Obviously, there really is such a thing as bad publicity.

So, earlier this week I was fortunate enough to be able to participate in a seminar put together by Bloomberg Law that focused on the risks and benefits for lawyers in speaking to the press. I think it was a pretty good panel presentation, it was free of charge to attendees, and I believe you can still register for it and access it on demand at this link.

We limited our discussion – unsurprisingly – to situations where a lawyer is being contacted by a reporter either because the lawyer is directly involved in representing a client in a high-profile matter or because the reporter is looking for feedback and hopefully quotable material from the lawyer as an expert of some sort in an area relevant to the story.

So, the circumstances of the situations highlighted in today’s post most definitely do not come up. Today’s post focuses on two examples of highly unwanted publicity for attorneys. Neither one is entirely self-inflicted, though one of the two situations can at least be said to truly be entirely self-inflected if you believe at all in the intended lessons of The Streisand Effect.

The first example is yet another warning of the dangers of the digital age and how (1) often things are recorded by others; and (2) quickly recordings can be disseminated. This story is that of a defense lawyer in California bragging at an internal firm event about winning a medical malpractice case that, perhaps, involved facts that should have resulted in a different outcome. Because we all have access to the video of the speech, it is certain that the lawyer involved at least gave voice to the notion that he and other lawyers at his firm had won a case that they should have lost on the facts. The details of who exactly video recorded the remarks, why they were doing so, and why they decided to disseminate them publicly are not included in the first level of this story, so it is hard to make it anything much beyond a general cautionary tale for lawyers to think about how comfortable they can ever be about talking about a client’s matter if the way they are doing it is something they would rather not the client or others ever hear. To be clear, it looks like the error was coming from inside the firm as the video was briefly posted to the firm’s own Instagram account so it was likely an error by someone who thought it might be good marketing. The Los Angeles Times treatment of the story grabs quotes from the same lawyer at the trial of the case that, in a jurisdiction that has a Model Rule version of RPC 3.4(e), could well be a violation of the rules against going too far in stating personal opinions about “the justness of a cause” or “the culpability of a civil litigant.”

The second example is, in a way, so brutal that it makes me wonder if the way to get lawyers to better understand The Streisand Effect is to rebrand it for modern times as The Leavitt Effect (or maybe better yet “The Leavitt Alone Effect.”)

There were lots of things I wouldn’t have wondered about a week ago. One such thing is whether there was any possibility that the county attorney for Utah County in Utah might be a cannibal. Then I saw this story.

Now, I’m pretty certain that he isn’t. I’m less certain than I would have been a week or so ago if you had just asked me cold whether an attorney with that guy’s name in Utah was a cannibal. I mean it must be a pretty rare trait even among the worst people, but it wasn’t even a thought that crossed my mind as possible until the guy held a press conference to make sure everyone knew that decades-old allegations that he was a cannibal were untrue.

I’m paraphrasing someone much more influential than me, but if you’re holding a press conference to deny being a cannibal …. you’re losing the media war. Now, as is discussed during the press conference in question, apparently some random person in the lawyer’s local community was unearthing very old allegations of this nature at a time in which he is running for re-election and even the local sheriff’s office seemed to be willing to investigate, but surely if there were someone with more savvy in the area of public relations had been consulted, the lawyer would have not opted to hold the press conference.

There seems little doubt that the press conference was the cause of The ABA Journal taking notice as well as all the other news outlets within (and beyond) Utah mentioned in that piece.

I’ve written here repeatedly about the risks for lawyers in taking allegations made against them in one corner of the online world and seeking to refute them but repeat them and cause them to become much more widely publicized and discussed. This story of course involves a reminder that the same phenomenon can happen IRL as opposed to only online.

Rare but not unprecedented.

So, apologies all around. For those seeking out new content from me, I apologize for the brief hiatus. For those who hoped I’d stop at 500 posts, I apologize because for not stopping.

For the first of what I hope will be at least another 500, let’s talk about a recent disbarment action that involves disbarment of a type of lawyer that is often discussed as being an infrequent occurrence — a prosecutor.

Roughly two weeks ago, the Kansas Supreme Court entered an over 100-page opinion disbarring a prosecutor with 30 years of experience over her conduct in connection with the prosecution of two separate cases.

One, which went to trial in March 2012 involved allegations of double-homicide. After 10 days of trial testimony from 80 witnesses and almost 1000 exhibits, a jury found the defendant guilty of two counts of first-degree murder with life sentences in prison. That conviction was overturned in 2018 based on prosecutorial misconduct.

The other involved the prosecution of six sex crime cases against a defendant. The Kansas lawyer was serving as a Special Prosecutor in that matter and took two of the cases to trial over the course of five days in June 2017. The jury returned guilty verdicts on multiple charges. That matter was again appealed based on a number of alleged errors at trial including an allegation of prosecutorial misconduct during closing argument. That conviction was also reversed based on cumulative error and a finding was made of an error by the Kansas prosecutor but not misconduct. Importantly, while the handling of this matter was the subject of the disciplinary proceedings, the Kansas lawyer ultimately was found not to have committed any ethical misconduct as to that second proceeding. Thus, in the end, the disbarment was imposed only for misconduct in the handling of one criminal case.

I recently spoke to a large prosecutors’ group from a state other than my own for an ethics presentation. How much, or little, prosecutors may feel targeted by disciplinary authorities definitely differs from state to state. Two things tend to be clear, however. While prominent legal voices will write pretty incessantly about how little discipline is ever meted out against prosecutors, when you talk to prosecutors, they all tend to feel very much like their segment of the bar is singled out for disciplinary prosecution in scenarios where public defenders or even private practice counsel would be spared. The second thing that tends to be clear is that there is a pretty relatively standard recipe for when prosecutors do end up getting disciplined.

Nearly every ingredient in that recipe is present in the story of these two overturned convictions. The first is the fact that the convictions in question were actually overturned. The other involves the nature of the ethical infractions, as other than any allegation of withholding of evidence in violation of RPC 3.8, aspects of all of the other rules that really move the needle in these situations are addressed.

Many of the transgressions involved statements made by the prosecutor in her opening statements and closing arguments. The rules are clear for both prosecutors and other lawyers that there are certain statements that cannot be made during trial, including alluding to matters “that the lawyer does not reasonably believe [are] relevant or that will not be supported by admissible evidence.” That same portion of the rules also can be transgressed by lawyers who become personally wrapped up in their work by stating “personal opinion[s] as to the justness of a cause, the credibility of a witness… or the guilt or innocence of an accused.” With respect to one aspect of the conduct, the prosecutor made statements found to be in direct contravention of court rulings that the subject matter should not be discussed. Often, in instances when there are statements running afoul of those rules made by prosecutors, then disciplinary authorities will also double up the charges by treating them also as conduct “prejudicial to the administration of justice,” contrary to RPC 8.4(d).

But the Kansas story also involves something that is unusual when speaking of the “typical” story of prosecutor discipline but that almost always creates problems for lawyers trying to avoid being disciplined — a conclusion that the lawyer lied under oath to the disciplinary board during the disciplinary proceedings. Here, statements in a sworn statement that ultimately were admitted to be false during cross-examination in the disciplinary proceedings.

The thing about doing bad things on purpose…

Is that you have to be perfect about it pretty much all of the time.

I’m not going to tell you that there are only two kinds of people in the world because I know that kind of thing is only used as the set up to really good jokes. But among the various kinds of people in the world are people who follow the rules because they believe in rules and want to do right and people who only follow the rules because they are afraid of getting caught.

As to that second category, if they really think they can get away with breaking a rule they just might try. Another kind of person is the kind that has no problem flouting rules and sometimes does not even think about the consequences of getting caught.

I have no idea which kind of person the lawyer we are writing about today is but, regardless, this tale provides supporting evidence of two things: (1) the convenience of Zoom depositions does probably also increase the risk that lawyers will improperly try to coach witnesses if they think they can get away with it; and (2) the point made in my title plus introductory sentence … if you are going to do bad things on purpose you pretty much have to be perfect about it or you likely will get caught.

You can read the full opinion suspending this lawyer for 90 days for improper coaching of his client during a deposition here. His approach was not a very high-tech one but the one that I think many lawyers believe is going on when they suspect the other side of coaching during these kinds of depositions — he was sending text messages to his client. The opinion lays out the blunt nature of the “coaching” that the attorney (James) was doing with the client (Gray) during the questioning by the opposing counsel (Villaverde):

The following messages were exchanged between Gray and
James during Villaverde’s questioning of Gray:

10:19 a.m. (James): You don’t
10:20 a.m. (James): As to settlement checks expiration
10:20 a.m. (James): You remember the deposition but not discussing checks
10:20 a.m. (James): yes
10:21 a.m. (James): Just review notes from 02/20/2018 forward
10:23 a.m. (James): Be careful just say
10:23 a.m. (James): You may not see today
10:25 a.m. (James): Take a break in 15 minutes?
10:25 a.m. (Gray): Up to you

The opinion also details how all this misconduct came to light. So, in a development that some might say actually does shed light on which type of person this lawyer is, after 10:25 a.m., opposing counsel called out what he heard as typing during the deposition and confronted the lawyer and the witness about whether they were texting each other during the deposition. They denied the allegation and the lawyer claimed he was only receiving a text from his daughter. All the same opposing counsel requested that the lawyer put his phone away and the lawyer agreed.

Then after a break, the lawyer sent the following text messages:

11:53 a.m. (James): Just say it anyway
11:53 a.m. (James): Just say 03/28
11:54 a.m. (James): In addition to the 03/28/2018 email
containing the signed release I show . . .
11:55 a.m. (James): Don’t give an absolute answer
11:55 a.m. (James): All I can see at this time but I cannot rule out existence
11:55 a.m. (James): It’s a trap
11:56 a.m. (James): Then say that is my best answer at this time.

The text messages above, however, were somehow sent to the opposing counsel instead of the lawyer’s client. Once the opposing counsel checked his phone and saw the messages, the jig was up, and the result was the 90-day suspension for violating RPC 3.4(a) because coaching a witness about how to testify during ongoing deposition testimony is easily understood as “unlawfully obstruct[ing] another party’s access to evidence….”

Now above I mentioned that this case likely will confirm suspicions lawyers have that Zoom depositions bring a greater risk of “cheating” by the lawyers involved. In fairness, that is something of a pretty big leap because, in case you were wondering, the deposition involved in this case happened back in 2018 and occurred over the telephone, not on Zoom during the pandemic.

I Take No Joy in Writing This.

So, a relatively quick post for this week in terms of content as I’m thrilled to be somewhere else and to be presiding over the first in-person meeting of APRL in two years.

A lawyer in Tennessee brought my attention to an article in a recent ABA publication where two academics, Professor Peter Joy and Professor Kevin McMunigal, write to embrace another academic’s theory (Professor Jon Bauer) published 13 years ago that Model Rule 3.4(f) should be read to absolutely prohibit lawyers from participating in non-disclosure agreements. The new article is “The Ethics of Buying Silence,” and it is in the ABA Criminal Justice publication for Fall 2021. The Bauer piece was in the Oregon Law Review back in 2008 and was titled “Buying Witness Silence: Evidence Suppressing Settlements and Lawyers’ Ethics.”

The context for the more recent discussion of the argument is the pretty shameful use of NDAs in the representation of Harvey Weinstein to seek to prevent victims of a sexual predator from speaking out. But that doesn’t change the fact that the argument that this is the meaning of the rule just seems to fail on its face so obviously.

Granted, I admit that a couple of states over the years have issued ethics opinions adopting the same rationale, and I’ll admit that I haven’t had time to dig into those state’s versions of the rules to see if there is any difference from the Model Rule, but Professor Joy and others’ argument as to the Model Rule itself is, in my opinion, just wrong.

It also seems weird for these two professors to say that “[t]hose who argue that NDAs are not unethical tend to ignore the language of Model Rule 3.4(f).” No, the language of the rule itself is almost all the evidence I need to make my point.

For context, the rule we are talking about says that a lawyer shall not:

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

This is a rule, Rule 3.4, that is titled “Fairness to Opposing Party and Counsel.” This a rule that uses both the term “person” and the term “party.” This is a rule that absolutely, and clearly, contemplates the existence of litigation at the time of its application. This is a rule that prohibits a lawyer, in connection with a litigation matter, from trying to stop someone other than their own client (or as the rule indicates a family member of the client or the client’s employees or agents) from agreeing to voluntarily provide relevant information to the opposing party (or some other party) in that litigation.

Two of the four comments to the rule even more clearly make the point about the context of the rule:

[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

Model Rule 3.4(f) is not a rule that can reasonably be read to apply to an agreement that is entered into as a matter of contract between two or more contracting parties well in advance of any litigation about what is being made the subject of the contract ever existing.

It just can’t. And I don’t even have to trot out the language in the Preamble/Scope about how the ethics rules are rules of reason and must be construed as such to cut the legs out of the argument. And the proponents who are arguing that it prohibits all NDAs reveal that even they know their effort (if not their analysis) is flawed when they admit that there are certain forms of NDAs that they would agree with and that ought to be permitted, such as in the realm of protecting trade secrets or in resolving breach of contract actions before litigation is brought.

Just stop. If you want the rule revised, spend your time arguing for how to revise it. Admittedly, these two professors sort of do that by urging the ABA and states to take actions to “clarify” what RPC 3.4(f) means but trying to argue that the rule already means that – when it doesn’t – just seems disingenuous.

Main(e)ly an excuse for book promotion.

So, before offering up the actual ethics content, if like me you know you’re not quite hitting on all cylinders but you are functional and you haven’t already read that New York Times article that made the rounds about “languishing.” I’d recommend it. You can still get to the article at this link. You might read through it and walk away very much saying “It Me.” If so, samesies. Unfortunately, I haven’t yet figured out yet what the recipe is for moving on from languishing to something more like – if not thriving then … well something.

Now, on to something with an actual clear solution, the answer to an ethics question. More specifically, I wanted to give a nod to a recent ethics opinion put out into the world that actually is a really good one. Really good in that it does the kind of thing that an ethics opinion can do to be really valuable — gives the correct answer to a practical question that can really matter to a lawyer and involving a situation that (while it doesn’t arise with abundant frequency) can still arise more frequently than once in a blue moon.

What we are discussing is Opinion #224 issued by the Professional Ethics Commission of the Board of Overseers of the Bar, State of Maine. But henceforth we’re just going to call it Maine Op. 224. Maine Op. 224 answers the question:

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?

Now, I know from experience dealing with lawyers that, when posed this sort of issue in real life, many lawyers immediate, visceral reaction is that surely this must be verboten. If they are able to draw a rule to mind to give shape to their reaction, they will point to RPC 3.4 and its prohibition on a lawyer offering inducements to witnesses that are prohibited by law.

In Tennessee, we’ve written our rules to be exceedingly clear about how this can be done rather than rely only on the ABA Model Rule language. Our RPC 3.4(h) has this additional language:

A lawyer may advance, guarantee, or acquiesce in the payment of

(1) expenses reasonably incurred by a witness in attending or testifying;

(2) reasonable compensation to a witness for that witness’s loss of time in attending or testifying; or

(3) a reasonable fee for the professional services of an expert witness.

But such compensation is not verboten even in jurisdictions that just have Model Rule language. As long as the amounts provided as compensation are reasonable with respect to the value of the witness’s time and the compensation is not at all dependent on the content of the testimony, then the answer is that a lawyer may do this.

And Maine Op. 224 gets that right.

A lawyer may advance court costs and litigation expenses without running afoul of the Maine Rules of Professional Conduct, including paying a non–expert witness’s lost wages, expenses, and other costs related to preparing and providing testimony or otherwise assisting counsel, so long as the payment is reasonable and not conditioned on the content of the witness’s testimony.

Moreover, Maine Op. 224 provides a number of helpful points of elaboration. It manages to stress that the fundamental reason that the lawyer can do so is because the client has the right to do so and, thus, a lawyer can, acting on behalf of the client, advance those litigation expenses similar to other litigation expenses. It also, albeit in a footnote, gives practical guidance that the lawyer also has to be very careful about the likely need for the arrangement to be fully disclosed during discovery in the litigation itself. It also, again in a footnote, acknowledges that there could well be disputes over whether a particular amount of compensation is, in fact, reasonable and opines that the place for litigating such a question should be in the litigation itself.

Now, we are heaping a bit of praise on Maine for getting it right, but reaching the right conclusion on this question is not a Herculean task as the ABA, almost a full 25 years ago now, already gave this similar correct guidance in ABA Formal Op. 96-402 and Maine Op. 224 cribs from that opinion liberally.

What Maine Op. 224 does not do is go beyond the guidance the ABA Opinion offered about how to figure out whether requested compensation for a fact witness is reasonable. One good place to look for such guidance is in Chapter 5 of the Second Edition of Professional Responsibility in Litigation where Doug Richmond, Mike Matula, and I offer eight practical tips to litigators when addressing this issue. Respecting the adages of cows and free milk, I’ll offer you only three of those practical tips here: (a) lawyers ought to wait for a witness to ask for compensation rather than offering it; (b) the closer the lawyer can come to providing an amount that approximates the witness’s direct loss of income the safe the arrangement; and (c) lawyers should refrain from ever providing such compensation to someone who is a former employee of the litigation adversary.

Oh, and by the way, speaking of Professional Responsibility in Litigation, the Third Edition is going to be coming out very, very soon. So, stay tuned.

Nebraska brings us … this.

It’s been something of a big month for Nebraska. First, thanks to its divided approach to providing electoral votes, it is contributing one of the electors totaling up to President-Elect Joe Biden’s 306 electoral votes. Second, like everywhere else in the United States (my state is doing just as bad if not worse) unfortunately, it has seen its COVID-19 numbers surge in November.

Third, and relevant to this space, it has issued an ethics opinion of note. It deserves a bit of discussion because it takes what could be a very interesting topic – one I have counseled people through in the past – and manages to make it not interesting at all. Moreover, it effectively avoids addressing the core issue on which lawyers actually need guidance.

The opinion in question – Nebraska Ethics Advisory Opinion for Lawyers 20-02 – offers an answer to the following question:

May a person/entity or group of defendants who are parties to pending litigation in a district court lawsuit brought by a plaintiff who is a trustee of a trust recommend a list of attorneys and pay for the non-party trust beneficiaries’ legal services needed to bring a county court action to
remove the trustee?

Ultimately, it only sort of answers that question because it points out that it can only give advice to lawyers and not litigants and so, instead, really just provides a refresher on the ethical obligations that a lawyer generally is going to have when they get retained to represent one person, but some other person is paying their bills.

Which is fine. But the world has a pretty good amount of guidance on that topic already. Given the actual question, this kind of ethics opinion would have been a tailor-made opportunity to address the ethics of being a lawyer who has a client who wants you the lawyer to help them secure a lawyer for someone else because the client thinks it is in the client’s best interest for that person to be represented by a lawyer.

One way the issue can come up is when a company wants to hook up a former employee with counsel. Wrestling through the ethics issues for the lawyer in that situation can be tricky as much of the analysis can turn on who came up with the idea and why they want to pursue it.

The closest that the Nebraska opinion comes to providing any sort of pointer toward guidance relevant to those questions is where it explains:

To the extent the question presented can be framed as whether the lawyer representing the litigants can recommend the hiring of another
lawyer, the Committee believes §3-508.4 applies. “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” As long as the lawyer representing the
defendants in the lawsuit brought by the trustee does not induce another lawyer to violate the ethics rules, the defendants’ lawyer has not committed an ethics violation.

Nebraska’s version of RPC 8.4(a) is patterned after the ABA Model Rule version and, thus, that can be a generally helpful pointer. But there are other risks floating around for the lawyer, even if it is their client who truly, independently came up with the idea of trying to hire a lawyer for their former employee.

One risk for the lawyer is if what is motivating the client is a desire to make the former employee “off limits” from informal communications with the opposing party because of the application of RPC 4.2. If that is in the mix, the lawyer may have to be concerned about whether the client is trying to get the lawyer to circumvent the prohibition in RPC 3.4(f) regarding requesting someone to voluntarily refrain from giving relevant information to another party. Lining up and paying for counsel for a former employee is always a safer proposition if what has prompted the idea is that the deposition of the former employee has been noticed.

Another risk for the lawyer (actually two different risks) is if the client wants the lawyer to also take on the former employee as a client rather than hire a different lawyer for that former employee. In addition to the conflicts issues the lawyer has to muddle through about that idea, if the lawyer is the one that is going to be foisted upon the former employee as a proffered free-of-charge counsel, then the lawyer also has to worry about application of the jurisdiction’s rules on solicitation of potential clients. Navigating that path very much drives home the point of the risk associated with RPC 8.4(a) – and not with respect to inducing some other lawyer to violate the ethics rules as the Nebraska opinion briefly mentions – but with respect to violating the rules “through the acts of another.”

And, at each stage, an additional ethics rule lurks in the background – RPC 1.2(d). That’s the rule that simultaneously prohibits lawyers from assisting clients in criminal or fraudulent conduct while attempting to make clear that lawyers are entitled to advise clients about all of their legal rights and the consequences of certain actions. In this context, it is the rule that means that if the client is the one that comes up with the idea, then the client may well be entitled to hear from their lawyer whether they have the right to try to make counsel available at no charge to a former employee and have a “discuss[ion of] the legal consequences” of that proposed course of conduct.

An ethics opinion offering guidance to lawyers navigating that kind of situation would be something that – if done right – lawyers in Nebraska and elsewhere would likely have found to be very helpful.

So, my question, dear readers, is this: does anyone out there know if a state has issued any kind of guidance like that? Hit me up and let me know if there is.

I Dowd that very much.

Last week was a pretty eventful week in the area where politics and the law overlaps, and an initially bizarre turn of events that was made more bizarre by subsequent claims injected some questions of legal ethics into events on the national stage again.

What I’m talking about is all stuff you’ve likely already read about.  In short story form, it goes like this: the news of the guilty plea of former National Security Advisor Michael Flynn for lying to the FBI, followed shortly thereafter by an incredibly-unwise-seeming Tweet by the current occupant of The White House that was quickly discussed by others on-line as amount to direct incriminating evidence of obstruction of justice by that current occupant, followed then by claims that the current occupant of The White House didn’t actually write that Tweet and that, instead, the Tweet was drafted by one the current occupant of The White House’s personal lawyers, John Dowd.

Now, what do I believe in my heart of hearts happened.  That’s easy.  I’m a staunch believer in Occam’s Razor, so I believe that the same old man who has consistently, inappropriately used his Twitter account to say stupid things, spew vitriol, and retweet white supremacists and Islamiphobes tweeted something without thinking it through, and did so either without consulting with his counsel or simply with disregard for legal advice he was given about Tweeting about such things.  After that, I believe that one of his lawyers, fully recognizing just how problematic the contents of the Tweet were for his client, has decided to try to reduce the impact of the client’s admission by claiming that he was actually the author because that has, in turn, allowed him to claim to have been mistaken about what his client knew at various points in time.

I’m not writing this to claim to be the end-all-be-all on this line of reasoning actualy, but to address two things that I have seen others write about this situation that have bugged me.  Those sentiments are: (1) that it couldn’t have been written by the lawyer, Dowd, because the lawyer wouldn’t incorrectly say “pled” instead of “pleaded,” and (2) that if Dowd is lying about having been the one who wrote the Tweet then he ought to be disbarred.

I think both of those sentiments amount to hogwash.

As to the first one, I’m a lawyer – and I like to think I’m a fairly decent one – and I prefer to use “pled.”  I’ve seen people point to the AP Stylebook on “pleaded” versus “pled,” and I’m also well aware that Bryan Garner insists that “pleaded” is the proper usage.  Nevertheless, I fall into the camp of lawyers like the King & Spalding lawyer quoted back in this ABA Journal piece on its usage, who believe it is the better term to use to indicate the past tense verb form, and would certainly use it even in real-life writing.  It is not unfathomable that Dowd might fall into that camp as well.  Further, it is damn sure the better term to use on Twitter where character limits matter greatly.

As to the second one, there would definitely be an ethics violation or two (or three) for which Dowd could be charged with violating if he is lying about being the author of the Tweet in question in order to protect his client.  Nevertheless, to jump to the notion that the appropriate discipline for that would be disbarment is a bit silly.

A lawyer who would lie about the authorship of a client’s Tweet that could otherwise be an admission of a crime would run afoul of a couple of obvious rules, such as RPC 8.4(c) and RPC 4.1(a).  The ABA version of those rules respectively provide as follows:

Rule 8.4:  Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person.

The lawyer could also be subject to a charge of violationg RPC 7.1 which people often forget does not only apply to advertisements.  The ABA version of that rule provides:

Rule 7.1: Communications Concerning A Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

In this sort of context, an interesting question could be raised about whether the lawyer would also have violated RPC 3.4(a).  The ABA version of that rule provides:

Rule 3.4: Fairness to Opposing Part and Counsel

A lawyer shall not:

(a) unlawfully . . . alter . . . a document or other material having potential evidentiary value.

But, the idea that such an offense or offenses by Dowd would be punishable by disbarment is a bit silly.  A quick review online of publicly-available information shows that Dowd has never previously been the subject of any public discipline.  He’s been practicing for 50 years without even receiving a public censure.  Unless he managed to hire a lawyer to represent him who has been as sloppy as the lawyers folks associated with the current administration have hired to defend them, then I can’t imagine that outcome coming about if any disciplinary case were ever brought against him.

And, on that subject, given Dowd’s other missteps along the way in this high-profile setting, it weirdly is a bit more difficult to rule out the possibility that he actually was the one who exercised the poor judgment of creating the content of, and presumably even sending, that Tweet for his client.

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.

Both the java fight and the nut dispute are kind of bananas.

If you spend any time on social media these days, you may have noticed how irritable folks are.  There are lots of reasons for it, of course.  We live in stressful times.  Practicing law has always been a high-stress endeavor as far as professions go; thus, cries for more civility in the practice of law have been going on for many years and likely will continue to go on for many more years to come.

I’ve offered before on this blog my overarching “don’t be an ass” theory as it relates to practicing law but lawyers are people and people are people, so … sometimes people don’t get along.

There have been two relatively recent examples of lawyers not getting along, actually getting into dust-ups that have become pretty high-profile (or at least they were a few weeks ago) and that seem pretty hard to believe all involved wouldn’t wish for a chance at a simple do over.

One of them was talked about most frequently as being a coffee fight, but reads more like something that was already in the problem range before the hurling of coffee ever came into the picture.  The dispute happened during a deposition so in addition to the he said/she said aspects of what went down, there was a court reporter present.  The court reporter’s version of events grabs parts of each of the competing stories and likely gets the closest to the accurate version of events — the coffee was iced coffee and it likely was hurled at the other lawyer.  Doesn’t change the fact that it’s really bad behavior but at least it makes it much less likely that anyone was at risk of burns from scalding coffee.  You can read about all the various filings and back and forth here, here, here, and here if you’d like.

The other dispute that got lumped into my reading pile with the java jousting is both more and less bizarre at the same time.  As it all appears to turn over false allegations about how one lawyer acted upon learning about the existence of a nut allergy on the part of another lawyer’s paralegal.  You can read a bit more about that weirdness here.

Interestingly (although maybe that’s the wrong choice of word), assuming away any criminality in any of the conduct), the ethics rules that often come into play in dust-ups of these sorts are RPC 3.4 (at least as to the parts of them that relate to battles over obstructionist discovery tactics and the like), RPC 4.4(a)’s prohibition on using means when representing a client “that have no substantial purpose other than to embarrass … or burden a third person,” and RPC 8.4(d) prohibition on conduct “prejudicial to the administration of justice.”  Interestingly (and here it is definitely the apt word), the coffee fight at least contains some undertones of issues that might be in the wheelhouse of the ABA’s new RPC 8.4(g),

Speaking of disputes, but not disputes between lawyers and not disputes involving the weaponizing of any ingestible foodstuffs, I will be doing a national teleseminar tomorrow along with Sue Friedberg who serves as Associate General Counsel of Buchanan Ingersoll & Rooney on “Ethics and Disputes With Clients.”  You can sign up for it through a number of different channels (check with your local bar for example) like through this link in Oregon or this link in Nebraska or this one in Missouri.

Revisiting things not to do in court – Friday edition

Being in between stops for the Roadshow until next week, but still having two more to do (Wednesday in Chattanooga and Thursday in Knoxville), this will again be a bit more of a short(ish), punchy offering.

A few months ago I wrote a post about things not to do in court that discussed two incidents.  One of the incidents was the lawyer who took a selfie with his client in court after a successful jury verdict and posted it to social media.  I explained by belief that it seemed wrong for the lawyer to have been scolded at all by the court for the incident given the age-old notion that courtrooms – unless sealed via a proper protective order – are supposed to be public, open proceedings, since they are where public business gets accomplished.  I happen to think the routine imposition of such restrictions by judges is antithetical to the First Amendment right of access to court proceedings and to the ideal that what happens in the courtroom is public property.  I certainly understand that some of the rules that are in place that seek to prohibit broadcasting are premised on the notion that traditional media reporting and video broadcasting can be disruptive or a distraction to the proceedings, but in 2015 when anyone with a smart phone can unobstrusively take photos and disseminate information to the public in real time about what is going on in their courtrooms (and could even use an app like Periscope to live-stream proceedings without actually being at all disruptive) should merit revisiting a lot of the rules in place in federal courts that chill public dissemination of information about court proceedings.

I had been avoiding writing anything about this more recent Illinois federal court incident where a partner with a prominent law firm was facing a show cause order over having taken photos of evidence, and tweeting about that evidence, during a criminal trial in which he was just acting as a spectator in the courtroom.  Because the obvious ethics and lawyering angle didn’t immediately dawn on me.

But, there is at least one ethics rule worth mentioning for discussion so, with this week’s development that the lawyer in question sort of proposed his own sanction for his conduct in the form of making a charitable donation and performing some additional CLE and the court essentially agreed with it yesterday although it quintupled the amount of the proposed donation to $5,000 — I’m reversing course and writing just a few words about this.

Under the ethics rules in many jurisdictions,  including the version of RPC 3.4(c) adopted in Tennessee and in Illinois, it is not unethical for a lawyer to “knowingly disobey an obligation under the rules of a tribunal,” if done through “an open refusal based on an assertion that no valid obligation exists.”  (And, strictly speaking, although that rule does not say it is limited to a lawyer representing a client, given its title as “Fairness to Opposing Party and Counsel,” that kind of limitation is pretty strongly implied.)   Of course, this lawyer was never going to be in a position to do that because he first quickly stated he hadn’t seen the sign and then relatively quickly apologized for and tried to mitigate the repercussions of the conduct.  The Show Cause order lays out all the various levels of court rule that were involved here, starting with Federal Rule of Criminal Procedure 53 and working all the way down to the posted sign.  So there would be quite a few rules that a lawyer wanting to make such a challenge would have to claim to be openly defying.  The only other rule it seems like could be used to come after a lawyer for this kind of conduct in their role as a citizen would be RPC 8.4(d), but it seems to me the policies that impose these kind of restrictions are more prejudicial to the administration of justice than what this lawyer did.

I do wish that one of these days there will be an appropriately high-profile vehicle that serves to spur a conversation about why our profession doesn’t do more to challenge these kind of restrictions in federal courts.  Of course, that it is easy for me to say sitting here on my laptop and not in this lawyer’s shoes.  And, it’s especially easy for me to say when I’m likely to merely comply with the same sort of rules here in the federal district courts in which I practice rather than attempting to personally make any such waves.