ABA Confirms that Model Rule 1.15 Should Solve What Model Rule 4.4 Doesn’t

So, I am certain you have heard by now that a little under a week ago the ABA issued a new Formal Ethics Opinion to address the ethical obligations of lawyers in the aftermath of a cyber-attack or an electronic data breach.  ABA Opinion 483 makes for a good read and provides good guidance about how the ethics rules work on the subject.

There are lots of decent summaries out there already of this ethics opinion if you want to try the tl:dr approach and just read secondary sources.  I am not going to repeat those summaries here.  Instead, I want to focus on what is, to me and perhaps only me, the most important development that ought to come from this opinion — the recognition by the ABA that “property” in Model Rule 1.15 has to also include digital property.

In the latest ABA Opinion, this issue is addressed with an eye toward thinking about electronic copies of client files, specifically as follows:

An open question exists whether Model Rule 1.15’s reference to “property” includes information stored in electronic form.  Comment [1] uses as examples “securities” and “property” that should be kept separate from the lawyer’s “business and personal property.”  That language suggests Rule 1.15 is limited to tangible property which can be physically segregated.  On the other hand, many courts have moved to electronic filing and law firms routinely use email and electronic document formats to image or transfer information.  Reading Rule 1.15’s safeguarding obligation to apply to hard copy client files but not electronic client files is not a reasonable reading of the Rule.

Now, why is this such an important takeaway to me?  Well, myopia often flows from the egocentric nature of people and I am no exception.  This is an important takeaway to me because I’ve been trying to make this point in an entirely different context – and to little avail — since 2010 when I co-authored an article entitled: “Model Rule 1.15: The Elegant Solution to the Problem of Purloined Documents” published in the ABA/BNA Lawyers’ Manual on Professional Conduct.  Now that article – which you can still find here — was itself an excerpt of part of a chapter of a book I was also fortunate enough to co-author with Doug Richmond that came out in 2011.  The “Elegant Solution” article explained that the lack of guidance offered by Model Rule 4.4(b) on what a lawyer must do if they receive stolen documents (whether on paper or electronically) should be resolved by application of Model Rule 1.15 and the obligations lawyers have under subsections (d) and (e) of that rule.

There are likely lots of reasons why that article has been largely ignored – and when not ignored treated as offering a controversial view to be shunned — but the primary one is that Model Rule 4.4(b) becomes a bit unnecessary as a rule if such questions could have been resolved under Model Rule 1.15.

Model Rule 4.4(b) reads:

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Model Rule 4.4(b) only addresses information that a lawyer receives that is known to have been inadvertently sent and only requires the receiving lawyer to give notice to the sending lawyer of what has happened.  It does not address information sent purposely but without authorization, and it punts on what comes next.

In the “Elegant Solution” article, we explained why Rule 1.15 provided answers to the questions Model Rule 4.4(b) won’t address and, particularly in light of this latest ethics opinion recognizing the need for Model Rule 1.15 to apply to digital information, I think our explanation is worth repeating to close out this post:

The Model Rules do, in fact, appear to offer an elegant answer for lawyers who question
their professional responsibilities when they receive documents that may have been purloined or otherwise improperly obtained from another. The answer lies in Model Rule 1.15 and its provisions establishing lawyers’ obligations with respect to ‘‘safekeeping property.’’ See Model Rules of Prof’l Conduct R. 1.15 (2010).  Although lawyers are generally familiar with Rule 1.15 in the trust account context, the scope of the rule is clearly not so limited, as amply evidenced by its repeated references not just to funds or fees or expenses, but also to ‘‘property.’’

Model Rule 1.15(a) declares that ‘‘[a] lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property.’’ Id. R. 1.15(a) (emphasis added). Model Rule 1.15(d) further requires that ‘‘[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.’’ Id. R. 1.15(d) (emphasis added). Finally, Model Rule 1.15(e) mandates that ‘‘[w]hen in the course of the representation
a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer)
claim interests, the property shall be kept separate by the lawyer until the dispute is resolved.’’ Id. R. 1.15(e) (emphasis added).

Analysis of over-the-transom deliveries through the lens of Rule 1.15 establishes that a lawyer, upon receiving purloined documents (or if not clearly purloined at least clearly reflecting privileged or confidential information belonging to someone other than the person who delivered the documents), is obligated to hold those documents separate from the rest of the lawyer’s documents, promptly notify the person from whom the documents were taken, and, if the lawyer is going to refuse to return the documents to that person (and thereby claim either that the lawyer or the lawyer’s client has an interest in them), continue to keep those documents segregated from the rest of the lawyer’s property until the dispute over the documents is resolved,
presumably through a ruling by a tribunal. This approach places no meaningful burden on the receiving lawyer and respects the rights of the party to whom the materials belong.

The ethics of putting together an unenforceable contract.

It is still astounding (as well as deeply dispiriting) that the context of the discussion I’m about to launch is the work of White House Counsel but this is the world we currently occupy.  You may very well have read this fascinating The Washington Post article by now released in connection with the ongoing news story of a former White House staffer who repeatedly secretly taped conversations – including her own firing in The Situation Room — inside The White House and what those recordings may reveal about whether that person says even more outrageous things in private than the outrageous things he says in public, as well as whether that person is suffering from a decline in his mental faculties.

Because tackling the notion of the ethics of representing a client with diminished capacity if that client happens to be – at least theoretically – the most powerful politician on the planet – is too depressing to tackle, I’m not writing about that today.  If you want to delve into those issues, your starting point is ABA Model Rule 1.14.

Instead I want to talk about [as the title of the post telegraphed] what can be a thorny ethics issue even in much more pedestrian contexts: is it ethical for a lawyer to draft and create a contract for a client’s use that the lawyer knows to be unenforceable?

As the topic du jour the context of the question is requiring staff at The White House – public employees — to sign non-disclosure agreements including provisions that would prohibit them from disparaging the 45th President of the United States.  Seemingly everyone acknowledges that given the nature of public employment, democracy, the at-least-still-for-the-time-being cherished concept of transparency in government, and numerous other federal laws such an agreement is obviously and undisputedly unenforceable.  The article describes what the media has been told about the events:

A number of White House aides were urged to sign NDAs in early 2017 by White House Counsel Donald McGahn, according to current and former aides, who requested anonymity to discuss internal West Wing deliberations. Trump was obsessed with leaks to the news media and repeatedly demanded that McGahn draft the agreement, the aides said.

Initially, McGahn told Trump he would not draft or give aides the NDAs because they were not enforceable, White House officials said. But in the end, McGahn created a document that said aides would not divulge any confidential or nonpublic information to any person outside the building at any time, according to three people who signed it.

Other media outlets have reported that McGahn may have convinced people to actually sign the document by reassuring them that it was unenforceable.  One of the reasons the question is important ethically is that if you create a contract for a client that you know is unenforceable, they will likely still try to use that contract in the future against people and cause them harm (at the very least economic harm and inconvenience associated with defending a lawsuit seeking to claim a breach of the unenforceable contract).  Media reports today indicate that something like this is now being undertaken – although admittedly apparently based on an NDA that was required by the campaign and not the actual government.

My opinion about the answer to the question of whether any such conduct by a lawyer is unethical is, unfortunately, less than equivocal.  At heart, it will have to turn on a situation-by-situation analysis.  Using the Model Rules to explain, this is because there is not exactly a specific rule outside of the litigation context that flatly prohibits a lawyer from assisting a client in pursuing a frivolous position in negotiation of a document in the same way that there is such a rule prohibiting the pursuit of frivolous claims in litigation.

What is available is a collection of rules that would need to be sifted through and applied to the circumstances to reach a conclusion about the lawyer’s role in assisting a client in getting someone to agree to a provision in a contract (or an entire contract) that is known to be unenforceable.  Those rules are:

RPC 1.2(d):  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

RPC 1.16(a):  … a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law ….

RPC 4.1:  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; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RPC 4.3:  In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. . . . The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

RPC 4.4(a):  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….

RPC 8.4(d):  It is professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice.

Assuming that, at all times in dealing with the members of staff being asked to sign the contracts, White House counsel was truthful about the situation, then the most troublesome provisions from the list above would be RPC 4.4(a) as there seems no “substantial” purpose other than to burden these people to seek to have them agree to an unenforceable contract — particularly where one of the grounds of unenforceability in this scenario is a constitutional issue.

In other circumstances, for example, where the unenforceable piece of the contract puzzle is just one part of an otherwise enforceable contract or, on the other extreme, where the contract itself is unenforceable because its purpose is inherently criminal or illegal, then the interweaving of these rules may provide a clearer outcome.

Idaho why I insist on punny titles.

So, those familiar with this space may remember I have written a bit from time-to-time about Tennessee’s proposed rule revision to adopt a modified version of ABA Model Rule 8.4(g).  The future of the proposal is still up in the air and the public comment period continues to run until March 21, 2018.  If you want to, you can go read those comments that have been submitted so far at this link.  The Court regularly updates the contents of the PDF at that link as new comments are submitted.  (Spoiler alert:  quite a few lawyers are pointing to their religious beliefs as being under attack if an ethics rule is adopted that would prohibit them from harassing or discriminating against people and, in the process in my opinion, overlooking the vast chasm that exists between proclaiming one’s personal beliefs but still treating all people with respect and conduct that involves harassing or discriminating against someone.)

The purpose of this post is not exactly to provide an update on Tennessee’s proposal.  Instead, the reason for writing is to share another approach to the topic that I learned of recently when I was getting fully up-to-speed on Idaho’s rules.

Although it was only tangentially relevant to my presentation to the Idaho Prosecuting Attorneys Association, I learned that not only does Idaho have the same RPC 8.4(d) and Comment [3] approach as Tennessee [both patterned after the older ABA Model Rule approach] but, in addition to that, Idaho has additional language targeting lawyer conduct motivated by discrimination in its RPC 4.4.

In Tennessee, for example, RPC 4.4(a)(1) prohibits the following sort of conduct:

(a)       In representing a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person….

Idaho’s version of this rule, however, adds something extra by way of an example of what is included:

(a) In representing a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person, including conduct intended to appeal to or engender bias against a person on account of that person’s
gender, race, religion, national origin, or sexual preference, whether that bias is directed to other counsel, court personnel, witnesses, parties, jurors, judges, judicial officers, or any other participants….

It is an interesting approach because I have found myself, in some discussions at seminars in Tennessee where I’ve discussed my support for the proposed rule responding to examples of things lawyers say could become fodder for a bar complaint if the rule were revised, pointing to the fact that the conduct being described could very well be pursued as a violation of RPC 4.4(a).  I think that’s likely true in a number of litigation-related examples of sexual harassment or usage of racial and other kinds of epithets directed at others involved in the process, but would only cover issues related to when a lawyer is representing a client.  I happen to think that’s likely true in any jurisdiction that has language like Tennessee’s RPC 4.4(a) even without going to the trouble of elaborating on the point as Idaho has in its rule.

But, Idaho’s approach is certainly an interesting one as something of a belt-and-suspenders approach to trying to stop such conduct by lawyers, but only when they are representing clients.

A rare example of the perfect application of RPC 8.4(c)

I’ve written in the past about issues associated with RPC 8.4(c) and how its potential application to any act of dishonesty on the part of a lawyer — no matter how trivial or unrelated to the practice of law it might be — makes it a problematic ethics rule.  A disciplinary proceeding presently being pursued against an Illinois lawyer offers an example of a situation to which RPC 8.4(c) applies perfectly.

The Illinois lawyer has been in the news within the last few weeks for the repercussions of his harassment of a fellow Illinois lawyer.  The primary focus of the media coverage has been on the creation of a fake Match.com profile for the purpose of embarrassing and disparaging a female lawyer.  It was that conduct that got the lawyer — Drew Quitschau — fired from the law firm in Illinois where he had been a partner since 2012.  A Law.com story dipped its toe into the waters of some of the other online misconduct involved, mentioning that he signed the other lawyer up for a membership in the Obesity Action Coalition and in Pig International..  The ABA Journal story was a bit more comprehensive in identifying the multiple membership or subscription organizations involved in Quitschau’s abuse which also included registrations/unwanted signups for Diabetic Living and Auto Trader.

But, the full picture of the extent of Quitschau’s attack occurring from June 2016 to December 2016 is best taken in through a read of the petition for discipline filed against him last month by the Illinois Attorney Registration and Disciplinary Commission.  There also were other acts of deception and fraudulent online activity that went beyond personal attacks into professional attacks as well.

The petition explains that Quitschau created a false negative review of the female lawyer on each of www.martindale.com and www.lawyers.com, and created a false Facebook account for the sole purpose of then using that persona to post a negative review of the female lawyer’s law firm.

Based on the timing of events, it appears to be efforts at professional harm was what Quitschau first tried against the female lawyer and only thereafter did he move on to harassment that was purely personal in nature.  That conduct isn’t “worse” in any true sense of the word as the other purely personal attacks are pretty vile, but the expanded activity that focused the deception and harassment on the female lawyer’s own reputation as a lawyer certainly comes closer to being conduct that might actually also be prosecuted as violations of other ethics rules and not just RPC 8.4(c) because the female lawyer and Quitschau had been opposing counsel in seven matters during an 8-month stretch of time during his course of conduct.  .

If the Illinois board could prove any connection between this conduct and Quitschau’s representation of any of those clients, then a rule like RPC 4.4(a) — which declares that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person” — could also come into play.

Regardless, the ability to pursue inexcusable conduct of the sort Mr. Quitschau undertook should be universally agreed to be a fitting use of RPC 8.4(c).

Learn something new every day. Or two things. Or three things. I’m not your boss.

About a week or so ago, I learned something new about South Carolina’s ethics rules – thanks to the law-student-powered blog of the University of Miami (FL) School of Law, Legal Ethics in Motion.  They wrote about a South Carolina federal court case in which a motion to disqualify premised on South Carolina Rule 1.18 was denied.  I learned a second new thing about South Carolina’s ethics rules in reading that opinion.

The first new thing I learned about South Carolina was that it has a weird-ish wrinkle in its Rule 1.18(a).

Most jurisdictions, including Tennessee, follow the lead of ABA Model Rules and have a version of Rule 1.18(a) that defines a “prospective client” as someone who “consults with” or “discusses with” a lawyer the “possibility of forming a client-lawyer relationship with respect to a matter.”

South Carolina, however, takes a different approach.  Its RPC 1.18(a) reads as follows:

A person with whom a lawyer discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form a relationship.

Now, that “only when there is a reasonable expectation that the lawyer is likely to form a relationship” language can have some obvious benefits in avoiding having to deal with certain situations where most folks would agree that the array of protections afforded to a person as a prospective client under RPC 1.18 just shouldn’t come into existence.  Like, if the only reason someone is reaching out is to get a lawyer disqualified – usually just dealt with through language in the Comment — this language should suffice to prevent RPC 1.18 protection from coming to pass.  Likewise, if say a person a lawyer has never met before calls out of the blue and starts running on at the mouth about their case before the lawyer could get a word – like “stop” – in edgewise, this rule’s “reasonable expectation” and “likely to form” language would be a very good tool for shutting down any RPC 1.18 argument.

But, even having only just learned of the existence of such language, I was still surprised to then learn what the federal court in South Carolina thought it meant.  Instead of resolving a disqualification motion on the basis that there didn’t seem to be any “significantly harmful” information that was ever transmitted, the court concluded that a series of events spanning a voice mail message, a telephone conference about a possible engagement, and an email exchange thereafter with a South Carolina lawyer was not sufficient to ever create the existence of a prospective client at all.

The court’s own description of the events is really all that should be needed to understand my surprise:

On July 7, 2016, Plaintiff’s attorney Jay Wolman (Wolman) called and left a voice mail for Wyche attorney Tally Parham Casey (Casey) about a possible engagement in a case.  Wolman and Casey discussed the possibility of Wyche’s serving as local counsel for Plaintiff in this matter in a telephone conference on July 11, 2016.  Wolman subsequently emailed Casey on July 11, 2016, and provided Plaintiff’s and Gari’s names “[f]or conflict purposes” and requested a fee agreement “[i]f there is no conflict.”  Casey responded on that same day with applicable hourly rates and stated, “I hope we get the opportunity to work together.”  On July 12, 2016, however, Casey sent Wolman an email stating, “I’m afraid we have a conflict and will not be able to assist you with this matter.”

Pardon the wordplay and all, but I’m not sure it is “likely” that a multitude of judges would agree with how that particular line was drawn on the RPC 1.18(a) front in this particular South Carolina decision.

While I am on the subject of South Carolina and its ethics rules, one other development is worthy of mention here.   South Carolina’s Supreme Court has issued a public censure against an Arkansas lawyer for his role regarding using investigators to “pose as customers in an effort to obtain evidence to prove that the defendant was violating the intellectual property rights of the plaintiffs.”  The Court explained that the Arkansas lawyer’s investigators “made false statements to the defendant’s employees and used tactics designed to prod the employees into making statements about the product,” and also “tape-recorded these conversations without notice to the employees.”

Many, many moons ago (2012), I wrote an article for an ABA publication called Landslide about the ethical problems for lawyers stemming from investigations relying on pretext in intellectual property matters.  I don’t think I’m bragging when I say that billions of people never read that article.  While it is probably a pretty safe bet to guess that this Arkansas lawyer was among the billions of people who didn’t read it, I can’t actually call that something I truly learned today because the conduct for which he is now being punished in 2017 with that public reprimand actually took place back in 2009.

Thus, if I’m flailing around trying to add one more thing to my list of nuggets learned today, it would have to be this, the South Carolina Court was actually a bit kind to this Arkansas lawyer in terms of how it described the problems.  It pointed out, in issuing a public reprimand against the lawyer in question, that the lawyer was “unaware that secret tape-recording, pretexting, and dissembling were in violation of the South Carolina Rules of Professional Conduct.”   Had it wanted to be a bit more damning in its explanation of events, it could have pointed out that the South Carolina rules upon which the discipline against the Arkansas lawyer rested (RPC 4.4(a) and RPC 8.4) say the same thing that Arkansas’s own version of those rules say and, thus, that it probably would not be a stretch to say that Arkansas’s ethics rules are also violated by (at least) pretexting and dissembling.

 

 

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

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

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

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

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

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

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

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

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

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

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

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.

Proposal to adopt Ethics 20/20 Revisions in Tennessee Put Out For Public Comment

Back in August 2012, the ABA House of Delegates approved revisions to the ABA Model Rules proposed by the ABA Ethics 20/20 Commission.  Very few of the proposed revisions included in the ABA Ethics 20/20 package are earth-shaking revisions, as many of them only involve change to language in the Comment accompanying certain rules.

The overall bent of the revisions, however, are to address aspects of the impact that technology has on modern law practice, highlight for lawyers their duty to, at the very least, keep abreast of and be competent regarding the types of technologies they use in their practice, and address a few other issues with good guidance regarding how aspects of globalization and the increased use of outsourcing interact with our ethical obligations.

More than twenty-five states have now adopted all or significant parts of the Ethics 20/20 package of changes.  Most recently Washington state has done this, with its revisions to become effective September 1, 2016.  Here in Tennessee, the TBA has filed a petition proposing adoption of almost all of those rule changes, and our Court has now put the TBA petition out for public comment with a November 17, 2016 comment deadline.  (There is also an Errata that the TBA put out to fix a redlining error made by the stupid Chair of the TBA Standing Committee on Ethics and Professional Responsibility when it was pointed out that we’d forgotten to pick up some changes to our RPC 5.5 that went into effect back in January 1, 2016.)

In my opinion, the most important, and most helpful, part of the Ethics 20/20 revisions takes place in RPC 1.6 by explicitly acknowledging the need to reconcile the duty of confidentiality with the duty to avoid conflicts of interest and the fact that, in reality, this means that lawyers need to be able to disclose some otherwise confidential information when looking at moving law firms or when firms are looking at proposed mergers in order to make sure to identify and address potential conflicts of interest under RPC 1.7.

The Tennessee proposed revisions would pick that change up.  Thus, if adopted, like the ABA Model, our RPC 1.6(b)(6) would now provide an exception to RPC 1.6(a) confidentilaity:

(6) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

If adopted, the TBA’s proposed revisions would also move the language about duties of safeguarding confidential information from the Comment to RPC 1.6 up into the black-letter of the rule itself.  Although our version of that rule would be place into a new RPC 1.6(d), instead of Rule 1.6(c) as in the ABA Model Rules because we already have a RPC 1.6(c) that deviates from the ABA Model Rules approach by imposing certain duties of mandatory disclosure of confidential information.

What we do not propose to pick up, however, are certain aspects of the Ethics 20/20 changes that were made to ABA Model Rule 4.4.  This is because, in Tennessee, we have a more robustly detailed version of  the rule that specifically addresses the duties of lawyers when they receive confidential information that they know or should reasonably know was inadvertently transmitted to them or that they know or should reasonably know was provided to them by someone not authorized to have the information in the first place.

Based on the November 2016 comment deadline, there is reason to be hopeful that these proposed revisions might become effective in Tennessee as early as January 1, 2017.  But, stay tuned.

Speaking of bad facts making bad law…

I’ve seen a number of short pieces around the Internet about the 70-year old Missouri lawyer who has gotten himself suspended for at least six months over a number of acts of misconduct, including (the thing most prominently mentioned) using information that his client improperly obtained by guessing someone else”s password.

There is no question that the facts, as laid out, in the Missouri Supreme Court opinion, justify a suspension and involve a violation of a number of ethics rules.  Specifically, there is no question that the use of the purloined information — payroll records and opposing counsel’s work product — was a violation of Missouri’s Rule 4.4(a) which prohibits the use of a method of obtaining evidence that violates a third party’s legal rights.  In addition, to the extent the tribunal concluded that that the lawyer had essentially threatened a disciplinary complaint against opposing counsel as leverage, it is a fair result to say that there was a violation of Missouri RPC 8.4(d), conduct prejudicial to the administration of justice, even though Missouri – unlike Tennessee- does not have an RPC 4.4(a) that specifically prohibits such threats.

But the rest of the ethics charges — all of which take issue with the lawyer not disclosing to the other side that his client had improperly obtained the confidential materials — is, at best, a lazy outcome and, at worst, just wrong, hence the “bad facts making bad law” title.

Unlike Tennessee, Missouri’s RPC 4.4 does not have any application to receipt of documents purposefully sent but by someone not authorized to have them in the first place.  It only addresses inadvertently produced documents.  As the opinion lays out the story, there was nothing inadvertent about this situation.  The lawyer’s client purposefully and intentionally provided the materials to the lawyer.  Nowhere in the opinion does the Missouri court cite to actual ethics rule language that would explain why the lawyer would be required to tell the other side about his client’s improper access to the spouse’s computer.  The closest it gets is when it misquotes language from a comment to its Rule 4.4.  Specifically, the court wrote:

The comment accompanying Rule 4-4.4(a) recognizes that lawyers “sometimes receive documents that were mistakenly sent or procured by opposing parties or lawyers.”  However, when a lawyer knows that he or she has improperly received information, “Rule 4-4.4 requires the lawyer to promptly notify the sender in order to permit that person to take protective measures.”  In this case, Rule 4-4.4 required [the lawyer] to promptly disclose his receipt of the information to Ms. Jones so that appropriate protective measures could be undertaken.

Except, Missouri’s Rule 4.4 most certainly does not require prompt notification to the sender unless the materials were inadvertently produced.  Importantly, the “sent or procured” quote by the court of its Rule 4.4 is just flat wrong.  The actual language of the Missouri rule is “sent or produced.”  The use of “procured” is a particularly unfortunate error because it makes it seem like the rule must contemplate purloined document issues when everything about Missouri’s actual Rule 4.4 is tied to inadvertence.

If Missouri had Tennessee’s version of RPC 4.4 – which requires notification for both inadvertent disclosure and unauthorized disclosure, then Missouri could look to RPC 4.4 and claim notification was required.  Given that the lawyer’s client’s improper access to the spouse’s computer could, for example, expose that client to criminal liability under federal law as a violation of the Computer Fraud and Abuse Act or the Stored Communications Act (or both), this is not merely an academic quibble.  It is one thing for a lawyer in such a situation to know better than to try to make use of the wrongfully obtained documents; it is another thing to flog the lawyer for failing to blow the whistle on their client’s wrongful conduct — potentially criminal wrongful conduct — by writing an opinion that makes it seem a matter-of-fact conclusion that a lawyer reading RPC 4.4 in Missouri would know they have to do that as well.

Because Missouri has a version of Rule 1.15 that is patterned after the ABA Model Rules, it does have an ethics rule on which it could have hung its justification for saying the lawyer was obligated to notify the opposing counsel about having the purloined materials.  Specifically, it could have pointed to RPC 1.15(d) and (e) as giving guidance:

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. . .

(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the lawyer shall keep the property separate until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. Lawyers shall cooperate as necessary to enable distribution of funds that are not in dispute.

Of course, doing that would have required that court to embrace the rationale that Doug Richmond and I have explained in a separate article written quite a few years ago.  Instead, Missouri now adds itself onto the list (along with Nevada) of courts that would rather disregard the plain language of their own Rule 4.4, than admit we’ve got a point.