Theater of the absurd.

This is something of a stretch from what I normally write about, but sometimes you simply have to write about something and simply ask for forgiveness rather than permission.

Recently, an article made the rounds written by Adam Gopnik of The New Yorker who posited that two recent events were the clearest sign yet that we were living in a computer simulation and that someone was trying to make the programming so absurd that we would become self-aware.  The two events were the outcome of the recent Presidential election in the United States and the ending of the Oscars (which I wrote about a couple of weeks ago).

If you’d like to go read the article, and haven’t already, you can go read it here.  It is a fun read, but I have a hard time taking any of it seriously.  Gopnik, of course, as even he admits, is just riffing off of the thoughts of a philosopher at NYU – David Chalmers – who has written more extensively about the whole idea that we aren’t really what we think we are.

Perhaps it is purely out of a need for self-preservation and the kind of ego for which lawyers are notorious, but again I say that I can’t really take seriously the idea that we are but simulacrum.  But then, there came this story.

A criminal defense lawyer representing a man accused of arson had his pants catch fire in court.  In Florida.  I mean . . . how “on the nose” can a situation get, right?  When I first saw the headline, “lawyer’s pants catch fire during arson trial” – I mean, lawyer’s pants catch fire during arson trial?!  That alone was enough to just for the splittest of split seconds to remember and briefly rethink my reaction to the Gopnik story.

Actually, the details of the story indicate that the situation was a lot less over-the-top than the headline reports.  The lawyer in question apparently had 2 or 3 e-cigarette batteries in his pocket, and they started to smoke but he quickly got himself out of the courtroom.  The real question that bears asking — and that the lawyer in press reports certainly understands will be people’s suspicion — is whether the whole event itself was staged.

The lawyer vigorously denies that it was purposefully staged, and he should deny that because “stagecraft” has been the kind of thing that can get a lawyer into ethical trouble.  (Look at me just barely getting a hook into this to make it a passably ethics-based post.)  This is true even though fictional lawyers such as Perry Mason have been permitted to do such things in the name of the truth and even though legendary stories about the antics of Clarence Darrow involve conduct that under modern ethics rules would be problematic.

One of my favorite examples of this kind of misguided approach, involving twins, was written about by Jack Marshall at his site many years ago, and you can read about it here.

And to make this post officially and well and truly about ethics and lawyering, the issue with the kind of stagecraft that was put in place by the lawyer that Marshall wrote about is that it runs afoul of several rules in place in jurisdictions that have rules patterned after the ABA Model Rules.  Those rules include, at least, Rule 8.4(c) prohibiting lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation;” and Rule 3.3(a) which prohibits lawyers from making false statements of fact to a tribunal.

Texas Ethics Opinion Offers Stellar Example of Why You Ought to Have a Rule About This.

I’ve mentioned in the past the fact that Tennessee has a version of RPC 4.4(b) that directly addresses, and provides what I happen to think is the correct outcome, for what a lawyer is supposed to do about the receipt of someone else’s confidential information either inadvertently or via someone who isn’t authorized to have it in the first place.  Our RPC 4.4(b) goes further than the ABA Model Rule in two respects on this front in that: (1) it doesn’t just require notice as to inadvertently received information but makes clear that the lawyer has to either abide by any instructions as to what to do with the information or has to refrain from doing anything further with it until a court ruling can be obtained; and (2) we apply the same standard to information received unauthorizedly, e.g. a purloined document.  (Of course, I’ve also mentioned … repeatedly I admit … that the ABA Model Rules ought to be construed via Model Rule 1.15 to fill the gap on that second point, but … leading horses… and drinking water… and all that.

Earlier this month the State Bar of Texas Professional Ethics Committee issued Opinion 664 which “addresses” the following two questions:

1. Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they are in possession of confidential information taken from the opposing party without the opposing party’s knowledge or consent?

2.  Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they have inadvertently received confidential information of the opposing party?

In a relatively short opinion that discusses almost exclusively the first question, the Texas Committee ultimately says, “hey look, we don’t have a rule on any of this… so you are kind of on your own.”  That’s not really a quote from the opinion, of course.  The real quote from the opinion is longer but the gist is pretty much exactly the same as my fake quote.

The opinion then goes on to hold out the possibility that if you have this fact scenario plus something more than maybe one or more other rules could be violated — like Texas’s equivalents of Model Rule 1.2(d) or or Model Rule 3.3(a) or Model Rule 4.1 or Model Rule 8.4(d).  Quoting the opinion this time for real:

It is possible that under some circumstances the failure to provide notice to opposing counsel, or take other action upon receipt of an opponent’s confidential information, might violate one or more of the Texas Disciplinary Rules requiring lawyers to be truthful and to avoid assisting or condoning criminal or fraudulent acts or denigrating the justice system or subverting the litigation process.

The opinion also reminds readers that the lawyer’s course of conduct in such circumstances must be well thought through because the risk of disqualification still lurks, but in the end the opinion largely concludes with something that is mostly a restatement of the problem for Texas lawyers (and of my general inability to get horses standing so close to water to drink since Texas does have a version of ABA Model Rule 1.15  and confidential information certainly is “property”):

The Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party’s confidential information outside the normal course of discovery.

The insistence on referencing discovery and, thus, making it seem like this is solely a problem for litigators rather than all lawyers is also a bit unfortunate.

A very Tennessee-specific discussion for this Friday.

Later today I will have the honor of speaking as part of a panel at the TBA Health Law Forum.  The other panelists are Sheree Wright, the Senior Associate General Counsel with Vanderbilt University and Bill Hannah a lawyer in Chattanooga with the Chambliss Bahner firm.  I’m fortunate enough to have both Sheree and Bill as members of the TBA Ethics Committee I chair and am very excited to spend a couple of hours talking with them and the crowd about ethics issues near and dear to Health Care lawyers.  We’ll be talking about “The Ethics of the Distracted Lawyer.”  If you happen to be in the Franklin/Cool Springs part of Tennessee, you probably still might be able to work your way into the venue to register and attend.

As indicated in the title of the post, the only other thing I’m going to discuss today also is a topic that really is relevant only to Tennessee lawyers (but to a larger segment of that group, then the people that might actually contemplate a last minute visit to the above-highlighted seminar.)

I’ve now gotten enough inquiries over the last several weeks about the revised state-of-play in Tennessee state court litigation when it comes to attorney’s conferring with deponents during breaks in a deposition that it likely makes sense to write about it to have another handy link to send to folks that ask for a recollection refresher.

Whether such arrangements are kosher or not is subject to significant variance in various jurisdictions.  Perhaps the original case staking out the notion that an attorney’s communication with a client/deponent  during a deposition was not a privileged communication is Hall v. Clifton Precision,150 F.R.D. 525 (E.D. Pa. 1993).  I’ve done quite  few CLEs over the years where I used one hypothetical or another to tease out the situation and to lead the audience into a discussion about whether the lawyer taking the deposition can successfully force disclosure of what was said to the witness by another lawyer during a break.  The general principle from which courts have concluded that no privilege applies and that the contents of such discussions can be explored is that depositions are supposed to take place in the same manner as if they were trial testimony.  Karen Rubin back in 2015 delved pretty thoroughly into the state of the law on this issue at her firm’s blog here.

Tennessee has, assuming the vehicle chosen actually does the trick, created a very clear answer to this question now for cases pending in our state courts. The answer, in effect as of July 1, 2016, makes communications with a deponent during a break in the deposition perfectly appropriate, as long as: (1) there is not a question pending; and (2) the lawyer’s communication with the deponent during the break does not cross any lines so as to amount to a violation of RPC 3.3 or 3.4.

The vehicle chosen for doing this is a 2016 Advisory Commission Comment to our rule of civil procedure addressed at depositions, Tenn. R. Civ. P. 30.03  The comment provides as follows:

Rule 30.03 provides that “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence.” This language does not imply that Tenn. R. Evid. 615 is applicable to depositions. Unless otherwise ordered by the court, a lawyer may communicate with a deponent about deposition procedure or the substance of deposition testimony before, during (unless a question is pending) or after the deposition; however, such communications are subject to the Rules of Professional Conduct including, but not limited to, Tenn. Sup. Ct. R. 8, RPC 3.3 and RPC 3.4.

Now I don’t know exactly where an Advisory Commission Comment to a rule of procedure ranks in terms of authority and precedent as a technical matter, but there is no question that this is the latest word on this matter – words that our Court has bought into or they would have not approved the release – and, thus, a lawyer who wants to talk to their client during a deposition in our state court system no longer has to be worried about the client being forced to divulge the discussion on a claim that privilege does not apply.  At least as long as there wasn’t a pending question at the time of the break and the conversation.

What lawyers will still need to be concerned about – whether the deponent is their client or not — is communications that could be construed as amounting to violations of RPC 3.3 because they involve assisting a fraud on the tribunal or that could be construed as violating RPC 3.4.

The two most obvious pieces of RPC 3.4 that a lawyer could run afoul of through coaching a deponent during a break would be:

(a)       unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act; or

(b)       falsify evidence, counsel or assist a witness to offer false or misleading testimony

So, still a topic that can be explored through interesting hypos at future seminars even in Tennessee.

South Carolina ethics opinion on RPC 8.3(a) – right answer but not the best articulation of the rationale

In July, a new ethics advisory opinion was issued out of South Carolina to address a question related to the obligation to report the misconduct of another lawyer, specifically what sort of timing is required.

South Carolina Ethics Advisory Opinion 16-04 addresses an inquiry from a lawyer (Lawyer A) who believes he has knowledge of a violation of RPC 3.3 by opposing counsel in litigation (Lawyer B) but is worried about the negative ramifications to his client if he makes a disciplinary report while the litigation is ongoing.  The South Carolina opinion offers the correct conclusion –“Lawyer A may wait until the conclusion of the case, or appeal, before making the report against Lawyer B if Lawyer A determines that a later report would be in the best interest of the client.”

The South Carolina opinion also correctly acknowledges in its discussion that Lawyer A’s client needs to consent to the report for it to even happen, but manages to truly miss an opportunity (in my opinion at least) to provide a thorough, and thoroughly helpful, treatment of why the fact that the ethics rules essentially give a veto to Lawyer A’s client must obviously mean that Lawyer A’s client’s interests could also justify delay in making a report.

After briefly acknowledging that a more than 10-year old Louisiana case represents the prevailing view that a report necessary under RPC 8.3 should be made “promptly,” the South Carolina opinion explains:

[It] believes it is appropriate for a lawyer to consider any potential adverse impact to his or client in determining the timing of a report against another lawyer. It is the opinion of this Committee that if Lawyer A believes the conduct of Lawyer B raises a “substantial question as to [Lawyer B’s] honesty, trustworthiness or fitness as a lawyer in other respects,” then Lawyer A must report such misconduct to the disciplinary authority. Because the Rule is silent regarding the timing of such report, Lawyer A may wait until the conclusion of the matter if Lawyer A determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal.

I shouldn’t complain too strongly because, at least this opinion manages to explicitly acknowledge the need for client consent in the first place, and also as mentioned gets the answer right, but it still reads to me like a missed opportunity.  Resting everything on the idea that the rule is simply silent on timing is much less persuasive than elaborating on the natural way in which the necessary discussion between Lawyer A and his client about whether the client will let Lawyer A make a report at all can lead to a decision that the client will provide consent but only for a report to be made at a future time.

South Carolina has versions of RPC 8.3(b) and (d) that are substantively identical to the ABA Model Rule 8.3(a) and (c).  It also has a relevant, identical paragraph in its Comment to the Rule.  The two subsections of the rule, as confirmed by the comment language, work together to explain that, in a situation in which a lawyer knows of another lawyer’s violation of the ethics rules that raises substantial questions as to the other lawyer’s honesty, trustworthiness, or fitness to practice law, the lawyer has an ethical obligation to report the other lawyer.  And, that obligation is one for which the lawyer can himself be disciplined if he fails to make such a report.  But, and it is an important “but,” one that is quite often disregarded by lawyers and disciplinary counsel alike — Model Rule 3.8(c) [South Carolina’s RPC 8.3(d)] indicates that there is no such obligation to report (and thus there can be no punishment for remaining silent) if the report would require the lawyer to disclose RPC 1.6 information.  In any jurisdiction in which the scope of confidentiality is as broad as it is under the ABA Model Rules, this is the kind of exception with the potential to swallow the rule over which ethics nerds can argue for hours.

Accordingly, Comment [2] to RPC 8.3 in South Carolina (just like the ABA Model) explains that a lawyer ought to “encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.  Thus, the South Carolina opinion could have gone into greater detail to explain that the only way to make a report about Lawyer B’s violation of RPC 3.3 would be to disclose information about Lawyer A’s representation of his own client and, thus, Lawyer A would have to seek and obtain his client’s consent before making the report.

The South Carolina opinion then could have turned to how such a conversation might go . . .  Lawyer A would explain the problem, the ethical obligation, and the client’s ability to say no to the report.  The client would likely ask Lawyer A questions about what the report would mean for the case and, as part of that, Lawyer A and client could well discuss and reach the conclusion that if the disclosure and report doesn’t happen until after the case is over, that it would make certain not to prejudice the client’s matter.  Thus, Lawyer A could fulfill the obligation to encourage the client to consent, and the client could provide the necessary consent to make the report but condition it upon the timing of the report.

Official dishonesty and the consequences for lawyers – 3 of the latest examples

A common theme in many disciplinary proceedings brought against lawyers involves dishonesty.  This should not really be a surprise given that lawyers are human beings and human beings have a tendency toward being dishonest when they can get away with it.  Although there is an ethics rule that, on its face, makes it unethical for a lawyer to engage in any kind of dishonesty at all, lawyers usually only get taken to task for a category I’ll call today official dishonesty.

One such type of official dishonesty involves failure to make full disclosure in connection with an application for admission in some other jurisdiction.  The consequences of this kind of official dishonesty can be severe as is demonstrated by the one year and one day suspension now being imposed on this Pennsylvania lawyer for failing to disclose prior discipline against him when he applied for admission to the federal court in the Eastern District of Pennsylvania.  As luck would have it, the lawyer’s failure to make disclosure involved a 1996 suspension, also of 1 year and 1 day, which was itself brought about by failing to disclose a prior arrest on his original application for admission to practice law in Pennsylvania.

Disciplinary proceedings are not, of course, the only negative outcome that can result from a lawyer engaging in official dishonesty or failure to make full disclosure.  Another kind of negative outcome, discussed before in this post, involves losing out on coverage from your insurer for legal malpractice/professional liability claims.  Law360 has the story of another lawyer who, already faced with defending a legal malpractice lawsuit, is now faced with having no coverage for it as a result of a ruling this month by the Indiana Court of Appeals.

The issue of misrepresentation alleged by the lawyer’s carrier is a common one – a claim, with the benefit of hindsight, that the lawyer was aware he faced a potential claim and should have disclosed such on a 2011 renewal application.  As is also often the story, the claim about which the carrier says the lawyer should have been aware is the same one now being litigated and about which the carrier has refused coverage.  In this instance, the lawyer’s client’s case had been dismissed as a discovery sanction and that dismissal was still on appeal in the Indiana system at the time the 2011 renewal application was completed by the lawyer.  The Law360 piece grabs the salient quote from the court of appeals ruling (which actually reversed a trial court that had sided with the lawyer’s argument that he’d made no material misrepresentation):

“Therefore, because of the severity of the trial court’s remedy – dismissal of the cause – any reasonable attorney in [the lawyer’s] position would realize that his client might pursue a potential legal malpractice claim against him should the Supreme Court affirm the trial court.”

For lawyers, there are quite a few ethics rules that are implicated by acts of dishonesty, RPC 3.3 (false statements to tribunals), RPC 4.1 (false statements to third parties), RPC 7.1 (false statements about the lawyer or their services) but the rule that has the broadest reach, and to which I referred at the beginning of this post, is RPC 8.4(c).

That rule says that “[i]t is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  Unlike many other ethics rules, the text of RPC 8.4(c) does not limit itself to things done in the course of representing a client.  Figuring out what it does, and does not, actually apply to can be less than an exact science.  For example, I’m confident that I’ve never violated RPC 8.4(c) by telling my kids when they were young that Santa Claus was real nor by bluffing in a friendly game of cards.  But figuring out where the lines are realistically drawn on other issues of dishonesty unrelated to anything the lawyer is doing in the practice of la involves a case-by-case analysis, but if there is an “official” component to the dishonesty, you can count on RPC 8.4(c) finding a way to apply.

A Maryland lawyer learned earlier this month that the price of having been dishonest about something unrelated to his law license was disbarment.  The lawyer in question established an LLC called Carefree Construction Services within a few months after becoming a lawyer and then performed home improvement work through the LLC.  The lawyer, however, was not properly licensed in Maryland as a home improvement contractor and was actually using his brother’s license to do the work without his brother’s permission.

In its opinion, the Maryland court, citing another 2014 decision, expressly addressed the fact that the dishonest conduct had nothing to do with practicing law was of no consequence and that the conduct did violate RPC 8.4(c).  The court also explained that since the conduct involved a misdemeanor (performing the home improvement work without a license) that it considered the lawyer to have committed the kind of criminal conduct that violated RPC 8.4(b) as well.

The opinion also went to some length to explain that, in its totality, the lawyer’s conduct amounted to a violation of RPC 8.4(d) – conduct prejudicial to the administration of justice — and that determination also played a role in ramping up the discipline meted out.  The lawyer had filed a number of lawsuits for non-payment against home improvement customers who had learned of his unlicensed status and, as to one such set of customers, threatening them by email and “attempt[ing] to leverage his position as an attorney to intimidate” the customers into paying him more money.  One example quoted in part in the opinion, involves the lawyer, in an email exchange, with the dissatisfied and fully-informed customer, writing:  “Are you forgetting, I AM A CONSTRUCTION ATTORNEY.  There is nothing about construction law that you can learn on the internet that I am not an expert on.”

Death and disbarment

Returning to the office from the holiday weekend, I noticed these two sad and weird stories of lawyers doing inexcusable things that seem to have common threads of death and disbarment running through them.  Many years ago I wrote a humor column for young lawyers. and you can find some of those columns still floating around the interwebs, like here (starting at p. 12) and here (starting at p. 18).  This blog will not stray from its purpose and attempt to be a humor column.  I promise.  Bleak stories do require some willingness sometimes to attempt to find humor in making serious points.  This is one of those times.

The first story involves a variation on a circumstance that many of us have experienced (or at least strongly suspected we might have experienced but were too kind to ever try to investigate lest we be wrong and come out looking like a horrible human being):  the opposing counsel who claims an illness or death in the family in order to get out from under some missed deadline or hearing we suspect they just aren’t ready to handle.  This now-former attorney has resigned or been disbarred by consent from two states on the basis of having lied in two cases.  One case involved the lawyer lying about having been in the ER diagnosed with “double pneumonia” to get a hearing on a summary judgment motion rescheduled.  In the other case, the lawyer lied about his mother having died as an explanation offered to avoid sanctions based on missed discovery deadlines.  His own billing records showed in the one case that he billed his client for time spent preparing for the hearing on the day of his claimed ER trip.  As to the second matter, while I generally agree with Judge John Hodgman that specificity is the soul of narrative, this lawyer likely didn’t help himself with the specificity he used when lying about his mother, who was quite demonstrably still alive, saying she died “in a violent car accident in the state of Colorado” and that the cause of death was “the fire and smoke inhalation from the resulting conflagration.”

The second story involves a now-former DC lawyer who unsuccessfully argued that the death of his aggrieved client during the disciplinary proceedings should prevent the lawyer from being disbarred.  The key misconduct in the case was that the lawyer had, while on disability inactive status, taken $1,500 from a police officer for legal services never provided and then refused to return the money to the client.  During the many, many years of the proceedings, the lawyer tried to have the charges against him dismissed on five separate occasions.  Many of the arguments put more stress on the “criminal” part of the “quasi-criminal” nature of disciplinary proceedings rather than recognizing the importance of “quasi.”  The DC lawyer unsuccessfully argued that he had a constitutional right to a speedy trial which was violated by the lengthy proceedings; and that his being suspended during the proceedings mooted the case for disbarment.  Most brazen, however, was his argument that the death of the aggrieved client in January 2012 meant that the case against him should be dismissed.  For support of that argument, the lawyer relied on cases in which a criminal defendant died during the prosecution of the case against him.  These arguments were not wieners (a play on words that only makes sense if you’ve visited the link and learned the lawyer’s name) and the lawyer has been disbarred.