I Dowd that very much.

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

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

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

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

I think both of those sentiments amount to hogwash.

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

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

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

Rule 8.4:  Misconduct

It is professional misconduct for a lawyer to:

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

Rule 4.1: Truthfulness in Statements to Others

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

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

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

Rule 7.1: Communications Concerning A Lawyer’s Services

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

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

Rule 3.4: Fairness to Opposing Part and Counsel

A lawyer shall not:

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

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

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

Three-For-Tuesday.

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

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

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

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

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

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

RPC 8.4(g) – Tennessee is in play

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s been a while.

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

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

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

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

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

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

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

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

A tale as old as time.

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

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

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

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

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

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

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

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

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

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

and he also:

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

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

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

Well, anyway, get back to work I guess.

A weird-ish ethics opinion out of New York.

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

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

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

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

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

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

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

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

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

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

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

 

Theater of the absurd.

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

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

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

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

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

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

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

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

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

That’s not a Rule 8.4(c) violation. THAT’s a Rule 8.4(c) violation.

In February 2017, more than a dozen law professors filed an ethics complaint against Kellyanne Conway, Counselor to the President, alleging that she violated the attorney ethics rules applicable in D.C. through several false public statement she made — most notably, her repetitive statements about a terrorist incident that never actually occurred – the “Bowling Green Massacre.”  Now, many people were not aware of the fact that Ms. Conway is an attorney — she doesn’t work as an attorney in the present administration.  (In fact, her D.C. law license is already administratively suspended.)  The core rule that the professors contend Ms. Conway violated is Rule 8.4(c) which makes it a violation for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Unlike many other ethics rules, Rule 8.4 does not contain language limiting its scope to when “representing a client.”  While I am not a fan of Ms. Conway, I very much disagree with the notion that her public statements in her political role are the kind of conduct to which Rule 8.4(c) should be applied.  A reporter with The Blaze was kind of enough to let me comment in an article about the ethics complaint against Conway where I elaborate more fully on why I disagreed.  You can read the article with, including my extensive comments, here.

Now, I feel compelled in fairness, instead of just knocking something down the opinion of others, to try to offer a good example of lawyer conduct that I think would fit as a Rule 8.4(c) violation but that doesn’t involve representing a client.

So, let me try a scenario.

Say you are a lawyer, and you are undergoing a job interview.  If you lie in response to questions that are important to whether or not you get the job, that would be fodder for a Rule 8.4(c) violation.  Or, maybe to make the violation even more palpable (if not clearer), let’s say you are seeking a public job.  Perhaps, a really high-profile one, involving the government.  And you lie during your job interview or on the application you have to submit for the position as part of a background check.  That would definitely trigger Rule 8.4(c) in my view.

Heck, while I am just freewheeling on this whole scenario, let’s really ramp up the stakes.  Let’s go with an attorney position in the federal government where your appointment has to be confirmed by the U.S. Senate.  And, let’s say you lie in response to written questions posed to you by a Senator or you give a false and misleading response to a Senator’s question during a confirmation hearing or, gosh, maybe you do even both of those things.  That would definitely be a Rule 8.4(c) violation.  And, given that there would be also be lying under oath involved and lying to Congress involved, Rule 8.4(b) would actually come into play as well.  That’s the rule that prohibits a lawyer from “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

So, yes, that would to me be a very solid foundation for multiple Rule 8.4 violations.  And, in my scenario, the lawyer engaged in dishonesty, deceit, and misrepresentations would not even have to have been undergoing the job interview to be the Attorney General of the United States, but if it helps to put flesh on the bones of the hypothetical to think I was talking the whole time about the current U.S. Attorney General then, well, have at it.

[And, as to the title of this post, you’re going to have to read that title in a Paul Hogan as “Crocodile Dundee” Australian accent.  And if you aren’t familiar with him or that movie, it was a lot more popular back in 1999 when Mr. Sessions said this to explain his vote to impeach a different President of the United States.]

Learn something new every day. Or two things. Or three things. I’m not your boss.

About a week or so ago, I learned something new about South Carolina’s ethics rules – thanks to the law-student-powered blog of the University of Miami (FL) School of Law, Legal Ethics in Motion.  They wrote about a South Carolina federal court case in which a motion to disqualify premised on South Carolina Rule 1.18 was denied.  I learned a second new thing about South Carolina’s ethics rules in reading that opinion.

The first new thing I learned about South Carolina was that it has a weird-ish wrinkle in its Rule 1.18(a).

Most jurisdictions, including Tennessee, follow the lead of ABA Model Rules and have a version of Rule 1.18(a) that defines a “prospective client” as someone who “consults with” or “discusses with” a lawyer the “possibility of forming a client-lawyer relationship with respect to a matter.”

South Carolina, however, takes a different approach.  Its RPC 1.18(a) reads as follows:

A person with whom a lawyer discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form a relationship.

Now, that “only when there is a reasonable expectation that the lawyer is likely to form a relationship” language can have some obvious benefits in avoiding having to deal with certain situations where most folks would agree that the array of protections afforded to a person as a prospective client under RPC 1.18 just shouldn’t come into existence.  Like, if the only reason someone is reaching out is to get a lawyer disqualified – usually just dealt with through language in the Comment — this language should suffice to prevent RPC 1.18 protection from coming to pass.  Likewise, if say a person a lawyer has never met before calls out of the blue and starts running on at the mouth about their case before the lawyer could get a word – like “stop” – in edgewise, this rule’s “reasonable expectation” and “likely to form” language would be a very good tool for shutting down any RPC 1.18 argument.

But, even having only just learned of the existence of such language, I was still surprised to then learn what the federal court in South Carolina thought it meant.  Instead of resolving a disqualification motion on the basis that there didn’t seem to be any “significantly harmful” information that was ever transmitted, the court concluded that a series of events spanning a voice mail message, a telephone conference about a possible engagement, and an email exchange thereafter with a South Carolina lawyer was not sufficient to ever create the existence of a prospective client at all.

The court’s own description of the events is really all that should be needed to understand my surprise:

On July 7, 2016, Plaintiff’s attorney Jay Wolman (Wolman) called and left a voice mail for Wyche attorney Tally Parham Casey (Casey) about a possible engagement in a case.  Wolman and Casey discussed the possibility of Wyche’s serving as local counsel for Plaintiff in this matter in a telephone conference on July 11, 2016.  Wolman subsequently emailed Casey on July 11, 2016, and provided Plaintiff’s and Gari’s names “[f]or conflict purposes” and requested a fee agreement “[i]f there is no conflict.”  Casey responded on that same day with applicable hourly rates and stated, “I hope we get the opportunity to work together.”  On July 12, 2016, however, Casey sent Wolman an email stating, “I’m afraid we have a conflict and will not be able to assist you with this matter.”

Pardon the wordplay and all, but I’m not sure it is “likely” that a multitude of judges would agree with how that particular line was drawn on the RPC 1.18(a) front in this particular South Carolina decision.

While I am on the subject of South Carolina and its ethics rules, one other development is worthy of mention here.   South Carolina’s Supreme Court has issued a public censure against an Arkansas lawyer for his role regarding using investigators to “pose as customers in an effort to obtain evidence to prove that the defendant was violating the intellectual property rights of the plaintiffs.”  The Court explained that the Arkansas lawyer’s investigators “made false statements to the defendant’s employees and used tactics designed to prod the employees into making statements about the product,” and also “tape-recorded these conversations without notice to the employees.”

Many, many moons ago (2012), I wrote an article for an ABA publication called Landslide about the ethical problems for lawyers stemming from investigations relying on pretext in intellectual property matters.  I don’t think I’m bragging when I say that billions of people never read that article.  While it is probably a pretty safe bet to guess that this Arkansas lawyer was among the billions of people who didn’t read it, I can’t actually call that something I truly learned today because the conduct for which he is now being punished in 2017 with that public reprimand actually took place back in 2009.

Thus, if I’m flailing around trying to add one more thing to my list of nuggets learned today, it would have to be this, the South Carolina Court was actually a bit kind to this Arkansas lawyer in terms of how it described the problems.  It pointed out, in issuing a public reprimand against the lawyer in question, that the lawyer was “unaware that secret tape-recording, pretexting, and dissembling were in violation of the South Carolina Rules of Professional Conduct.”   Had it wanted to be a bit more damning in its explanation of events, it could have pointed out that the South Carolina rules upon which the discipline against the Arkansas lawyer rested (RPC 4.4(a) and RPC 8.4) say the same thing that Arkansas’s own version of those rules say and, thus, that it probably would not be a stretch to say that Arkansas’s ethics rules are also violated by (at least) pretexting and dissembling.