It’s always easy to get distracted by the cat.

So, if you’re involved in the legal profession, one thing was guaranteed to make it into your email inbox or social media feed or both. And, no, it wasn’t even the atrocious lawyering that was on display in the defense in Washington, D.C. of a former social media influencer. It was undoubtedly the 34 second video from a Zoom hearing of a lawyer who was stuck using a cat filter and didn’t know how to disable it.

I am extremely confident that you’ve seen the video. I probably watched it at least 5 times yesterday and laughed pretty raucously each time. Everything about it is pretty seriously funny. Except for one part. That’s the part that I think needs to be discussed seriously and, so far, hasn’t been.

Now I’m not going to weigh in on the “tech competence for lawyers and ethics” piece, others have already rapidly covered that ground. You can read three of the better quick pieces here, here, and here.

No, I want to focus on a slightly larger issue for lawyering and a much larger issue for the public at large.

While all the humor was occurring in the bottom right square of the video, the upper left square had text of warning. (Now, admittedly, the warning may have been disregarded in order for all of us to have seen the video, but it was still there and presumably appears ubiquitously in proceedings in that particular court.)

The language of warning read:

394th Judicial District Court

Recording of this hearing or live stream is prohibited.

Violation may constitute contempt of court and result in a fine of up to $500 and a jail term of up to 180 days.

Excuse me?

Earlier in my career, along with normal litigation and legal ethics work, I represented a few media entities from time-to-time including work on access to courts issues so I can still remember many of the better quotations by heart, including this one:

What transpires in the courtroom is public property.

Now I remember the quote off the top of the dome, but have to look it up to be able to tell you the name of the U.S. Supreme Court case it comes from, which is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and, actually, is quoting an even older U.S. Supreme Court case, Craig v. Harney, 331 U.S. 367 (1947).

The pandemic has sown much chaos and disruption into our judicial system. This has been particularly difficult for people facing criminal charges as many have had to languish in prison for inability to take their case to trial in states where in-person judicial proceedings have continued to be prohibited because of the risk of transmission of the virus.

The ability to allow the business of the courts to continue through remote virtual proceedings has been a positive, but the cavalier nature in which courts are disregarding the issues associated with finding ways for the public to still have access to proceedings is not at all a positive for our system of justice.

While the restrictions on physical access to court proceedings where such in-person proceedings still take place can be justified on emergency grounds of being necessary for the protection of the actual, physical health of the public, presumptive restrictions on members of the public being able to monitor and watch judicial proceedings that are able to happen online are very unlikely to be justifiable as necessary at all. Such restrictions also are harmful to the health of our judicial system.

As another of the most important cases serving as the foundations of public access to judicial proceedings fleshes out, allowing for people to see and scrutinize trials and court proceedings “enhances the quality and safeguards the integrity of the fact finding process” and “fosters an appearance of fairness, thereby heightening public respect for the judicial process.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982).

The fact that our profession, 11 months into a pandemic, is being pretty blithe about the idea that the contents of public court hearings in February 2021 come with a broadcast threat that you could go to jail for recording them or sharing the contents of a live stream of them is not at all a good look for attorneys, judges, and the system.

The ethics rules in most jurisdictions (patterned after ABA Model Rule 6.4) make clear that lawyers are allowed to participate in judicial and legal reform efforts even if doing so might get you crosswise with the interests of clients you represent, I’d like to encourage lawyers out there to be more willing to do so to make certain that the increasing trend toward making what happens in court proceedings essentially private comes to an end.

DC Ethics Opinion 370 – Y’all knew I wouldn’t be able to resist

So, the D.C. Bar has come out with a far-reaching, sort of two-part ethics opinion addressing lawyers and social media usage.  Opinion 370 (Part 1) can be grabbed here.  Opinion 371 (Part 2) from here.  Opinion 370 has lots of really good parts, but much of the publicity it has received to date revolves around something it throws out for lawyers to bear in mind and be wary of that hasn’t really been said by opinion-writing entities before.

Here’s how the ABA Journal online headline treated it – “beware” of “social media statements on legal issues.”  Other aspects of the reporting I have seen described it as warning lawyers who offer opinions online of the potential for creating an “issue” conflict.  There’s a reason, I think, this topic hasn’t been explored much by other opinion-writing bodies:  it is a relatively silly and irresponsible take.  Regardless, given the minimal treatment of the issue that the opinion offers, even if you think there were merit to flagging the issue for consideration, the portion of Opinion 370 that “addresses” it still would be better left on the cutting room floor.

Here, in its entirety, is the analysis of this issue as a risk for lawyers from the DC Opinion:

Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer’s own financial, business, property or personal interests,” unless the conflict is resolved in accordance with Rule 1.7(c). Content of social media posts made by attorneys may contain evidence of such conflicts.

Now, to help get your bearings straight if you aren’t a D.C. lawyer, D.C.’s Rule 1.7(b)(4) is different from what is set out in the ABA Model Rules and, thus, different from what we have here in Tennessee (for example) in the closest equivalent rule, RPC 1.7(a)(2).  Our RPC 1.7(a)(2), just like the ABA Model, establishes a conflict of interest — albeit a potentially consentable one — where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

In a (stop-me-if-you-heard-this-one-before) well-done story by Samson Habte with the ABA/BNA Lawyers’ Manual on Professional Conduct, some quotes are gathered from folks pointing out that the concept of an “issue” or “positional” conflict of interest necessarily involves or requires taking contrasting positions in front of one or more tribunals and, thus, a lawyer’s public statements of opinion about a legal question couldn’t create a positional or issue conflict.

In Tennessee, for example, we address issue/positional conflicts of interests in Paragraph [24] of our Comment to RPC 1.7.  While incapable of being that kind of conflict, supporters of the D.C. Opinion warning might argue that it is still a risky endeavor to express opinions about a legal issue because the lawyer might then have a “personal interest” in how something is resolved that would materially limit the ability to represent a client.

To me, that kind of approach to the topic not only misunderstands what it means to be a lawyer representing a client but also what the rules say in a variety of places it means to be a lawyer at all.  I’ll stick for now to just the Tennessee rules though I’d venture a guess that similar principals are laid out in D.C.’s rules.

In the Preamble to our Rules, in the second paragraph, we lay out a list of things that a “lawyer” is and, included among them, is “a public citizen having special responsibility for the quality of justice.”  In the seventh paragraph of the Preamble to the Rules we say:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession.  As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law; and work to strengthen legal education.

Further, we have a rule, RPC 6.4, patterned after ABA Model Rule 6.4, that specifically makes the point that lawyers can ethically undertake service in connection with entities that seek to reform the law or its administration even though such efforts could detrimentally affect the interests of a client of the lawyer.  If a Tennessee lawyer can engage in organized efforts to reform the law even though those efforts, if successful, might detrimentally affect the interests of one of the lawyer’s clients, then absolutely they can make public statements about what the law should be without violating the ethics rules.

Now, might a client decide not to hire a lawyer who has already indicated a personal belief contrary to the client’s position.  Sure, and they’d have every right to make that decision.  But they might also make a different decision and think that, if the lawyer is willing to take on and argue their position despite past public statements to the contrary, it would make their arguments stronger.

To my knowledge. opinion-writing entities have never warned lawyers about writing learned treatises or books on legal subjects or discouraged lawyers from speaking at Continuing Legal Education events or seminars (which are these days often videotaped and archived) because of some notion that expressing an opinion about a legal issue could create an ethical conflict for the lawyer.  Seems to me that the same “logic” that drove the almost offhand reference by the DC Bar in the Ethics Opinion could be applied to tell lawyers to “beware” of such other activities as well.

One thing I hope everyone could agree upon though is: if you are going to go to the trouble of injecting this issue into what is otherwise an extremely lengthy ethics opinion, then you should have done a better job of tackling the issue comprehensively rather than simply throwing out a half-baked statement that could serve to dissuade lawyers from speaking out.