Tales of typos and punctuation problems.

I’ve written once or twice in the past about how questions of punctuation and typographical error can be unimportant when the issue amounts only to pedantry. Of course, punctuation can be very important. The stage phenomenon Hamilton has a good line or two about this involving “My dearest Angelica. With a comma after dearest, you’ve written … My dearest, Angelica” with this particular Schuyler sister noting how it changed the meeting and inquiring whether Alexander intended it.

There are more mundane, less lyrical examples that can be encountered in situations every day. For example, just playing around with punctuation can change entirely the meaning of two paragraphs that only differ by their punctuation:

  • Somehow I managed not to write anything for almost two weeks. I’m sick it happened. I’ll try to do better starting now.
  • Somehow, I managed. Not to write anything. For almost two weeks I’m sick. It happened. Ill! Try to do better. Starting now.

Today’s post hits two topics with nearly nothing in common other than the role that punctuation (or asserted typographical errors) plays in each one.

The ABA Journal directs all of our collective attention to this story of a Florida lawyer who has now been disbarred for breaking into his former law firm and stealing items. The headline of the article reads: “Lawyer disbarred after breaking into former law firm; blamed punctuation problem.” Now, setting aside the fact that the ABA managed not to properly use that semicolon there in that headline, the headline is one that seems like it is designed just to make you click through to see how in the world a punctuation problem could be a defense to breaking and entering.

Go ahead and click if you want, but [SPOILER ALERT] it’s not even close to a viable defense. I’d call the role of punctuation in that case mere pedantry but I think that might be insulting even to pedants. You can read more of the details in the order disbarring the lawyer here, but the flimsy reed to support some of his conduct apparently was that because his former law firm had incorporated its professional name – Barak Law Group, PA – without putting periods after the “P” and the “A,” then he could incorporate his own entity by the same name but with “P.A.” That, apparently, would give him ownership and domain over the assets of his former law firm.

He proceeded to hold himself out in public as the owner of the firm and to file hundreds of notices of liens as well as some other public record or court documents to try to cause money to be diverted in his direction.

Of course, the lawyer in question also must have come to realize that his magical argument about the missing periods wasn’t as powerful as he hoped. One of the pieces of misconduct spelled out against him in the proceedings involved surveillance video driving home the point that his punctuation arguments weren’t opening doors for him as he had hoped:

The video allegedly showed Brady and his brother backing a truck up to the Barak firm, tying a rope from the truck to the front door and using the car to rip the door open. The video showed Brady and his brother removing a safe and the computer server, Barak testified.

In the end, he got what Florida characterizes as permanent disbarment, and the article explains that a big factor in that was a complete lack of remorse for the misconduct. Or, more lyrically as the article spells out, he “clings to his justification for his actions with a ferocity that is quite disturbing.”

Shifting gears from playing with punctuation to quickly admitting and fixing a mistake in the form of a typographical error, the Tennessee Supreme Court put out an order yesterday that adopted a new revision to what was already a pretty brand new rule approving the concept of collaborative law practice.

The rule is Tennessee Supreme Court Rule 53. The fix had to be made to Section 16 of that rule and it involves replacing the word “record” with the word “agreement.” Now, strictly speaking, that isn’t exactly what I think of when I think of a typographical error. Having the rule say “agerment” or “egreement” would be a typographical error. Going with “record” when you meant to use “agreement” seems much more like just an error. But quibbling about that would truly be pedantry.

Without poring over the entirety of Rule 53, it is difficult to see what sort of difference it makes to have referenced a “record” rather than an agreement in the provision, but, I’ll paste it below so you can guess for yourself if you’d like:

Section 16. Confidentiality of Collaborative Family Law Communication. A collaborative family law communication is confidential to the extent agreed to by the parties in a signed record agreement. Evidence of conduct or statements made in the course of a collaborative family law proceeding shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.

I’m really only including reference to it because I wrote a little bit about this rule when it was adopted back in April 2019, and I don’t believe i raised one thought that I had about it at that time.

The concept of collaborative lawyering – which at least under the Tennessee rule is now embraced exclusively in the context of domestic relations law – is in some ways antithetical to a number of recognized aspects of the practice of law and in other ways is just something of an expansion of the lawyer as intermediary rule that we still have in Tennessee (RPC 2.2).

Now, the ABA long ago jettisoned Model Rule 2.2 but Tennessee is one of two U.S. jurisdictions to still have it. If the reference isn’t striking any bells for you, it is the rule that applies:

when the lawyer provides impartial legal advice and assistance to two or more clients 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 relation between them.

Thus, aspects of the role that lawyers play in a collaborative lawyering arena can be thought of a bit like if two different lawyers were engaged in a joint venture for the purpose of serving two clients as intermediaries. But, admittedly, that analogy is imperfect at best.

[P.S. I’m fully invoking Muphry’s Law here in advance of any errors anyone spots in this post.]

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.