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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Department of Labor’s Final “Persuader” Rule – Part 2 of 2

So, yesterday, I started writing about the potential ramifications for lawyers of the adoption by the Department of Labor of its final “persuader” rule which will become effective on April 25, 2016, but will only be applicable to agreements entered into on and after July 1, 2016.  You can catch up on part 1 here.

I promised that I’d lay out my thoughts based on a full dive into the actual final rule itself to try to address whether, despite the DOL’s rhetoric, the rule really will require disclosure of information that ought to be protected by the attorney-client privilege  — so, here I go.

Having read through all (or least almost all) of the final “Persuader” rule, my “executive summary” takeaway is that the DOL sure seems to be willing to go to the wall on the idea that trying to help an employer make a more persuasive argument against the formation of an union is not “legal services.”  I happen to think that’s wrong but, I guess for the most part, that’s a policy call to be made by people who win elections.  I also think it is a position that is fundamentally in contrast to lots of other areas where conclusions are drawn that when a lawyer does certain things that aren’t the practice of law when done by nonlawyers, the lawyer is still engaged in the practice of law when doing those things.  I also think, though, as wrong as it may be, it seems to be a manageable situation and that lawyers and law firms can protect against the adverse consequences through building better (or at least more redactable agreements).  What seems to be a much worse possible outcome is the issue the DOL dodges by saying it isn’t at issue in the present rulemaking — the kinds of information that would now have to be reported on Form LM-21 that the ABA warned about a a good bit in its 2011 public comment.

There are many places in the Final Rule itself (page references below are to the Federal Register Vol 81. No. 57) that leave little room for a conclusion other than that the Department adamantly contends that “persuader activities” simply aren’t legal services and, as a result, communications about “persuader activities” aren’t entitled to be treated as advice or as privileged communications.  Stated another way, it seems the Department’s view that the only thing that a lawyer exists to do in this aspect of the labor law arena is provide advice to ensure the legality of her clients’ conduct.

In fact, the Department appears to be make this interpretative position abundantly clear in multiple places:

Agreements under which a consultant exclusively provides legal services or representation in court or in collective bargaining negotiations are not to be reported.  “Advice” does not include persuader activities, i.e. actions, conduct, or communications by a consultant on behalf of an employer that are undertaken with an object, directly or indirectly, to persuade employees concerning their rights to organize or bargain collectively.  If the consultant engages in both advice and persuader activities, however, the entire agreement or arrangement must be reported. (p. 15937)

While a lawyer who exclusively counsel an employer-client may provide examples or descriptions of statements found by the National Labor Relations Board (NLRB) to be lawful, this differs from the attorney or other consultant affirmatively drafting or otherwise providing to the employer a communication tailored to the employer’s employees and intended for distribution to them.  The latter is reportable, the former is not. (p. 15938)

A lawyer or other consultant who exclusively counsels employer representatives on what they may lawfully say to employees, ensures a client’s compliance with the law, offers guidance on employer personnel policies and best practices, or provides guidance on NLRB or National Mediation Board (NMB) practice or precedent is providing “advice.” (p. 15939)

Indeed, this rule exempts from reporting agreements involving exclusively the following activities: . . . legal services (as distinct from persuader activities undertaken by a lawyer). (p. 15952)

The reporting requirements in Form LM-20 . . . are designed to identify the specific persuader activities undertaken, not the legal advice provided.  In other words, if an employer retains a law firm with the purpose to persuade, directly or indirectly, its employees not to unionize, that retention is not privileged because it is not done with a purpose of obtaining a legal opinion, legal services, or assistance in a legal proceeding. (p. 15996)

Now, at just a common sense level, it seems implausible for anyone at all familiar with what lawyers do to say that anything other than advice isn’t legal services.   If an attorney communicating to a client about how to use more persuasive language to advance its legal rights isn’t the provision of legal services, why?  It certainly seems like legal services to me.  The conversation also presents for me another reminder about the fact that RPC 2.1 is almost never discussed when it ought to be with respect to the role lawyers play, and are supposed to play, in going beyond just giving legal advice.

I will admit that, at first blush, it was difficult for me to figure out how the Department, in requiring this Section 203(c) reporting, could just disregard the fact that Section 204 indicates that “attorney-client communications” are exempt from reporting where such communications are defined as “information which was lawfully communicated to [an] attorney by any of his clients in the course of a legitimate attorney-client relationship.”  But, having digested the whole rule, I understand that there is some mixture of interpretive history and judicial decisions lurking behind the scenes on which the Department of Labor rests its positions:

[T]he Department notes that — consistent with the interpretation that section 204 has received from the courts — it always has construed section 204 as roughly equivalent to the limited attorney-client privilege under the common law.  The Department has never embraced the view that section 204 creates a broad, separate exemption for attorneys that supplants 203(c). p. 15953

The Department’s interpretation in that respect does find support in a Sixth Circuit case, Humphreys, Hutcheson and Moseley v. Donovan, 755 F.2d 1211 (6th Cir. 1985).  Humphreys determined that Section 204 was intended to provide the same scope of protection against disclosure of information as is provided for under federal common law attorney-client privilege.  That case, and another even older case from the Fourth Circuit (Douglas v. Wirtz, 353 F.2d 30 (4th Cir. 1965)), are things the Department points to for their claim that “Congress recognized that the ordinary practice of labor law does not encompass persuader activities.” (p. 15996)

What I’m also very troubled by, and not just intellectually, but practically, is the DOL’s position that language in an attorney-client engagement agreement about the scope and nature of services provided is not protected by the attorney-client privilege.  The Department uses this position to brush aside concerns expressed in a variety of the comments it received during the public comment period about requiring the law firm’s engagement agreement with the employer client to be made public and to have to provide information through checking boxes about what activities were performed.   The Department maintains that the same Humphreys decision out of my circuit, the Sixth Circuit, supports that conclusion as well.  I’m not entirely certain that the Department isn’t stretching the language of Humphreys too far especially when it also is willing to contend, with respect to an engagement agreement that: “information that may reveal client motives regarding exclusively legal advice or representation sought would generally be redactable, but information concerning client motives related to the persuasion of employees is not privileged and would remain reportable.”  (p. 15995)

The one aspect of attorney-client confidential communications that the DOL does seem to get right is the non-absolute nature of confidentiality protection under the ethics rules where states have adopted rules similar to ABA Model Rule 1.6.  So, if the “persuader” rule adopted by the DOL ends up being treated as within its powers so as to be recognized as “other law,” then nothing about RPC 1.6 will serve to prevent reporting of the required items.  The privilege dilemma, however, will remain.

Thus, the practical takeaway for law firms worried about this issue — i.e. practicing in this sphere — would seem to be to get accustomed to either entering into two separate engagement agreements with their clients, one that would be bare-bones to cover anything that would be done that might stray into “persuader activities,” so that one is the only one that has to be attached to the Form LM-20 or (2) get very accustomed to crafting engagement letters that can be readily redacted to protect privileged communications within the text.  The final “persuader” rule, for its flaws, at least does acknowledge the ability of lawyers and law firms to redact the agreements it submits; though even on that front, there is troubling language in the rule that would appear to set up points of skirmish over the details of when that is done as well.

Given the effective dates of this, there is certainly time between now and July 1 to figure out how to do so.

Of course,  given the fact that it would appear litigation to challenge the rule is in the offing, who knows if it will ever come to pass.

This probably is (but maybe shouldn’t be) the least discussed ethics rule.

I remain surprised that RPC 2.1 is so rarely discussed when it comes to ethics rules.  It’s not really a scientific or fair way of justifying my point, but if you were to go search the website of the Tennessee Board of Professional Responsibility for “2.1,” it will inform you “There were no results found.  Please try your search again.”  Perhaps more tellingly (though still not quite scientific proof), if you go to the very good Legal Profession Blog and search for 2.1, you get 3 results.

Before offering any thoughts about why I think this rule is given little attention and just in case you can’t think of which one Rule 2.1 happens to be off the top of your head, it’s the rule we title “Advisor,” it leads off the section in the rules called “Counselor,” and the ABA Model Rule version reads as follows:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.

Given that the whole second sentence is a “may” provision, this rule is rarely going to be the subject of a disciplinary proceeding.  Rarely is a client going to lodge an ethics complaint alleging that a lawyer failed ethically by not making reference to some moral or political factor in rendering advice.  Likewise, it should be pretty tough sledding to try to build a malpractice case against a lawyer for some failure to do that which the second sentence would ethically permit.  From a disciplinary perspective, that would still leave the first sentence which imposes a “shall” requirement.  But rarely should circumstances arise when there isn’t some better, more clearly relevant rule on which to base disciplinary charges against a lawyer.  A variety of conflicts rules more sharply address situations in which the concern is that the lawyer’s advice ended up being less than “candid” or that the lawyer allowed some other influence to corrupt or subvert any exercise of truly independent professional judgment.  So too can a lack of competence be more easily proven than a violation of RPC 2.1’s “shall” requirements.

But, I still keep thinking that it’s too bad this rule is so infrequently focused upon and discussed.  When you step back and try to survey the legal landscape and figure out the ground that is most stable for our profession moving forward into the future, if anything will be bulletproof, then it should be the role described by Rule 2.1 — a lawyer as someone whose judgment is sound, whose advice is good, and who you consider to be a trusted advisor.  Surely those lawyers who can manage to be viewed in that fashion will find their law practices least susceptible to erosion through the shifts in the marketplace for the delivery of legal services.  At least, I hope that’s true because there are many days where I end up thinking that the only way I’m still practicing law in 10 years is if I’ve managed to convince enough paying clients that I tick off all three of those boxes.

Here are links to two pieces I read this week that left me with a particularly acute sense of this feeling.  The first is a well done piece up at The Guardian that offers a much more nuanced discussion than the title would indicate.  The second is a piece discussing the “sharing economy” and how that may play out for professional services such as legal services.