One good item and one bad item for your Friday

Some days the inspiration kicks in and other days it most certainly does not. If this were Instagram, I’d likely try to spout some sort of perspiration to inspiration platitude. But this isn’t, so I won’t.

I will though write about two items that somehow caught my attention this week and even though I can’t spot anything about them that involve any significant commonality we’ll discuss them together.

First, the good item. Within the last month or so, the New Hampshire Bar Association has published a pretty good ethics opinion to provide guidance to lawyers that find themselves representing clients who end up seeking out crowdsourcing to help pay their legal fees in connection with matters. You can read the full opinion — and in my opinion it is worth the time to do so — at this link. If you lack the time (or just generally are inclined to do the opposite of what I suggest in most circumstances), then I would offer that the two best portions are the guidance on having to be wary about (and make sure you fully counsel your client about) providing any sort of informational updates to those who provide funds whether as a “perk” or “reward” for participation or otherwise and the reminder that funds raised explicitly for the purpose of paying for legal fees and legal expenses cannot then be used to provide the client with financial assistance for living expenses if the lawyer essentially appears to be the one raising the funds or so involved in the effort to raise the funds publicly because of the prohibition in RPC 1.8(e) on lawyers offering that kind of financial assistance.

The opinion does not take the next step though of offering the relatively obvious practical advice that the most flexible way to crowdsource would always be to seek funds for a client to allow them to financially survive their circumstances without promising that all or even any of the funds would go to attorney fees. Once raised and available to the client, the client could then use them for whatever purpose they wish, including paying their lawyer.

Now, the bad item. Being a lawyer, particularly practicing certain types of law, can lead to getting into bad binds and sticky situations. When the lawyer ends up somehow coming into possession of something that is a crime to have under any circumstances, the options are highly limited often to there being only one correct approach and what that is can be counterintuitive.

Matter of Bickman out of New York (but really out of Indiana as it is just a reciprocal discipline case in New York) demonstrates one way in which a lawyer in such circumstances can get themselves into trouble by not threading the needle. The opinion succinctly lays out the gist:

On December 14, 2015, respondent, as outside counsel for a private high school, along with the school’s headmaster, met with the father of a 15-year-old student who informed them of inappropriate communication made by a teacher to his daughter. At respondent’s request, the father gave respondent his daughter’s laptop computer containing sexually explicit images and messages sent by the teacher. The teacher was later fired and eventually sentenced to 14 years in prison on federal criminal charges.

After advising the school’s headmaster that the Department of Child Services (DCS) should be notified, respondent discussed a potential settlement agreement with the attorney for the family which included, in relevant part, a confidentiality provision prohibiting disclosure of the agreement or information regarding the matter to anyone other than their attorney. Pertinently, the agreement was never executed but it would have prohibited cooperation with law enforcement. At one point, when the family was contacted by DCS, respondent told the family that any cooperation with the agency would violate the confidentiality clause. Although he later retracted that position, the family had cancelled its appointment with DCS.

Additionally, respondent instructed a computer specialist at his law firm to make copies of the offending content on the victim’s computer and place them on a thumb drive. Respondent, who believed he was preserving evidence that could have been considered child pornography (and that there was a possibility that the evidence would be deleted from the computer as other images had been deleted), placed the thumb drive in a sealed envelope in a cabinet in his office and returned the laptop computer to the school (which in turn returned it to the father).

Indiana publicly censured the lawyer some time in 2020 for violations of RPC 1.1 and RPC 8.4(d), and the same discipline was imposed by New York on a reciprocal basis in 2022. Interestingly, all of the focus in the opinion in terms of the unethical conduct is upon the concept that the settlement agreement would have stopped the clients from cooperating with law enforcement. The opinion lays out, however, facts that the lawyer repeatedly was less than truthful with law enforcement during interviews about the fact that he possessed a copy of the illicit material. Though the lawyer likely doesn’t feel like it, he appears to be fortunate that the proceedings did not spin out into ones for potential direct criminal liability or, if not that, then additional violations premised upon RPC 8.4(b).

Rare but not unprecedented.

So, apologies all around. For those seeking out new content from me, I apologize for the brief hiatus. For those who hoped I’d stop at 500 posts, I apologize because for not stopping.

For the first of what I hope will be at least another 500, let’s talk about a recent disbarment action that involves disbarment of a type of lawyer that is often discussed as being an infrequent occurrence — a prosecutor.

Roughly two weeks ago, the Kansas Supreme Court entered an over 100-page opinion disbarring a prosecutor with 30 years of experience over her conduct in connection with the prosecution of two separate cases.

One, which went to trial in March 2012 involved allegations of double-homicide. After 10 days of trial testimony from 80 witnesses and almost 1000 exhibits, a jury found the defendant guilty of two counts of first-degree murder with life sentences in prison. That conviction was overturned in 2018 based on prosecutorial misconduct.

The other involved the prosecution of six sex crime cases against a defendant. The Kansas lawyer was serving as a Special Prosecutor in that matter and took two of the cases to trial over the course of five days in June 2017. The jury returned guilty verdicts on multiple charges. That matter was again appealed based on a number of alleged errors at trial including an allegation of prosecutorial misconduct during closing argument. That conviction was also reversed based on cumulative error and a finding was made of an error by the Kansas prosecutor but not misconduct. Importantly, while the handling of this matter was the subject of the disciplinary proceedings, the Kansas lawyer ultimately was found not to have committed any ethical misconduct as to that second proceeding. Thus, in the end, the disbarment was imposed only for misconduct in the handling of one criminal case.

I recently spoke to a large prosecutors’ group from a state other than my own for an ethics presentation. How much, or little, prosecutors may feel targeted by disciplinary authorities definitely differs from state to state. Two things tend to be clear, however. While prominent legal voices will write pretty incessantly about how little discipline is ever meted out against prosecutors, when you talk to prosecutors, they all tend to feel very much like their segment of the bar is singled out for disciplinary prosecution in scenarios where public defenders or even private practice counsel would be spared. The second thing that tends to be clear is that there is a pretty relatively standard recipe for when prosecutors do end up getting disciplined.

Nearly every ingredient in that recipe is present in the story of these two overturned convictions. The first is the fact that the convictions in question were actually overturned. The other involves the nature of the ethical infractions, as other than any allegation of withholding of evidence in violation of RPC 3.8, aspects of all of the other rules that really move the needle in these situations are addressed.

Many of the transgressions involved statements made by the prosecutor in her opening statements and closing arguments. The rules are clear for both prosecutors and other lawyers that there are certain statements that cannot be made during trial, including alluding to matters “that the lawyer does not reasonably believe [are] relevant or that will not be supported by admissible evidence.” That same portion of the rules also can be transgressed by lawyers who become personally wrapped up in their work by stating “personal opinion[s] as to the justness of a cause, the credibility of a witness… or the guilt or innocence of an accused.” With respect to one aspect of the conduct, the prosecutor made statements found to be in direct contravention of court rulings that the subject matter should not be discussed. Often, in instances when there are statements running afoul of those rules made by prosecutors, then disciplinary authorities will also double up the charges by treating them also as conduct “prejudicial to the administration of justice,” contrary to RPC 8.4(d).

But the Kansas story also involves something that is unusual when speaking of the “typical” story of prosecutor discipline but that almost always creates problems for lawyers trying to avoid being disciplined — a conclusion that the lawyer lied under oath to the disciplinary board during the disciplinary proceedings. Here, statements in a sworn statement that ultimately were admitted to be false during cross-examination in the disciplinary proceedings.

Things You Stone Kolb Can’t Do.

So, today’s post involves an ongoing (recently initiated in fact) disciplinary matter. Accordingly, the details available are based entirely on the one-sided positions set out in the disciplinary complaint.

The ABA Journal has run a story about it, but once again, it first got on my radar screen because of discussion over at The Legal Profession Blog. Regardless of whether there is more to the story available so far, however, the details on offer are true-to-life as far as my own experiences in that the story clearly offers a tale of something that a lawyer can never do but, in fact, is done by lawyers all the same (not routinely but with some frequency).

The base level teaching point the story raises for lawyers is a reminder of how limited your options are if tragedy befalls a client and they pass away at a time when you are representing them? If defending litigation against a client, the lawyer likely does not hesitate in their desire to provide the required notice to the Court and opposing counsel because, depending on the nature of the causes of action being litigated, they may or may not even survive the death of the defendant/client. But even if for some strange reason, the lawyer does not want to make known what has happened, they have an obligation to do so. If representing the plaintiff in litigation and the plaintiff passes away, the lawyer may have some initial reluctance about people finding out about the development, but they also must alert the Court and opposing counsel if they are going to be able to move forward.

Why is this true when you work your way through the ethical obligations of the lawyers involved? In part, it is because once a litigant passes away then, unless certain additional things happen, there likely will no longer be any “case or controversy” that would allow the court you are in to issue anything other than an advisory opinion. But, to a much more significant degree, it is because if you do not do so then inevitably you are going to end up engaged in conduct that violates RPC 3.3, 4.1, or 8.4 or perhaps all three at the same time.

The new disciplinary matter that inspires this post offers a crystal-clear example (if the allegations are true) of a lawyer doing what they absolutely cannot when confronted with the death of a client and underscores that the problems for a lawyer can be significant even if litigation hasn’t already been initiated (and by implication then even when the underlying matter has nothing to do with litigation).

According to the complaint, an Illinois lawyer was representing a passenger in a taxi ride who was in an accident when the driver of another automobile crashed into the taxicab. Thereafter, the passenger hired the lawyer to represent him in pursuing claims for injuries sustained in the accident.

Months later, but before the lawyer had filed any lawsuit, the client died from a cause unrelated to the motor vehicle accident. Within two days of the death, a parent of the client notified the lawyer. Another more than nine months went by before the lawyer did anything further. That further step was to send a demand letter to the insurance company for the potentially at-fault driver making a settlement demand. In describing the demand, the lawyer indicated that his (actually dead) client would have “future pain and physical limitations” and sustained injuries “which will likely result in significant arthritis.”

Isn’t rigor mortis really the most significant arthritis of all? No, no it’s not. (And, yes, I acknowledge that Mike Frisch also offered something of a joke along these lines in the title of his write up of the situation, but, respectfully, I think my joke is better.)

The insurance company responded with a counteroffer for roughly 1/5 of what was demanded, the lawyer countered by asking for an additional $10,000, and then the insurance company communicated it agreed to the settlement. Thereafter, and in what is likely the clearest sign that the lawyer somehow did not know that he couldn’t do what he was doing, the lawyer made a record in the file indicating that the settlement occurred with the adjustor not being aware of the death of the client.

After that, some steps were made to try to un-ring these bells by having an estate opened and the court presiding over the estate approved the settlement, but once the insurance company learned of the timing of the death, all the consequences flowed freely therefrom.

In addition to specifically alleging violations of RPC 4.1 and RPC 8.4, the complaint against this lawyer also makes the point that deciding to settle the claim of a client who was dead also amounts to a violation of RPC 1.2(a) because the decision whether to settle a case is that of the client and not a lawyer. You can read the entire complaint here.

Of the disciplinary charges, that one may be the hardest one to actually prove given that, to some extent, it bumps up against the reality of the fact that while attorney-client privilege survives death, the attorney-client relationship does not. It seems difficult to simultaneously acknowledge that the death of the client meant that the lawyer no longer had any client and claim that the effort to settle violates RPC 1.2(a). The conduct is unethical for a number of other reasons, but I’m not sure that allegation can truly be proven as it involves violating a duty defined as being owed to a client. Of course, arguments that there is also no violation of RPC 4.1 can be down the same path in such a situation since that rule applies only to a lawyer “representing a client.” Any lawyer in the situation though is going to end up squarely facing the consequences of a violation of RPC 8.4 for conduct involving dishonesty, misrepresentation, and perhaps even fraud.

N.B: My next post will be my 500th post. Feels like a lot of pressure. Stay tuned.

They knew he wasn’t covered. That was the original problem.

Some lighter fare for today but you are stuck with the cringeworthy title.

I have a stack of important potential topics to write about, but the ABA Journal online today reeled me in with their headline on this story (“Litigants claiming GEICO auto policy covers STD from car sex can’t proceed anonymously, judge rules.”) and reading the order in the case only fascinated me further. And it really was not just from a prurient interest perspective, nor just from an “I can’t believe someone was willing to make these kinds of arguments” perspective, but also as a fact pattern that works as a pretty good template for examining multiple ethical obligations of lawyers.

The opening scene, almost unbelievably, of this story is the inside of a 2014 Hyundai Genesis. Two adults, M.B. and M.O. are inside that vehicle and having sex. The sex was unprotected. M.O. later contracts an STD and concludes that M.B. was the source. M.O. contends that she did not know that M.B. had the STD and contends that M.B., who is alleged to be fully aware, certainly never told M.O. that he had the STD.

So, how does this end up in litigation at all, much less litigation that gets a mention in the ABA Journal online? If you guessed an automobile insurance coverage dispute prompting the filing of a declaratory judgment action by the insurance company in federal court, then … well I guess the ABA headline does help a reader ferret out that possibility.

And how did the insurance company find itself in a position where it thought it needed to file a declaratory judgment action? Well, M.O. drafted up a state court lawsuit against M.B. for negligence and negligent infliction of emotional distress, sent the draft to M.B.’s insurance company and demanded settlement with payment by the insurance company of its $1 million policy limits to avoid the suit.

When the insurance company did not agree, the lawsuit was filed and then the parties entered into an agreement under a particular Missouri statute that allows an insured to agree to settle a case but limit the other side’s ability to collect on the settlement only to what they can get from the insurance company.

The insurance company headed over to federal court to file its declaratory judgment action. The parties to the state court action agreed to arbitrate their dispute and the matter resolved with a $5.2 million judgment against M.B. They then proceeded to enroll and seek confirmation of that arbitration award in state court and try to take steps to levy against M.B.’s auto insurance policy.

What was the order that put all of this into the national legal news spotlight? A 23-page order in the federal court proceeding about whether M.B. and M.O. can proceed in the federal court litigation anonymously. Seriously, the Court managed to need 23 pages to work through all of the procedural issues created by the fact that the insurance company — taking its cue from the fact that the parties used pseudonyms in the state court litigation — filed the suit against M.B. and M.O. anonymously. The court ultimately decided that once it rules upon a motion to dismiss focused on personal jurisdiction brought by M.O. (who contends that the sexual intercourse occurred in Missouri and that she shouldn’t be able to be sued by the insurance company in Kansas) any remaining defendants will have to proceed under their real names. And, in so doing, also seemed to engage in bit of unnecessary kink-shaming: “Furthermore, any allegedly private details became less private (although the court questions how private those details actually were if they were having sex in a car) when M.O. sent GEICO a demand letter making an insurance coverage claim.”

Now setting aside the notion that this whole scenario could be used to demonstrate how broken litigation is generally and why it is such an overly expensive proposition, a variety of fun legal ethics questions can be teased out of this matter.

How in the world does a lawyer comply with RPC 3.1 by advancing an argument that the transmission of an STD as a result of sexual intercourse inside an automobile is an injury for which automobile insurance coverage would apply? At first blush, that would seem a real stretch to be able to claim you have a “good faith argument for an extension, modification, or reversal of existing law.” Yet, it is certainly likely to be a question of first impression and so some level of lenience likely exists if there is arguably no existing law addressing the claim or contention at all.

Assuming that the parties did “collude” at least a bit with respect to the arbitration of the matter, at what point, if at all, would it become ethically problematic for a lawyer for either M.B. or M.O. to knowingly go along with such events? Would it matter if those lawyers were limiting their involvement to obtaining the judgment as to M.B. and have not been involved in helping try to collect against the insurance company? And does the existence of the kind of procedural statute that Missouri has muddy that water, I mean what exactly is the purpose of a statute that says an insured can go ahead and agree to settle a case with someone as long as the other side agrees they can only collect from the insurance company other than to encourage at least marginally collusive settlements that become the insurance company’s problem in the end?

And, if the lawyer involved found a way to get comfortable that arguing for coverage under the automobile policy passes muster under RPC 3.1, does the lawyer have to be worried that they didn’t also try to pry money out of M.B. home insurance policy? After all, the federal court decision in talking about the jurisdictional questions and the kinds of issues that could come up in the underlying dispute makes the point that only some of the sexual intercourse occurred in the Hyundai while some of it occurred in M.B.’s house.

Could the lawyer carve out pursuing any other insurance companies as part of a reasonable limitation on the scope of the representation under RPC 1.2(d)?

I’m sure I’ve missed at least one other ethics issue in there somewhere… feel free to be the first to let me know.

The Greening of New York

As promised, though just under the wire, I am following up to write more about one of the stories I didn’t write about in July, the issuance of N.Y. State Bar Ass’n Committee on Prof’l Ethics Op. 1225.

One of the downsides of publicly announcing you will write about something in the future is the risk that other folks will do it sooner and better. I understand that two of my favorite legal ethics sites have done so, but I’ve made the personal sacrifice to not read any of those folks until I can manage to commit my own thoughts into the ether.

So, let’s start with where we left off… Op. 1225 gives the ethical “green”light to lawyers both to advise businesses on how to comply with New York’s new law legalizing marijuana for recreational use and to personally use marijuana and grow the limited amounts authorized for personal use.

In getting to that conclusion, the NY Committee wasn’t starting from scratch but building on a foundation it had established in earlier opinions addressing a lawyer’s ability to provide advice to clients at an earlier time when New York only had legalized marijuana for medical use.

This opinion is noteworthy still, however, for several reasons.

First, I believe this to be the first ethics opinion clearly stating that a lawyer in a jurisdiction where recreational marijuana has been made legal can partake just as any other citizen of the state and that prohibitions in the ethics rules on personal conduct that is illegal should not change the outcome despite the fact that use of marijuana remains illegal under federal law. (I could be wrong about it being the first, but my memory is that other jurisdictions that have been willing to say that a lawyer can advise a client about the kind of business have still been unwilling to take the next logical step and say that the lawyer can partake.) It also makes the point that the now near full decade of federal forbearance on attempting to enforce federal law prohibiting marijuana use in states where it has been legalized could provide a lawyer with a good faith argument that no valid obligation exists to comply with the federal law in the face of the state legislative action.

On that front, however, it is worth knowing that the persuasiveness of the rationale likely could turn on what is the exact language of any particular jurisdiction’s version of Rule 8.4(b), the language of its accompanying comments, and what the ruling body considers to impact a lawyer’s “fitness.” For that matter, opening the door to the defiance of federal law by lawyers based on a claimed good faith belief of no valid obligation can itself be the stuff of slippery slopes.

Second, this opinion offers a very thorough explanation of why Rule 1.2(d) simply should not be interpreted in a fashion that would prohibit lawyers from offering businesses the assistance they would need to navigate the commercial endeavors that will be allowed. And it does so without feeling like any revision to the rule or comment is needed unlike some other jurisdictions have approached matters. A fundamental truth about the modern United States is that it is difficult, if not impossible, to navigate any regulated business without the assistance of lawyers.

More generally, in a complex regulatory system where cultivation, distribution, possession, sale and use of a product are tightly regulated, legal advice and guidance has immense value. Without the aid of lawyers, the recreational marijuana regulatory system would, in our view, likely break down or grind to a halt. The participation of attorneys thus secures the benefits of the Recreational Marijuana Law for the public at large, as well promotes the interests of the private and public sector clients more directly involved in the law’s implementation.

Unlike New York’s common sense acknowledgement of the overall public good, the Georgia Supreme Court just issued guidance turning a blind-eye to those concepts and declaring that lawyers that help clients do business in selling medical marijuana oil, despite that being legal, can be sanction for violations of the disciplinary rules because of the illegality under federal law.

Third, in delving into the attorney’s other question about accepting an equity interest in a marijuana business client, the committee opinion provides excellent guidance that would be useful for any attorney addressing the question with respect to any business client — an analysis of Rule 1.8 regarding business transactions and Rule 1.7 regarding conflicts of interest– which is a nice change of pace.

Now, off to go read the other folks, possibly better takes…

10 Things I Thought I Would Write About This July, But Didn’t.

So, anyone I might have hooked into caring about this site in May and June 2021 likely stopped checking for July content 1 or 2 weeks ago. Longer-term, repeatedly neglected, readers are likely still hanging in there (and forever earning my esteem).

There have been a bunch of times that I thought I was going to bust something out on here this month, but life, and work, and doom-scrolling, and an honest-to-goodness vacation have gotten in the way. On the doom-scrolling front, we’re back to having to do a bunch of that because the people out there with access to the vaccine but who are refusing to take it are really doing all they can to ruin this for everyone else. In states like Tennessee, the problematic Republicans that run things are actively trying to stop young teenagers from getting this vaccine by going so far as to try to stop the dissemination of information to teenagers about any vaccines of any sort. Sigh.

So, this won’t quite make up for the dry spell, but here are quick entries on the 10 things I thought I would write about this July, but didn’t.

(1) The Florida Supreme Court earlier this year did some rule-making that has resulted in Florida lawyers being unable to get CLE credit for any CLE sponsored by the ABA. Sounds absurd, right? It is. I am very proud to say that, among the many public comments filed by lawyers and groups of lawyers attempting to explain to the Florida Supreme Court why it should rescind its new rule, is one from the Association of Professional Responsibility Lawyers. . You can read that comment here. If you are interested in reading all of the comments – which are overwhelmingly opposed to the Court’s actions, you can get access to them here.

(2) Speaking of Florida, backwards as it can be in a number of respects (looking mostly at you Governor DeSantis), it has dipped its toe in the water of joining the ranks of Utah and Arizona in potentially bringing about drastic change in the legal landscape by allowing for nonlawyer ownership of providers of legal services to operate through a “sandbox” approach. You can read more here.

(3) Speaking of Utah and Arizona, we have statistics about the kinds of entities that have been approved in those states for performing legal services either through Utah’s sandbox or just generally in Arizona. A very good article providing an overview of the happenings in those two states can be found here.

(4) Staying out West, but angling a bit northward, the Oregon Supreme Court has issued a good new opinion on whether a lawyer can rely upon RPC 1.6 to attempt to disclose client confidential information to respond to online criticism. Spoiler alert: still a no-no.

(5) One of the things that we’ve discussed here before that a lawyer can do in response to unfair online criticism is to file a lawsuit about it. I’ve pretty steadfastly made the point that doing so likely will only make things worse. Speaking of making things worse by filing a lawsuit because you are mad about how you are being treated online, the twice-impeached former President of the United States filed a class action lawsuit against each of Facebook and Twitter claiming that their decision to ban him from their platforms was unconstitutional. Remarkably, Trump found even more lawyers to be willing to debase themselves and threaten any reputation that might have otherwise established to make highly frivolous arguments in a lawsuit – this time trying to argue that Facebook and Twitter are essentially the government and should have to comply with the First Amendment.

(6) Speaking of lawyers debasing themselves for Donald Trump of all people (and that’s still at many times the most staggering part of all of this, him? This is the guy that so many people are so willing to burn it all down for?), a raft full of lawyers involved in the “Kraken” lawsuits in Michigan had their sanctions evidentiary hearing and, based on all the reports you can go read, it went about as well for them as everything else has gone in the Kraken lawsuit. Then, of all things, one of the most prominent of the lawyers in the cross-hairs went and posted a portion of the video pf the proceedings in violation of the court’s explicit order not to do so. This has led to a follow-up show cause order regarding contempt. Most recently, the judge issued an order declining to find contempt but asking for an explanation for why discipline should not be imposed. I’ve written in the past about why we shouldn’t just be okay with the notion that courts are saying these public proceedings cannot be taped and re-broadcast but there’s a time and a place for most things. When you are already staring down the barrel of the kind of sanctions these lawyers might get, that certainly wasn’t the time.

(7) Sticking to stories with a political twist, President Biden has signed an omnibus Executive Order that attempts to do an awful lot of things.. One of the things it does is impose some prohibitions on requiring employees to sign non-compete agreements. I was among several lawyers quoted in a Law360 Pulse story about how that portion of the EO could impact the legal profession. Here is a link to the article itself, but you have to be a subscriber to see it. For the rest of you, I’ll just say that, for my part, I said the following:

The direct and immediate impact seems to be minimal because, as you already know, lawyers are ethically restricted from agreeing to noncompetes, and even prohibited from trying to ask a lawyer-hire to agree to them.

When President Biden says something like “the era of it being difficult for someone licensed to do something in one state to get a license in another state needs to come to an end,” why shouldn’t that apply to lawyers too? There are significant discussions going on in the profession about how to better connect willing lawyers and interested potential clients when consumers are going unrepresented and lawyers are out there who don’t have enough work.

(8) A month or two ago, I wrote a bit on how New York and D.C. were putting out some proposed revised approaches to a rule that would help address harassment and discrimination by lawyers, but that are trying to be designed to avoid the “alleged” problems of ABA Model Rule 8.4(g). I neglected at the time to say anything about the fact that Connecticut was working on something in that regard as well. In June 2021, the Connecticut Supreme Court has adopted the proposed revision, and a new Rule 8.4(7) will go into effect in the Nutmeg State on January 1, 2022. You can check out the full language of the rule here.

(9) Big news was made recently in Texas with a decision from the Fifth Circuit Court of Appeals finding that mandatory bar membership in Texas was unconstitutional, in the current form of the Texas Bar, because of how the Texas Bar uses some of the dues of members to undertake political activity. I’ve written a few times over the years about the important distinctions that exist between states with unified bars, where membership is mandatory, and states where the bar association is just a voluntary membership organization. More recently, the Sixth Circuit wasn’t as friendly to an Ohio lawyer’s attempt to challenge mandatory membership in the Ohio bar. An ultimate ruling on the issue from the U.S. Supreme Court seems inevitable at this point. Given the current make-up of the Court, the era of mandatory bar associations is likely coming to an end.

(10) Remember three paragraphs ago when I said there was a time and a place for most things? When it comes to lawyers and using marijuana, the New York State Bar Association has released a new opinion that says the time is now and the place is New York.

So, those were 10 things I thought I was going to write about in July but I didn’t. Or did I?

(N.B. I will return before the month ends, and I will write a little bit more about that last item.)

Someone finally faces consequences for gaslighting all of us.

So, if you’re here at any point today or tomorrow, you are likely someone who has already heard the news of Rudy Giuliani, attorney for the former POTUS, being suspended from the practice of law in New York. A copy of the 30+ page opinion imposing an interim suspension on Mr. Giuliani is available at the link below.

I’ve previously written a bit on the topic of Rudy’s descent into madness and will not repeat all of that. I will say that many folks who do what I do are very surprised with this news – particularly because of the type of suspension. These kinds of suspensions are usually imposed against lawyers who have been convicted of a crime, stolen client funds, or abandoned their practices. That being said, and as I’ve written about in variations in the recent past, all of those things get pursued because they fall under the general category of being a threat to the public.

It is rare that I can manage a blogpost that is almost exclusively a quote from a court opinion, but the opinion itself makes the case about as well as anyone could why this suspension is justified on the grounds that this lawyer is a public threat:

The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden.13 The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment
a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of
reliable information (Matter of Nearing, 16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC contends that respondent’s misconduct directly inflamed tensions
that bubbled over into the events of January 6, 2021 in this nation’s Capitol. Respondent’s response is that no causal nexus can be shown between his conduct and those events. We need not decide any issue of “causal nexus” to understand that the falsehoods themselves cause harm.14 This event only emphasizes the larger point that
the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.

Before Judge Brann in the Boockvar case, respondent himself stated: “I don’t know what’s more serious than being denied your right to vote in a democracy.” We agree. It is the very reason why espousing false factual information to large segments of the public as a means of discrediting the rights of legitimate voters is so immediately
harmful to it and warrants interim suspension from the practice of law.

The two footnotes cited within that portion of the Court’s opinion involve reference to (1) a May national poll reflecting that 53% of Republicans in the United States believe that Trump won the election and should still rightly be POTUS; and (2) the fact that Mr. Giuliani is also a defendant in litigation seeking to hold him responsible for the January 6 insurrection at the Capitol.

It is, very often, anti-social media.

You may recall that not too long ago I wrote a bit about a Tennessee Supreme Court opinion that I thought was a bit wrongly-framed from its opening sentence. It was the one that was really about why lawyers shouldn’t help people try to plan and cover up crimes but started:

“This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

To drive my point about the wrongness of the Tennessee court framing that situation that way, here is a development out of South Carolina that more rightly would deserve that kind of dramatic introduction in the opinion. Instead, the South Carolina Supreme Court opens its opinion issued today in In re Traywick in a more prosaic fashion:

Beginning in June 2020, ODC received complaints from forty-six separate individuals regarding statements Respondent made on his Facebook page. At that time, Respondent maintained a personal Facebook account with a privacy setting of “public,” meaning his posts were visible to anyone, not just his Facebook “friends,” and even if the person did not have a Facebook account. In his Facebook profile, Respondent identified himself as a lawyer and referenced his law firm.

For the conduct that the Court goes on to describe in this opinion, the lawyer was placed pretty immediately on an interim suspension on June 12, 2020. So, as of this month, he’s essentially already been suspended for a year. That becomes important to know because the opinion details that the lawyer was consenting to a six-month suspension to resolve the matter. Thus, with the suspension being made retroactive, the lawyer appears to be immediately available to resume practicing.

But the Court also imposed a number of additional requirements on the lawyer that will continue for up to a year from the issuance of the opinion. Before exploring those, let’s address what it was that the lawyer posted on Facebook that led to this result.

Apparently there were 12 instances of writing really offensive and inflammatory stuff. A reader of the opinion though will only learn about 2 of them because the Court announces that the two instances alone sufficiently justify the 6-month suspension.

I’m not going to post what the lawyer actually wrote because… well, life’s too short and the internet is filled with enough toxic stuff to have to read already.

The two instances range from apparently a very strong opinion about what it means if people have a tattoo to writing insensitive, inhumane, and pretty-hard-to-see-as-anything-other-than-racist thoughts about the value of George Floyd’s life. You can go read the opinion if you really want to know, but, while it isn’t near the worst stuff you can go read on the internet, it’s still bad.

The opinion also stresses that the respondent disclaimed any interest in making a First Amendment defense to the disciplinary proceedings, which I know will have lots of folks asking questions about why someone in that position would do that. I don’t have any real insight, but one guess would be that if you were trying to distance yourself from what you said – perhaps attempting to chalk it up to being in altered state of mind and saying the views aren’t ones you actually hold – then trying to argue these were protected expressions of your opinion wouldn’t actually be something that would interest you.

As mentioned at the outset, whether this lawyer actually is this kind of person or was this kind of person or only plays at being so offensive of a fellow online, his suspension is purely an “own goal.” Not only because the lawyer was weighing in on things that nobody really was looking for him to tell them about (of course, that is sort of the sine qua non of social media participation…) but also because he didn’t have the minimum level of commonsense to use some privacy settings on his Facebook page so that only his “friends” would see what he wrote.

In addition to having been suspended, the lawyer’s self-inflicted wounds now include the following:

  • complete at least an hour of diversity education by June 2022
  • complete “a comprehensive anger management assessment with a licensed mental health doctor or therapists” within the next 3 months
  • be evaluated by South Carolina’s LAP-type program within the next 3 months and comply until June 2022 with whatever that organization recommends he do based on the assessment
  • provide the Court with periodic reports confirming he’s doing these things as well as a final report from his providers with assessments by June 2022

The last point worth mentioning is that the opinion does not discuss any ethics rule at all and, instead, the discipline is imposed for violating the Lawyer’s Oath in South Carolina as well as a disciplinary enforcement rule that allows discipline for “conduct tending to bring the courts or the legal profession into disrepute.”

An ode (of sorts) to RPC 1.18 (but only as an example)

Today’s entry is something of a dodge in a way (I sort of wanted to pile on about this and make the point that it is a much sounder development than this was) and something of knocking down a hastily-created strawman in another respect. But what it mostly amounts to is pursuing a not-yet-fully-formed thesis that has been kicking around my brain for a bit.

The quick and dirty description of the thesis is: Ethics rules are tools; having the right one for the right situation saves a lot of time and effort, but it also protects lawyers and clients alike by providing certainty.

I keep coming back to this thesis of late because of a few instances of things arising in my practice (about which I can’t elaborate of course) as well as discussions I’ve been privy to at ethics conferences and presentations that have particularly focused on issues of civility in the practice of law and whether more should be done to establish rules to punish lawyers for conduct many (perhaps most) but certainly not all lawyers would view as uncivil.

In the discussions of civility, I keep returning to the notion that we already have certain specific rules that prohibit conduct of an uncivil nature and ought to focus on enforcing those rather than layering on other proposed solutions outside of the rules. Those rules are Model Rule 4.4(a) and Model Rule 8.4(d). Admittedly, 4.4(a) is much more supportive of my thesis as it is very clear about what it prohibits: a lawyer, who is representing a client, cannot “use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” I am usually hard-pressed to hear of a situation that a lawyer is complaining of under the category of “incivility” that is both clearly deserving of punishment and not already prohibited by 4.4(a).

Offering even stronger support for exploring my thesis though is this recent ethics opinion from the Texas Center for Legal Ethics. Opinion 691 addresses this question: “Under the Texas Disciplinary Rules of Professional Conduct, when may a lawyer represent a client adverse to a former prospective client of the lawyer or another lawyer in the lawyer’s firm.” Examining that question, the opinion spends almost 5 pages to get to its four-paragraph conclusion.

Many of you reading this, likely are asking yourselves the same question I did when I saw news about the issuance of the opinion: Why is this a live question in Texas and why does it take so many pages to answer?

Because Texas has not adopted Model Rule 1.18, or any other specific rule, addressing a lawyer’s duties owed to prospective clients.

Fascinatingly, this Texas opinion ultimately offers an analysis that can still be distilled down to look a good bit like Model Rule 1.18 with really only one important difference: no non-consensual screening to avoid imputed disqualification. If this opinion is correct about how things should work in Texas, then Texas could just have adopted (and now could adopt) a rule that if I understand their fun numbering would be 1.17:

Duties to Prospective Client.

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information except as Rule 1.05 would permit.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter.

And if Texas had just done that, then lawyers and prospective clients would be able to know clearly what is to be expected. Instead, lawyers and prospective clients (and others) will be left to wonder whether this opinion accurately describes what the other rules mean.

Honestly, transparency is all that we need.

This week I was fortunate enough to be included as part of a presentation on debating issues of regulatory reform in a Plenary at the ABA National Conference on Professional Responsibility

I recorded my 3-minute presentation a couple of months ago and spent a lot of time looking forward to how it would be received. Unfortunately, it went down in a way that “felt” less than ideal. There were some communications problems with a shift in online platforms from the prior day to the day of this content and I was lucky enough to both have mine get teed up first when people were still trying to figure out how to make things work and was one of two presenters that never managed to actually get introduced so, unless you recognized my face (if so, I’m so sorry for that) you didn’t know it was me.

So, in the interest of self-care and to possibly double the number of people who ever hear what I had to say on my subject matter, I’m taking the liberty of repackaging it here into a blogpost.

Without further dwelling in this quagmire of self-pity, here were my remarks in their entirety:

I’ve been given the opportunity to be the “pro” side of the argument on why many of the current ethics rules restricting business development should be jettisoned.

I think I can do it in 5-10 seconds, “Honestly, transparency is all that we need.”  But since I get 3 minutes, let me elaborate.

Our rules, in Rule 2.1, already require us to “exercise independent professional judgement” in representing a client.  Our rules, in Rule 7.1 already require us not to make any false statements about ourselves or our services.  Our rules, in Rule 7.3, already prohibit any solicitation that “involves coercion, duress, or harassment.”  Our rules in Rule 8.4(a) already prohibit lawyers from doing any of those things through the acts of another. 

So, given that we have consumers who aren’t finding lawyers for assistance at a price point they are willing to pay, and we have lots of lawyers without enough to do … why do we need rules – under the guise of prohibiting fee sharing or prohibiting paying people for referrals to protect consumers?

Honestly, transparency is all that we need.

Consumers care about what the total cost of a lawyer is to them.  They don’t care who the lawyer shares that money with.  If they do, transparency about the situation will let them say “no”

Honestly, transparency is all that we need.

Consumers care about whether they can find a lawyer who is willing to handle their matter.  They don’t care about the fact that a particular matching service might only be offering 3 lawyers out of 20 that might be out there and willing.  They’re happy to know about the 3.  And if they do care, then transparency about the situation and the business arrangements will let them say “no.”

If you’re with me, say it with me … Honestly, transparency is all that we need.

And, if you disagree because you are convinced that no matter what the other rules say, you believe that if we let third-parties with financial interests direct clients to particular lawyers based on a relationship rather than their qualification, then the lawyer’s exercise of independent professional judgment will be impacted … wait until you learn about insurance companies and panel counsel arrangements and billing and reporting guidelines.