500: A Multimedia Extravaganza.

So, in my most recent post, I ended by acknowledging that there was a milestone upcoming and that it seems like a circumstances creating odd pressure.

I have now managed to do this for more than seven years and by my best guess there is roughly 500,000 words of content on legal ethics now available on this site.

So, what could one hope for to accomplish with a 500th post to feel like it is a successful one? Something engaging? Something discussing important information? Something perhaps involving shameless self-promotion of sorts? Something touting a great organization I am lucky to lead at the moment? Something that involves a subject matter that might change the profession?

Sometimes life steps up and provides an opportunity to do all of those things at once.

Robert Ambrogi, a much more famous blogger than me and who also is the host of a well-known podcast, was kind enough to extend an invitation to me to appear on his LawNext podcast and discuss the origins, motivations, and other issues addressed in APRL’s recent proposal to overhaul and replace ABA Model Rule 5.5.

You can give that episode a listen at the link below:

LawNext: Ep 162: Is the End in Site for State Limits on Law Practice? (libsyn.com)

(Or, and it is always fun to hear me say this in my head when I hear it said on so many things I listen to, you can get it wherever you get your podcasts.)

APRL is leading the way toward modernizing the practice of law.

Yesterday was potentially a very big day in the world of lawyers and clients. I am very pleased to report that yesterday the Association of Professional Responsibility Lawyers released a proposed overhaul of Model Rule 5.5., called on the ABA to take action to adopt it, and disseminated a very thorough and detailed Report explaining why the kind of reform called for by the rule proposal is both entirely justified and long overdue.

I have spent some time over the last 24 hours talking with a few reporters about this development, and I intend to update this post with links to stories as they come out. But talking the situation through with reporters has also, I think, helped me distill down a bit how best to describe the potential significance of this proposal and how strikingly different it is from the sort of “stop gap” measures that exist today with respect to various ethics opinions that have been put out by states during the course of the pandemic.

First, because readers of the blog know that I seem to always manage to quote myself when I can, here is an excerpt from my letter to the current President of the ABA that describes what APRL is proposing:

Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time. At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.

Second, while I am only one of 10 co-authors of the Report itself, I want to highlight a very important portion of that report (obviously written by someone else with better writing skills) in terms of how a fallacy about how competence as a lawyer works under the current approach to lawyering and how that feeds into a disconnect that impacts problems with access to legal services:

A lawyer’s voluntary devotion to one area of practice, however, in no way restricts the scope of the lawyer’s license in their state. An attorney with 20 years of experience, but only involving family law, who learns of a neighbor’s, relative’s, or former client’s severe car accident may agree to represent that person. Similarly, a lawyer who, following admission to the bar, works in a non-legal setting for twenty years, faces no licensing restrictions in taking on that same personal injury case as long as they have an active law license. Moreover, a newly minted lawyer immediately after passing the bar could take on a family law case, a car-accident lawsuit, and a contract negotiation with a hospital for a physician. The lawyers in these scenarios might not be the best lawyers for the job, but the Rules of Professional Conduct assume that the lawyers can educate themselves about the subject matter and competently handle the case. See Rule 1.1, cmt. [2].


The “Competency Fallacy of Rule 5.5,” however, dictates that a lawyer licensed in “State A”, who has devoted their entire career to personal injury work for example, would not be competent to represent the car-accident victim described above (without the association of local counsel) because the lawyer is presumed to be incapable of knowing or coming to understand “the law of State B.” Instead, if that State A-licensed lawyer wanted to be able to regularly represent clients with personal injury cases in State B, the lawyer would have to obtain a second license to practice law, a license issued by State B. Those who accept the current systemic issues often rely upon arguments that lawyers who wish to be able to practice across state lines more freely can simply obtain such additional licenses through reciprocity. This option to pursue additional licenses through reciprocity is not an adequate solution, and for many jurisdictions, is simply not true.

APRL’s proposal is a long-time coming but also long overdue.

If you believe that our profession’s approach to the multi-jurisdictional practice of law needs to change, I would encourage you to support APRL’s efforts and speak out to help us effectuate change in your jurisdiction. The current ABA Model Rule, along with a variety of state ethics opinions issued during the pandemic, have given some solace to lawyers about what might be okay on a “temporary” basis.

APRL’s proposal, however, would lend permanence to the idea that as long as a lawyer is transparent with their client about where they are licensed, then they could live or have an office anywhere without fear that representing a client in some other state or assisting a client with navigating and interpreting the law of some other state would be unethical or illegal. Our proposal would also improve the lives of lawyers with traditional practices who go into the office of their firm every day and live and work in the same jurisdiction because they would not have to second-guess whether a client who wants to hire them can do so without also having to enlist the assistance of an additional lawyer simply because that other lawyer is “local.”

As an earlier portion of the APRL Report explains, APRL’s proposal:

acknowledges that clients must continue to be protected from the incompetent practice of law. However, the proposal also elevates the client’s right to choose counsel to a co-equal status in the context of the regulation of multijurisdictional practice and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries that prevent clients from choosing competent counsel of their choice even if the lawyer they choose is licensed elsewhere.

A copy of my letter to ABA President Turner, APRL’s proposed Rule 5.5, and the Report can be accessed at the link below.

To date, the only story I know that is up is this first, short one from Bob Ambrogi.

But stay tuned …

Edited to add additional articles:

Reuters.

ABA Journal Online

Bloomberg Law

Above The Law

2020 too?

This past year has certainly been … something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice versa, and being bolstered along the way by a surprisingly large number of attorneys willing to file politically-motivated lawsuits that in normal circumstances I’d like to think wouldn’t pass muster under Rule 11 or RPC 3.1.

These anti-democracy lawsuits continue relentlessly with a parade of lawyers who don’t seem at all deterred by sanctions imposed against other lawyers.

So what will 2022 bring? Other than hopefully the end of the pandemic. Surely we will get that. Surely.

Here is where I go out on a limb and make a prediction or too about the world of legal ethics over the next year.

First, given the focus of media attention on lawyers who continue to help high-profile clients pursue questionable legal objectives — not all of which involve subverting democracy of course — I think there will be significant attention and action taken on further defining prohibitions on lawyers assisting unworthy clients in illegal endeavors.

Along those lines, with a particular focus on combatting lawyer-involvement in money-laundering activities, the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Regulation circulated thoughts on potential ways to address that issue better in the ethics rules in a memo put out seeking public input on December 15, 2021. The memo previews a number of possible ways that the comments to the rules could be amended to better define obligations of lawyers in doing due diligence on clients and toward having lawyers have obligations to report suspicious activity.

Interestingly, the memo floats no proposed changes to any rules but only in the guidance offered in comments to rules. Thus, for example, there would be no effort under such a proposal to remove any ethical barriers that currently exist to forcing attorneys to support suspicious transactions beyond what already would be required by law. The potential revisions include:

  • Addition of a new Comment [11] to RPC 1.0 indicating that, as to a lawyer’s knowledge, that it “may be derived from the lawyer’s direct observation, credible information provided by others, reasonable factual inferences, or other circumstances.” And that a lawyer “who ignores or consciously avoids obvious relevant facts may be found to have knowledge of those facts.”
  • Adding several new sentences of guidance to Comment [5] to RPC 1.1 including: “In some circumstances, competent representation may require verifying, or inquiring into, facts provided by the client. Ignoring or consciously avoiding obvious relevant facts, or failure to inquire when warranted, may violate the duty of competence.”
  • Adding significant new language to the Comment to RPC 1.2 including: “To determine whether further inquiry is warranted regarding whether a client is seeking the lawyer’s assistance in criminal or fraudulent activity, including money-laundering or terrorist financing, relevant considerations include: (i) the identity of the client; (ii) the lawyer’s familiarity with the client; (iii) the nature of the requested legal services; and (iv) the relevant jurisdictions involved in the representation (when a jurisdiction is classified by credible sources as high risk for criminal or fraudulent activity).”

You can read the entire memo here and, if you happen to be planning to be in Seattle in February, you can plan to participate in a public roundtable discussion about the potential proposals.

Another area that I predict will be the subject of significant attention in 2022 is whether changes to RPC 5.5 are needed to better address modern legal practice. The restrictions imposed on the ability of a lawyer duly licensed in one state to represent clients in other states or to handle matters because they involve laws of a different state have been questioned, off-and-on, over the years, but the last almost two years of practice in a pandemic has helped push things to a potential boiling point. Perhaps never before has it been easier to make people see the relative-absurdity that RPC 5.5 can prohibit a lawyer with 20 years of business law experience licensed in South Dakota from representing a client in North Dakota who needs a contract drafted but would not prohibit a lawyer licensed in South Dakota who has never handled a tax matter in 20 years of litigation experience from representing a South Dakota client in a tax dispute. I anticipate that 2022 will bring efforts from a number of different groups to seek to modify RPC 5.5 to better offer “full faith and credit” to a lawyer’s law license.

In the meantime, thank you ever so much for your readership, stay safe, and I will see you again in January 2022.

Two ethics opinions: one good, one bad, but both reveal systemic problems.

So, New York and Florida. Interestingly, those states have been bookends of our nation’s problems with COVID-19 and with fighting it. New York got hit very badly early, given the concentrated nature of its population centers, but then engaged in a very serious effort of taking the virus very seriously and managed to significantly flatten its curve. Florida’s government ignored and downplayed the situation, and now is experiencing horrible daily numbers and now has overall numbers of cases and deaths that are worse than New York’s. The two states contrasting efforts though still combine to tell a large part of the problem plaguing the United States when it comes to the pandemic — the lack of a coordinated national strategy because we have an incompetent and dysfunctional federal executive.

Two recent developments in ethics opinions from each state also offer contrasting approaches to issuing ethics opinions, contrasting results, and combine to tell part of the larger story of issues plaguing the profession as a whole.

First, let’s start with New York State Bar Association Op. 1200 which is good on procedure but bad on outcome. This opinion addresses application of New York’s RPC 5.7 and the combination of legal services and wealth management services. It was issued after what would appear to be the traditional, efficient, process of receiving a written request for an opinion, having a committee meet and deliberate, and then issuing a written opinion.

The answer it gives to the question whether the same lawyer can render legal services to a client and, through another entity, provide wealth management services to the same person is baffling. Despite the clear rationale for a why a rule like RPC 5.7 exists and, despite the fact that RPC 1.7 should provide for the ability for a waiver of such a conflict, the answer provided is that the conflict is so severe as to be unwaivable. And the only real explanation that is proffered for why is that the lawyer is simply going to be making too much more money from the provision of the wealth management services than from the provision of legal services. Maddening because of all that implies about not only evaluating the conflict rules but how it can justify other assumptions raising questions about a number of other ethics rules that operate under the assumption that lawyers can do the right thing in terms of representing their clients ethically even when it is in conflict with their own financial interests.

Next comes Florida where there exists a proposed ethics opinion waiting on action by the Florida Supreme Court. Technically, it isn’t an ethics opinion as it comes from the Florida Bar Standing Committee on the Unauthorized Practice of Law, but given the relationship to RPC 5.5, that’s a bit of a tomato/tomahto situation.

Now, procedurally it is nightmarish. To get to the point of even issuing the opinion, they held what for all intents and purposes looks like the equivalent of a trial. Sworn witnesses and all. Even after that, it still has to be approved by someone else. Substantively, proposed Florida Advisory Op. 2019-4, would be good because it would conclude that a New Jersey-licensed lawyer who had retired from his job, moved to Florida, and then took a new job for a New Jersey company would not be engaged in UPL if he continued to reside and work in Florida (where he was not licensed) and advised the New Jersey employer about federal law issues.

Now, it is an opinion that shouldn’t be necessary at all for a few reasons, including that if all that is occurring is advising about federal law issues, then Model Rule 5.5(d)’s language should pretty straightforwardly and clearly allow that activity. Unfortunately, Florida curiously does not have that language in its rules and does not appear willing to facially admit the underpinnings of federalism and the Supremacy Clause that require that result. And, even if the question had been about general work for the New Jersey company remotely, it shouldn’t take the equivalent of a trial to figure out that the answer should be that no UPL takes place.

This may all have been less clear to the profession before the pandemic, but during (and if we ever get to a point of “post”) the pandemic it should be painfully clear that the physical presence alone of a lawyer in a particular location should not be dispositive of whether UPL is occurring.

For what it is worth, my proposal for a practical solution to the question of UPL in modern practice that would still allow for things that truly should be regulated to be regulated would be as follows:

There should be a uniformly used “totality of the circumstances/most substantial connection”-style test that evaluates:

  1. where the lawyer is located
  2. where the client is located
  3. if there is a contemplated legal proceeding (or other matter involved such as commercial transaction or closing) where that is located or expected to be located; and
  4. what state’s law would govern in such a proceeding (or other matter).

And, unless the majority of those factors involve a state where the lawyer is not licensed then it simply isn’t UPL.

If my math is correct that would mean that as long as any 2 of the factors touched the lawyer’s state of licensure, then the lawyer is free and clear (or stated differently, unless 3 of the 4 involve a state where the lawyer isn’t licensed, then the lawyer is free and clear).

And, there would still have to be a continued exception acknowledged for purely federal law situations.

Not breaking: Dentons didn’t have to say “aloha” to Hawai’i

Well, at least not the goodbye, “aloha.” They can still say the other one as much as they want.

So, you probably have seen a headline somewhere in your online surfing about this wacky issue litigated before the Hawai’i Supreme Court. But, just in case you didn’t, here’s all that I think you need to know about it.

Dentons, who has featured here a few times before, would appear to be the world’s largest law firm at present. Back in 2018, it swallowed up a Hawai’i law firm. Since then it has had lawyers in its firm practicing law in Hawai’i. Not the stuff so far of an interesting story.

In one of the pieces of litigation its lawyers have been handling in Hawai’i, they filed a motion to seek pro hac vice admission on behalf of a non-Dentons lawyer licensed in California. The opposing party opposed the pro hac motion not on the basis of any problem with the California lawyer, but on grounds that Dentons was engaged in the unauthorized practice of law. Why? Is a question you, dear reader, might ask. Well, because not every lawyer at Dentons is licensed in Hawai’i.

Sounds like a crazy argument doesn’t it?

It actually was a crazy argument, but it was an argument supported by a slightly-messed up court rule. You can read the entirety of the 21-page opinion resolving the situation here.

The short version of what you’d find if you had the time to read that 21-page opinion is that it is true that Hawai’i used to have extremely restrictive and parochial rules preventing anyone who was not a Hawai’i-licensed lawyer from serving as a partner in a law firm in Hawai’i.

Believe it or not, those restrictions were a part of Hawai’i’s ethics rules until 1981. Beginning with changes starting in 1981, those restrictions were lifted and modified. A number of places in the present ethics rules in Hawai’i clearly indicate that it must be true that a multi-state law firm can have offices in Hawai’i. (One of them is Hawai’i’s RPC 7.5 about letterhead. This marks the first time in history I’ve found an ethics rule about letterhead to have been a helpful part of a state’s ethics rules.) But there was still one Hawai’i rule, not in the ethics rules but a different Hawai’i Supreme Court rule that had potentially problematic language if you were part of a multi-state law firm — Haw. Sup. Ct. R. 6 “Lawyer’s Professional Business Organizations.”

Specifically, Section (d)(1) of that rule provided that “[s]hares or interests in a lawyers’ professional business organization may be owned only by a lawyers’ professional business organization or by one or more persons licensed to practice law in this state by this court….”

Sometimes it only takes the slimmest of reeds for a certain kind of lawyer to be willing to make what otherwise seems like an outrageously foolhardy argument on behalf of a client. Turned out that the lawyer opposing Dentons in this case was, at least for a short period of time, that kind of lawyer. (NB: If you are looking for further proof of any pet theories you have about living in a simulation, the lawyer’s surname is (no kidding) Bickerton and, according to this article from a publication in Hawai’i he had the chutzpah to actually call one of Dentons’ arguments a “dumb ass argument.”)

The Hawai’i Supreme Court was able to dispose of this issue, and avoid having to address serious constitutional questions that would have arisen had Bickerton’s client’s rule interpretation been given merit, by explaining that the rule in question had been superseded by implication.

The court also ended its opinion by addressing any concerns that might be raised over the possibility that attorneys not licensed in Hawai’i could direct the conduct of Hawai’i lawyers without being subject to the jurisdiction of the disciplinary authorities in Hawai’i. It did so by referencing case law that (thankfully) concluded that Oregon general counsel for an Oregon company was not engaged in unauthorized practice in Hawai’i by assisting from Oregon and being actively involved with local Hawai’i counsel.

That portion of the opinion seems only to have been necessary because Hawai’i is still operating with an antiquated version of RPC 5.5 in place. While the Hawai’i Supreme Court has these issues in the front of its mind, it really ought to give some thought to adopting a version of ABA Model Rule 5.5 to make things a bit easier over there.

Until then, Me ka aloha pumehana.

More UPL Madness From Ohio

You may recall some past discussion here of the prolonged saga of the Dinsmore lawyer who moved from one of its offices in Kentucky to its Cincinnati, Ohio office and nearly was denied comity admission in Ohio over accusations of the unauthorized practice of law.

While that story ended happily — she was ultimately determined not to have character and fitness problems after the Ohio Supreme Court decided that it was not the unauthorized practice of law for her to sit in a chair in Ohio and continue to work on Kentucky cases using her Kentucky license while awaiting bar admission in Ohio — it was unnecessarily messy for all concerned.

In the past, one of the points I have raised about bar regulators using UPL accusations as a cudgel is that it seems that many jurisdictions seek to have it both ways – arguing that you are always practicing law “in” their jurisdiction whether they have to put you there through being in a seat in the state or if they have to put you there despite the fact that your seat is in a different state.

The most recent UPL ruling out of Ohio demonstrates that Ohio apparently has this proclivity as well.

Right at the end of 2018, the Ohio Supreme Court issued an order concluding that a lawyer, who was licensed in New York, New Jersey, and California, and his law firm, had engaged in UPL by representing debtors who lived in Ohio. The order wasn’t actually a disciplinary penalty but it essentially enjoined them from further practice in Ohio, and imposed a $2,000 civil fine.

The Panel Report which the Court adopted through its order provided detail regarding the representation:

This matter involves Respondents’ representation of an Ohio resident, Timothy Hoover . . . .  Respondents executed a Power of Attorney document on January 6, 2010, through which Mr. Hoover appointed Respondents as “his true and lawful attorney.”  On May 14, 2010, Respondents on behalf of Mr. Hoover, issued a letter to Ohio attorney Lee Peterson, who represented CitiFinancial, Inc. (“CitiFinancial”), a creditor of Mr. Hoover’s.  Respondents held themselves out in the May 14, 2010 letter as Mr. Hoover’s counsel, identifying themselves as a law firm and referring to Mr. Hoover as their “client.”  A similar letter followed on May 27, 2010.  It appears that Respondents’ outreach coincided with a suit filed by CitiFinancial against Mr. Hoover in the Licking County Municipal Court for money owed on a note, though Respondents did not make, or attempt to make, an appearance in that matter.  Regardless, the facts are undisputed (1) that CitiFinancial sued Mr. Hoover, an Ohio resident, in an Ohio court based on transaction and default that occurred in Ohio, and (2) that Respondents, without any legal counsel licensed to practice law in Ohio, contacted counsel for CitiFinancial and purported to represent Mr. Hoover in debt negotiations on that Ohio matter.

Of course, the correct response to someone laying out those “undisputed” facts in a just world would be: so what?

Neither the order nor the Panel report it adopted provide all that much in the way of detail about any of the arguments made by the lawyer to defend himself against the charges (and, in fact, it mostly reads like he didn’t.)

A review of Ohio RPC 5.5 demonstrates though that there were at least two strong arguments that should have been pursued because Ohio’s version of that rule largely tracks the ABA Model Rules.

First, assuming that the lawyer truly was not only ever going to attempt to negotiate the debt reduction without ever being willing to appear in the lawsuit, the lawyer should have been able to argue that, as long as he had no reason to think he could not ultimately be admitted pro hac in the lawsuit if negotiation was unsuccessful, (c)(2) should provide sufficient cover. That rule provides the ability on a temporary basis to provide services:

reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

Second, assuming that the lawyer couldn’t look to (c)(1) because they were never going to do anything beyond negotiating, the lawyer could have looked to Ohio RPC 5.5(c)(4) for approval to contend that these negotiations for the client were ones that “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” This would be because, as the Panel report and Order also explained, the lawyer and his firm’s “practice includes counseling and assistance to individuals regarding the reduction of consumer debt. Once retained, Respondents contact their client’s creditors and attempt to negotiate a reduction of outstanding debts.”

Friday Follow Up: Ohio Gets to the Right Outcome on UPL

Almost exactly three months ago, I wrote about what I considered to be a very disturbing ruling in a lawyer admissions case in Ohio.  If you missed that post, you can read it here.

I’m pleased to write, in follow-up today, that the Ohio Supreme Court has ultimately gotten to the correct outcome – it has rejected the findings below that the applicant was engaged in UPL while working on Kentucky matters for Kentucky clients in an Ohio office while awaiting action on her application for admission in Ohio.  As a result, it has finally cleared her to be admitted to practice in Ohio after multiple years of waiting after transferring from a Kentucky office of her law firm employer to an Ohio office of that same firm.

The majority opinion does a workperson-like job at justifying that outcome by stretching the meaning of the word “temporary” to its furthest defensible point — anything that is not permanent.  But, as the fascinating-and-much-more-important-to-the-future-of-our-profession concurring opinion explains: the majority opinion did so at the cost of mostly ignoring other text of the rules – particularly the text of the relevant rule that limits when a lawyer can provide services “through an office.”

The concurring opinion deserves your attention and a full read.  It is my strong hope that the rationale and logic expressed in the concurring opinion is the rationale and logic which will be embraced moving forward by all courts and other bodies dealing with this issue.  If RPC 5.5 could be used to determine that a lawyer “working remotely” is engaged in UPL, then RPC 5.5 applied in that fashion is simply, but plainly, unconstitutional.

The core of the concurring opinion’s analysis is a strong and smart understanding of what such a rule is truly saying:

But when applied to a lawyer who is not practicing Ohio law or appearing in Ohio courts, [RPC] 5.5(b) serves no state interest. Plainly, as applied to such a lawyer, the rule does not further the state’s interest in protecting the integrity of our court system. Jones, and others like her, are not practicing in Ohio courts.

Nor does application of the rule to such lawyers serve the state’s interest in protecting the Ohio public. Jones and others in her situation are not providing services to or holding themselves out as lawyers to the Ohio public.  Jones’s conduct as a lawyer is regulated by the state of Kentucky—the state in
whose forums she appears.

The problem is that unless a specific exception applies, [RPC] 5.5(b)(1) holds one to be engaged in the “unauthorized practice of law” and subject to legal sanction therefor simply because one has established an office or a systematic and continuous presence in the state. The rule deems such a
lawyer to have engaged in the unauthorized practice of law regardless of whether her practice touches on the Ohio public or Ohio courts. In an earlier age, perhaps such a rule made sense. Before the advent of the Internet, electronic communication, and the like, a lawyer who worked in Ohio was almost always
practicing Ohio law. But today that is hardly the case. Any number of lawyers, for any number of reasons, may choose to do their work from Ohio. Yet that does not give Ohio a right to prohibit their conduct.

Indeed, imagine what would happen if the rule were strictly enforced. Are we to ban lawyers from setting up a secondary office inside their homes so that they can access their files remotely simply because their homes happen to be in Ohio and their practices in another state? What about a New York attorney who maintains an Ohio vacation home on Lake Erie and is there for several months of the year? Certainly such an attorney has a continuous and systematic
presence in Ohio, but are we really going to say that she has engaged in the unauthorized practice of law because she does New York legal work at her vacation home?

I would conclude that as applied to an out-of-state attorney who is not practicing in Ohio courts or providing Ohio legal services, [RPC] 5.5(b)(1) violates Article I, Section 1 of the Ohio Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Friday follow up: This week flu by.

Apologies for the lack of content this week, been down with the flu since Monday afternoon.

Two short items by way of follow up today worth highlighting with a hope of resuming this blog’s normal, sub-par output next week.

First, word has come out that the former Florida Bar President made the subject of the disqualification motion in the TIKD litigation has now withdrawn from representing TIKD.  You can read an update about that here.

Second, in complaining a week or so ago about the scope of Tennessee’s RPC 5.5(h) prohibition on employing suspended lawyers, I made reference to the fact that the rule could arguably apply even to a lawyer serving an administrative suspension.  This month brings news of the relatively rare occurrence of a lawyer actually getting disciplined for continuing to practice while administratively suspended in Tennessee.  You can read the release from our Board of Professional Responsibility about a lawyer getting publicly censured for continuing to go into the office for 7 business days while suspended for purely administrative reasons relating to not securing the necessary CLE requirements here.  These materials don’t mention whether the lawyer actually even knew during those 7 business days of their administrative suspension.  Presumably so or the public censure, which already sounds overly harsh, would be extremely harsh.  Under RPC 5.5(h), if she were employed by other lawyers during those seven days, they could potentially face discipline as well.

Which is bananas.

And, as to flu, I think I was probably fortunate to only get the B strain.  Reports this week about the extent of things are bad on that front.

So, stay safe.

Husband can’t control his wife, gets disciplined.

Sometimes titles for posts are tough to come up with, sometimes they are far too easy.  This is one of the latter and is offered both with a spirit of tongue-in-cheek silliness and because it is a truly perfect seven-word summary of a recent disciplinary case of note.

It is, of note, at least for discussion purposes, because it appears to be: (1) the right outcome; and (2) a quintessential example of the harm that my state, Tennessee, seeks to prevent through the existence of a very specific, black-letter rule.  Despite that, I’d still like to explain why I happen to think that the Tennessee rule, in particular, is still too harsh and the wrong public policy approach.

The case comes out of Illinois and involves a public censure handed down earlier this month.  The ABA Journal online wrote an article about it a couple of days ago but here’s the pithier description of events published by the Illinois disciplinary authorities:

Mr. Niew, who was licensed in 1972, was censured. His wife, Kathleen Niew, an Illinois lawyer, was disbarred in 2013 for misappropriating $2.34 million belonging to a client who she represented in a real estate matter. After her disbarment, Mr. Niew failed to ensure that his wife no longer maintained a presence in their law office and he also failed to supervise his associate, to prevent that associate from aiding Ms. Niew in the unauthorized practice of law.

The ABA Journal piece points out a bit more detail, explaining that the wife was disbarred in November 2013 but kept coming into the law offfice she had shared with her husband multiple days a week until June 2014.  You can get the highly unfortunate details of the wife’s wrongdoing at the ABA Journal piece.  (Spoiler:  financial wrongdoing.)

The reason that the husband’s role in the wife continuing to come into the office was, itself, a disciplinary problem is that Illinois has a Supreme Court Rule, Rule 764b, that bars a lawyer who has been disbarred or suspended from the practice of law for at least six months from maintaining a presence in any office where law is practiced.  That Illinois rule also imposes a direct duty on other lawyers affiliated with the disbarred or suspended lawyer to stake steps to insure that the rule is complied with.

This kind of rule, which we also have in our ethics rules in Tennessee, is one that I and other Tennessee lawyers have described to people as a rule that means, if you’ve been disbarred or suspended, you can’t even push a broom in a law office as a way of trying to make a living.

In Tennessee, over the objections of the Tennessee Bar Association, our Supreme Court put such a prohibition housed in our rules as RPC 5.5(h).  It acts similarly to the Illinois rule by completely barring involvement in anything surrounding the practice of law for disbarred or suspended lawyers, but it is solely focused on the other lawyers involved and is actually even more harsh than the Illinois rule in two respects.

The Tennessee rule reads:

(h) A lawyer or law firm shall not employ or continue the employment of a disbarred or suspended lawyer as an attorney, legal consultant, law clerk, paralegel or in any other position of a quasi legal nature.

It is harsher than its Illinois counterpart, first, because it applies (on its face) with respect to a lawyer suspended for any period of time not just for six months or more.  Arguably even where a lawyer has been suspended for only 30 days or, possibly, even when they are subject to merely an administrative suspension.  Second, it is harsher because it is not just limited to a prohibition on being physically present in a law office but applies to any employment of such a person by a lawyer or law firm.

In Illinois, for example, the public policy objections I have to such a harsh rule might be less pointed beccause the ability to work from home or otherwise remotely be employed to perform certain tasks could be a saving grace against the otherwise absolute barrier to opportunities for lawyer rehabilitation.  But not so in Tennessee.

While the Niew Illinois case that has gotten some attention certainly appears to demonstrate the right outcome for its circumstances, I still think rules like Tennessee’s are far too harsh.  Problems posed by the classic scenarios that such rules seek to prohibit can otherwise be addressed through provisions in RPC 5.5 that make it unethical for a lawyer to assist someone else in the unauthorized practice of law.

It seems that there ought to be exceptions to such an absolute prohibition; exceptions that it would be hard for reasonable people to argue against.  One could readily construct a hypothetical involving a lawyer who gets herself suspended because of problems associated with the handling of client funds or other deficiencies in their ability to handle the business aspects of the practice of law, but who might be an incredibly gifted researcher and writer.  Seems unduly harsh to foreclose that person’s ability to continue to contribute and benefit clients of other lawyers through performing such work for other lawyers with no access to client funds or even to the clients in question while rehabilitating themselves on their deficiencies.

At present, there simply is not.  The only potential route to rehabilitiation that could be available in Tennessee, apropos if for no other reason than our being called “the Volunteer state,” is that it does look like a disbarred or suspended lawyer could take on such assignments for free.

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.