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.

Update on racial insensitivity within the practice of law.

It still exists, of course. No real surprises there.

In just the last two weeks, there have been multiple stories that drive that point home. One such story, while admittedly actually involving a sitting judge rather than a practicing lawyer, is this one out of Colorado. Another such story involves a New York lawyer who was serving both as General Counsel to her employer and as an adjunct law school professor and has now lost her GC position over multiple uses of the same racial epithet the Colorado judge explored during a lecture in her professor position. There are other examples just occurring over the last few months that are readily found through searching online.

While both the Colorado judge, and the New York lawyer, have found themselves on the outs with respect to their employment status, the resolution of the individual judge’s situation and how it came about through judicial ethics proceedings including a public censure and agreement to resign, is also a reminder that the judicial ethics rules already have broad enough language to address and resolve certain kinds of conduct involving sustained racial insensitivity in a way that the current lawyer ethics rules in many locales do not.

As readers of this space are well aware, there have been a variety of efforts in a variety of places over the last 5 years or so to try to remedy that. A few very recent noteworthy developments in the now long-running saga of the effort to enact better language into the ethics rules of various jurisdictions to tackle the problem of lawyers engaging in harassment and discriminatory conduct are worth mention.

My guess is the one that has the most potential for significant impact is a proposal out of New York. But, given the rapid state of overall developments, I need to be clear about which proposal out of New York. Not this proposal put out for public comment in March 2021 that would suggest replacing New York’s existing RPC 8.4(g) with the ABA Model Rule version. No, I’m talking about this one:

That proposal for a revised RPC 8.4(g) in New York was put out late last week for public comment by the New York State Bar Committee on Standards of Attorney Conduct. It has a comment deadline of May 28, 2021. The Chair of that Committee, Roy Simon, was kind enough to send me a copy of the proposal last weekend.

This one appears – from the backstory of which I have been made aware and despite the fact that it does not show all of its work as certain kinds of reports often do — to have been the product of a significant amount of time and effort, including efforts at trying to consensus-build. Early reactions I have seen involve some long-time vocal opponents of both the ABA Model Rule and some other states attempts at implementation seeming to take something of a shine to this proposal. Now, admittedly some of the reactions I’ve seen also involve the vocal opponents to other versions trying to argue that this version won’t actually mean what it purports to mean as to the scope of “conduct in the practice of law.” Specifically, it has already been argued that teaching of a CLE could not be conduct in the practice of law despite the fact that the rule itself would define “conduct in the practice of law” to include “participating in bar association, business, or professional activities or events in connection with the practice of law.”

For whatever reason, almost always the various “parade of horribles” hypotheticals offered about how these rules will curtail free speech by lawyers always involve the teaching of a CLE somewhere. It would seem to me that if you cannot manage to speak at a CLE without managing to violate at least this version of the rule (given the further bells and whistles described below), you should probably stick to being an audience member and not a presenter. But, whatever on that, I guess.

It appears that the most significant ways this proposed anti-discrimination and anti-harassment rule deviates from the ABA Model Rule are: (1) in using that turn of phrase regulating “conduct in the practice of law” rather than “conduct related to the practice of law;” (2) defining “harassment” for purposes of the rule to require something that is both “severe” or “pervasive” and that is directed at an “individual or specific individuals;” and (3) trying to go even further with respect to clarifying that definition of harassment in a comment that would explain:

[5C] Petty slights, minor indignities and discourteous conduct without more do not constitute harassment. Severe or pervasive derogatory or demeaning conduct refers to degrading, repulsive, abusive, and disdainful conduct. Verbal conduct includes written as well as oral communication.

I have long believed that we need to bolster the rules on this subject matter and if the NY proposal becomes something that can gain traction, then consider me to be all for it. (I would suggest, however, that the second sentence of proposed Comment [5C] would be better off with a disjunctive connector rather than a conjunctive connector so that it would say “degrading, repulsive, abusive, or disdainful conduct.” Surely something would not have to check all of those boxes to be prohibited.)

There also is another very recent proposal that appears to head down a path that is somewhat similar to the New York proposal, at least in terms of trying to address arguments made time and again by those who have voiced steadfast opposition to ABA Model Rule 8.4(g), by making clear that prohibited discrimination or harassment has to actually target some other specific person. The D.C. Bar Rules of Professional Conduct Review Committee has put out this lengthy report proposing that D.C. adopt a new RPC 8.4(h) that would also differ from Model Rule 8.4(g) in that it would specifically state that conduct to be prohibited must be directed at another person and that also attempts to offer more clarity about what is or is not within the scope of covered circumstances. harassment. The DC proposal rather than using either the “related to” language of the ABA Model Rule or an “conduct in the practice of law” language now proposed in New York, uses the language “with respect to the practice of law.” Unlike New York’s latest proposal, however, the D.C. report does not propose requiring something be “severe” or “pervasive” in order to amount to harassment. You can access the full D.C. report at the link below:

Just the normal scrutiny.

I need something fun in my life at the moment to help deal with some of the insanity that is all around us all.

So, let’s tell something of a non-linear story about how haphazardly the disciplinary rules can be enforced as against lawyers. (Okay, so maybe you and I see “fun” differently.) Typically, many folks who do what I do for a living will tell you that the biggest divide in disciplinary enforcement is between how solo practitioners and lawyers in very small firms are more often singled out and disciplined than are lawyers who practice in large firms.

But this is a story of someone who now appears to be a solo practitioner, and who, as we will now discuss, is engaging in something of a speed-run through the rules of ethics to see if he can violate all of them in one 2-3 week period. But this solo practitioner, I’d be willing to bet (were I a betting man) will not face the consequences for his conduct that any other solo practitioner might face.

This is a story that, I think, reveals that the real imbalance in rules enforcement is between those who are powerful and those who are not. Yes, dear reader, this is a story about the absolute trainwreck of a lawyer who is the personal attorney to the outgoing President of the United States.

If you are truly a glutton for punishment, you can go listen to the complete audio recording of the hearing on November 17, 2020, during which this attorney demonstrated ignorance of enough important legal concepts to raise questions about compliance with Rule 1.1 regarding competence, but, more troublingly, also made quite a few statements to the court that could trigger discipline for untruthfulness under Rule 3.3 and Rule 8.4(c) and all in the pursuit of claims and contentions that are so unmeritorious as to run afoul of Rule 3.1.

But, perhaps even more remarkably, this attorney’s participation at the hearing only came about, at least in part, because he was willing to make false statements in his pro hac vice motion for permission to appear.

(As a side note, literally as I’m trying to write this post, this lawyer is holding a press conference, sweating his hair dye down both sides of his face, and continuing with just objectively, provably false statements that would also seem to trigger real ethical issues under Rule 3.6 if his client wasn’t also hastily withdrawing lawsuit after lawsuit through voluntary dismissals. )

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(Now, a different lawyer, part of the same team, is engaged in rhetoric that appears to be inciting militias to take the election outcome into their own hands. She was followed by another, different lawyer, accusing unnamed election officials of committing fraud. Again, all of these are statements being made that fly directly in the face of actual evidence. The hair dye sweat image is funny, but turns out nothing else about this is fun.)

In making his application for pro hac admission in a federal court case in Pennsylvania, and thus deciding to appear in federal court again for the first time in 30 years, this lawyer filed a motion that indicated that he was licensed and in good standing in a number of different jurisdictions, including D.C. But as this article walks you through, a number of people have confirmed that the attorney is actually current administratively suspended in D.C. for failure to pay certain fees.

That’s not how these things are supposed to work and falsely representing one’s status to a federal court to gain pro hac admission would expose regular lawyers to a significant risk of discipline. Among other rules implicated by that kind of conduct, RPC 7.1 requires lawyers to refrain from making false statements about themselves or their services.

And to keep to my commitment that this post be a non-linear story, I will close by saying that the press conference mentioned above will likely go down in history as being most memorable for the “My Cousin Vinny” reference, but that little anecdote itself was in furtherance of just the titanic levels of mendacity on display from this lawyer. The anecdote involved reference to the portion of the movie where Joe Pesci’s character impeaches the credibility of an eyewitness during cross-examination and pointing out how her version of events was unbelievable once she demonstrated that from a similar distance she could not tell how many fingers Joe Pesci’s character was holding up. Yet, the only way the story was at all germane was because this lawyer was trying to use it in aid of lying about how far away ballot count observers were when allowed to observe the counting of ballots.

Will any of this end up in the imposition of any discipline or consequences? I’m highly cynical. Candidly, given the lengths he is willing to go, and the lengths his client is willing to go, to subvert democracy, the United States will be lucky if this lawyer just continues to be subjected to public ridicule and derision.

Truth is stranger than fiction.

This is not a post about politics in the United States, though the title of the post might make it seem like it could be.

This is instead a post that has to be written because I saw a headline and thought, “well that has to be fodder for a post,” and then it turned out to be a new story about someone I wrote about previously.

(NB: I could have titled this post, “Turns out it was a story about two men named Brady” but that would have been both too deep of a deep cut if you are a new reader, and a pretty unacceptable level of punnery even for a Friday post.)

Having now “cleared my throat” on screen more than sufficiently, I’ll actually deliver some content… this is a quick hit follow up on a story I wrote about back in the before-times… July 2019.

Christopher Brady used to be a Florida lawyer. He got disbarred for some Hollywood (California not Florida) style breaking and entering to steal a computer server from his former law firm.

I got pulled into writing about his story originally because the ABA Journal online ran a headline about how he got disbarred over punctuation which was, at best, partially correct. (He created a new law firm that had the same name as the firm that had terminated him but that added periods to the abbreviation part of the law firm name, so that his former employer was Barak Law Group, PA but his new firm was Barak Law Group, P.A.)

(Barak. Like a misspelled version of the first name of the most-recent prior President of the United States. Barack Obama. You remember him, right. A man who would have never responded to a question about whether there would be a peaceful transition of power in the United States in a chilling fashion.)

So, why am I rehashing this guy’s story? Well, because the ABA Journal got me with a headline again, but this time it appears the headline was 100% accurate:

Disbarred lawyer is convicted even though twin took responsibility for the crime.

I mean, come on. Now that I know this guy had a twin brother, how in the world was that not more integral to the defense of the disciplinary proceedings?

“No, I’m not the guy you see on that video recording tying a rope from that truck to the front door of the Barak Law Group law firm and then moving the truck so that the door rips open. . . No, sir, not me. Also, I’m not one of the two guys on that tape who go inside and take out a safe and a computer server. No, sir. I’ve got a twin. That has to be the work of my twin!”

(The above is, of course, entirely fictional dialogue I just made up out of whole cloth.)

The twin defense didn’t exactly work in the latest criminal case, of course, but still. “Feels” like this should have been mentioned earlier.

The criminal case that captured the ABA Journal’s attention this week involves a crime that has much more of a “Better Call Saul” flavor rather than the “Breaking Bad” style of the truck-door-computer server heist. The criminal act was the faking of a court order impacting child custody for the benefit of the lawyer’s twin brother. The fake order, which indicated it was filed on a day the court clerk’s office wasn’t open for business and which included misspellings such as “habeus” and “honerable,” commanded the twin brother’s ex-wife to deliver custody of the child to the twin brother. According to the news reports of the trial, the former lawyer was convicted for the forgery even though the twin brother testified that he was the one who committed the act.

Interestingly, these events all occurred earlier in time than the server heist. The events leading to this conviction actually did involve the Florida lawyer acting as a lawyer because he was representing his twin brother in the child custody proceedings and was still permitted to practice law during the events. Representing family is often a bad idea for lawyers. The reasons typically are more subtle than the issues presented by the Brady twins.

If you’re looking for photos of the twins (identical not fraternal), rest assured they do have the “Florida man” flavor you might expect and you can get them at this link to some local Florida media.

The era of permanent disbarment in TN has begun.

What now seems like an eternity ago, because it was written in the before-times, I wrote about Tennessee’s change to its disciplinary procedural rules resulting in implementation of permanent disbarment. I questioned exactly why the change was needed and what it would mean given that it was being paired with changes to extend the maximum length of suspensions from 5 years to 10 years.

As with a lot of things I have written, it amounted to nothing more than screaming into the void as the changes went forward and became effective as disbarments entered on or after July 1, 2020. (Also, “Screaming into the Void” sounds like a very good high school yearbook theme for 2020-2021.)

Earlier this month, the first two permanent disbarments were entered in Tennessee under the new procedural rules. An attorney practicing in middle Tennessee was disbarred forever on September 10, 2020. The charges against him stemmed from having pled guilty in federal court in 2019 to wire fraud, identity theft, and tax fraud. The underlying conduct involved misappropriations of funds in trust belonging to a minor and misappropriating other funds in a probate case.

The second permanent disbarment order was entered a day later involving a Tennessee lawyer based in Alabama. Her case has few similarities to the first beyond the ultimate outcome. She essentially took on clients in immigration matters (6) and failed to provide services despite being paid, dumped the clients, and retained the fees. She apparently did this in the process of abandoning her practice. Once a disciplinary investigation began, she did not respond to the Board, was then temporarily suspended (did not comply with the requirements for providing clients notice after such a suspension), and then consented to the permanent disbarment ruling against her.

So, what we can learn from this with respect to how permanent disbarment might be used? Not much, I guess. Neither of these lawyers have very sympathetic stories, one of the two consented to being disbarred forever and the other is likely in federal prison for essentially stealing money. That doesn’t mean that neither might have been able to trod a path to redemption under the prior procedure, but neither presents the kind of case that would make anyone want to even online browse for, much less go to, any mattresses.

But there are two things still worth thinking about.

The first is the capriciousness of timing. As mentioned in my ancient posts, the rule change implementation was not one that was going to apply only to new cases arising after a certain date but to orders of disbarment entered after a certain date. To drive that point home, on June 26, 2020, a lawyer in Washington County, Tennessee consented to disbarment over conduct that is not publicly clarified in any respect other than with reference to rules (RPC 8.4(a)(b)(c)(d) and (e), which would imply the situation would have involved some sort of criminal conduct and some sort of dishonesty. But, because the order was entered before July 1, 2020, that lawyer has the glimmer of hope for redemption because they can apply for readmission to the bar on or after June 27, 2025.

The second is an administrative issue that probably does not matter in the two permanent disbarments so far but that might be worth some further scrutiny in the future. Both of the September 2020 permanent disbarment orders end with the statement that the former lawyers must also comply with the portions of the rules applying to disbarred attorneys with respect to notifying clients and others of the disbarment. Now that disbarments are permanent in Tennessee, that’s a pretty pointless requirement. There is no hammer to force compliance and now no longer any carrot to incentivize compliance. In the past, whether a lawyer complied with those notice requirements would play a role in any future efforts to be reinstated.

But now? If not a purely aspirational requirement to maintain, it is practically, entirely toothless.