a motion to quash or for a protective order at an earlier stage of the proceedings.)

The opinion lays out the lawyer’s obligations to notify, or at least attempt to notify, the client/former client and, if the lawyer is able to successfully reach the client/former client, the obligation to consult about how the client or former client wishes for the lawyer to proceed.  Model Rule 1.6(a) makes clear that, with informed consent, the client or former client can simply authorize the lawyer to just provide the materials sought by the subpoena and that would be that.  Before the client would provide the green light to comply though, the opinion highlights that the lawyer should, as the “informed” part of that consent, be certain that the client/former client is counseled about available privilege and work product protections, as well as confidentiality protections under RPC 1.6 itself.  At the same time, the opinion serves to remind the lawyer to be mindful of situations in which there may be downstream repercussions for the client if the information in the materials is disclosed to others.

Once the appropriate level of consultation occurs, if the client wants to oppose compliance with the subpoena, then:

the lawyer should, as appropriate and consistent with the client’s instructions, challenge the demand on any reasonable ground.  If, after making the challenge, the court or other tribunal rules against the motion to withdraw or modify the order or demand for production, “the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4.”  If the client decides not to appeal and gives informed consent to disclosure, the lawyer must produce the documents and information consistent with the client’s instructions and as described in Part IIC of this opinion.

Now, the heart is in the right place with this guidance, even if the execution is a bit lacking.  The opinion muddies things up by attempting to address two separate situations at once (situation #1 would be where an order has already gone down before the lawyer ever has the chance to consult with a client; situation #2 would be in trying to determine whether a client will oppose something like a subpoena before any order is ever entered) and, thus, the second sentence in that quote seems confusingly out of context.  Also, I’m pretty sure the committee means to reference IID — Complying With the Court Order — not IIC — Where the Client Is Unavailable for Consultation.

Opinion 473 also discusses an often overlooked practical point involving such situations in the real-world:  who pays for the lawyer’s time and trouble in dealing with this situation?  The opinion, on that front, strives to be about as helpful as it can be on that issue, but, the topic that really matters is where the targeted representation is of a former client, and the lawyer’s ability to force a former client to pay for the effort is matter of contract law or quantum meruit recovery beyond the scope of the ethics rules.  The opinion does suggest putting something in an engagement letter to address in advance as an option.

As to what do about clients/former clients whose whereabouts or unknown or with whom the lawyer otherwise is unable to communicate, the opinion relies upon the language of Cmt. [15] to Model Rule 1.6 to explain that the lawyer still has an obligation to assert any reasonable objections to the initial demand for the materials, explain to the court the efforts the lawyer has made, albeit unsuccessfully, to reach the former client, but ultimately can then abide by, and comply with, any court order that results.

Finally, the opinion wraps up by revising past guidance from Formal Opinion 94-385, in light of intervening changes in the language of Model Rule 1.6, to make clear that “the balance changes once a court or other tribunal has ruled on the lawyer’s initial objection,” and, if the client is unavailable to the lawyer for consultation, the lawyer is not required by the ethics rules to pursue an appeal of such an order.

 

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.

Legal Ethics Issues in “Making A Murderer”– Part 2 of ?

Two recent events have brought me back around to wanting to talk about ethics issues raised by this fascinating documentary.  One event is public and absurd.  The other event was semi-private and surprising (at least to me).  As neither of the recent events are actually the thing I wanted to talk about a couple of weeks ago when I wrote my first post about this documentary, I will try to dispense with them with relative speed.

First, this story that made the rounds this week further cements the notion that the former prosecutor is really something else.  While, strictly speaking, it is hard to think of an ethics rule directly implicated by his letter to the person he put in prison for murder trying to cajole an admission of guilt so that he (the former prosecutor) can write a book revealing the true story, the mere act of writing such a letter certainly isn’t a strong look for the lawyer.  Perhaps the saddest aspect of it is the desperation of the “this was your absolute last chance to tell the truth and you blew it…. but let me know if you change your mind because I’m probably still going to be interested” approach to coercion.

Second, I found myself enmeshed in an interesting APRL listserv discussion when some lawyers who were taken aback at the “disclosure” made by Avery’s former lawyer, Bob Oedenkirk as Saul Goodman Dean Strang in an appearance on ABC’s Nightline that he worries that Avery “might” be guilty.  A number of lawyers expressed belief that even with the passage of almost ten years, it was bad for the profession for the lawyer to publicly express any such misgivings about a former client, particularly for as long as there are still folks pursuing proceedings to try to have the former client exonerated.  I was a bit taken aback for what I’ve now been able to figure out are three reasons.  First, and the most embarrassing for me because I didn’t realize it until I had already weighed in on the listserv was that I forgot that Tennessee’s RPC 1.9 differs significantly from the ABA Model Rule approach in applying the exception for “generally known” information to both adverse use and disclosure of confidential information of the former client.  Second, having watched all of the documentary, he didn’t seem to me to be saying anything in the Nightline piece that he hadn’t already said in the documentary itself — thus the current disclosures would be merely repetitive of disclosures that presumably had to have been consented to by Avery for broadcast in the first place.  The third reason though finally provides a segue into the original thing I wanted to talk about — given how detestable the conduct of at least one of the other defense lawyers in the drama appears — Strang came across to me as exactly the sort of lawyer you’d hope to have on your side.

That other defense lawyer is, of course, Len Kachinsky.  The second court-appointed lawyer for Avery’s nephew, Brendan Dassey.  The notion that Kachinsky never was disciplined for the way he handled his representation of Dassey is exceedingly difficult to fathom.  A lawyer’s duty to be the client’s zealous advocate is at its highest when the client in question is accused of murder.  Add into the mix details such as the client is a juvenile with well below average intellect and social coping skills, and you’d expect the likeliest ethical failings to come from a lawyer crossing lines that shouldn’t be crossed in the name of trying to protect that client.  Yet, Kachinsky now stands as an example of a lawyer managing to violate ethical duties to his client in the course of undertaking what appears to be the polar opposite of zealous advocacy.

As we learn in the course of the documentary, Kachinsky spoke to the t.v. cameras [as shown in Episode 4] before ever speaking to his client and made a much more damning statement about his client than Strang can ever be accused of making about his former client: indicating that his client was “morally and legally responsible” for the murder.  While that alone was unforgivable, it was not as impactful a transgression in the end as was his role, both active and passive, in coercing his own client into giving another “confession” to the police outside of his presence which also managed to lead to an admissible telephone conversation between his client and his client’s mother.

This story from The Guardian lays out much if not all of the detail necessary to take in something of the big picture of the problems with Kachinsky’s performance.  I certainly won’t condone anyone who has harassed or threatened the man as the article indicates has happened and, of course, cancer is awful and thankfully the article reports that his is now in remission.  But as to his explanations for his handling of the case, I’m not inclined to give him any more benefit of the doubt than he afforded to his minor client.

With all that being said, that article also happens to be the first time I’ve heard Kachinsky indicate that he was not aware at the time of the conduct and tactics of the private investigator that he hired.  Kachinsky’s portrayal of that private investigator as a “loose cannon” tees up an interesting discussion about a lawyer’s obligations with respect to the conduct of such a non-lawyer assistant under RPC 5.3, so it seems there will be a part 3 on this topic in my future.

Some lawyers fail to see conflicts of interest, but they aren’t the only ones.

Conflicts are a big issue for lawyers, and a significant issue in the world of legal ethics.  (If you are a lawyer and do not already have his site bookmarked, you really need to add Bill Freivogel’s website to your list of bookmarks.)

Relatively speaking, however, conflicts of interest (other than ones involving inappropriate sexual relationships) tend to be aired out through disqualification motions or as components of legal malpractice or breach of fiduciary duty lawsuits against lawyers and law firms much more often than in disciplinary proceedings.

To some extent, this phenomenon can be explained because lawyers tend to see the obvious conflicts and avoid them and only the more nuanced ones tend to be really problematic.   For example, sometimes it can be difficult to explain the intricacies of what makes up a “substantially related” matter for purposes of evaluating a former client conflict situation under RPC 1.9.  There are a number of other factors, of course, that lead to conflicts matters being a small percentage of disciplinary proceedings.

Sometimes, though lawyers do get disciplined for undertaking representations in violation of the conflict of interest rules.  Earlier this year, the Tennessee Supreme Court suspended a lawyer for six months (after previously giving the lawyer a public censure involving the same conflict of interest) for stubbornly persisting with a representation that was prohibited by a conflict of interest.

Yesterday, the Ohio Supreme Court issued a public reprimand against a lawyer who took on a conflict that should have been really, really hard to miss.  The lawyer represented a bank in a foreclosure action against a husband and wife and obtained a default judgment for the bank.  Within nine months of doing so, the lawyer then undertook to represent the same husband and wife in seeking to vacate the same default judgment he helped the bank obtain.  The lawyer had not obtained consent from the bank to do this.  Fortunately for the lawyer, he had no prior disciplinary history and did the right thing in the disciplinary proceedings by admitting the wrongful nature of the conduct.  As a result, he managed to get out of the disciplinary venue with only a public reprimand.

Lawyers though are not the only people that should see a conflict of interest but simply plow ahead with doing what they want to do.  Although the ethics lawyer component of my law practice is overwhelmingly focused on legal ethics, I have had some experience in matters involving conflicts of interest of government officials/public employees.  Here are links to a couple of news stories broadcast this week in Memphis about what appeared to be a pretty straightforward conflict problem that the government official should have recognized.  The first broadcast can be viewed here.  Fortunately, as the second broadcast indicates, the investigative journalism of the reporter appears to have brought an end to the conflict and, hopefully, will bring some much needed assistance to the economically-challenged residents that were being adversely affected by its repercussions.

(As a bonus, if you manage to  watch either of the two broadcast segments, you’ll have a voice in your head (for better or worse) you can tie to the text on this blog.)

Bad ethics opinion or worst ethics opinion? Tennessee 2014-F-158 edition

Actually, unlike some other posts in this category, this title’s not even close to reflecting a serious question being asked.  Slapping that tile on this post is more of a crutch.  The ethics opinion I want to discuss here is miles away from even being in the conversation among the worst ethics opinions.  It really isn’t even a truly “bad” ethics opinion overall.   It gets the answers to the questions it addresses mostly correct, but what makes it bad is that it does two really awful things on the path to the answers it offers and those awful things deserve some discussion.

I somehow missed the release of this ethics opinion altogether when it came out back in 2014.  I have only ended up paying attention to it in connection with a seminar I am doing later this week for the Tennessee Bankers Association on ethical issues in estate and trust administration.  I am going to go out on a limb and guess that the Venn diagram of people who will read this post before Friday and people who will be in attendance at that seminar on Friday has a small enough overlap that I’m not spoiling part of Friday’s presentation by sharing my thoughts about this now.

2014-F-158 begins by establishing that the question it seeks to address is:

Can a lawyer who represented a testator refuse to honor a court order or subpoena to disclose, prior to the client’s death, a Will or other testamentary document executed when the testator was competent on the basis that the document is protected against disclosure by the attorney-client privilege or confidentiality.

After explaining as background that what has prompted the question is a situation in which a court appoints an attorney to serve in some capacity to represent someone now suffering from dementia or Alzheimer’s, a someone who is embroiled in a dispute or litigation over whether that someone can manage their funds or even their own personal decisions.  The appointed attorney now turns their attention to getting that someone’s estate planning lawyer to hand over the person’s last will and testament.

2014-F-158 quickly pivots to break the lengthy question above into three or four shorter, successive questions.  If all you read was the first page of the opinion, you’d make out okay as you’d know that (1) if someone requests the will from the lawyer in a judicial proceeding, and the lawyer has a non-frivolous argument to make that the will is protected from disclosure by the attorney-client privilege or other law, the lawyer is ethically obligated to raise the objection; (2) whether someone appointed by the Court as a guardian ad litem, attorney ad litem, or conservator for the lawyer’s client has the power to waive privilege or otherwise can obtain the will based on the status of their appointment without jeopardizing privilege is question of law outside the opining authority; and (3) if the situation is that a court order requiring production has been entered, then the lawyer will have to comply with the court order.

The two problems that give me such pause only crop up if you plow on and read the “Discussion” section where the BPR “shows its work” to explain why those are the correct answers to those particular questions.  The Discussion section is where the BPR conflates a subpoena with a court order and undermines the scope of client confidentiality under RPC 1.6 and RPC 1.9.

The conflation of a court order, which is explicitly addressed in RPC 1.6 as overriding the obligation of client confidentiality, and a subpoena which can be issued under the signature of any attorney happens repeatedly in the discussion section.  In the first sentence of the discussion, 2014-F-158 declares that nothing in the ethics rules or in our rules of disciplinary enforcement gives the BPR the power to “opine or authorize lawyers to disregard or refuse to honor an order of a court or subpoena.”  Later, the opinion states that if the Will is sought by compulsion of law “whether by order of the court, subpoena, or otherwise,”  then the lawyer has to comply with RPC 1.6(c)(2) – the exception to confidentiality in Tennessee that makes disclosure of confidential information mandatory in order to comply with a court order or other law — and a subpoena of course is neither a court order nor other law.  The opinion then succinctly repeats the same error at a later point in the opinion in a sentence that is just a call back to one of the earlier conclusions.

Exacerbating the problem of its willingness to elevate a subpoena to too lofty of a perch, the opinion does some real potential damage to the scope of Tennessee lawyers’ duty of confidentiality under RPC 1.6.  It does this through its interpretation of the language in Comment [3] to RPC 1.6.  The relevant sentence it interprets is:

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.

That sentence can be read as having an invisible “also” before the word “applies” or an invisible “only” before the word “applies.”  Unfortunately, the BPR in 2014-F-158 appears to choose “only.”  The result leaves the reader with the belief that an attorney cannot, in response to a subpoena, push back and move to quash or alter the subpoena on the basis that it would require disclosure of RPC 1.6 information.  If 2014-F-158 is correct, RPC 1.6 confidentiality alone would not be sufficient, and only actual attorney-client privilege grounds for objection (or attorney work-product) would be sufficient.  I think that is incorrect, and I expect I will continue to advise lawyers to do otherwise and make sure that, unless they have express consent from their client, they only turn materials that include information related to their representation of a client over in response to a court order.

On the RPC 1.6 issue, while I strongly disagree with the reading, at least there is some basis for the interpretation.  We are, after all, engaged in an exercise in choosing which of two invisible words to pretend is present in the sentence.

When the opinion turns its discussion of the questions addressed to situations in which what has to be evaluated are the duties owed to a former client, 2014-F-158 manages to disregard and do damage to the careful language in Comment [8a] of RPC 1.9 that attempts to lay out what “generally known” means by turning that paragraph into something that is just shorthand for “matter of public record.”

The BPR does this by saying that if “the Will or other testamentary document of a former client is part of the public record, the document is ‘generally known’ and may be revealed or provided by the lawyer.” The BPR then provides a cite to, and in a footnote fully quotes, the language of that comment which demonstrates that the simplified reading isn’t justifiable:

[8a]  Whether information is generally known depends on all circumstances relevant in obtaining the information.  Information contained in books or records in public libraries, public-record depositaries, such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access.  Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense.  Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.  A lawyer may not, however, justify adverse use or disclosure of client information simply because the information has become known to third persons, if it is not otherwise generally known.  Even if permitted to disclose information relating to a former client’s representation, a lawyer should not do so unnecessarily.

2014-F-158 also ignores the exhortation that makes up the very last sentence of that comment about not making such a permitted disclosure unnecessarily.  What might have been a very useful, and instructive, discussion of this issue would have been to explore how turning over generally known information in response to a mere request would likely not be necessary in most circumstances whereas, the effort associated with making someone pursuing the will by subpoena have to obtain a court order might not be a needed exercise if the will is generally known information.

Unfortunately, we didn’t get that kind of analysis.  Instead, we got “guidance” that could lead a Tennessee lawyer to believe that just because something might filed in the public record — even if it is in a court that has no online access and that requires someone to pay $1.00 a page for copies of court filings — then it is “generally known.”

When online: cat and dog shaming pictures = funny. Client shaming efforts = foolish

Today, we spend a few more minutes addressing a topic that will likely be a rich vein of discussion for years to come or for at least for as long as lawyers continue to be human beings whichever is shorter.  (Even with this news, you figure we have a few years left before we have all been replaced by Watsons in suits.)

In 2015, human beings have handy access to essentially all of the world’s aggregated information and knowledge in our pocket – which is pretty awesome even if it reduces the fun of conversations where memories differ over some unimportant pop culture reference by ending the debate quickly when someone say “Well, let me just look that up real quick…”  Unfortunately, along with the upside of the wealth of information available in our pocket, we all have the ability in the heat of a moment to communicate with damn near the whole world at a moment’s notice.  If this were a commercial for a particular discount insurance company, we’d phrase this as “If you are a human being with internet access, you overshare.  It’s what you do.”

Lawyers are, of course, despite much rhetoric human beings.  But, lawyers more than many other forms of human being are going to continually have to strive to not do things on the web out of impulse or continue to learn the rough lesson that it will not turn out well.  This is particularly true when it comes to posting anything that touches on information related to representation of clients.  I’ve written about an instance of misjudgment of this variety here.

The latest instance involves a Denver lawyer who will serve an 18-month suspension for deciding to respond in kind to clients who had criticized his services online.  This lawyer did this not once but twice.  One instance involved folks who he felt were not living up to their financial obligations to him — obligations that weren’t really well detailed in writing — and who criticized him online after he gave them 48 hours to pay or see him withdraw and who refused to refund $200 paid for a filing fee when he didn’t file anything.  After they criticized him online, he responded by “shaming” them with online disclosures of privileged and confidential communications.  As to another client, after they fired him, they posted unfavorable comments about him on the Better Business Bureau’s website.  He again responded by posting embarrassing confidential information about them online.

Now, if you read the details of the conditional admission document imposing this suspension you will see that attempting to “shame” his clients online was but one of many, many instances of problematic conduct in which this lawyer engaged.  So it is difficult to conclude that the penchant for flouting his obligations of client confidentiality under RPC 1.6 and RPC 1.9 alone would have gotten him to such a lengthy suspension as the outcome.  But those errors can still be another teachable moment for other lawyers for whom the call to take arms on the internet might be their only misstep.

If a client fails to pay your bill, or goes online and unfairly criticizes you (at least you think it is unfair), and you think doing something like complaining about them online and sharing information about what bad people they are is a good idea, you’re probably wrong about that.  And, if you are probably wrong about that, then you might also be wrong about whether that information your client/former client posted was unfair to you.  Either way though, instead of firing off your response online you’d be much better served searching up your state’s version of RPC 1.6 and RPC 1.9 and seeing if you really have any leg to stand on in trying to disclose your client’s confidential information.

If your state has a rule patterned after Model Rule 1.6, you are going to notice that it could be tough sledding.  You are going to have to show that what you are doing, under 1.6(b)(5) is establishing “a claim or defense on [your behalf] in a controversy between the lawyer and the client.”  And, even if you are able to conclude that an online flame war is the kind of “controversy” contemplated, then you are going to need to realize that your ability to disclose is still limited to what you can “reasonably believe necessary” to establish that claim or defense.

And, if you have gotten this far into this post and are among the small number of human beings unfamiliar with the concept of cat-shaming online, it looks much like this: