My 300th Post. The shady “Stormy” story gets shadier.

If you had told me back in March 2015 when I started this blog that my 300th blogpost would struggle with trying to decide which angle of a statement to The New York Times made by a personal attorney for the 45th President of the United States about paying $130,000 to a porn star to apparently buy silence regarding that porn star’s past affair with the President at a time that was within months of the President’s third wife giving birth to his fifth child would be worst legal ethics bit, then I … well, I don’t even know what I would have begun to have thought, much less said.

But this is the reality of the world in which we now live.  So, here we are.  Let’s get this over with.

You’ve certainly likely already reports from yesterday either The New York Times article itself, or the thoughts of other folks online about the story which are too numerous to try to link to at this point.  The very short version is Michael Cohen, a New York lawyer who has been the private, personal attorney of the current occupant of The White House and who was, in the recent past, something of an in-house attorney for the 45th President’s family corporate organization has now provided a statement to one of the largest newspapers in the nation — that he says echoes substantively what he has told the Federal Election Commission — that he personally paid $130,000 to a woman, who goes professionally by the name, Stormy Daniels, and was not reimbursed directly or indirectly by the current President’s campaign or his family corporate organization.

I am a lawyer – I may have mentioned that on one or more occasions.  For anyone who might be reading this and wondering what it is like to be a lawyer, Mr. Cohen’s experience as he describes it is definitely not what lawyers do.  The best of our profession often times think of ourselves as, and even describe ourselves, as problem solvers.  But we traditionally are not allowed to solve problems for people simply by throwing our own money at the problem.  That aspect is just one of the ways in which this incident, and how the statement describes it, raises a whole host of immediate, problematic ethics issues for discussion.

Those include:

(a) If Cohen’s statement about the transaction is true, it might have been a violation of New York’s ethics rules on business transactions with clients or not providing financial assistance to a client regarding litigation or certainly otherwise a scenario that creates a serious, personal interest conflict of interest for the attorney.  (b) The making of the statement itself is not something a lawyer should likely be doing unless he’s been instructed to by the client because it just made things worse for the lawyer’s client because the porn star who had been worried she was still under an NDA now believes she is free to speak out about the affair and actually confirm other media reports rather than being coy about the whole situation. (c) It also is quite likely that Cohen’s version of the events is probably not 100% the truth, key details have been omitted, and it could very well, if nothing else, be a violation of a rule such as RPC 8.4(c).

Now, in trying to discuss such topics at length, I could repeat what other fine lawyers on the ground in New York and who are well versed in ethics have now already said in a story in The ABA Journal online about the likely violation of New York RPC 1.8(e), but I won’t.  You can read what they say at this link instead.  (Plus, I quite recently wrote about a somewhat similar kind of situation involving a much less crazy overall scenario and so it seems like it isn’t necessary to write more about the “doing a financial favor for a client” piece of the puzzle.)

I could also spend some time complaining about the fact that much of what I first read online posted by journalists about Cohen’s statement was how everybody kept claiming that Cohen had said he’d paid the money to Ms. Daniels “out of his own pocket,” which he never actually said apparently.  But, instead you can go read a good take on that aspect of the situation here.

I also could focus on the fact that, without respect to the shadiness of the whole transaction and how problematic that is for a lawyer to be near, the decision to give a statement to The New York Times appears likely to damage his client as Ms. Daniels is now signaling through the media that she can tell all because Cohen’s public statement confirming the payment is a breach of the NDA she signed.  But, there is already a better article about that development you can read here.

Instead, I want to point out my own opinion, given the way a certain someone is known to operate, about how this likely went down:

Cohen is likely telling the truth about paying with funds of his for which no one reimbursed him, but omitting the most salient detail.  He probably wasn’t “reimbursed” by anyone after making the payment because he was probably provided those funds, pretty much immediately in advance of the transaction, as some sort of bonus or even a “gift” with the tacit understanding about what he was expected to do with those funds — purchase Ms. Daniels’s silence.

So, under that theory, if Cohen’s conduct is unethical, then it is probably because it either is, or might very well be akin to, money laundering or money laundering in reverse. . . if that’s a thing.

Idaho why I insist on punny titles.

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

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

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

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

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

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

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

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

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

I Dowd that very much.

Last week was a pretty eventful week in the area where politics and the law overlaps, and an initially bizarre turn of events that was made more bizarre by subsequent claims injected some questions of legal ethics into events on the national stage again.

What I’m talking about is all stuff you’ve likely already read about.  In short story form, it goes like this: the news of the guilty plea of former National Security Advisor Michael Flynn for lying to the FBI, followed shortly thereafter by an incredibly-unwise-seeming Tweet by the current occupant of The White House that was quickly discussed by others on-line as amount to direct incriminating evidence of obstruction of justice by that current occupant, followed then by claims that the current occupant of The White House didn’t actually write that Tweet and that, instead, the Tweet was drafted by one the current occupant of The White House’s personal lawyers, John Dowd.

Now, what do I believe in my heart of hearts happened.  That’s easy.  I’m a staunch believer in Occam’s Razor, so I believe that the same old man who has consistently, inappropriately used his Twitter account to say stupid things, spew vitriol, and retweet white supremacists and Islamiphobes tweeted something without thinking it through, and did so either without consulting with his counsel or simply with disregard for legal advice he was given about Tweeting about such things.  After that, I believe that one of his lawyers, fully recognizing just how problematic the contents of the Tweet were for his client, has decided to try to reduce the impact of the client’s admission by claiming that he was actually the author because that has, in turn, allowed him to claim to have been mistaken about what his client knew at various points in time.

I’m not writing this to claim to be the end-all-be-all on this line of reasoning actualy, but to address two things that I have seen others write about this situation that have bugged me.  Those sentiments are: (1) that it couldn’t have been written by the lawyer, Dowd, because the lawyer wouldn’t incorrectly say “pled” instead of “pleaded,” and (2) that if Dowd is lying about having been the one who wrote the Tweet then he ought to be disbarred.

I think both of those sentiments amount to hogwash.

As to the first one, I’m a lawyer – and I like to think I’m a fairly decent one – and I prefer to use “pled.”  I’ve seen people point to the AP Stylebook on “pleaded” versus “pled,” and I’m also well aware that Bryan Garner insists that “pleaded” is the proper usage.  Nevertheless, I fall into the camp of lawyers like the King & Spalding lawyer quoted back in this ABA Journal piece on its usage, who believe it is the better term to use to indicate the past tense verb form, and would certainly use it even in real-life writing.  It is not unfathomable that Dowd might fall into that camp as well.  Further, it is damn sure the better term to use on Twitter where character limits matter greatly.

As to the second one, there would definitely be an ethics violation or two (or three) for which Dowd could be charged with violating if he is lying about being the author of the Tweet in question in order to protect his client.  Nevertheless, to jump to the notion that the appropriate discipline for that would be disbarment is a bit silly.

A lawyer who would lie about the authorship of a client’s Tweet that could otherwise be an admission of a crime would run afoul of a couple of obvious rules, such as RPC 8.4(c) and RPC 4.1(a).  The ABA version of those rules respectively provide as follows:

Rule 8.4:  Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person.

The lawyer could also be subject to a charge of violationg RPC 7.1 which people often forget does not only apply to advertisements.  The ABA version of that rule provides:

Rule 7.1: Communications Concerning A Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

In this sort of context, an interesting question could be raised about whether the lawyer would also have violated RPC 3.4(a).  The ABA version of that rule provides:

Rule 3.4: Fairness to Opposing Part and Counsel

A lawyer shall not:

(a) unlawfully . . . alter . . . a document or other material having potential evidentiary value.

But, the idea that such an offense or offenses by Dowd would be punishable by disbarment is a bit silly.  A quick review online of publicly-available information shows that Dowd has never previously been the subject of any public discipline.  He’s been practicing for 50 years without even receiving a public censure.  Unless he managed to hire a lawyer to represent him who has been as sloppy as the lawyers folks associated with the current administration have hired to defend them, then I can’t imagine that outcome coming about if any disciplinary case were ever brought against him.

And, on that subject, given Dowd’s other missteps along the way in this high-profile setting, it weirdly is a bit more difficult to rule out the possibility that he actually was the one who exercised the poor judgment of creating the content of, and presumably even sending, that Tweet for his client.

Three-For-Tuesday.

Any old radio station in your town (most probably one playing “Classic Rock”) can provide you with a Two-For-Tuesday, but where else will you find a Three-For approach to this otherwise underrated day of the week?

First, I recently let you know that Tennessee was in play with a proposed version of RPC 8.4(g) to make harassing and discriminatory conduct related to the practice of law a violation of the ethics rules.  The Tennessee Supreme Court has put that joint petition out for public comment and has set a March 21, 2018 deadline for submissions.  So, by the time we know the outcome of the joint petition, you’ll have had the chance to go see two highly-anticipated film adaptations of very good books, A Wrinkle in Time, and Ready Player One.

Second, I’ve written recently about how rare lawsuits tend to be where a lawyer or law firm sues another lawyer or law firm over marketing activities.  There are lots of reasons that firms can tend to be reluctant to file such suits, but if you are looking for various objective indications of just how harshly competitive the marketplace for legal services is getting these days – and how much lawyers perceive their futures to be at risk – the fact that such suits seem to be happening with greater frequency is one such indicator.  Here is a link to the latest example where one advertising law firm has sued another over advertising firm over the design of billboards and whether those are serving to mislead consumers into confusion over which is which.

One of the billboards says “Injured?  Results You Deserve.”  The other says “Injured?  Don’t stand alone.”  Now, neither one of them are exactly fabulous exemplars of good marketing I guess.  I mean, you might see the first one and think, I’m kind of a shiftless person and I’m not sure the accident was anyone’s fault.  I’d rather not get the result I deserve.  And the other one might strike you as tone-deaf if you were so badly injured that you can’t stand at all.

Either way though, let me say this, there is a movie out in theaters now called Three Billboards, and I think a good third one to put out on this Massachusetts interstate would be one that reads:  “Injured?  Not by my billboard.”

Third, and speaking of advertising, based on this recent headline out of Ontario, it appears pretty clear that my words of wisdom and encouragement to a throng of Canadian lawyers suggesting they chill out about advertising issues was not a butterfly-flapping-its-wings-bringing-about-global-change kind of moment, but more akin to the impact that a butterfly makes on the windshield of a moving car.  In keeping with today’s theme, while it is incredibly untimely as far as movie recommendations go, it is still true to say that if someone is going to force you to watch an Ashton Kutcher film, The Butterfly Effect is your best option.

RPC 8.4(g) – Tennessee is in play

I’m pleased to report that, yesterday, a joint petition was filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility asking the Tennessee Supreme Court to adopt an RPC 8.4(g) patterned after the ABA Model Rule.

As I’ve written here in the past, I’ve long been hopeful (not necessarily optimistic but certainly hopeful) that states like mine would take action to enshrine a prohibition on harassment and discrimination into our ethics rules.

You can read the petition filed yesterday by clicking on this link: (filed_tsc_rule_8_rpc_8.4_g .)  As you’ll see, in my capacity as Chair of the TBA Standing Committee on Ethics and Professional Responsibility, I am one of the signatories on the petition.  I am certain that there will be some public comments filed in opposition to the petition, but I’d like to think that the fact that both the TBA and the BPR are behind this effort will make it more viable for the Court to grant the petition even in the face of some opposition.

More importantly, as a matter of principle, I think the petition is one that should be granted because the proposed rule is a good and necessary one.

We’ve made some very good additional revisions to the ABA Model Rule in our drafting process — additional revisions that even more clearly help delineate that the kind of conduct prohibited by this proposed rule is conduct that has no place in our profession but does not go so far as to infringe on important First Amendment rights of lawyers.

We made two prominent, and I think important, revisions in the new comment paragraphs that would elaborate on the new (g) provision.  Exhibit B to the petition offers a redline showing how what we have proposed differs from the language of the ABA Model Rule, but I will lay them out here because of the significance.

First, we have added the following final sentence to Comment [4]:

Legitimate advocacy protected by Section (g) includes advocacy in any conduct related to the practice of the law, including circumstances where a lawyer is not representing a client and outside traditional settings where a lawyer act as an advocate, such as litigation.

Second,  we have added a Comment [4a] not found in the Model Rule, that provides:

Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment.  Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section.

I anticipate that our Court will likely put this proposed rule change out for public comment before the end of the year.

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

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

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

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

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

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

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

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

It’s been a while.

Today I’m going to splice together two short discussions about topics that I haven’t mentioned in a while.  (And, for any fans of the podcast U Talking U2 to Me that are out there, you do have to read the title of this post to sound like the first words of this remake right here.)

I have not written in a while of an instance of a lawyer getting into disciplinary trouble over saying too much in the process of withdrawing from a client representation.  But it’s happened again, so it’s worth reminding people not to do that.

A week ago, the Ohio Supreme Court issued its opinion affirming a recommended one-year suspension (but with all of the suspension stayed) for a divorce lawyer who paired an affidavit with his motion to withdraw from a client’s matter.  The Ohio court succinctly laid out the problematic contents of the affidavit:

In the affidavit, he recounted communications he had had with
[the client] about the scope of his representation and his compensation, accused her of refusing to pay his agreed-upon fees “without cause,” and disclosed legal advice that he had given her. He also described [the client]’s discharge of him as “retaliatory” and alleged that it had “occurred because of [his] advice to her
concerning her objectionable and potentially illegal actions” relating to her ex-husband, which he characterized as “a problem similar to the one [he] experienced in [his] previous representation of her.”

The Ohio opinion not only cogently walks through why the lawyer’s attempted arguments that such disclosures were permitted to be made under exceptions set out in Ohio’s Rule 1.6(b) weren’t triggered, but also stresses another point too often overlooked by lawyers even when they might have justification to make certain disclosures:

Finally, even if [the lawyer] had reasonably believed that Prof.Cond.R. 1.6(b) permitted him to disclose [the client]’s allegedly fraudulent conduct, the means by which he chose to do so were improper. The comments to Prof.Cond.R. 1.6 clarify that when a lawyer believes that disclosure of client information is
necessary, the lawyer should first seek to persuade the client to take suitable action to obviate the need for the attorney’s disclosure and that a disclosure adverse to the client’s interest should be no greater than necessary to accomplish the purpose. Prof.Cond.R. 1.6, Comment 16. And “[i]f the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent possible.” Id. Here, [the lawyer] failed to notify or communicate with [the client] about the allegations in his affidavit prior to filing it, and he did not attempt to limit public access to the document.

Another topic I haven’t mentioned in a while is ABA Model Rule 8.4(g) and how it’s playing in various states.  You will recall on at least one occasion when I did write about it, I mentioned how one of the ABA’s talking points was that somewhere north of 20 states already had black-letter rules in one form or fashion making acts of discrimination unethical.

About three weeks ago, one of those states, Vermont, just decided to scrap its version of such a rule and replace it with a Rule 8.4(g) that is substantially equivalent to the ABA Model Rule.  You can read the order of the Vermont Supreme Court adopting such a rule which will become effective on September 18, 2017 here.

A tale as old as time.

Stop me if you’ve heard this one … it’s about a lawyer getting into trouble for overbilling … where there are examples of the lawyer even trying to claim to have billed more than 24 hours in a day.

You probably stopped me somewhere in there because you have heard it before.  The legal profession is filled with people who bill their time fastidiously and honestly.  The legal profession also has among its ranks some folks who don’t.  A West Virginia lawyer subjected to a two-year suspension from practice is among the “don’t” and, remarkably, almost got a much lesser suspension, in part, simply because he was not among the worst overbillers that a West Virginia agency – Public Defender Services – was dealing with.

That context is actually part of what makes this particular incident really worth writing about because it is another unfortunate example of discipline for overbilling coming up in a context where some people can often try to argue it away as being somehow more understandable — lawyers who are trying to make a living off of court-appointed work at unfairly low hourly rates.  The problem, of course, is that not only is that still not a particularly good excuse for deceptive billing practices but it also is counter-productive to how much more difficult it makes it for people who want to advocate for better compensation arrangements for such lawyers to gain traction.

I tend to think the frequency with which lawyers get caught for over-billing in connection with court-appointed work isn’t necessarily a matter of those lawyers being more prone to doing so as much as it is that they are more prone to getting caught because there is effectively one “client” able to see all of their time records and, literally, do the math that the clients of lawyers in private practice serving a variety of clients aren’t as readily positioned to do.

Overbilling was not the only ethical flaw of the West Virginia lawyer made the subject of this 40-page opinion of the West Virginia Supreme Court of Appeals — interestingly enough his other problems involved missing deadlines and neglecting client matters and even includes an interesting side excursion into his suffering from low testosterone which manages to make the inflated billable numbers from prior years seem even more . . . nope, I’m not going to go for blue humor.  At least not today.

For those who don’t want to read a 40-page opinion about this kind of conduct, just a few of the highlights in terms of both the egregious nature of the billing practice and the really pretty remarkable testimony about how he stacked up compared to other lawyers in terms of Cooke-ing the books (We know while I may shrink at going blue I always rise to the opportunity for word play.)

First, here are the lawyer’s overbilling highlights uncovered by the Executive Director of West Virginia’s Public Defender Services:

  • “found to have exceeded fifteen billable hours a day on thirty-one dates from mid-January, 2014 to mid-September, 2014.” (NB: the lawyer’s claimed low testosterone problems were stated to be during and around August 2014 and the West Virginia court most certainly paid attention to that time line to point out that it was interesting that he claimed to be sleeping 10 to 16 hours a day when he couldn’t meet certain deadlines so that, at most, during the relevant time period he couldn’t bill more than 8 to 14 hours a day.)
  • “on four dates he submitted vouchers for twenty-three or greater billable hours and on two dates he submitted vouchers for greater than twenty-four hours” (including billing 27 hours on December 26)
  • “billed 2,568.5 hours, 2,279.3 hours, 2,671.2 hours, and 3,259.46 hours for the years 2011-2014, respectively. These billable hours equate to an average daily billable rate of 7 hours, 6.2 hours, 7.3 hours, and 8.9 hours, for 365 days.”
  • “rarely billed activity at less than .2 hours (12 minutes); the only .1 (6 minutes) entries are attempted phone calls and, occasionally, a hearing. Review of any and all documentation or correspondence, including email, is billed at a minimum .2 hours. Virtually every hearing entails billing .3 hours for “waiting in court,” which affords a higher hourly rate.”
  • “On April 17, based on Cooke’s accounting of his time utilizing his schedule and the court’s docket, in the two-hour window from 1:00 p.m. until a 3:00 meeting at the jail, he billed a cumulative 4.3 hours of “actual time”; the activity billed all consisted of travel, waiting in court, and attending hearings. Similarly, on August 18, Cooke’s incourt schedule shows hearings at 9:00, 9:30, and 10:30 with the docket resuming at 1:00. The matters which were scheduled in the three-hour window from 9:00 a.m. until noon, were billed at a cumulative 6.1 hours. Additionally, matters beginning at 1:15 p.m. on that date were billed at additional 7.2 hours and consisted solely of waiting in court, reviewing “court summaries” while waiting, and attending hearings.”
  • when first called on to explain certain aspects of his billing, he said he couldn’t do so because Public Defender Services hadn’t provided him the information he needed and ” his own time-keeping system would not permit him to retrieve that information.”

As to the chilling notion that this lawyer was not as bad as others, the Executive Director testified:

I still hold firm that we were billed for duplicate—we were billed several times for the same trip, that we were billed several times from the same period of waiting in court. In other words, if he had three hearings, let’s say he waited in 17 court for one hearing while he was actually doing another hearing. That’s not properly [sic] billing. That’s billing the same period of time. So I firmly believe that that had happened, but in looking through the vouchers and everything else, it appeared to be less frequent than I had seen with other counsel. 25 The only perceived fraud or deception that still exists in my mind is the fact that he may have been value billing, that is, billing a .2 for an activity that should’ve only been a .1 or a .4 when it should’ve been a .2. However, he wasn’t billing me 3.0 for these things and he was—and he was saying 12 minutes as opposed to 240 minutes. . . . I just did not see in his case the overt deception that existed with many other attorneys. . . . He was unable to exonerate himself completely in this situation because he had failed to comply with that time requirement, but that, overall, I believe that he was zealously representing his clients and he was providing the actual services that were described even though the time allotted to them may have been—may not have been the actual time.

and he also:

gave the example of one attorney who “rubber-stamped” the same time for each day and one attorney who billed 900 hours of travel in a three-month period.

As a way of further bolstering the problem this creates for those working hard to try to get better, fairer hourly rate reimbursements in place, the Executive Director of the West Virginia program also:

explained that PDS is paying $25 million a year to court-appointed counsel that are, in his opinion, undercompensated at $45/hour for “out of court” time and $65/hour for “in court” time.14 He indicated that when requesting an hourly increase at the Legislature he was typically confronted with the fact that many attorneys were making greater than $100,000.00 a year in court-appointed work and that the legislators took a dim view of an hourly rate increase when, in their opinion, the court-appointed attorneys had given themselves a “raise” by overbilling.

Well, anyway, get back to work I guess.

A weird-ish ethics opinion out of New York.

I have written a few times about the ABA’s adoption of a new Model Rule 8.4(g).  One point that was brought up in the run-up to that rule actually finally being adopted was that some more than 20 jurisdictions already had an anti-discrimination rule in place in the black letter of their rules in one form or another.

One of those jurisdictions is New York, and the New York State Bar Association Committee on Professional Ethics issued an ethics opinion back in January of this year that says it addresses an interpretation of NY’s Rule 8.4(g) and whether it prohibits a lawyer from refusing to accept a representation because of a lawyer’s own religious affiliation.

Specifically, the scenario addressed in NYSBA Ethics Opinion 1111 is this:

A lawyer has been requested to represent a person desiring to bring a childhood sex abuse claim against a religious institution.  The lawyer is of the same religion as the institution against which the claim is to be made.  Because of this religious affiliation, the lawyer is unwilling to represent the claimant against the institution.

The opinion, ultimately, doesn’t really answer the question of whether refusal to accept under those facts would be illegal discrimination.  Instead, the opinion first provides reassurance (at least of the rhetorical variety) that lawyers do not have any ethical obligation to accept every request for representation that they receive.  Then, though, it mostly punts on how to reconcile that fact with the fact that lawyers cannot engage in conduct that would violate a federal, state, or local anti-discrimination statute.  The opinion references New York case law which addresses certain kinds of professional services as being “place[s] of public accommodation” and directly admits that New York’s 8.4(g) contains language acknowledging that law could limit a lawyer’s ability to freely choose to decline a representation, but, despite the fact that the very rule itself that New York chose to adopt requires for its enforcement a conclusion about “unlawful discrimination,” just punts on whether the facts trigger such a conclusion.

At some level I get why the opinion goes that route as typically bodies providing ethics opinion have refrained from ruling on questions of law as being outside the scope of the rules.  But it does seem to me like once you adopt a rule that envelops the need for such a legal determination into the enforcement of the rule, you lose some of the ability to credibly punt on such an issue.

For context, here is the language of the rule New York has in place providing that a lawyer shall not:

(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding….

For what it is worth, you would think that the body issuing the opinion could — at least on this particular inquiry – have been able to comfortably say that since the facts presented did not even involve a lawyer turning down a potential client because of the potential client’s religious affiliation that it would be safe to say that it is highly, highly unlikely that a credible case of unlawful discrimination could be made out against the lawyer.

One thing that this opinion does help sharpen in terms of a salient point is that ABA Model Rule 8.4(g) appears to be a better drafted approach to this issue given its explicit terms protecting decisions on whether to take on the representation of a client.  Unlike the New York version of the rule, the ABA Model — in addition to not having all the language about the need for a ruling by a tribunal to be a condition precedent in certain instances — includes this sentence in the black-letter of the rule:  “This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”

Jurisdictions adopting a version of Rule 8.4(g) with that kind of language would appear to be much better positioned to actually address questions like the one raised in the New York opinion by providing the lawyer with assurance about the ability to simply choose not to take on the representation of a client where doing so would require them to sue their own church.

 

Theater of the absurd.

This is something of a stretch from what I normally write about, but sometimes you simply have to write about something and simply ask for forgiveness rather than permission.

Recently, an article made the rounds written by Adam Gopnik of The New Yorker who posited that two recent events were the clearest sign yet that we were living in a computer simulation and that someone was trying to make the programming so absurd that we would become self-aware.  The two events were the outcome of the recent Presidential election in the United States and the ending of the Oscars (which I wrote about a couple of weeks ago).

If you’d like to go read the article, and haven’t already, you can go read it here.  It is a fun read, but I have a hard time taking any of it seriously.  Gopnik, of course, as even he admits, is just riffing off of the thoughts of a philosopher at NYU – David Chalmers – who has written more extensively about the whole idea that we aren’t really what we think we are.

Perhaps it is purely out of a need for self-preservation and the kind of ego for which lawyers are notorious, but again I say that I can’t really take seriously the idea that we are but simulacrum.  But then, there came this story.

A criminal defense lawyer representing a man accused of arson had his pants catch fire in court.  In Florida.  I mean . . . how “on the nose” can a situation get, right?  When I first saw the headline, “lawyer’s pants catch fire during arson trial” – I mean, lawyer’s pants catch fire during arson trial?!  That alone was enough to just for the splittest of split seconds to remember and briefly rethink my reaction to the Gopnik story.

Actually, the details of the story indicate that the situation was a lot less over-the-top than the headline reports.  The lawyer in question apparently had 2 or 3 e-cigarette batteries in his pocket, and they started to smoke but he quickly got himself out of the courtroom.  The real question that bears asking — and that the lawyer in press reports certainly understands will be people’s suspicion — is whether the whole event itself was staged.

The lawyer vigorously denies that it was purposefully staged, and he should deny that because “stagecraft” has been the kind of thing that can get a lawyer into ethical trouble.  (Look at me just barely getting a hook into this to make it a passably ethics-based post.)  This is true even though fictional lawyers such as Perry Mason have been permitted to do such things in the name of the truth and even though legendary stories about the antics of Clarence Darrow involve conduct that under modern ethics rules would be problematic.

One of my favorite examples of this kind of misguided approach, involving twins, was written about by Jack Marshall at his site many years ago, and you can read about it here.

And to make this post officially and well and truly about ethics and lawyering, the issue with the kind of stagecraft that was put in place by the lawyer that Marshall wrote about is that it runs afoul of several rules in place in jurisdictions that have rules patterned after the ABA Model Rules.  Those rules include, at least, Rule 8.4(c) prohibiting lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation;” and Rule 3.3(a) which prohibits lawyers from making false statements of fact to a tribunal.