Lying about everything is an awful way to go about life.

So, I am rapidly approach the 4th anniversary of this blog and this is the very first time I have had a post sharing exactly the same title as an earlier post.

Interestingly (at least to me), that earlier post with that title was written on Groundhog’s Day 2 years ago. The title for this post seemed a fitting title because … well, I think it will be clear when we launch into this – but also referencing back to that older post and it having been a Groundhog’s Day themed post also is pretty appropriate because the pathological nature of the lying of this Chicago lawyer has something of a deja vu sort of feel when compared to the lying of that Michigan lawyer from the prior post.

You’ve probably already read about this story but, if not, this is your window into the story of this Chicago lawyer who has been lying off and on about having cancer for more than a decade, who has lied about having a son, and even lied about the son he never had also having the same kind of cancer that he doesn’t have but has lied about having.

The repeated lying about having leiomyosarcoma, including falsely claiming that his pretend son had the same thing, grabbed the headlines but there were at least two other karma-tempting whoppers over the years, including: Lying to his firm that he had retained an expert but that the expert couldn’t work because his daughter had been hit by a car; and lying about having to attend a funeral in Montreal to get a court extension

There really is not an awful lot I can add to the obvious reasons why this kind of tale of a lawyer going beyond the pale in terms of what they were willing to lie about, and how often they apparently were willing to lie about it, is so disturbing.

One disturbing aspect of the situation is that his lawyer, in an answer filed in the disciplinary proceedings, has said that he came up with the cancer lie because he was actually suffering from depression in 2005 and was afraid to admit to suffering from a mental illness at the time when he was applying to law school. As someone who believes strongly in the fact that our profession needs to do much better about the topic of wellness and who readily recognizes that our profession needs to do all we can to help reduce the stigma surrounding mental health issues in our profession, I’d really like to believe that explanation and be more sympathetic, but when you lie about the really big stuff it is hard not to think that you are lying about your reason for lying.

I particularly have a hard time with achieving a sympathetic point of view after reading this piece of the pleadings in the disciplinary case about this kind of false statement made nearly 11 years after applying to law school:

64. On July 25, 2016 at 9:45 a.m. Respondent sent an email to AUSA Brock, and copied to AUSA Hancock, the following message related to Respondent’s purported reason for requesting an extension to complete discovery in the Harris case: “Yes, all went well. Thanks so much for asking. He has leiomyosarcoma, a form of stomach cancer, and had to have a small portion of his stomach and GI tract removed. It sounds terrible but apparently it is a rare but also highly treatable disease. My fiance and 1 have fostered kids on and off for the last 5 or so years. The only downside is that these incredible kids are often in this situation in the first place because they have one or more serious illnesses/conditions. I normally wouldn’t share such personal information but I really do feel so grateful for yours and Gina’s support last week and think it’s important that you know what it actually meant to me.”

Answer: Admit

65. Respondent’s statements to AUSAs Brock and Hancock, as set forth in paragraph 64, that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years were false.

Answer: Admit

66. Respondent knew his statements to AUSAs Brock and Hancock, that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years, as set forth in paragraph 64, were false because Respondent had no child or foster child, therefore no diagnosis of leiomyosarcoma, and no surgery.

Answer: Admit

But the part of this whole thing that really grabbed me by the proverbial lapels and piqued my interest was the original set of circumstances that led to the lawyer coming up with the lie that he had cancer. You see cancer was the story offered to explain to The University of Chicago Law School why this future lawyer only scored a 158 on the LSAT.

Wait for it.

I only scored 160 on the LSAT. It never dawned on me that I was even supposed to be disappointed in that result, much less that I should have tried to lie about having cancer to explain the poor performance.

But, 160 is two points higher than 158; also, I wasn’t applying to the University of Chicago Law School. So, apples and oranges I guess.

If you want to read the entirety of the latest amended disciplinary complaint against Vincenzo Field, you can get it here.

Crowdfunding for attorney fees? Yes, but no.

So, since about early December of last year I’ve been trying to find a way to write about a really good, quite practical (albeit practical about a very niche situation) D.C. ethics from November 2018. The D.C. Opinion, Ethics Opinion 375, addresses the idea of using crowdfunding platforms as an ethical way for a client to afford otherwise unaffordable attorney fees.

It is easy to get in the right mindset to elaborate on why an ethics opinion is bad. I have had a hard time getting into writing about Opinion 375 because, truth be told, it is hard to write something that feels useful and interesting about a well-done ethics opinion.

But I’m writing about it today because, thankfully, along came a West Virginia disciplinary case with a development that makes this so much easier to discuss.

First, let’s get you up to speed on the D.C. opinion — “Ethical Considerations of Crowdfunding.” Now, of the various mechanisms that exist online for crowdfunding, the D.C. opinion focuses only on donation-based crowdfunding platforms — things like Go Fund Me rather than other kinds of platforms that bring large groups together to fund things in exchange for an equity stake or something similar.

The summary that starts out the opinion is largely all you really need to know about it:

Lawyers are generally free to represent clients who pay for legal services through crowdfunding. The ethical implications of crowdfunding a legal representation vary depending on the lawyer’s level of involvement in the crowdfunding. When the client directs the crowdfunding and the lawyer is merely aware of it, the lawyer incurs no specific ethical obligations although the lawyer should consider the potential risks associated with receipt of such funds and may counsel the client on the wisdom of publicly sharing confidential information. When the lawyer directs the crowdfunding, the lawyer must comply with the Rules governing a lawyer’s receipt of money from third parties. Further, a lawyer who directs the crowdfunding should be cognizant of ethical obligations regarding fee agreements, communications with donors, and the management of the funds raised.

Now, if you want to troll the depths (the D.C. Bar managed to list off 11 different ethical rules that were applicable to the situation), there is more than five pages of analysis to be had in the full opinion.

All in all, it’s well done and practical advice to address what is a particularly modern variation on the question of third parties paying a client’s fees.

So, crowdfunding is a viable option for clients to pay a lawyer … but … there are certain ways it can’t. be. used. For one thing, it can’t be used by a lawyer to get clients in the first place.

And that point brings us to West Virginia. Were I more of a delusional sort, I’d think this story was fabricated into existence Truman Show style just for my benefit. In terms of trying to appeal to me, this story has everything … (and you have to say this next part in the voice of Bill Hader’s “Stefon” character from SNL): it has a lawyer with the same name as a lawyer at a prominent firm in Memphis; the West Virginia lawyer started practicing law essentially exactly when I did [1999]; the West Virginia lawyer was serving as a treasurer [I’m the treasurer for two organizations at the moment] for a local soccer organization [ask me about soccer, I dare you, I won’t stop talking], and West Virginia’s Chief Disciplinary Counsel actually recused from the case because they are a soccer official.

Now, this West Virginia lawyer’s story isn’t really a story about Go Fund Me. Where the lawyer really went afoul of his ethical obligations was something he did long before he tried to use Go Fund Me in exactly the wrong sort of way, but that piece was the headline grabber for at least one West Virginia media outlet that wrote: “Charleston attorney suspended for 3.5 years after offering legal advice for Go Fund Me money.”

This lawyer’s original – and much more significant — transgression was that the lawyer embezzled about $12,000 from the soccer organization’s account by transferring those funds to his personal checking account. After he was confronted about his theft, he resigned from the treasurer position and repaid the money in three installment payments.

He self-reported his violation [which would have been, at minimum, a violation of West Virginia’s RPC 8.4(c) and probably (b)) and then was fired from his employment when his employer learned about the theft from the soccer organization.

After that, he tried setting up a Go Fund Me page to raise money to help him transition from being a lawyer employed at a firm to being a sole practitioner. What he offered, however, was that those who donated to the Go Fund Me would receive free legal services in exchange.

The West Virginia bar cited that conduct as being a violation of the rules against soliciting clients. The lawyer denied ever receiving any funds as a result of the Go Fund Me account in question and contended that he did not realize he had actually made it publicly-viewable.

An article in The ABA Journal online also emphasizes some of the aspects in which the Go Fund Me appeal itself was supported with false and misleading statements:

The fundraising appeal said the move was based on a decision to help children.
“After nearly 20 years of practicing law, I have finally found what I was meant to be doing,” the appeal said. “I have transitioned from an insurance defense practice to becoming a sole practitioner representing individuals and families. My primary focus is helping children who have been abused and/or neglected.”
Glover went on to say that his employer asked him to leave immediately after learning of his plans to go solo. “Given the short notice, I was not able to build up my savings, and I am now struggling to meet my personal expenses,” he wrote.
“It is my intention to return any gifts once my income become steady, and I will be happy to offer free legal advice (if I can) to my benefactors as well.”

That piece of this story is a very good reminder that, no matter the platform, rules patterned after ABA Model Rule 7.1 make it a disciplinary infraction for a lawyer to make statements about themselves or their services that are false or misleading.

Inflation is likely more widespread than you’d like to believe.

Time inflation that is. I’m certainly not an economist.

In the past, I have written about issues associated with overbilling by lawyers in a number of different respects.

Today’s post involves a rare public situation involving the admission of overbilling by a lawyer – one that comes out of Illinois and involves a lawyer who worked his way up the ladder in not just one but two prominent firms in Chicago.  The attorney, Christopher Anderson, has now been made the subject of formal disciplinary proceedings based on his own admission of inflating his time entries and billings first while at Kirkland & Ellis as an associate and later at Neal Gerber Eisenberg, ultimately achieving the status of a non-equity partner.

Anderson came clean to the powers-that-be at the Neal Gerber firm after he had been practicing there for three years in 2018.  That firm did its own investigation and decided it needed to offer refunds or credits to some 100 clients who had been made to overpay as a result of Anderson’s conduct.  The refunds, as reported in the disciplinary complaint, amounted to roughly $150,000 and stemmed from the conclusion that only 4/5 of the time Anderson had billed to clients was legitimate.  The complaint indicates that once Kirkland & Ellis learned of Anderson’s conduct and that he had been engaged in the behavior there as well worked through its own process to offer refunds to clients.

The complaint describes the nature of the scheme on Anderson’s part to inflate his billings and is what I have always believed is what happens to be the most widespread way of abusing billable hours in our profession because it is the most tempting route to travel and the one that lawyers believe is the hardest to prove is happening:

During his time at both firms, in an attempt to meet what he perceived to be the firms’ billing expectations, Respondent recorded time beyond what he had actually spent in handling client matters, knowing that the time he recorded would be billed to his client and that they would be asked to pay fees based on the records he created.  For the days that Respondent felt he had not recorded sufficient time on client matter, he increased the time he claimed to have been spent on those matter based on a number of factors, including his assessment of the likelihood that the client would object to the time he recorded.  As an example, if Respondent spent 0.3 hours on a client matter, he would record that he had actually spent 0.5 hours, or he would bill 2.1 hours for work that actually took him 1.7 hours to complete.

Not surprisingly, some immediate reporting about the situation from The American Lawyer stressed the rareness of intentional overbilling. I beg to differ on that.   Unfortunately, I think this kind of practice goes on much more often than our profession would ever care to admit.  People who act out of a feeling of pressure that their “numbers” are not strong enough or who feel like they’re being forced to accept a cut-rate hourly fee for their time can find themselves heading down this path because, unlike inventing tasks that could be proven not to have been performed, there truly is very little ability for an outsider to prove that a lawyer who says they spent 2.1 hours doing something that really only took them 1.7 hours to complete is lying to you.

Or, as more succinctly put by my friend Trisha Rich who was quoted in the Chicago media about this:


“It would be hard for somebody to catch on to (overbilling in small increments) if somebody was doing that over time, because basically our billing records are on your honor,”

Other than this particular situation in which the conduct came to light because of the lawyer’s own guilty conscience, instances usually will not be ferreted out unless the lawyer also forgets that “pigs get fat and hogs get slaughtered.”

The other interesting piece of this story is that Illinois is only charging Anderson with violations of RPC 1.5 and RPC 8.4(c), but not also charging for violating RPC 7.1.  Illinois’s Rule 7.1 certainly could have also been included in the complaint because Illinois’s version of the rule has the same language as the ABA Model Rules:  “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”

Given that Anderson essentially has admitted the misconduct, throwing an additional charge at him likely would just have been piling on, but trying to remind lawyers that RPC 7.1 doesn’t just apply to advertising but applies to a wide variety of false statements about a lawyer or their services (here, falsely stating how much time you actually worked) is something of pet peeve of mind mine. [edited to be less stupid on 1/31/19]

Threats to the legal profession include threats by members of the profession

This post is coming late in the week because this week marked the first two stops on the Ethics Roadshow for 2018.  (If you are in or near Memphis and Nashville you can still register to come attend next week’s stops and hear about a potential recipe for ethical lawyering involving the 5 Cs of Competence, Communication, Candor, Confidentiality and Conflicts.)

This year’s Roadshow doesn’t focus much on threats to the legal profession from developing technologies and outside providers of legal services nearly in the way that last year’s Roadshow did, but today I want to discuss a slightly different kind of threat to the legal profession – threats made my members of our profession.

I’ve written in the recent past about the generalized problems of anger and violence given that we are living in angry times but two recent things I came across (one a full blown story and the other a Twitter thread) lead me to think that a bit of attention should be paid again to threats of violence particularly where the people engaged in the threatening conduct are attorneys.

The ABA Journal, working from a Louisville Courier Journal story, highlighted right at the end of November an arrest of a Kentucky criminal defense lawyer.  The lawyer who, it will come as no surprise, is male was arrested and charged with, among other things, terroristic threatening.  Perhaps in an effort to just let some irony simmer, the news articles point out that one of the lawyer’s own clients was convicted of terroristic threatening earlier in the same month.  The subject of his allegedly terroristic threats were two lawyers involved in the handling of his own child custody case – one was opposing counsel and the other had been appointed by a court to be the guardian ad litem.

The ABA Journal piece highlights the nature of the threats — which ranged from some aggressive voicemail messages to much more tangible examples of actually communicating to third parties an intention to kill the lawyers involved.  The article also discusses other recent problems the lawyer has been going through related to those proceedings and published reports of a positive drug test for meth.  Even though the lawyer’s conduct doesn’t involve representation of a client, this Kentucky lawyer will likely be at real risk of discipline (in addition to having to deal with the criminal law issues) under a variety of parts of RPC 8.4.

I also managed to stumble onto a thread involving similarly unprofessional and threatening behavior by a lawyer on Twitter.  You can peruse the thread here if you’d like to read it yourself.  It involves someone who appears to be a Texas lawyer and who, if the fact that he was willing to be a lawyer for (and apparently member of) The Proud Boys (a white supremacist group) in the past wasn’t already a pretty good indication of what kind of fellow he might be, decided to make his feelings plain by going on the attack against a journalist employing a homophobic epithet and a threat of violence sent by email.

As seems like a fairly good option, both for purposes of self-protection and as a way of possible shaming the lawyer involved, the reporter posted a screen shot of the email on Twitter.  The email the reporter received read as follows:

Now that I am no longer part of the Proud Boys and no longer representing them.  I want to let you know that you are a despicable and evil human being.  It is my hope that your duties as a HuffPo reporter bring you to the metroplex this holiday season so that I can give you the gift of a left hook.

Kiss my ass, faggot.

For what it is worth, this particular reporter has been focusing a good bit of time on trying, through reporting, to highlight the problem our country has involving the rise of violent extremists.  It appears that shedding some light on this particular lawyer only shows how deep some of those problems go.

Reading these kinds of exchanges also makes me continue to think through questions in my own head – written about in the past — about whether the willingness to be openly racist should simply be disqualifying for lawyers from a character and fitness standpoint.

(P.S. The Twitter thread itself tries to bring this conduct to the attention of Texas disciplinary authorities so it will be interesting to see what comes about.  With a little digging, this lawyer appears to have retired his Texas license but also appears to be licensed in Colorado, D.C., and Georgia and appears to have a clean disciplinary record in each of those states.)

(P.P.S. An entirely different reporter received death threats from the same Texas lawyer and also created a thread on Twitter about those exchanges as well.)

(P.P.P. S. BlacKkKlansman is a movie all should see, is germane to the above discussion of the problems of white supremacists in our nation, and I’m thrilled that it is getting some rightly deserved nominations.

Neither a stalker nor a burglar be.

Matters of the heart have caused people lots of problems throughout the course of human history.  Matters of the heart, when the heart is located inside the chest of a lawyer, work pretty much the same way.

Of course, sometimes stories that, on the surface, seem like matters of the heart might be more fairly characterized as being really about the inability of men to avoid controlling or toxic behavior directed toward the women in their lives (or who used to be in their lives).

This post is about a story of a Pennsylvania lawyer who is now suspended from practice over really bad judgment flowing either from a matter of the heart or from the more toxic issue of controlling behavior.  I don’t know the back story or the people involved in any way so I don’t know which, but I have my suspicions.  The story itself makes for an interesting post (maybe?) over and above just being an example of a lawyer behaving badly because it offers another reminder of how aspects of the ethics rules can apply to a lawyer even when they aren’t practicing law, and it taught me that I apparently do not know the full extent of what can constitute burglary.

If this blog is on your reading list, you likely already have read at least one article about this suspended lawyer (hopefully this one) — but in case you haven’t the suspension flowed from his secretly putting a GPS tracking device on the back of his ex-girlfriend’s car and hiding an audio recording gadget insider her car (under the driver’s seat to be more specific) in order to spy on her in hopes of finding out who she was now dating.

To some extent, being suspended for a year followed by four more years of probation is a secondary problem professionally for this particular lawyer because he also will be serving probation in the criminal system for five years as result of a guilty plea to two felonies: criminal trespass and to something of a violation of a criminal wiretapping statute in Pennsylvania for the same conduct.

Because of the felony convictions, it should certainly come as no surprise that the ethics violations with which he was tagged include a violation of Pennsylvania’s Rule 8.4(b) – conduct involving the commission of a crime reflecting dishonesty.

His suspension was also premised on a violation of Rule 8.4(c) which is simply the general provision prohibiting lawyers from engaging in any conduct involving dishonesty or fraud.  I’ve written in the past about the problematic potential scope of Rule 8.4(c)’s prohibition for lawyers given that it is not in any way actually textually moored to representation of a client or even to conduct related to the practice of law.

This probably would not be the kind of case where a lawyer would get much traction trying to argue that applying that rule to this kind of conduct would amount to overreaching.

As promised above, the other tidbit of note – more just educational for me – is the notion that, although he didn’t plead to the charge, he was also charged with burglary under Pennsylvania law for what he did to his ex-girlfriend.  That’s a new one for me given that while he may have broken into her vehicle, he didn’t actually take anything out of it but instead left something inside of it.

Turns out, under Pennsylvania law, burglary is defined to be entering any building or occupied structure with the intent to commit a crime inside.  So, this must mean that for the charge against him to have been colorable, his ex-girlfriend’s car was inside a garage at the time he put the recording device inside.

So, while there are many lessons to take from the situation described above, hopefully for most of you reading this the most practical one — the one that addresses the thing you are most likely to do that would be bad — is to remember that if you do not regularly practice a particular area of law you probably don’t know as much about it as you think you do.

(Also, though I know you don’t need this reminder, once your significant other moves on, you should too.  And, even if you can’t, don’t stalk them.  Seriously.)

Far too often anger begets violence both by, and against, lawyers.

I failed again as a blogger last week and do not have anything resembling a good excuse.  There is a lot going on in the world that is troubling and last week was simply a week where it felt like writing anything that was not about how our country has become okay with putting children in cages seemed frivolous.  That topic was not one that had any legal ethics component, however, so …

I’m still very angry about what my government is doing, but beyond the 50 or so words that precede this one, I’m not writing about that today.

There are two short stories sitting in my idea pile that have anger as their common thread so I’m threading them together today to simply talk about how easily anger can get the better of people if not channeled to something productive.  One story involves a lawyer being properly disciplined for failing to manage his own anger.  The other involves a tragic end of life for a lawyer who was slain by someone else who let anger take over.

A lawyer in Maryland, who already had a track record of disciplinary problems, now finds himself suspended from the practice of law for 30 days as a result of engaging in “road rage.”  Dana Paul’s suspension, premised upon violations of RPC 8.4(a), (b) and (d) is not only yet another in a long list of incidents where angry lawyers do inexcusable things but also a reminder that RPC 8.4 is the kind of disciplinary rule that applies to lawyers even when they aren’t engaged in the practice of law.

The Maryland opinion describes the three different versions (Paul’s, the other driver’s, and a third-party witness to some of the incidents) of the events presented in evidence in the case which involved sustained interactions between Paul and another driver spanning over two counties in Maryland.  Paul’s own testimony minimized his conduct but he ultimately did plead guilty to two counts – negligent driving and failure to return to/remain at the scene of an accident.  Paul claimed that things started when the other car slowed down in front of him and he observed the driver of the other car on her cell phone.  Paul says he passed her and beeped at her – claiming that he always beeps at people on their phones “as a way of telling drivers to not use their phones while operating a vehicle.”  Paul then claimed that the vehicle passed him and cut him off and then would intentionally slam on her brakes.  Then at a red light, Paul left his vehicle to question the driver.

The other driver testified to a different version of events at Paul’s criminal trial.  A third-party witness who saw both the altercation at the traffic light and the moment when Paul’s car and the other car impacted each other offered testimony that the court found persuasive:

At the traffic light, [witness] asserted that Paul exited his vehicle, displayed both of his middle fingers towards [other driver,] and reentered his vehicle and drove of.  Approximately eight miles later, [witness] was driving in the right lane while [other drive] drove next to [witness] in the left lane.  [Witness] witnessed Paul’s car drive in between [witness] and [other driver’s] cars, causing [witness] to move to the right shoulder.  [Witness] attempted to alert Paul that he could drive in front of her in order to avoid injury to any party  Thereafter, [witness] observed Paul’s vehicle make contact with [other driver’s] vehicle.  After the cars hit, [witness] stated that Paul moved behind [other driver] and took a picture of [other driver’s] license plate.  Once [other driver] then pulled off onto the shoulder, [witness] did the same and gave [other driver] her name and address.  [Witness] later drove to Easton at the request of the police to identify Paul as the person who struck [other driver’s] vehicle.

Paul’s conduct on the road did himself no favors, but Paul’s own statements to law enforcement were damaging as well as he was confronted by a state trooper after he had stopped at a restaurant to use the restroom and asked what had happened to his vehicle.  After Paul said nothing happened, and after the state trooper pointed to paint on the side of Paul’s car, Paul then denied the allegation that he had hit the other driver’s car.

Ultimately, the Maryland court concluded that it had been proven by clear and convincing evidence that Paul’s “road rage” conduct was both criminal and of a nature that reflected adversely on his “fitness as an attorney” to be a violation of RPC 8.4(b) and also that because his conduct “involved dangerous, harmful, and threatening behavior stretching across two counties,” it was sufficiently prejudicial to the administration of justice to be a violation of RPC 8.4(d).

Of course, lawyers can be victims of unhealthy anger as well.  Last week the ABA Journal online posted a story of a Georgia lawyer (just three years younger than I am) who was found dead in his law office after having apparently been gunned down by the husband of one of the Georgia lawyer’s divorce clients.  The husband was also found dead in his former wife’s bed from an apparently self-inflicted gun shot.  The police knew to go to the law office only after the husband had called his former wife and confessed to killing her lawyer.  Although I was just a baby lawyer when it happened, I remember well when something not too different than this happened in Memphis back in 2002 when Robert Friedman was ambushed in his parking garage by the husband of one of Friedman’s divorce clients.

It is a difficult time to begrudge anyone the right to be angry, and you can count me on the side of those who don’t take kindly in the political arena to slavish calls for “civility” that really only amount to trying to prevent relatively powerless people from sending a message to powerful people, but if you are reading this and you get violent when you get angry, seek out ways to learn how to manage your anger.

A short post-mortem for Tennessee’s proposed RPC 8.4(g)

With the flood of comments in opposition, and particularly the fact that the Attorney General of our state felt the need to file not just one but two comments in opposition, the unsuccessful end of the effort to convince the Tennessee Supreme Court to adopt a version of RPC 8.4(g) has felt inevitable for the last month or so.

Yesterday, the inevitable end came in the form of this one-page order from the Tennessee Supreme Court rejecting the petition.

I’m personally very grateful for the handful of entities that lent their support to the TBA/BPR petition which included not just specialty bar associations such as The Ben F. Jones Chapter of the National Bar Association and the Association for Women Attorneys, but also the Memphis Bar Association, the Knoxville Bar Association, and the Lawrence County Bar Association.

I’m not inclined to spend much space here discussing just how deeply disappointed I am in the outcome.  Given that I’m not likely to be the victim of any of the harassment and discrimination we were really aiming to protect against with this proposal, my disappointment is, at best, vicarious.  There are other lawyers in Tennessee who this impacts more directly.  Lawyers who have been told by many of those who filed comments that they are fair targets for disparagement as long as the lawyer disparaging them is not representing a client.

I wrote more than an 18 months ago about how skeptical I was that a state like Tennessee would adopt a black-letter rule addressing harassment and discrimination.  Admittedly, I let myself get a bit too optimistic along the way.  I remain convinced that the sentiments expressed by the most strident lawyers (mostly male, and nearly entirely Caucasian) who submitted comments opposing the proposal do not represent the future of our profession in this state even though they prevailed in the present.

If you have the stomach for plowing through knowing that some of them truly serve as only a forum for attorneys who look like me to sound off with typo-filled paeans to a Limbaugh-esque worldview, I will again state that reading through the comments is an educational experience.

If you’d rather not, I can sum up alot of them with the following TL/dr:

“When you’re accustomed to privilege, equality feels like oppression.” – original source to quote a bit unknown as explained here.

 

Awesome post. Except for the part that isn’t.

There is an awful lot to like and agree with in this post from Dan Lear, one of the folks who have been the face of Avvo for quite some time.  But there is a piece of it that is just simply wrong, and while it would be hyperbole to say it is dangerously wrong, it certainly is wrong in a way that lawyers don’t need to have reinforced.  Lear writes:

Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.

Even understanding the larger point Lear is attempting to make, this is utterly and simply wrong.  ABA Model Rule 8.4 – with language that is tracked in I believe pretty much every U.S. jurisdiction — does not limit itself to situations in which a lawyer is only representing a client and also does not draw a bright line around a lawyer “being a lawyer,”

The easiest, and most obvious, part of the rule that makes the point is RPC 8.4(b) which gets lawyers in ethical trouble for certain criminal acts even having nothing to do with, or not happening while, they are working as a lawyer.

But there are two other, more broadly problematic ways that RPC 8.4 does extend to, and actually govern, the conduct of people who happen to also be lawyers while they are doing things that they don’t think of as working as a lawyer know matter how much they may subjectively think they are being “awesome.”

Those two other pieces are RPC 8.4(a) and (c).  When combined those pieces of the rule read:

It is professional misconduct for a lawyer to . . .

(a) violate or attempt to violate [the ethics rules], knowingly assist or induce another to do so, or do so through the acts of another . . . [or]

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

I’ve often joked about 8.4(c) as being the only ethics rule in the books that has to mean something other than what it actually says because, as written, it would make it professional misconduct for me to answer questions from children about Christmas presents or bluff while playing poker or dive to get a call while playing over-35 soccer on Monday nights.  I’ve also, once before and also in response to something written by a lawyer more famous than I, advocated that it shouldn’t apply to a lawyer operating a parody account on social media.   But there are aspects of how that rule truly does apply to dishonesty by lawyers, even when not acting as lawyers, which are quite serious.  Easy examples from the recent past involve deans and others affiliated with administrative positions at law schools lying about statistics to improve enrollment numbers and the like.

And, perhaps the most perplexing and concerning of the examples Lear offers of things a lawyer could do where they wouldn’t be bound by the ethics rules is serving as an expert witness.  I’ve been fortunate enough to serve as an expert on more than a handful of occasions in my career, and, suffice it to say, RPC 8.4 is not the only ethics rule that will still apply to the lawyer when serving in that capacity.

The intersection of the First Amendment and the Ethics Rules

So, I don’t know if any of you have ever played HQ Trivia.  In any session, they have between 500,000 and almost 2 million players, so statistically speaking, I guess there is a chance you have.  While it has nothing to do with legal ethics, in order to understand the context of what follows, let me give you a quick primer.

It is something that would have been 5 years ago the stuff of science fiction or an even an episode of Black Mirror.  It is an app on your phone through which you can play trivia in real-time answering questions read by a human being host.  Each question is presented with three multiple-choice answers and you have 10 seconds from when the host starts reading the question to click your answer.  If you answer correctly, you get to move on to the next question.  If you don’t, you are eliminated.  In the standard format, the quiz consists of 12 questions and, if you answer all the questions correctly, you win or split the pot with any other players who have done so.  (When the largest pots are offered they increase the number of questions to 15 or, quite recently, they have experimented with as many questions as is necessary to narrow down to just winner in a winner-take-all format.)

The dollar amount of the prize varies.  It is typically $2,500 but, as it appears they are closer to whatever plan they have in place for monetizing the app approaches, they have recently offered a pot as large as $100,0o0.  Reportedly, tonight they will be offering a $250,000 pot.  I have won the game on one occasion and, of course, when I did there were so many other winners that my share came to just shy of $2.  (I also know there are other companies doing similar games and some of those are competing against HQ on the basis of how awful one particular financial backer of HQ reportedly is, so I’m not going to link or provide publicity to the game, but it is the one I play [for better or worse] so if you decide to sign up for it and put in my user name – bsfaughnan- as a referral code then I will get some extra lives.)

Now all that is background for today’s topic – which is the intersection and overlap of the ethics rules and what they prohibit members of our profession from doing and the First Amendment.  This topic is frequently one I spend time thinking about because for many years my practice has also involved representing clients on First Amendment issues and, in fact, though I continue to not be listed in Best Lawyerfor Legal Ethics and Professional Responsibility, in addition to being listed for Appellate Law, I am listed for Litigation-First Amendment.  It is also a topic that I have been thinkng about frequently because of various events that have worked their way into my line of sight either directly or indirectly.  Those three events are: (1) the outpouring of comments from particular portions of the bar in Tennessee arguing that the proposed RPC 8.4(g) in Tennessee is an assault on their First Amendment rights; (2) the latest post from Avvo’s GC criticizing ABA Formal Op. 480; and (3) the head of a prominent law firm speaking out publicly to indicate that a star lawyer of his firm turned down the opportunity to represent the current occupant of The White House.

So, here’s the HQ-style question and, remember, there is only one correct answer.  You won’t be limited to 10 seconds to answer from the time you start reading the question however:

Which of these presents the most compelling case for finding that discipline against a lawyer would violate the lawyer’s First Amendment rights?

  • A lawyer tweets – without client permission – about a jury verdict she obtained in order to advertise the successful outcome.
  • A lawyer, during a CLE or bar association social event, decides to lecture everyone in the room about why he considers marriage between two persons of the same gender to be an abomination.
  • A lawyer, consulted by a politician who she finds to be vile, or have views she finds to be vile, holds a press conference or tweets that she refused to represent that politician because she disagrees with everything he stands for.

 

 

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

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

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

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

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

Those include:

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

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

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

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

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

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

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