Bad blogger doubles up on topics.

I had every intention of posting twice this week, but events, including being under the weather with general ick much of the week, undermined my intent.  So, this mediocre post will briefly hit two items.  And, with any luck, tie the two together in a way that makes this seem, in hindsight, the correct way to approach these topics.

The first, which is a potentially really big deal with respect to lawyer ethics rules and confidentiality, is a California decision expressly concluding that Sarbanes-Oxley preempts California’s ethics rule on confidentiality to the extent that California’s rule would prohibit an in-house counsel from disclosing confidential client information to pursue a wrongful discharge/retaliation claim.  California’s ethics rule on confidentiality is admittedly something of an odd duck as it is much more stringent than other jurisdictions and often appears to make it seem like California lawyers have to deal with disputes with their clients while having both hands tied behind their back.

The Bio-Rad Laboratories decision has fortunately been written about extensively already by a more prominent blogger who focuses on privilege issues.  You can read the discussion of Bio-Rad put together at Presnell on Privileges here.

Given all of the ways in which the corporate client had already waived privilege and confidentiality as discussed in the first 30 or so pages of the Bio-Rad opinion, the California court really didn’t need to weigh in on the preemption question, but the SEC filed an amicus to make clear its position and, being a district court decision, it isn’t surprising that the judge would offer up all the grounds to support its ruling.

The second is an Ohio advisory ethics opinion from early December 2016 that addressed issues associated with interpretation of RPC 5.5 and correctly explains why a lawyer not admitted in Ohio is not engaged in UPL, even if they are officed in Ohio, if pursuing an exclusively federal practice.  You can read Ohio Advisory Opinion 2016-9 here.  The Ohio opinion recognizes that the application of supremacy principles requires this conclusion.  There are, of course, a limited number of areas of law that a lawyer can practice that are exclusively federal, but they do exist.

The way these two items go together?  I’m not going to hold my breath, but Congress could address, through federal legislation, the problems associated with many aspects of the antiquated way in which various state bar or state regulatory entities address temporary practice in, or handling of matters touching on other state laws, under RPC 5.5 by treating things as unethical that really shouldn’t be in modern law practice — remember, for example, the silliness of the reprimand issued against a Colorado attorney by the Minnesota Supreme Court.

Administrative suspensions -another far too often route to UPL problems.

I’ve long been torn about lawyers losing their license and ability to practice law through administrative suspensions.

In Tennessee, for example, this can happen to a lawyer through failing to get your required CLE hours (TN requires 15 annually), or failing to pay your registration fees, or failing to turn in the necessary forms about compliance with certain trust accounting requirements.   There are other ways, but you get the drift; they almost all involve failures that are primarily about not keeping up with paperwork or missing repeated deadlines.  Thus, at some level, it seems like a harsh result to lose the right to practice for a petty offense.

Yet, in most situations, a lawyer has to be really, really delinquent, forgetful, or careless and miss multiple opportunities to correct the oversights before an administrative suspension actually comes to pass.  So, given that you are talking about a profession in which compliance with administrative details and deadlines is a pretty fundamental skill set and can make or break a client’s case, then it can be hard to argue against administrative suspensions as being fair.

Where it really becomes unfortunate is when the lawyer subject to the administrative suspension either does not know or does not care he is suspended and continues to handle client matters and places not only himself but his clients in jeopardy.  The jeopardy for the lawyer is disciplinary charges in the nature of engaging in UPL can be heaped on top of the administrative suspension.  The jeopardy for the client can be questions about whether the actions taken by the suspended lawyer are null and void, and potential questions about whether the privilege applies to dealings or not.

An instance (though admittedly a pretty extreme one) of a lawyer ending up disciplined for UPL while administratively suspended caught my attention thanks to a write-up earlier this month by the folks at the Legal Profession Blog.  The New Jersey Supreme Court on October 7 accepted the recommended decision from the Disciplinary Review Board and issued a reprimand against a lawyer for representing a New Jersey business 8 years after having her New Jersey license administratively revoked.

The May 31, 2016 decision of the DRB, involving a lawyer named French, can be found here.  It caught my fancy not only as an example of the time delays often involved before an administrative suspension kicks in but also because it offers parallels to a recent bad Minnesota UPL decision I wrote about earlier this year.

French, also licensed in New York where she apparently has been working in house for an accounting firm for almost 20 years without incident, was licensed in New Jersey back in 1991.  It is possible she never actually paid the required annual registration/assessment fees in New Jersey, but eventually her law license in New Jersey administratively revoked in 2005 on the basis that she had failed to pay the annual assessment for seven consecutive years.

French testified she was unaware of the revocation and actually unaware of the need to pay an assessment — she says her original law firm never told her.

This disciplinary mess came about when she proceeded to do a favor for a friend in a budding unfair competition/breach of non-compete matter involving two salons.  Interestingly, she went to the trouble of creating her own separate private letterhead for purposes of sending a cease and desist letter for the company owned by her friend, and (unsurprisingly) it was counsel for the other salon that brought to French’s attention the fact that her New Jersey license had been revoked.

Ultimately, the DRB decided only a reprimand (which is a lesser sanction in NJ than a censure) should be imposed despite being “troubled that respondent made no effort, for over fourteen years, to ensure her compliance with [assessment] obligations, and no effort, for over twenty years, to verify her status as a New Jersey attorney.”  French was certainly helped by the finding that her testimony was credible on her actual mens rea of just not knowing.  And the credibility of her testimony was helped by the fact that she had always kept her New Jersey CLE obligations up to date over the years.

Interestingly, two of the members of the DRB voted to impose a three-month suspension against the lawyer, which loyal readers (or NJ lawyers) will remember is the kind of suspension you get in New Jersey for acts of violence.

“Troubling and counterproductive” – yep

One of the more archaic aspects of lawyer regulation is the heavy-handed approach to UPL.  And, I’m not referring to UPL in the sense of something done that involves the practice of law by a person who isn’t a lawyer anywhere.  I’m referring to regulatory efforts involving UPL that are brandished against someone who is a lawyer somewhere but not licensed in the jurisdiction that happens to be doing the regulating.

Admittedly, a heavy-handed approach almost inevitably follows from the fact that our profession continues to embrace a model in which each state’s law is treated as being of such unique character in all respects that a lawyer in Wyoming cannot be considered competent to practice law in Wisconsin absent obtaining a Wisconsin law license in addition to the Wyoming law license.

The adoption of ABA Model Rule 5.5 — which has been embraced by many U.S. jurisdictions — was supposed to go a long way toward making the realities of cross-border practice a safer proposition for modern-day lawyers.  Unfortunately, a recent private admonition imposed in Minnesota on a Colorado lawyer offers a pretty good example of just how archaic and heavy handed the regulation of UPL continues to be despite such efforts.  Almost the only positive that I can bring myself to say about the matter at all is that Minnesota, at least, has truly private discipline and, therefore, the name of the lawyer disciplined is not obvious and public, which is why the case is styled In re Charges of Unprofessional Conduct.

Here’s the quick and dirty description of the scenario:  son-in-law, a Colorado lawyer, is contacted by his mother-in-law and father-in-law about a small judgment (less than $2500) entered against them and trying to help negotiate a better outcome as to its satisfaction.  In-laws live in Minnesota, owe money to a creditor who got the judgment in Minnesota, and the creditor is being represented by a Minnesota lawyer.  Colorado lawyer agrees to handle and then proceeds to have relatively extensive email communication with the Minnesota lawyer for the judgment holder.

Eventually, that Minnesota lawyer filed a bar complaint against the Colorado lawyer, and the Colorado lawyer was found to have engaged in the unauthorized practice of law in violation of Minnesota RPC 5.5(a).  Minnesota’s version of that rule looks pretty much like the ABA Model so the explanation doesn’t lie in some local variation.  Instead the explanation is mostly that this was regulation for regulation’s sake.

If you want to read the rationale of the Minnesota court, you can read the full opinion, at the link above.  There was a dissent – which is the source of the quoted language in the title of the post.  I can find fault with much of what the majority opinion offers as analysis, but what I’d rather talk for a moment about is how this outcome feels emblematic of a much larger problem in terms of the approach to regulation of this issue.

The Colorado lawyer argued that a number of the various exceptions set out in Minnesota’s RPC 5.5 ought to serve to protect what he did from being a violation but he also, quite understandably, argued that he was not practicing law in Minnesota at all because he was sitting in Colorado at all times.  The Minnesota court was having none of it as to that argument because the clients being represented were in Minnesota, and the matter was characterized as a Minnesota matter.  And there is some logic to that conclusion.

But, here’s the thing, I suspect Minnesota pursues a “cake and eat it too” approach on this issue.  When the facts are flipped around a bit, I worry that Minnesota wouldn’t hesitate to also conclude that a Colorado lawyer would be engaged in unauthorized practice in Minnesota if, while working out of an office in Minnesota, the Colorado lawyer only engaged in representation of Colorado clients in Colorado litigation.  Now, if it were just a temporary situation, like say a week-long vacation to the Mall of America or to visit his in-laws, then there probably would be no problem for the Colorado lawyer.

But, if the Colorado lawyer had moved to Minnesota because his spouse got a new job there because she wanted to be closer to her parents, then I’d venture a guess that Minnesota regulatory bodies would be willing to impose discipline against the Colorado lawyer premised on the notion the Colorado lawyer could not have that kind of systematic, continuous presence in Minnesota for the practice of law and that it would not matter that the Colorado lawyer was only handling matters remotely in a jurisdiction in which he fully licensed.

And that, at least to me, is emblematic of the scope of the problem.  I tend to think that neither situation should be treated as unethical UPL.  I acknowledge reasonable minds can differ on that opinion.  I’m not as inclined to offer up a reasonable minds can disagree approach though to the idea that a state should be able to conclude that both versions are a problem.  At most, a state should have to choose only one of them as being out of bounds.

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.

Friday follow up: In-house counsel amnesty deadline just a week away

In the very early days of this aspiring little blog, I wrote repeatedly about a number of proposed, and ultimately adopted, changes to Tennessee’s admissions and licensing rule, Tenn. Sup. Ct. R. 7.  Included among the implemented changes was one last chance at amnesty for lawyers working in Tennessee as in-house counsel but who were not properly licensed here.

The purpose of today’s post is simply in the nature of a public service announcement for any lawyers working as in-house counsel in Tennessee but who still may not have gotten their licensing house in order.  The deadline for turning in your paperwork for a registration license in Tennessee is July 1, 2016.  Even though time is now exceedingly tight, the paperwork to complete is still relatively easy.  You can access it over at the Board of Law Examiners website.

Over the years, I have represented a number of in-house lawyers that have had to deal with problems arising from not being properly licensed in Tennessee, and it really is important to stress that this last opportunity to have any such sins of the past washed away by getting properly registered before the deadline is really not one to be missed.

If you happen to be reading this and know of any in-house counsel in Tennessee, you might pass the link to this post along so that they can make sure they and all of their colleagues know of this opportunity to get squared away.  If you don’t want to just take my thoughts on this at face value, you can also go read more about the situation at the Administrative Office of the Courts website.

Redefining what it means to be a “nonlawyer.”

I’ve written (quite a long time ago now it seems, but it was only just last Spring) about the unfortunate nature of lawyers calling people who aren’t lawyers “nonlawyers” – rather than referring to them in a less condescending fashion such as “regular people,” for example.  But, I still do it all the time, so I’m little more than a hypocrite at the moment on this particular issue.  I will admit that usually the context of the discussion — especially if it is about legal ethics where the ethics rules repeatedly make reference to that term — can make it harder to avoid saying/writing it, but that’s not really the best of excuses.

Thus, the best way to eradicate the mildly offensive use of the terms would be to repurpose the word with a new definition.

Nonlawyer: n. someone who pretends to be a lawyer but actually isn’t one.

There would be two substrata of nonlawyers under this new definition: (1) a person who used to be allowed to practice law (see also “lawyer”), but who lost that right, and then continued to act as if they were still a lawyer; and (2) a person who was never actually licensed to practice law at all but have acted as if they were in dealing with other people.

In my reading pile from March, I find an instance of each of these two types.

Coming in the first category would be this New York nonlawyer who might be a real-life spoiler alert for fans of Better Call Saul (though can’t really say a true “spoiler” alert as much as speculation; I’m just guessing how/why James McGill ultimately has to take on the name Saul Goodman).  Most recently, Jay Lipis was disbarred in New York in March 2016 after he admitted that, during a time that he was suspended from the practice of law in Massachusetts, he continued to practice law but did so under a fake name – Jeffrey Kriger.  While still serving his suspension in Massachusetts, he went to work for his old personal injury firm:

as an unpaid “settlement consultant” reviewing files, valuing cases, determining demand amounts, negotiating settlements with insurance adjusters, and communicating with clients about settlement offers, without adequate supervision. Moreover, in conversations with insurance adjusters, the respondent at times falsely identified himself in order to conceal his identity as a suspended attorney, and at other times falsely identified himself as an attorney or failed to correct any misunderstanding that he was an attorney at the law firm

This summary of the 2015 order suspending him in Massachusetts provides more of the details and also makes clear that there were quite a few other issues of unethical conduct.  (For those that are interested in what, if anything, happened to the lawyers employing him at that personal injury firm, you can read about that over at the Legal Profession Blog.

Fitting into the second category would be Kimberly Kitchen.  Although her name actually sounds like a pseudonym, she wasn’t lying about her name… just about being a lawyer … for a decade.  In addition, to “practicing law” for almost 10 years before being caught, she also managed to serve as the president of a county bar association in Pennsylvania before being found out.  In March 2016, she was convicted of forgery, unauthorized practice of law, and felony records tampering.

There are, actually, a surprising number of people falling into this second category, and their existence (and short-to-medium term success) often says more about how lax law firms can be about doing background checks on the lawyers they hire than about why someone — with a seemingly infinite number of possible things to pretend to be — would choose being a lawyer.

Ms. Kitchen’s case, however, does not seem to be one where it is obvious that the law firm that hired her (at least the last one to do so and that was making her partner in April 2014 when the fraud came to light) failed to do sufficient due diligence, as NBC News reported back when the criminal charges were brought against her that she:

allegedly forged numerous documents attesting that she was a licensed attorney, including an attorney’s license for 2014, supposed bar examination results, supposed records of her law school attendance and a check purporting to show she’d paid her registration fees.

While there may seem like there were a number of available avenues where her deception could have been ferreted out given that she didn’t go about fabricating a nondescript background:

According to her resumé, she graduated summa cum laude from Duquesne University School of Law in Pittsburgh and had taught trust and taxation law at the Columbia University School of Law.

Yet, as the CBS news report on her conviction makes clear, she even forged an email from Duquesne to make it appear she had attended there.

A tale of two AGs – update on developments

So, in honor of this my 100th post to the blog, you’ll see that the site has been spruced up a bit with a new logo and look.  While the blog may now be more aesthetically-pleasing, the quality of the content isn’t likely to change (for better or worse).

You may recall a few months ago I wrote a little bit about the fact that 4% of the state attorneys general in the United States were under indictment.  I’ve refrained from posting any updates on what’s gone in since in Texas and Pennsylvania because there would, frankly, have been too many updates to post.  Yet, there is an aspect of 1 of the 2 stories that fascinates me in light of a particular ethics rule we have in Tennessee that I’m generally not a fan of but that, in this context, has a lot of merit.  So, I am posting this sort of “omnibus” version of an update in order to make that point.  (I am not qualified to try to weigh in on the politics of either situation, so I won’t.)

First, the much less interesting/less eventful-to-date of the two stories.  Texas’s AG is still facing criminal charges, has voluntarily relinquished certain aspects of his duties, and has recently moved to dismiss the indictments against him.  The prosecutors handling the case responded in opposition to the effort to dismiss just last week.  In the meantime, he continues to be a fully licensed lawyer under Texas law.

The second story has been, from a distance, much more entertaining to read about and certainly creates significantly more complicated ethics issues.  Pennsylvania’s AG has seemingly been in the news at least every couple of weeks since the criminal charges were first announced against her in August 2015.  She’s recently been sued by a few of the prosecutors who used to work for her.  The claims against her, defamation, false light invasion of privacy, and a civil rights/free speech claim, all are premised on the allegation that she leaked grand jury information and selectively released contents of emails they sent to try to silence them for criticizing her.

The biggest ethical issue that has developed over the last few months came about because her law license was temporarily suspended by the Pennsylvania Supreme Court as a result of the criminal charges.  Despite being unable to practice law, she has maintained that she does not have to resign from her position because much of her daily work is administrative or involves the making of policy and does not require her to practice law.  She also, around the time of her suspension, released  what she described as “pornographic” emails sent by one of the justices of the Pennsylvania Supreme Court.

Within the last week or so, media reports have come out about an internal memo sent to her by a group of her deputies in which they appear to be setting out a starkly different view of the situation and raising concerns under a few ethics rules about whether they are being exposed to potential disciplinary charges if they are somehow aiding her in the unauthorized practice of law.  This memo has apparently also garnered the attention  of a Pennsylvania Senate committee considering whether to attempt to remove her from her position.  You can read the AG’s response to a subpoena issued in those proceedings and a copy of the internal memo from her deputies here.

When I originally wrote about this situation, I mentioned that my state does not have a publicly-elected AG position.  Rather, our state AG is actually appointed by the Tennessee Supreme Court.  Reasonable minds can differ over whether that is a better or worse arrangement than public elections or having the Governor appoint the position. But I don’t think there is any real room for disagreement over the fact that if Tennessee ever found itself in this kind of pickle where our attorney general was suspended from the practice of law, that person would have to resign from the position altogether.

This seems clear to me because we have a provision in our ethics rules, RPC 5.5(h), that prohibits a law firm from “employ[ing] or continu[ing] the employment of a disbarred or suspended lawyer as an attorney, legal consultant, law clerk, paralegal or in any other position of a quasi-legal nature.”  Because our RPC 1.0(c) defines “law firm” to include “lawyer employed in . . . the legal department of a … government agency,” there would appear to be no reasonable argument that any suspended lawyer could continue to be employed during their suspension in the attorney general’s office.  Even if you credited the Pennyslvania AG’s argument that much of her job is administrative and focused on policy-making, that would be readily classifiable as “quasi-legal.”

I’ve been critical in the past of the existence of RPC 5.5(h) in Tennessee because of how it limits the ability of a suspended or disbarred lawyer to rehabilitate herself and because it imposes a one-size-fits-all approach where I don’t think such an approach is the best public policy.  But, watching the Pennsylvania situation from afar, it would be a welcome rule to have in that state right now to shut down at least one of the rings of that circus.

Back to the Future … of Legal Services

So, yesterday was Back to the Future day.  And that was fun.  But today I want to go back to the future of legal services… as a topic for discussion.

I’m on record as being a fan of The Law for Lawyers Today blog, but the way they close out a recent piece exploring whether self-help legal services are a solution for members of the public who currently cannot afford to pay for legal counsel or only make the problem worse leaves me with a bad taste in my mouth.  The piece, as a whole, is a well-done op-ed of sorts inspired by, and involving a recap of, an in-person talk in Cleveland by the GC of LegalZoom.

But I couldn’t disagree more with the way in which it is wrapped up, a way which feeds into a few myths and continues to encourage what I think is a wrongheaded view of the situation that faces our profession:

[The GC] closed with a rallying cry, urging lawyers and bar regulators to be more open to the LegalZoom business model, as part of increasing access to justice for legal consumers.

But many are far from being sold on the notion.  Frank DeSantis, a co-editor of this blog, for instance, is the former chair of the Ohio Supreme Court Board of Commissioners on the Unauthorized Practice of Law.  He noted that “UPL regulations exist to protect the public, not lawyers.  LegalZoom is very dangerous because it gives its users the false impression that they have received sound legal advice,” when actually they have just selected from some drop-down menus.  Legal consumers are often not in a position to know what they need to protect their interests.  That’s where legal advice comes in.  Creating and using the wrong document from a website can be more harmful than not having a document.

Reflecting on [the GC’s] described visit to the emergency room, DeSantis commented, “Legal self-help is as pernicious as medical self-help.”

A few of my issues here are that, while it is true that some aspects of UPL regulation exist to protect consumers, the reality is that a significant amount of UPL regulation really only serves to protect lawyers.  I have problems with the GC’s rhetoric as well for conflating businesses like LegalZoom and the services they deliver with what people normally think of when we talk about “access to justice.”  Products like the services that LegalZoom offers do not really exist as an alternative to legal services that the profession should be providing pro bono but aren’t.  These kind of services are marketed toward consumers who can afford to pay for the delivery of legal services but either cannot afford to do so at the rates that a lawyer would charge them or are not willing to pay that higher cost because they do not see the value in doing so.

But, the real problem I have with the treatment of this topic is the argument about the “danger” posed by such service providers to the public, bolstered in part by quotes from Frank DeSantis, who is an excellent lawyer.  While rhetorically well-constructed, closing out the blogpost by painting the existence of such services as endangering the public more than helping them misses the mark on the reality of the kinds of services that self-help legal providers are seeking to make available.  When we’re talking about consumers who live paycheck-to-paycheck, the reality is, that in most situations, access to low-cost, self-help platforms for relatively routine legal services works a lot like (and if our profession could more proactively attempt to embrace rather than vilify could work nearly exactly like) TurboTax does for the completion of income tax returns by members of the public who can’t afford to pay for the services of a CPA.  If you changed the subject matter from Legal Zoom to Turbo Tax and tried to imagine a CPA making the allegation that someone who uses TurboTax to do their taxes is going to end up worse off than someone who goes it alone (or letting the analogy more strictly parallel the actual quote in the article, someone who doesn’t file their taxes at all (i.e. has no document), a reader would have a hard time taking the claim seriously.

My view is significantly different.  To me, the reality of the situation for our profession is that we’ve priced ourselves into a position where consumers cannot afford the services we deliver, and those consumers have turned to a wide array of entities, like Legal Zoom and others, to deliver those services.  Self-help services are not going away.  Nor for that matter are a lot of other platforms competing with lawyers in the legal marketplace that don’t involve self-help but offer what are marketed as more efficient solutions to legal problems than retaining lawyers.  If we want to help ourselves, we have to find a way to help consumers get better help.  If you really do not want to believe me when I say that, look no further than the fact that the American Bar Association is teaming up with an entity to provide answers to a discrete legal question (and a follow up!) for a nickel less per instance than what we use to pay for foot-long sandwiches during promo months from a particular sub sandwich franchise that has lately been in the news for all the wrong reasons.

I tend to believe that our profession really only has three viable choices moving forward: (1) be more willing to better tailor the expense of our services to the needs of consumers so that people, who aren’t impoverished, but who consider hiring an attorney to be beyond their financial reach can better afford to hire a lawyer; (2) embrace and co-opt these other avenues for consumers to receive services that we are not willing to make affordable otherwise; or (3) at the very least, stop trying to argue that these providers should not be permitted to exist and work instead toward solutions that involve advocating for these providers to be regulated in some coherent and cohesive fashion.

And, who knows, if the general arena is better regulated so that a consumer who has used such a service and really has made their situation worse has a viable remedy to pursue, then they might hire a lawyer to help them pursue that remedy.  Plus, the providers subjected to the regulatory framework absolutely will be retaining lawyers to defend them and help them navigate the applicable regulations.

 

A rose may be a rose but UPL does not always mean the same thing as UPL.

So, you likely have read about or stumbled into something on the web about the remarks offered by the founder of Avvo at the ABA Meeting.  If you somehow missed having that hit your radar screen at all, you can read about it (and snippets of the remarks of the other folks who gave similar Ted-talk-styled remarks at the ABA Journal online) here.  (And, you ought to read all of the comments as they are as interesting/revealing as the story itself.)

The tl:dr version is that Avvo’s founder suggested that if the legal profession wanted to “innovate” and promote access to justice it should “get rid of UPL.”  If you’ve now spent the time reading all of the comments posted on the article, you’ll see that got at least few people pretty riled up by that and don’t have much to say about any of the other talks detailed in the piece.  Unsurprisingly, analogies were quickly offered up with the practice of medicine and whether it would be seen as “innovative” to allow anyone off the street to practice medicine, etc.  Universally, it seems that the reference to  “UPL” made by the speaker is being treated as saying that we should permit non-lawyers to practice law and, perhaps it was.  But there are two separate and distinct categories of things that both fall under the terminology of “UPL,” and I think it worth remembering the distinction in this context.  In addition to referring to the practice of law by a nonlawyer as UPL, we also refer to the practice of law by a lawyer in a jurisdiction other than the one in which she is licensed as UPL as well.

These are usually situations governed by completely separate regulatory entities and approaches.  For example, in Tennessee, UPL of the first variety can be by the state Attorney General’s office and is governed by a statute that makes the commission of the offense a crime.  UPL of the second variety (though there is nothing explicitly in Tennessee statutes saying it cannot be taken up by the AG’s office) is addressed by the Tennessee Board of Professional Responsibility in the form of potential disciplinary proceedings against the person for violations of RPC 5.5.

I tend to find that lawyers generally are more attuned these days to risks regarding cross-border practice.  I know and have encountered quite a few lawyers who take a very risk-averse approach to the topic by questioning whether they can represent a client in a dispute in state Y when they are only licensed in state X or whether they can advise a client about state Z’s laws when they are only licensed in state X.  Obviously not all lawyers are attuned to the risk or risk averse as we’ve seen in two cases getting some publicity this month – the first is only in part a story about UPL as the disbarment order visited upon an attorney who served as managing partner of a Maryland law firm without being licensed in Maryland is as much about fees charged to clients when no work was performed, trust accounting violations, lack of competence, and failure to supervise others in the firm as it is about the fact that the lawyer was only licensed in jurisdictions other than Maryland.  (And, yes, a lawyer can get disbarred from a jurisdiction in which they were never licensed in the first place.  That is a thing.)   The second appears to be a purely UPL issue involving two brothers who have been running a Rhode Island firm for almost two decades without being licensed in Rhode Island.  Both of the situations though do reveal that enforcement of restrictions on UPL by lawyers is obviously not the highest priority of state bar regulators.

And, in part, that is as it should be.  The restrictions on UPL exist in order to protect the public from harm.  The now disbarred Maryland lawyer harmed the public quite a lot.  The brothers in Rhode Island ended up on the radar screen for discipline when a former client filed a complaint about a claimed blown statute of limitations.  There are likely quite a few lawyers across the country who have undertaken conduct involving cross-border practice that was arguably UPL but they provided good services to satisfied clients and no problem was ever surfaced or examined.

I think the idea that the legal profession would simply drop all opposition to the practice of law by those who are not licensed anywhere in the name of innovation is a nonstarter.  It also isn’t likely something that would be seen as advancing access to justice.  Though, as I’ve highlighted here in a number of posts, approaches such as the creation of Limited License Legal Technicians (“LLLTs”) does appear to have some momentum.   But, if we’ve reached the point that geographical restrictions on the practice of law by lawyers are causing harm to the public’s interest and that aspects of what is spoken of as the justice gap in the U.S. might be remedied by making it easier for under-served populations to secure legal services from lawyers licensed in another jurisdiction, then couldn’t that actually be an innovation worthy of real consideration?

And, for what it is worth, such an innovation might actually be better described as just more incremental change.  Many states (like Tennessee) already recognize this principle when natural disasters strike by having passed revisions of recent vintage to their rules to permit lawyers to travel to a state struck by disaster and provide legal services despite not being licensed in the state in need of the services.

 

Problems of UPL are nothing new, but UPC?

I’ve written a good bit over the last few months about a variety of issues related to problems involving unauthorized practice of law issues for lawyers licensed in at least one jurisdiction.  Tennessee still has the pending petition filed by the Board of Law Examiners that should result in some form of practice pending admission rule that will eventually lessen instances in which lawyers coming to Tennessee might unwittingly find themselves at risk of being treated as having engaged in UPL.  I look forward to providing some additional information about events impacting that proposal in the coming weeks.

In the meantime, here is another reminder of the ways in which lawyers can not only find themselves running afoul of ethics rules through cross-border practice.  This lawyer’s situation is not one where the practice was at all occasional, as the record indicated that settling insurance claims for clients in Delaware was 10-15% of this practice during the periods in question.  His problem was that he was only licensed in New Jersey and Pennsylvania.  His problems are also a reminder that, through reciprocal discipline mechanics, this kind of misconduct can result in multiple hits of discipline, even including jurisdictions where you were never licensed in the first place.  The good news for this particular New Jersey-based lawyer is that he’s now been reinstated in Pennsylvania, one of two jurisdictions where his privileges to practice law were suspended as result of his unauthorized practice in Delaware.

In modern practice, wrestling with whether conduct is UPL under a jurisdiction’s version of RPC 5.5 can be tricky.  Deceptive use of UPC codes to save money on wine is an altogether different kind of tricky though.  That was part of the dishonest conduct leading to this Ohio lawyer making news for a two-year suspension arising out of stealing wine and then misleading disciplinary authorities about it.  Other than being a bit bizarre, this offers an effective reminder that RPC 8.4(b) and (c) extend in reach to acts by lawyers outside of the context of their representation of a client.  It’s also a reminder for lawyers that the reach of disciplinary proceedings can extend quite far back into your past.  In this instance, the lawyer ended up on the radar screen because, after getting arrested for the last of a series of a half-dozen incidents of swapping out the UPC codes on bottles of wine to pay much less at checkout for the product, the lawyer made a self-report about the conduct.  Unfortunately, the self-report came across as more self-serving and didn’t disclose everything the disciplinary authorities considered germane.  Thus, the order imposing the suspension the fact that the same lawyer had also eleven years earlier been arrested for just trying to shoplift 12 bottles of wine from a large grocery store chain and that the lawyer didn’t disclose this fact in making the report.

Vino?  Yes.  Veritas?  Not so much and that was the problem.