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.

Mindless Pedantry

First, yes, “Mindless Pedantry” would make a good band name.  Other than that though, it is never a good thing.

In the practice of law, attention to detail is a valuable quality, but mindless pedantry certainly is not.

You are probably not an experienced litigator if you cannot remember a time when, faced with responding to a difficult discovery item, you haven’t been thrilled to notice some problem with wording, grammar, punctuation, or other technical deficiency in language usage in the question or request propounded to your client that you could use to your advantage.  We’ve all been there, and, to some extent the measure of our professionalism, is how you have dealt with the situation.

If the flaw is in a request for admission, you are likely simply obligated to deny the request based on the wording problems.  If it is an interrogatory or a request for production of documents, then you’ve likely done your best to point out the wording issue but not solely stood on that shaky ground alone.  You’ve likely either also provided a response that assumes the questioner intended to say “x” or, if you really needed the extra time to figure out the correct answer (and to figure out just how damaging the correct answer might be to your client’s case) then you still likely at least volunteered that if the questioner meant “x” and would confirm it, that you’d be happy to provide a supplemental response answering “x.”

What you hopefully have not engaged in is the mindless pedantry for which a firm was taken to task earlier this month by the Trademark Trial and Appeal Board when that body excoriated counsel for using an “obvious” typo as “an excuse to become pedantic, unreasonable, and uncooperative.”  The underlying litigation involves a trademark dispute that has been ongoing for several years now in which Cadbury seeks to cancel a U.S. trademark that has been registered for the name “Bournvita,” because Cadbury still has a brand of chocolate drink – though only big in India, Nigeria, and parts of the developing world — using that name.

In a set of requests for production of documents that (for reasons enumerated below) were otherwise quite obviously propounded upon Cadbury, the attorneys for the party with the U.S. trademark – Meenaxi Enterprise, Inc. — put the wrong name in some prefatory language saying these requests were being served on Venture Execution Partners (a third-party having no role in or bearing upon the dispute).  Cadbury ultimately took the position in response to a motion to compel that, because of this typographical error [presumably caused by the lawyers cutting and pasting from a similar document filed in some other matter against the Venture Execution outfit], the discovery requests were not actually directed to Cadbury and, thus, Cadbury had no legal obligation to respond at all.

That approach did not go well.

In the end, Cadbury’s lawyers were chastised pretty sternly and essentially lost the right to make any substantive objections to the discovery requests to which they have now been compelled to respond that they might otherwise have been able to raise.  The level of pedantry involved can be grasped (and marveled at), with a few surrounding facts described in the ruling:

  • The requests were served (by hand delivery on counsel for Cadbury) at the same time and in the same package as interrogatories directed to Cadbury that didn’t suffer from the typo, and to which Cadbury filed timely objections.
  • The requests incorporated certain “definitions” set forth in the interrogatories, where “Petitioner” was defined to be Cadbury.
  • The requests were otherwise properly captioned in the case being litigated, including the required reference to the correct registration number of the trademark at issue.

As if that all weren’t bad enough, Cadbury’s counsel really, really did not help themselves out by the fact that before providing their response/objections to the interrogatories, they had asked for, and received, four extension of time to respond “discovery.”  In none of those exchanges did counsel indicate they were seeking the extension only for the interrogatories or otherwise mention that they did not believe there were requests directed to them that required a response.

Although the case makes no mention of this point, it is worth taking the opportunity to remind folks that in Tennessee, for example, our RPC 3.4(d) makes it unethical for a lawyer not only to “make a frivolous discovery request,” but also to “fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

You can read the full decision here.

 

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.