California proposes an ethics opinion that needs further workshopping.

Let’s talk for a bit today about a proposed California ethics opinion for which public comment is being accepted until June 8, 2021.

The general topic when you hear about the proposed opinion is immediately of interest — can a lawyer help a client obtain a contractual agreement including a provision that is against the law? It is a topic that I did a seminar on – unrelated to California law — back in the before times. (I think it is still available for listening if anyone is of interest here.)

In jurisdictions that have a version of RPC 1.2 that tracks the Model Rules, it can be a bit easier of a question to parse through because what ABA Model Rule 1.2(d) prohibits is limited to not counseling “a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. . . .” Thus, tricky questions about whether a contract provision might be unenforceable under current law become a bit easier to deal with in terms of a bright-line at least because it is only problematic for the lawyer to be involved if the client’s path involves criminal conduct or the commission of a fraud on the other contracting party.

Although California has relatively recently (and finally) adopted a version of ethics rules that are patterned on the Model Rules, their version of RPC 1.2(d) deviates significantly from the Model Rule approach by expanding the lawyer’s obligation to include not just something that is criminal or fraudulent but anything that the lawyer knows is “a violation of any law, rule, or ruling of a tribunal.”

Thus, this proposed formal opinion (Interim No. 19-00003) addresses a much broader question than might be evaluated in most jurisdictions. Now, perhaps as a way of making the outcome more palatable, the opinion tees up the following as the fact pattern it decides to evaluate:

Lawyer works for a large California corporation providing employment law advice to the Human Resources department (“HR”) responsible for all non-executive hiring. Employees hired through HR are presented with a standard form written employment agreement (“Agreement”). This Agreement is presented by HR to new hires as a non-negotiable agreement that must be signed as a condition of employment. Lawyer is tasked with reviewing and updating the Agreement, which contains a provision that has been found to be illegal under California law.

Factual Scenarios

1. Lawyer knows that the provision has been found to be illegal, but advises HR to use the Agreement anyway, without further advice or analysis.

2. Same facts, except that Lawyer does not know that the provision is illegal.

3. Same facts, except that Lawyer advises that the contract provision has been found to be illegal under California law, but does not recommend against including the provision.

4. Same facts, except that Lawyer advises that the contract provision has been found to be illegal under California law and recommends against including the provision. HR advises Lawyer that it understands the provision is illegal but would still like to include it in the Agreement for its chilling effect. HR has asked the Lawyer to assist in enforcing the provision.

Offering up that scenario makes it a lot easier to offer conclusions such as:

A California lawyer has a duty not to counsel or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal. That conduct includes the use of a contract provision in a transaction with a third party that has been found to be illegal under the law of the jurisdiction applicable to the transaction. If the lawyer knows that the provision is illegal, the lawyer: (1) should advise the client accordingly; (2) may not recommend the use of the provision; and (3) must counsel the client not to use it.

If the client insists on the use of the illegal provision against the lawyer’s advice, the lawyer may not participate in presenting the illegal provision to the third party and may not assist the client in enforcing the provision. In that event, the lawyer may withdraw from the representation but is not required to do so.

If the lawyer concludes that the conduct is a violation of law reasonably imputable to the organization and likely to result in substantial injury to the organization, the lawyer for an organization must report the actions of the client constituent to a higher authority, unless the lawyer reasonably concludes that it is not in the best lawful interest of the organization to do so

Confined to the facts evaluated in the opinion, it would feel hard to get worked up about the conclusions because who wants to openly advocate for a corporation being able to knowingly put an unenforceable noncompete or nondisparagement provision in an employee contract merely for “its chilling effect”? Right?

But, work with me here for a minute. RPC 3.1 in most places, including California, expressly permits lawyer to advocate in court proceedings for extensions, modifications, or reversals of existing law. Court matters don’t happen without cases or controversies and, thus, cases arguing that aspects of existing state law, whether contract law or otherwise, should be modified or reversed unless people take actions that are “illegal” until litigated and the existing law reversed.

So, how in the world does that ever get to happen in California, if this ethics opinion moves forward? How does a lawyer help someone who is willing to seek to change a bad law to do so? Is California really going to say that the only way to do that is through lobbying legislative bodies? What if California had a law on the books that made it “illegal” to rent any house greater than 2,000 square feet in size to anyone other than Caucasians? And I’m not talking about something where the law in question makes it a crime, but just a statute that prohibits it without imposing any criminal penalties. Are California’s ethics rules going to prevent a lawyer from assisting a willing landlord in crafting a lease agreement that violates that law?

And, look, I get that the opinion is constrained in that it has to interpret California’s rule, and that it might well be that the problem is the rule itself, but, sometimes the process of putting together an ethics opinion reveals a bad rule and instead of issuing the opinion, someone should spend their time fixing the rule.

If you agree, and you have any sway in California, you can send a comment in on the proposal in the next 45 days or so.

Just the normal scrutiny.

I need something fun in my life at the moment to help deal with some of the insanity that is all around us all.

So, let’s tell something of a non-linear story about how haphazardly the disciplinary rules can be enforced as against lawyers. (Okay, so maybe you and I see “fun” differently.) Typically, many folks who do what I do for a living will tell you that the biggest divide in disciplinary enforcement is between how solo practitioners and lawyers in very small firms are more often singled out and disciplined than are lawyers who practice in large firms.

But this is a story of someone who now appears to be a solo practitioner, and who, as we will now discuss, is engaging in something of a speed-run through the rules of ethics to see if he can violate all of them in one 2-3 week period. But this solo practitioner, I’d be willing to bet (were I a betting man) will not face the consequences for his conduct that any other solo practitioner might face.

This is a story that, I think, reveals that the real imbalance in rules enforcement is between those who are powerful and those who are not. Yes, dear reader, this is a story about the absolute trainwreck of a lawyer who is the personal attorney to the outgoing President of the United States.

If you are truly a glutton for punishment, you can go listen to the complete audio recording of the hearing on November 17, 2020, during which this attorney demonstrated ignorance of enough important legal concepts to raise questions about compliance with Rule 1.1 regarding competence, but, more troublingly, also made quite a few statements to the court that could trigger discipline for untruthfulness under Rule 3.3 and Rule 8.4(c) and all in the pursuit of claims and contentions that are so unmeritorious as to run afoul of Rule 3.1.

But, perhaps even more remarkably, this attorney’s participation at the hearing only came about, at least in part, because he was willing to make false statements in his pro hac vice motion for permission to appear.

(As a side note, literally as I’m trying to write this post, this lawyer is holding a press conference, sweating his hair dye down both sides of his face, and continuing with just objectively, provably false statements that would also seem to trigger real ethical issues under Rule 3.6 if his client wasn’t also hastily withdrawing lawsuit after lawsuit through voluntary dismissals. )

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(Now, a different lawyer, part of the same team, is engaged in rhetoric that appears to be inciting militias to take the election outcome into their own hands. She was followed by another, different lawyer, accusing unnamed election officials of committing fraud. Again, all of these are statements being made that fly directly in the face of actual evidence. The hair dye sweat image is funny, but turns out nothing else about this is fun.)

In making his application for pro hac admission in a federal court case in Pennsylvania, and thus deciding to appear in federal court again for the first time in 30 years, this lawyer filed a motion that indicated that he was licensed and in good standing in a number of different jurisdictions, including D.C. But as this article walks you through, a number of people have confirmed that the attorney is actually current administratively suspended in D.C. for failure to pay certain fees.

That’s not how these things are supposed to work and falsely representing one’s status to a federal court to gain pro hac admission would expose regular lawyers to a significant risk of discipline. Among other rules implicated by that kind of conduct, RPC 7.1 requires lawyers to refrain from making false statements about themselves or their services.

And to keep to my commitment that this post be a non-linear story, I will close by saying that the press conference mentioned above will likely go down in history as being most memorable for the “My Cousin Vinny” reference, but that little anecdote itself was in furtherance of just the titanic levels of mendacity on display from this lawyer. The anecdote involved reference to the portion of the movie where Joe Pesci’s character impeaches the credibility of an eyewitness during cross-examination and pointing out how her version of events was unbelievable once she demonstrated that from a similar distance she could not tell how many fingers Joe Pesci’s character was holding up. Yet, the only way the story was at all germane was because this lawyer was trying to use it in aid of lying about how far away ballot count observers were when allowed to observe the counting of ballots.

Will any of this end up in the imposition of any discipline or consequences? I’m highly cynical. Candidly, given the lengths he is willing to go, and the lengths his client is willing to go, to subvert democracy, the United States will be lucky if this lawyer just continues to be subjected to public ridicule and derision.

TN’s Simple Rule > NYC’s Lengthy Ethics Opinion on Same Subject

Last month, the Association of the Bar of the City of New York Committee on Professional Ethics put out a thorough Formal Opinion addressing when it is unethical for an attorney to threaten to file a disciplinary complaint against another lawyer.  While Formal Opinion 2015-5 is a well-written opinion overall, it is a sprawling one that spans some 6 to 10 written pages depending on the format in which you view it.  Truth is though it has to be that lengthy and complex because New York’s ethics rules lack the kind of clear ethics rule we have adopted in Tennessee on this very subject.

In Tennessee, after our 2011 revisions to the rules, RPC 4.4(a)(2) specifically applies the same standards to threats about disciplinary complaints as threats about criminal charges:  “In representing a client, a lawyer shall not … threaten to present a criminal or lawyer disciplinary charge for the purpose of obtaining an advantage in a civil matter.”  Thus, our rule is simple and straightforward.   Our rule only leaves room in a few places for hair-splitting.  Things like what constitutes a “threat,” and when is something being pursued to gain an advantage in a civil matter.  Both of those issues were things that the NYC opinion wrestles with a bit even though not in the context of a rule directly on point.  I tend to think they elucidate a very useful explanation of where to draw the line on whether something is a “threat” — “merely advising another lawyer that his conduct violates a disciplinary rule or could subject them to disciplinary action does not constitute a ‘threat’ unless it is accompanied by a statement that you intend to file disciplinary charges unless the other lawyer complies with a particular demand.”

Because New York’s otherwise most pertinent rule – New York Rule 3.4(e) — only extends to threatening to pursue criminal charges, the NYC Bar opinion ends up having to wrestle with lots of other issues to get to the relatively not-so-helpful conclusion that making a threat “may” violate the ethics rules:

  • It explains that it is unethical for a lawyer to threaten to bring a disciplinary complaint when New York’s Rule 8.3 would require reporting.  This requires some explanation because the threat is wrong not in how it treats the recipient of the threat but because the threat implies a willingness to not to do something ethically required of the one making the threat.  Of course, that only answers the question as to a specific set of threats threats to turn someone in for something that is the kind of serious ethical infraction that would trigger RPC 8.3 reporting obligations.
  • It discusses the usual litany of other rules not directly on point that can be a problem, such as RPC 3.1 which prohibits pursuit of frivolous claims or assertions (so a lawyer can’t threaten a frivolous disciplinary complaint in the same way they shouldn’t be threatening someone with the filing of a civil lawsuit they know is frivolous).
  • It discusses RPC 4.4(a)(1)’s prohibition on conduct that has no substantial purpose other than to harass or embarrass.  Which of course isn’t much helpful if you have questions about whether obtaining an advantage in litigation can be viewed as a substantial purpose.
  • It discusses various shades of RPC 8.4 including the idea that you cannot engage in a threat that would amount to the crime of extortion.

When all of those provisions are thrown into the kettle, then the NYC Bar opinion, like other jurisdictions that do not have a straightforward rule like Tennessee’s, hit on an overall notion that a lawyer has to have a good faith belief that there has been a disciplinary violation in order to be able to make the threat.  Again, though speaking practically that isn’t much help, because threats of pursuit of a disciplinary complaint about something that the threatening lawyer didn’t even have a good faith belief aren’t the kind of powerful threats likely to gain any real leverage.

So if the idea is that, as a matter of public policy those in a self-regulating profession ought not be able to threaten to wind up the springs of self-regulation in order to gain leverage in a civil proceeding, then Tennessee has done things the right way by simply adopting a rule that says in clear, straightforward terms that you can’t do that.