Yet another decision coming out of Washington that complicates life.

Nope.  This too is not a post having anything to do with the recent election.  The Washington in the title is the State of Washington, and the decision is the controversial 5-4 decision issued by the Washington Supreme Court in Newman v. Highland Sch. Dist. back on October 20, 2016.  The Washington court, over a strenuous dissent, ruled that the attorney-client privilege did not apply to protect a lawyer’s communications with a former employee of the lawyer’s corporate client.

You can read the entirety of the opinion, if you’d like, here.  But, I’d suggest that you’d do just as well to read the wonderful treatment of the opinion, and the interviews obtained from prominent folks about it, in this piece put out by Joan Rogers with the ABA/BNA Lawyers’ Manual on Professional Conduct.  Joan, as always, does a great job with a pretty deep dive into the issues raised.  [And, see, this is proof that I don’t only praise the ABA/BNA reporters when they quote me in a story.  ; ) ]

I find myself in agreement with the dissent and those interviewed by Joan that are critical of the opinion, but not only for the way that the ruling takes a crabbed view of the privilege in the corporate context and seems to fail (or be unwilling) to grasp that people who have certain important information belonging to the corporation that the attorney needs to know may very well have moved on to a different place of employment by the time the corporation’s lawyer needs to speak with them.

The other concern I have about this sort of outcome on privilege is that it can serve to drive lawyers, as a workaround, to decide to take on representation of the former corporate employee in what becomes a joint representation with the corporation in the matter in order to be able to secure application of the privilege to communications.

There is nothing inherently wrong with such an approach, but it does create real potential for claims to be raised by adversary counsel that the undertaking is intended solely to restrict them under the relevant analog to Model Rule 4.2 from being able to communicate with the former employee.  (Of course, depending on the particular language of the jurisdictions RPC 4.2 and accompanying comments, there hopefully already exists an argument for the lawyer involved that the person was treated as off-limits under RPC 4.2, but I digress a bit.)

From my experience, the more fundamental problem is that lawyers pursuing such a course — often with a blindered focus on privilege issues — do not always take the time to think through all of the other angles that can come into play by taking on this second client in the matter.

The concept of an “accommodation” client is one that some prominent minds in the legal ethics community consider to be at least highly controversial if not altogether antithetical to the premise of an attorney-client relationship.  Nevertheless, it is a recognized concept and a lawyer can lay out the concept in an engagement letter with this former employee to indicate that if something goes wrong and the interests of the lawyer’s primary client and the former employee’s interest diverge that the lawyer will be permitted to simply withdraw from representing the former employee while continuing to represent the corporation.  There is also the available structure of a limited scope representation under RPC 1.2(c), to make clear that the added representation will be limited in scope and duration so as to decrease the likelihood that the interests of the original client and this former employee will become cross-wise during the time period in which both clients are being represented.

A Texas two-step of January ethics opinions

So far this month, the Professional Ethics Committee for the State Bar of Texas has put out two ethics opinions worthy of some discussion given the issues tackled and the outcomes of each opinion.

The more recent of the two, Opinion No. 653, evaluates whether a lawyer acting pro se in a matter has to abide by Texas’s version of RPC 4.2 — the rule that restricts a lawyer when representing a client from communicating about a matter with a person the lawyer knows is represented by counsel.  The committee laid out the question it would address as:

May a lawyer who is a party in a legal matter but who does not represent any other party in the matter communicate concerning the matter directly with a represented adverse party without the consent of the adverse party’s lawyer.

The Texas committee, while acknowledging that there is not universal agreement on the answer (even among Texas courts), concluded that its Rule 4.02 did not ethically prohibit a lawyer acting pro se from communicating directly with a represented adverse party.  In reaching that conclusion, the Texas opinion aligns itself squarely on the issue with the Restatement (Third) of the Law Governing Lawyers § 99(1)(b).

Though reasonable minds can differ, I think the Texas committee’s effort to say that concluding otherwise would “strain the language of the Rule beyond its intended meaning” is more difficult to justify than its conclusion.  A number of interesting follow-up questions for the Texas committee might make the point about the language of the rule.  As an example, does a lawyer who, while proceeding pro se, uses a method of obtaining evidence that violates the other side’s legal rights violate Texas’s Rule 4.04(a).   Or what about if the same lawyer uses means that have as the sole purposes embarrassing or burdening the other side?  Both of those aspects of Texas Rule 4.04(a)’s prohibitions are premised upon the lawyer being engaged “[i]n representing a client.”

This kind of interpretation of a rule patterned upon ABA Model Rule 4.2 is also difficult to reconcile with what I have always understood to be the fundamental premise behind the prohibition — the notion that a lawyer as a skilled advocate trained in the art of persuasion would have the ability to take advantage of a nonlawyer and get them to agree to something or make some admission they would never make if skilled counsel on the other side was in the room.  Almost a year ago, I wrote a little bit about a presentation I did on legal ethics to a room full of regular people and how one of the things they were most surprised to learn was that the lawyer ethics rules didn’t let grown up adults decided for themselves if they wanted to talk to the other side’s lawyer.

In Tennessee, as in most states that have an RPC 4.2 patterned after the ABA Model, we explain the purpose for this rule in Comment [1]:

This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.

The other Texas opinion, Opinion No. 652, requires much less discussion because it actually — correctly — serves to undo what would be a controversial position if still embraced by the Texas committee.  The two questions tackled in Opinion 652 are:

  1.  May a lawyer use a collection agency to collect past due attorney’s fees without violating the Texas Disciplinary Rules of Professional Conduct?
  2. May a lawyer report nonpaying clients to a credit bureau without violating the Texas Disciplinary Rules of Professional Conduct?

Now, you may think the answers to these two questions ought to be straightforward (and I think you are right), and, in fact, the Texas committee offered what I view as the correct answer to both questions.  1.  Yes.  2. No.  But, remarkably, as a read of the full opinion will reveal, the Texas committee had to reverse itself on a prior opinion from more than 20 years ago, in order to answer the first question with a “yes.”

 

 

A duty to ask: Another of the unintended consequences of unbundling

Yesterday, the ABA Standing Committee on Ethics and Professional Responsibility issued its latest ethics opinion, Formal Opinion 472, “Communication with Person Receiving Limited-Scope Legal Services.”  On the whole, it isn’t a bad opinion.  It is well-constructed, addresses multiple topics that seem ripe for discussion, and clearly is the product of a lot of thought and consideration.

The main topic it seeks to address involves a situation that doesn’t fit nicely into traditional models – the use of the authority under RPC 1.2(c) to provide limited scope services to a client to provide what are usually referred to as “unbundled” legal services and whether/when a lawyer on the other side can treat the litigant as unrepresented for purposes of RPC 4.3 versus when RPC 4.2 applies.

RPC 1.2(c) wasn’t originally a rule designed to necessarily encourage unbundling, especially not in the litigation context, but that is a place that it has gone.  As the ABA Formal Opinion explains:

Limited-scope representation may include assisting a litigant who is appearing before a tribunal pro se, by drafting or reviewing one or more documents to be submitted in the proceeding.  “This is a form of ‘unbundling’ of legal services, whereby a lawyer performs only specific, limited tasks instead of handling all aspects of a matter.”

In Tennessee, there was a proposal a few years ago that would have involved rule changes on the civil procedure side to try to address the reality of problems with limited scope representations in litigation proceedings.  Concerns were expressed that judges might not let lawyers withdraw in accordance with terms of a limited scope representation. If memory serves, the proposal would have required lawyers in such situations to file a notice of appearance that revealed that the representation essentially had an expiration date and then would have permitted the lawyer to file a notice of withdrawal that the court would have no discretion to overrule once complete.  There were voices in opposition to aspects of the proposed rule, ironically, to make the point that it would truly make recipients of such services into second class citizens as the party on the other side would be fully aware that they could likely paper to death the lawyer in the short term to levy pressure or could simply hunker down and wait the inevitable withdrawal.  It probably was a bad rule and ultimately was not adopted.

This ABA opinion probably will be viewed in the future as a bad opinion, and I already wish it hadn’t been issued in this form.  Usually an ethics opinion that exhorts the fact that the ethics rules are “rules of reason and must be construed and applied ‘with reference to the purposes of legal representation and the law itself,'” can be counted upon to reach a practical, well-measured result.

I have no doubt the authors believe they did so here, but they squarely put the onus on the attorney who is undertaking a traditional representation model and placing the burden there is the wrong outcome under the opinion’s own terms.

In addition to calling upon the exhortation from [14] Scope above, the opinion hangs its hat on being just a repetition of the warning in Comment [8] to RPC 4.2 that a lawyer cannot circumvent RPC 4.2’s prohibition by “closing eyes to the obvious.”  Yet, the framing doesn’t track that warning at all.

In describing circumstances it says are enough for knowledge of representation to be inferred, the opinion offers:

[W]hen a lawyer representing a client faces what appears to be a pro se opposing party who has filed a pleading that appears to have been prepared by a lawyer or when a lawyer representing a client in a transaction is negotiating an agreement with what appears to be a pro se person who presents an agreement or a counteroffer that appears to have been prepared by a lawyer.

How would proceeding on the basis that you don’t actually “know” that there is a lawyer involved behind-the-scenes in either scenario “closing eyes to the obvious?”

The only obvious thing is that the “eye of the beholder” will make all the difference.  Today, it’s already fairly easy for a person, without a law license, to use the internet to find forms and pleadings of all sorts from other cases and, with some modification, attempt to use them for their own purposes.  That’s true even if you don’t bring into the mix companies that offer such forms for a fee.  When is it going to appear there is a lawyer involved as opposed to when it is going to appear that someone is buying forms or cannibalizing materials from the internet?

If the endeavor of trying to reconcile this “gap” where RPC 1.2, 4.2, and 4.3 intersect was to be undertaken “with reference to the purposes of legal representation,” then (if you didn’t already figure this out) I think the answer should clearly have been different.

The purpose of permitting unbundling as a good thing is inherently the idea that some access to the assistance of a lawyer is better than no access.  Half a loaf and all that.  Thus, unbundling necessarily contemplates that the client will have to navigate certain aspects of the matter — including communicating with counsel for the other side — on their own.  So, why shouldn’t the onus be placed on the person receiving unbundled services (with the guidance of their limited scope lawyer to make a choice — either (a) get the benefit of counsel’s involvement on a behind-the-scenes basis in exchange for the burden of being fair game for direct communication; or (b) get the benefit of being shielded from direct communication with counsel for the opposing party in exchange for the burden that your lawyer must come forward, no matter how limited the scope, and communicate forthrightly about that involvement?

Stacked decks, standards of review, and the RPC 8.1 duty to cooperate

In many jurisdictions, disciplinary proceedings against lawyers are referred to as being “quasi-criminal” in nature.  If you ask lawyers who defend lawyers in disciplinary proceedings, you will often hear them agree that the nature of the work can feel a good bit like criminal defense work, but with two pretty universal exceptions that make the work even more difficult.  The first is that, unlike criminal cases, lawyers having to respond to disciplinary allegations against them not only do not exactly have a right to refuse to incriminate themselves (e.g. a right to remain silent) but actually have an ethical obligation, under RPC 8.1(b), that serves to require them to be willing to speak up and that requires them to cooperate with the investigation.  The ABA Model version of that provision reads:

“[A] lawyer . . . in connection with a disciplinary matter shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority….”

The second is that the standard of proof bar regulators have to overcome to impose discipline against a lawyer’s license, up to and including the ultimate sanction of disbarment, is lower than the “beyond a reasonable doubt” standard in criminal practice.  Around 80% of U.S. jurisdictions require proof of a lawyer’s misconduct by “clear and convincing evidence” before the imposition of discipline and that can make any tensions arising from the duty to answer questions and cooperate a bit easier.  Unfortunately, Tennessee is one of the few remaining states that allow imposition of discipline merely based on a preponderance of the evidence standard.   I have written in the past about my belief that Tennessee’s continued use of that standard is constitutionally-suspect (in addition to being bad public policy) but am not going to do that again today.  (Though you can find some of my thoughts on the subject here.)

Today, I bring an update about the latest disciplinary difficulties of a particular Ohio lawyer who has managed in his latest run in with disciplinary authorities to simultaneously demonstrate how important the “clear and convincing evidence” standard can be to winning a case and how the ethical duty to cooperate and respond to questions imposed by those prosecuting you can end up resulting in you getting disciplined despite the underlying charge being meritless.

While still suspended as a result of this unwise house call to his female client, this Ohio lawyer has been dealing with a two-count disciplinary complaint over new issues, each of which arise from the same matter — an alleged representation of a criminal defendant, Gary Freeland.  The first count involved a litany of alleged misconduct, including lack of competent representation of Freeland and alleged misrepresentations to the criminal court.  The second count accused him of not cooperating with a disciplinary investigation initiated by an allegation from one of the prosecuting attorneys on Freeland’s case alleging that the Ohio lawyer communicated with Freeland at a time when Freeland was represented by the public defender’s office and that doing so was a violation of Ohio’s RPC 4.2.

In an opinion issued yesterday, the Ohio Supreme Court ultimately found that the allegations in Count 1 were not proven by clear and convincing evidence because the existence of an attorney-client relationship between the Ohio lawyer and Freeland had not been proven by clear and convincing evidence.  The Ohio lawyer had claimed that, although he had been paid $10,000, until he had the chance to fully review the case and decide whether to make an appearance as counsel for Freeland, he was only representing Freeland’s daughter.  Notably, Freeland testified that once his daughter had delivered the money to the Ohio lawyer, he considered the Ohio lawyer to be representing him.  In a jurisdiction where all that has to be satisfied is a “more likely than not” standard (i.e. preponderance of the evidence), there is good reason to think the outcome of that charge might be different.

As to Count 2 though, which arose from what appears to have been officious intermeddling on the part of a deputy district attorney, the Ohio lawyer ended up receiving a six-month suspension for a violation of RPC 8.1(b) for ignoring and failing to respond to two follow-up letters from bar counsel sent after the Ohio lawyer’s response to an initial letter inquiry.  Ohio’s RPC 4.2, patterned as it is after the ABA Model Rule, is not reasonably interpretable as making it unethical for a lawyer to talk to a potential client who is thinking about changing lawyers, so there really was no underlying unethical conduct.  Thus, this Ohio lawyer’s decision not to answer two letters from bar counsel is a pretty significant self-inflicted wound.

Can I get a witness (to talk to me)?

Later today (noon central), I will be doing a live webcast, through the Tennessee Bar Association, focused on RPC 4.2 and other ethical issues associated with communications with employees (and former employees) of represented organizations.  My co-presenter is a friend and former colleague (we practiced together as associates at a defense firm in the late nineties early 2000s), who now focuses his practice on the plaintiffs’ side of table handling personal injury cases.  We are going to be working from an interesting, well-constructed (and quite realistic) hypothetical involving pursuit of a health care liability action against one or more nursing home care facilities to take a look at the tough issues and try to provide insight into the practical realities.  It should be a good time, and provide interesting food for thought, as I don’t know if there is anything that my co-presenter and I agree on these days.

If you are in need of an hour of CLE, you can sign up for the webcast here and, if the timing isn’t convenient (we certainly didn’t realize when we scheduled it that we’d be competing against giant online sales from both Amazon and Wal-Mart), you can still watch it later at your convenience.

 

A recent experience speaking about legal ethics to regular people

I had the opportunity recently to make a legal ethics presentation to a group of regular people, i.e., people who were not lawyers.  (It takes effort not to call them “nonlawyers.”  I admitted that to them at the outset while acknowledging how egocentric the term sounds when lawyers use it to mean anyone else.  Even physicians manage to give people a better sounding title than that — “lay people.”)

The topic requested was legal ethics for people who were not lawyers.  I went with “15 Things You Might Not Know About Ethics Rules for TN Lawyers.”  I tried to cover some of the more relevant aspects of how our rules can impact people who hire attorneys but, what I was most looking forward to was which ones garnered the most interest.  Based on reading the room, the two aspects people seemed the most surprised/genuinely interested to hear were: (1) there are some conflicts lawyers confront that simply cannot be waived and about which the lawyer isn’t even supposed to ask the client for consent; and (2) if you are represented by an attorney in a matter, you don’t have the power to give the attorney on the other side of the matter permission to communicate with you, only your lawyer can approve that happening.

I suspect the surprise as to the latter stems from how RPC 4.2’s requirement for the consent of the other lawyer can come across as, at least, counter-intuitive if not downright dismissive of someone who is the principal in a principal/agent relationship.  It helps though to explain the genesis of the concern as the risk of overreaching or shenanigans on the part of other lawyer and to explain that the client still ultimately has the power because she can instruct her own lawyer to grant the consent necessary.

I suspect the surprise with the first aspect though is a bit more telling about how many lawyers approach conflicts in modern practice.  My guess is that there might be a handful of lawyers out there that also forget that RPC 1.7(b)(1) means that unless you can reasonably believe that you can still provide competent and diligent representation to affected clients despite the conflict you can’t even ask for consent.