Friday installment of “I beg to differ.”

It has been a long time since I have had reason to strongly disagree with the insights offered by Karen Rubin and company over at their excellent blog – The Law for Lawyers Today – but here we are again.

Karen has written a thought-provoking piece about a criminal defense lawyer with a parody Twitter account and his role in the insanity that is the delusional Pizzagate conspiracy theory that led to a man going into a pizza parlor and firing shots.  She shakes out of a belief that the lawyer in question ought to be pursued for violation of the ethics rules in Florida — specifically that state’s version of RPC 8.4(c).  I think interpreting that rule to apply to circumstances where a lawyer is engaged in parody and satire is dangerous and unwise.

Admittedly, such an interpretation is not as dangerous and unwise as riling up stupid people to do stupid violent things in aid of trying to investigate a stupid conspiracy theory which is what the Florida lawyer may have been a part of, but still dangerous and unwise.

I manage to talk a good bit about RPC 8.4(c) when I speak at seminars, and, in fact, I brought it up again this year during my tour of the state for the 2016 Ethics Roadshow.  The rule, as written, fascinates me because all reasonable lawyers have to agree it doesn’t mean 100% of what it says.  It reads: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Now Karen is absolutely correct that the rule applies to lawyers even when they are not being lawyers, but it also can’t literally mean what it says.  Otherwise, as I always have fun pointing out to large-ish crowds, it would mean that lawyers could essentially never play poker (even when doing so is legal and not illegal gambling) because we would not be allowed to bluff.  Deceit.  Also, and particularly salient for the time of year, it would mean that those of us who are parents would have to tell the truth to our children about Jolly Old St. Nick the first time we are asked/confronted because to do otherwise would be engaging in conduct involving dishonesty.

We all know that the rule could never be enforced in such a manner and that no one would ever try to discipline a lawyer for such conduct.  Thus, the rule can’t be read 100% literally.  Figuring out exactly where the line is between untenable applications of its prohibition and reasonable applications is the hard part though.

A good example of conduct it definitely was intended to address was a relatively recent situation where a law school dean got suspended for his role in fudging the law school’s statistics.  You can go back and read about that here.

Taking the position that it can be applied to a lawyer’s parody account on Twitter to me is on the wrong side of the line, and so I beg to differ with Karen on this one.

(P.S. If you are really looking for someone who truly deserves scorn for his role in pushing the ridiculously stupid conspiracy theory on the ridiculously gullible people who bought into it (and perhaps still do), this guy deserves heaps of scorn even though he’s not a lawyer.)

 

My 200th post: Living in a “post-fact” world?

So, not a milestone for some, but, for me, it feels like an achievement to have made it to my 200th post.  And because I’m a sucker for wordplay, I’ll use a “post” milestone to talk about an issue I’ve written about a good bit before but with a twist that also involves the word “post” but as a prefix.

If you’ve been paying attention at all to U.S. politics, you may have seen some discussion about how we seem to be living in a “post-fact” world and lots of accompanying criticism about how the media has played a large role in making it easy for prominent people to simply refuse to acknowledge facts and then inculcate beliefs in those who support them or identify with them that such facts are not actually facts.

Well, here’s something of an example — but in the world of legal ethics — of just how easily it is for that kind of thing to seem to happen.

So, in late October, the Montana Supreme Court put an order out for public comment about potentially adopting the new ABA Model Rule 8.4(g) addressing harassment and discrimination by lawyers in conduct related to the practice of law.  The Montana Supreme Court has floated adopting the entirety of the ABA Model Rule black-letter language such that if adopted, Montana’s 8.4(g):

would provide that it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

You can read the Montana Supreme Court order here.  The deadline for public comments is actually today and, within the last few days, there was some publicity in Montana about the proposal.

This story is what has prompted me to write.  The reporter has included a quote from a law professor at a Montana law school who stakes out the position that the rule would suppress free speech and who is quoted as saying:

“There’s a wide variety of attorneys from a wide variety of backgrounds that are opposing this proposed rule, not necessarily on faith based reasons, but on the ability to ask questions in depositions and determining who should be seated on a jury. So it’s raised concerns amongst all types of attorneys.”

But, you might say to yourself, I just read that the proposed rule, if adopted, would have a sentence that says: “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”  And, also since you read the blog, it probably means you keep up enough with these issues to know that the ABA Model Rule, at least, has specific language in an accompanying comment even addressing peremptory challenges, but that even if Montana isn’t also looking at adopting the comments, as long as what the lawyer does in jury selection is “legitimate advocacy,” it ought to be protected.  Yet, the news article contains no push back against the law professor’s statement and not even a competing quote from someone saying the actual rule would raise no such issues.

How can that be?  Well, there is a fairly easy and revealing answer that is pertinent to a number of much larger issues going on in the world around us these days (in my opinion).  The news article, describing the rule for the public, merely says this about the content of the proposed rule:

Proposed rule 8.4 (g) states: It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

So, the news report simply omits two of the sentences of the proposed rule including the one that contradicts the law professor’s stated concerns.  Thus, regular folks would have no idea of the rest of the content of the proposed rule when reading the story and certainly no reason to question why the law professor would be willing to make claims that appear to be contrary to clear language in the rule.

Sigh.

(And, if you are in Chattanooga or Knoxville, I’ll be doing those stops on the Ethics Roadshow next week and ABA Model Rule 8.4(g) is one of the topics on the menu for discussion.  It’s not too late to register and attend if you are so inclined.)

California offers opportunity for a word (or 1,000) on the topic of sex with clients.

So, many moons ago I wrote a post about the fact that California was working through the process of trying to overhaul its ethics rules.  I said I’d get back to that topic, but never really did.  So, today, I am.  Kind of.  But not really.

In the news within the last 24-36 hours are articles about a split of opinion on whether California’s proposed revised rules should follow the ABA Model Rules to impose a ban on lawyers having sex with clients.  You can check out the short ABA Journal online snippet here.  You can read the original article referenced here.

Here is how the ABA Model Rule, Rule 1.8(j) reads:

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Pretty simple and straightforward admittedly.   At present, the articles explain that California rules only prohibit lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  (That’s not really much to prohibit when you think about the fact that both such acts would already be prohibited under other ABA Model Rules.  For example, the latter essentially being prostitution and thus likely a violation of Model Rule 8.4(b).)

The news articles grab quotes and thoughts from lawyers on either side of the argument in California which mostly boil down to — the relationship between attorney and client is so close that the injection of sex into the mix will always result in imbalance v. consenting adults should be permitted to do as they please even if one of them is the other’s attorney.

There is little I can say on this subject definitively, but I do feel pretty strongly that the term “a blanket sex ban” used in the article is the wrong one as it can be read to be far too narrow a restriction (as opposed to “a blanket ban on sex”), and it is one where I read it and can’t help but hear Sterling Archer, in my head, immediately say: “Phrasing.”

My reason for writing though is not just to be able to make that Archer reference, I swear.  My reason for writing is to advocate for my belief that the Tennessee approach to this issue in the ethics rules really gets it right and ought to be emulated by California and anywhere else that is in need of a rules fix on this front.

In Tennessee, we did not adopt Model Rule 1.8(j) but in large part because it is too narrow rather than because it is too broad.

The Model Rule, for example, doesn’t cover a lot of ground that is problematic.  Imagine the context of a divorce case in which the lawyer for the wife is having sex with the husband.  Or imagine a criminal defense lawyer who is representing a jailed husband but having sex with the husband’s wife.  Or imagine an even less conventional arrangement where there are three people in a room and sexual relationships are present but at no point does the attorney in the room engage in sexual conduct with the person in the room who happens to be the attorney’s client.

Those are all real conflict of interest problems for the lawyers in question but the approach taken by the ABA Model Rules wouldn’t prohibit any of them.   (They also each have really happened and been the subject of publicity but I’m not going to dig up and provide links so as not to open any old wounds for anybody involved.)

In Tennessee, we recognized (and in so doing we largely followed the lead of D.C. if memory serves) that the only approach to the issue of conflicts created for lawyers by sexual relationships that goes as far as it needs to but that also still provides for the ability, in rare circumstances, for a lawyer and a client to have a mutually-consented-to sexual relationship (perhaps say if they were married) is an approach that treats the issue as just one variety of “personal interest” conflict of a lawyer that can result in a material limitation conflict under RPC 1.7(a)(2).

Thus, our rules address the topic through three paragraphs of Comment to RPC 1.7 as follows:

[12]  The relationship between lawyer and client is  fiduciary one in which the lawyer occupies the highest position of trust and confidence.  Because of this fiduciary duty to clients, combing a professional relationship with any intimate personal relationship may raise concerns about conflict of interest, impairment of judgment of both lawyer and client, and preservation of attorney-client privilege.  These concerns may be particularly acute when a lawyer has a sexual relationship with a client.  Such a relationship may create a conflict of interest under paragraph (a)(2) or violate other disciplinary rules, and it generally is imprudent even in the absence of an actual violation of these Rules.

[12a]  Especially when the client is an individual, the client’s dependence on the lawyer’s knowledge of the law is likely to make the relationship between the lawyer and client unequal.  A sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant risk that the lawyer’s emotional involvement will impair the lawyer’s professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict the extent to which communications will be protected by the privilege, because communications are protected by the privilege only when they are imparted in the context of the client-lawyer relationship.  The client’s own emotional involvement may make it impossible for the client to give informed consent to these risks.

[12b]  Sexual relationships with the representative of an organizational client may not present the same questions of inherent inequality as the relationship with an individual client.  Nonetheless, impairment of the lawyer’s independent professional judgment and protection of the attorney-client privilege are still of concern, particularly if outside counsel has a sexual relationship with a representative of the organization who supervises, directs, or regularly consults with an outside lawyer concerning the organization’s legal matters.  An in-house employee in an intimate personal relationship with outside counsel may not be able to assess and waive any conflict of interest for the organization because of the employee’s personal involvement, and another representative of the organization may be required to determine whether to give informed consent to a waiver.  The lawyer should consider not only the disciplinary rules but also the organization’s personnel policies regarding sexual relationships (for example, prohibiting such relationships between supervisors and subordinates).

I happen to think these three paragraphs cover the waterfront quite ably when it comes to running such an issue through the “material limitation” conflict spectrum as a personal interest of the lawyer that can impact the representation.

To the extent we stole this good idea from D.C., California ought to feel free to steal it from us should it wish.

Alaska you a question about read receipts.

Sorry, bad and lazy pun for a title.  As loyal readers of the site know, I like to write from time-to-time about formal ethics opinions issued by state regulatory bodies.  A recent one caught my attention at first for its — “I cannot believe someone even had to ask feel.”  But, ultimately after I read it all the way through, it intrigued me as a gateway to raise another, related and I happen to think a bit more interesting question.

With that as prologue, on October 26, 2016, the Alaska Bar Association Board of Governors approved Ethics Opinion 2016-1 for release.  The opinion tackles the following question:

Is it ethically permissible for a lawyer to use a “web bug” or other tracking device to track the location and use of emails and documents sent to opposing counsel?

The opinion gets the answer to that question undoubtedly correct by saying that, no, it isn’t and that doing something like that violates Alaska’s RPC 8.4 on generally deceptive conduct and is also problematic because it can undercut the receiving lawyer’s ability to comply with her own obligations under RPC 1.6 to attempt to protect information related to her representation of her client as confidential.

To give a better sense of the kind of technology being discussed, the Opinion explains:

One commercial provider of this web bug service advertises that users may track emails “invisibly” (i.e., without the recipient’s knowledge) and may also track, among other details:

  • when the email was opened;
  • how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities);
  • how many times the email was opened;
  • whether the recipient opened attachments to the email;
  • how long the attachment (or a page of the attachment) was reviewed;
  • whether and when the subject email or attachment was forwarded; and
  • the rough geographical location of the recipient.

Yikes, right.  That’s a pretty dogged little bug and one that would provide a significant, surreptitious window into the work of the lawyer on the other side.  When I saw the headlines at places like the ABA Journal online about the issuance of this opinion, I jumped to the incorrect conclusion that the lawyer requesting the opinion was a lawyer looking to use this kind of software feature.  At that point, I was surprised anyone would need to ask to know that you couldn’t do this, but the Opinion explains that the request actually came from someone who received an email with one of these “web bugs.”  Thus, the request for a definitive opinion of the wrongful nature of the conduct makes more sense.  (And, for those immediately wondering, apparently some email providers do have countermeasures in place that notify you about some of these “webbugs” and that has to be how the receiving lawyer knew what had transpired.)

I think the opinion is pretty well done and reaches the obvious and correct solution.  It offers some interesting discussion about how, even if the webbug were not surreptitious but actually announced itself, the use of it by the sending lawyer could still be problematic as invasive on the attorney-client relationship through, among other things, potentially revealing otherwise work-product protected information and even endangering the whereabouts of clients who are trying to stay hidden.

What intrigued me enough to write this piece though was a tangential topic that is raised a bit in a footnote to the Opinion, the ethical issues surrounding generic “read receipts” on emails.  Specifically, in footnote 6, the Opinion says:

The use of “delivery receipts” and “read receipts” through Outlook and similar email services does not intrude upon the attorney’s work product or track the use of a document, and therefore is not at issue here.  Those types of receipts are functionally comparable to the receipt one may receive from the use of certified mail.

That last part may well be true — that these are digitally the functional equivalents of a return receipts on certified mail — but I have a slightly different view on this topic.  I certainly do not contend it is unethical for attorneys to send emails to other attorneys that include a request for a “read receipt,” but I uniformly refuse to comply when I get such “read receipt” requests, and I do so because of my obligations under the ethics rules.

If I’m getting an email only because I am an attorney representing a client, then information about when I read that email – how close to when you sent it to me or how far away from when you sent it to me – is “information related to the representation of my client,” and I see no need to do anything other than act to reasonably safeguard that information and decline the read receipt request.

I doubt anyone would ever get disciplined for doing otherwise as a violation of RPC 1.6, but I’m curious as to whether there are others reading this who conduct themselves the same way and have the same view of the “read receipt” issue.

 

Going from “easiest” to “most difficult” in three weeks.

It is Election Day, but neither the title nor the subject-matter of this post have anything to do with that.

Later this week, November 11, I will be fortunate enough to present at the annual meeting of the Tennessee Association of Construction Counsel in Nashville and have billed my topic as “The Easiest Hour of Ethics You’ll Ever Learn.”  Unlike my normal seminars, I don’t plan to push the audience to participate at all, but (and this is a warning for those who are planning to attend and reading this post… here be SPOILERS and if you want to stay surprised you should read no further…)

Okay.

That should be enough hard returns and buffers for those who are trying to hit the back tab.

As most of you won’t be there, let me continue.  My plan is to essentially provide an “everything you ever wanted to know about the disciplinary process in Tennessee but were afraid to ask” presentation.  Far too few lawyer truly understand how the process works – and no one wants to learn about it for the first time when dealing with a disciplinary complaint filed against them, so hopefully it should be informative and a bit enjoyable.

Exactly three weeks later though, we’re going down the opposite path as I’m going to present at the Memphis Bar Association Labor and Employment Law section’s annual seminar in Memphis and my presentation is titled:  “The Most Difficult Ethics Hour You’ve Ever Earned – An Open Discussion of New ABA Model Rule 8.4(g) and What Comes Next.”  That one is going to be almost entirely interactive and given that the folks in the room will be employment and labor lawyers… I expect an opinionated bunch with thoughts on the relative merits of turning an employment law issue into an ethics and disciplinary issue.

I’ve written on this blog three times previously about the ABA Model Rule and won’t repeat myself today.  But I did want to briefly discuss a development along these lines.  Specifically, it comes from the Philadelphia Bar Association which, on October 26, 2016, passed a Resolution urging the Supreme Court of Pennsylvania:

to adopt the amendment to Rule 8.4 of the ABA Model Rules of Professional Conduct which adds section (g) making it an ethical violation to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

It will be interesting to see if this spurs any action from the Pennsylvania Supreme Court, or not, particularly given the negative publicity that various justices have brought upon that court over the last few years.

Violence should never be the answer.

Back almost twenty years ago, the New Jersey Supreme Court warned New Jersey lawyers that “any act of violence committed by an attorney will not be tolerated” and to expect that the likely consequence for engaging in violent behavior would be “[n]othing less than a suspension.”  They issued that warning in a case, In re Viggiano, where a lawyer responded to a minor traffic accident by getting out of his car, approaching the other vehicle involved, and proceeding to punch the female driver who was still sitting in the other car.  That lawyer received a three-month suspension.

Now, I was a mere law student in Tennessee back then, and I didn’t know anything about that decision before today.  I know about it now, thanks at first to a Law360 email newsletter blast, because of two decisions from the New Jersey Supreme Court that were issued simultaneously this week (and coincidentally were also both decided on the same day, more than 9 months ago on December 15, 2015, by the N.J. Disciplinary Review Board).

The outcomes in those cases – and all of the other precedent they describe — make me think that New Jersey lawyers still have a real problem with violence and that the New Jersey Supreme Court wants to make sure that warning, 20 years later, is renewed, repeated,and maybe more effective this time.

The first In re Collins affirms the Disciplinary Review Board’s decision to impose a three-month suspension on a N.J. lawyer for another “road rage” incident.  This time it involved a bat, but fortunately for the people in the other car, the lawyer took the bat only to their car – though they were inside of it at the time:

Respondent admitted that, while on a public street in Jersey City, during a “road rage” incident, he got out of his car, retrieved a baseball bat from the trunk and struck another person’s vehicle multiple times, breaking the windshield and side view mirror.

In the December opinion of the Disciplinary Review Board, the Board referenced the fact that it was issuing decisions at the same time in two other cases, mentioned that they were recommending imposition of censures on those attorneys, and attempted to explain why this one was more serious than those.

As of this afternoon, I can only find one of those other two on the Court’s website, the In re Buckley one.  I’d be interested to know what the other one involved and I’d be curious to see if it ends up in the same place as Buckley does because the NJ Supreme Court order on Buckley rejected the Board’s recommendation of only a censure and increased the punishment to the same three-month suspension imposed in Collins.

The acts of violence in Buckley as described by the Board opinion read like so:

On the night of the assault, Balde, a taxi driver, was hailed by respondent on the West Side Highway in New York City.  He agreed to drive respondent to Jersey City for a $63 fare.  Upon arriving in Jersey City, at approximately 10:30 p.m., respondent informed Balde that he had only $9 and asked Balde to drive him to his apartment so that he could obtain additional money.  Balde refused to do so and locked the doors in the taxi to prevent respondent from exiting.  Respondent, who is approximately 6′ 5″ tall and 280 pounds, began to kick at a door and window of the vehicle.

Balde then unlocked the doors and respondent exited the taxi and began walking away, pursued by Balde.  Respondent grabbed Balde’s face and then struck him in the face with a closed fist…. As a result of respondent’s assault, Balde sustained lacerations to his forehead and upper lip, his glasses were broken, he had blood on his shirt, and he reported pain in his nose and mouth.

Now, you give me the choice between a guy with a bat attacking my car and getting punched in the face by a 6’5″ 280 pound man, and I know what I would choose … I’d choose to stop playing “would you rather” with you and play Words With Friends with someone else instead.

The Board tried to explain its distinction in December on the basis of the different levels of violent conduct but the only thing the Board said that truly resonated was the fact that the lawyer who attacked the cabbie was not working as a lawyer at all but as a compliance officer for a national bank and so there was less need for a body such as the Board to protect the public from the lawyer as lawyer.  Nevertheless, on the New Jersey Supreme Court’s own terms dating back to Viggiano, the punishment in the second case suggested by the Board likely didn’t look like much of a “violence won’t be tolerated” message.

But, the Board did look like it was truly trying to apply post-Viggiano precedent and the New Jersey Supreme Court hadn’t quite always taken its own warning to heart.  The Collins opinion from the Board takes the reader on a tour of a few other cases including a bar fight and assault on a police officer that resulted in a one-year suspension (In re Gibson in 2005), an attorney who only received a censure for following another vehicle for roughly 10 miles while brandishing a knife at its occupants (In re Milita in 2014), a lawyer who was suspended for six-months for attacking a physician (choked the doctor and smashed his head against a plexiglass window?) who tried to help the lawyer after the lawyer fell backwards on some stairs (In re Bornstein in 2006), and a lawyer who only received a censure for assaulting special federal agents during an investigation (In re Nealy in 2011).

So, it seems like the New Jersey Supreme Court might well be trying to put some more teeth into that warning, but again I’d be curious to know anything more I can find about that other case mentioned in the December Board ruling – In re Rausch.  In the meantime, I guess it is fair to say:  “Beware violent New Jersey lawyers!”  But, maybe even more so, “Beware of violent New Jersey lawyers!”

Oh, and on what I am sure is a completely unrelated note, here’s a handy link to a report entitled Drug and Alcohol Abuse & Addiction in the Legal Profession that you can read at your leisure.

Both the java fight and the nut dispute are kind of bananas.

If you spend any time on social media these days, you may have noticed how irritable folks are.  There are lots of reasons for it, of course.  We live in stressful times.  Practicing law has always been a high-stress endeavor as far as professions go; thus, cries for more civility in the practice of law have been going on for many years and likely will continue to go on for many more years to come.

I’ve offered before on this blog my overarching “don’t be an ass” theory as it relates to practicing law but lawyers are people and people are people, so … sometimes people don’t get along.

There have been two relatively recent examples of lawyers not getting along, actually getting into dust-ups that have become pretty high-profile (or at least they were a few weeks ago) and that seem pretty hard to believe all involved wouldn’t wish for a chance at a simple do over.

One of them was talked about most frequently as being a coffee fight, but reads more like something that was already in the problem range before the hurling of coffee ever came into the picture.  The dispute happened during a deposition so in addition to the he said/she said aspects of what went down, there was a court reporter present.  The court reporter’s version of events grabs parts of each of the competing stories and likely gets the closest to the accurate version of events — the coffee was iced coffee and it likely was hurled at the other lawyer.  Doesn’t change the fact that it’s really bad behavior but at least it makes it much less likely that anyone was at risk of burns from scalding coffee.  You can read about all the various filings and back and forth here, here, here, and here if you’d like.

The other dispute that got lumped into my reading pile with the java jousting is both more and less bizarre at the same time.  As it all appears to turn over false allegations about how one lawyer acted upon learning about the existence of a nut allergy on the part of another lawyer’s paralegal.  You can read a bit more about that weirdness here.

Interestingly (although maybe that’s the wrong choice of word), assuming away any criminality in any of the conduct), the ethics rules that often come into play in dust-ups of these sorts are RPC 3.4 (at least as to the parts of them that relate to battles over obstructionist discovery tactics and the like), RPC 4.4(a)’s prohibition on using means when representing a client “that have no substantial purpose other than to embarrass … or burden a third person,” and RPC 8.4(d) prohibition on conduct “prejudicial to the administration of justice.”  Interestingly (and here it is definitely the apt word), the coffee fight at least contains some undertones of issues that might be in the wheelhouse of the ABA’s new RPC 8.4(g),

Speaking of disputes, but not disputes between lawyers and not disputes involving the weaponizing of any ingestible foodstuffs, I will be doing a national teleseminar tomorrow along with Sue Friedberg who serves as Associate General Counsel of Buchanan Ingersoll & Rooney on “Ethics and Disputes With Clients.”  You can sign up for it through a number of different channels (check with your local bar for example) like through this link in Oregon or this link in Nebraska or this one in Missouri.

Ohio ethics opinion is concrete example of “Tis better to ask forgiveness than permission.”

“It’s easier to ask for forgiveness rather than permission.”

Those words, or words of similar effect, make up a pretty widely recognized adage.  Depending on the details of any situation, the adage can serve as a proxy for pretty decent advice for a lawyer to give a client, but often less so if the lawyer’s client is also a lawyer.  The message itself, however, can be a pretty decent mantra to offer to lawyers who might be contemplating posing a question to a regulatory body that issues advisory ethics opinions.

I’ve previously written a few words on my love/hate relationship with ethics opinions issued by entities.  A lot of the time I find myself surprised that a lawyer would ask the question that a regulatory body says has been posed to it.  Occasionally, I am very glad that some lawyer did because the result is a helpful opinion that I and others can point to as guidance when advising other lawyers or can rely upon as arguably persuasive authority in one context or another.  Some times I really wish the question had never been asked because the opinion that gets produced really screws up the answer.

From time-to-time, I read an ethics opinion and reach a conclusion that the lawyer would have been better off just doing the thing and seeking forgiveness later rather than even asking the question.  Hello Opinion 2016-6 from the Board of Professional Conduct of the Supreme Court of Ohio.  It tackles the role lawyers in Ohio can or cannot play in that state with respect to the legalization of medical marijuana which is set to take effect next month in Ohio.

It has been more than a year ago now, but I wrote one time in the past about the thorny issues that can arise for lawyers from the growing trend at the state and local level of moving toward the legalization of marijuana while it continues to be illegal to grow, distribute, or use under federal law.  Thus, I can’t really take too much issue with the opinion writers who issued the Ohio opinion because I recognize the constraints they consider themselves to be laboring under to some extent, but the work product they have spun out is still unfortunate… if for no other reason than that it is counterproductive.

People trying to operate in this new business sphere in Ohio will have many land mines to navigate and desperately need lawyers to help.  They are going to do a whole lot better at avoiding unexpected difficulties or legal missteps if they have lawyers assisting them along the way.  By telling Ohio lawyers that this kind of work is off-limits, other people who are not constrained by lawyer regulatory issues will likely step in to fill the void.  Though I learned this morning from Karen Rubin over at her firm’s top-notch blog that the Ohio Supreme Court has already announced an effort to revise RPC 1.2 to address this issue, so maybe there will never be a gap created.

But the real problem here is that this is exactly the kind of question that should never have been posed this to the Board of Professional Conduct.  Perhaps there is no better way of showing why this is true than in highlighting how the Ohio Board addressed the fact that the Ohio legislature passed a statute immunizing professionals from liability for undertaking actions in compliance with Ohio state law on medical marijuana.  The Ohio Board offers no solace on that front:

The law immunizes professional license holders, including lawyers, from any professional disciplinary action for engaging in professional or occupational activities related to medical marijuana.  Notwithstanding this provision, this advisory opinion analyzes the questions presented in light of rules promulgated by the Supreme Court pursuant to Oh. Const. Art. IV, Section 2(B)(1)(g).

The Board dropped a footnote from that second sentence to quote the relevant provision — “The supreme court shall have original jurisdiction in * * * [a]dmission to the practice of law, the discipline of persons so admitted, and all other matters related to the practice of law.” — and raise the specter for a lawyer interested in helping a medical marijuana business of an intercine war between government branches with his/her license trapped in the middle.

The clearest lesson here for Ohio lawyers ought to be that when you really want helpful, practical, legal and ethical advice about a tough question, you ought to hire someone in Ohio — someone like Karen or like many of the other very good lawyers licensed in Ohio who are members of APRL for example.  Those folks could give them candid advice about the risks of their proposed endeavor and offer advice informed by comprehensive knowledge of the Ohio ethics rules but also advice informed by knowledge of other aspects of the law as well.    I suspect good Ohio ethics lawyers would have told them some version of the following — yes, you might get in trouble if someone ever makes an issue out of it, but not entirely clear that you would get punished given the lay of the land, if you did it would probably be relatively minor, but it isn’t an area that anyone can give you a clear blessing in advance.

That kind of practical advice is something that a body like the Ohio Board simply isn’t in a position to give.  As a result, you get Ohio Opinion 2016-6.  And, the analysis in Ohio Opinion 2016-6 seems all the more frustrating when just a few days later a federal appeals court ruled that the Department of Justice could never actually prosecute someone who was fully complying with a state’s medical marijuana laws because of a funding bill restriction passed by Congress.  You can read about that opinion here.

Two developments from the ABA Annual Meeting – which one will have the bigger impact?

The 2016 ABA Annual Meeting continues today and tomorrow but the two actions for which it likely will be most remembered have already transpired.  One happened Monday when, after much public discussion and multiple revisions to the proposal along the way, a final set of proposed revisions to ABA Model Rule 8.4 was approved in a voice vote by the ABA House of Delegates.   As this short article at The ABA Journal makes clear, after all of the criticism over many months, no one requested time to speak against the final version of the proposal.  You can see the full, final version of Revised Resolution 109 that passed here.

I’ve written twice before about earlier versions of the proposal here and here.  The action adds a new RPC 8.4(g) designed to make harassment and discriminatory conduct by lawyers connected to their law practice unethical.  A last set of revisions were made to the proposal in just the last month to change the triggering conduct from potential strict liability of “harass or discriminate on the basis of,” to a more favorable mens rea standard of “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of” and to clarify that “legitimate advice or advocacy consistent with these Rules” would not be prohibited by moving the language protecting such conduct from the comment up into the black-letter rule itself.

It is certainly a significant and historic event for the ABA to have passed this rule revision, and I don’t mean to downplay the significance from the standpoint of the ABA as the largest lawyer organization in the United States.  But, what will be the impact exactly of this action?  The ABA Model Rules do not, of course, actually govern anyone anywhere.  They are, however, a standard setter and often result over time in adoption and implementation in other U.S. jurisdictions.

Will this change to RPC 8.4 work its way through the states?  Well, it is kind of hard to say because one of the big advocacy points of the ABA change was the assertion that 20 states already had a form of the anti-discrimination provision in their version of the rule, so as a starting point this is a change that only targets 30 states.  As a lawyer who practices in the deep South, I will simply state my skepticism about how quickly my own state and the various bright red states around me will move to revise a version of RPC 8.4 not already prohibiting harassment and discrimination.  I’d love to be proven wrong about that though.

The second potentially historic development was the final work product from the ABA Commission on the Future of Legal Services – The Report on the Future of Legal Services in The United States, and the establishment of the Center on Innovation.  In the words of the Commission, the Center on Innovation will be something like an R&D division for the legal industry.  The creation of the Center has already been approved by the Board of Governors, but what will it do — and what will be off-limits to it?  According to the piece at The ABA Journal, the Center’s “primary tasks will include assisting law firms interested in introducing new approaches to their practices, studying innovations in legal services delivery in other countries, and developing training programs for law students interested in innovative law practice.”

But, given the ABA’s problematic history over the years with efforts at exploring nonlawyer ownership of law firms, it is hard to figure out how “studying innovations in legal services delivery in other countries,”  truly leads to anything other than yet another obvious conclusion that the innovations in the delivery of legal services occurring in other countries pretty much involve nonlawyer ownership of law firms.  It doesn’t require much additional study to grasp that point.

Lest I end up sounding completely like Eeyore today, the creation of the Center does not have to be the sole lasting legacy of the ABA Commission on the Future of Legal Services, one of the other recommendations the final report encourages should be implemented — involving making courts more accessible by doing things such as embracing online dispute resolution and self-service kiosk centers — might actually have the most significant potential to assist with perceived, and real, access to justice gaps in the United States, even though it might not be of any benefit to the legal profession.

Here, for those who don’t necessarily have a moment right now to read the full 100+ page report are the 12 recommendations made by the Commission:

RECOMMENDATION 1. The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.

RECOMMENDATION 2. Courts should consider regulatory innovations in the area of legal services delivery. 2.1. Courts should consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Services. 2.2. Courts should examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially-authorized-and-regulated legal services providers. 2.3. States should explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services. 2.4. Continued exploration of alternative business structures (ABS) will be useful, and where ABS is allowed, evidence and data regarding the risks and benefits associated with these entities should be developed and assessed.

RECOMMENDATION 3. All members of the legal profession should keep abreast of relevant technologies.

RECOMMENDATION 4. Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.

RECOMMENDATION 5. Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process. 5.1. Physical and virtual access to courts should be expanded. 5.2. Courts should consider streamlining litigation processes through uniform, plainlanguage forms and, where appropriate, expedited litigation procedures. 5.3 Multilingual written materials should be adopted by courts, and the availability of qualified translators and interpreters should be expanded. 5.4. Court-annexed online dispute resolution systems should be piloted and, as appropriate, expanded.

RECOMMENDATION 6. The ABA should establish a Center for Innovation.

RECOMMENDATION 7. The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services. 7.1. Increased collaboration with other disciplines can help to improve access to legal services. 7.2. Law schools and bar associations, including the ABA, should offer more continuing legal education and other opportunities for lawyers to study entrepreneurship, innovation, the business and economics of law practice, and other relevant disciplines.

RECOMMENDATION 8. The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.

RECOMMENDATION 9. The criminal justice system should be reformed. 9.1. The Commission endorses reforms proposed by the ABA Justice Kennedy Commission and others. 9.2. Administrative fines and fees should be adjusted to avoid a disproportionate impact on the poor and to avoid incarceration due to nonpayment of fines and fees. 9.3. Courts should encourage the creation of programs to provide training and mentoring for those who are incarcerated with a goal of easing re-entry into society as productive and law-abiding citizens.9.4. Minor offenses should be decriminalized to help alleviate racial discrepancies and over-incarceration. 9.5. Public defender offices must be funded at levels that ensure appropriate caseloads.

RECOMMENDATION 10. Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services. 10.1. Legal aid and pro bono efforts must be expanded, fully-funded, and better-promoted. 10.2. Public education about how to access legal services should be widely offered by the ABA, bar associations, courts, lawyers, legal services providers, and law schools.

RECOMMENDATION 11. Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.

RECOMMENDATION 12. The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.

 

Revisiting the question of whether the ethics rules need revamping as to discrimination & harassment

So, quite a few months ago, I wrote about what (I think) was the first iteration of the proposed revision to RPC 8.4 to add a black-letter rule addressing discrimination and harassment.  My verdict at the time was one of skepticism that it made any sense at all to move workplace and employment discrimination issues to the ethics rules.

The proposal has now gone through several revisions and the end product — that will be put in front of the ABA House of Delegates in August 2016, is this Resolution.  The Resolution proposes the adoption of this new RPC 8.4(g), making it professional misconduct for a lawyer to:

harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.  This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.

The proposal also involves the adoption of two new comments, Cmt. [3], [4], and [5] that would provide as follows:

[3]  Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system.  Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others because of their membership or perceived membership in one or more of the groups listed in pragraph (g).  Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups.  Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.  The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4]  Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business, or social activities in connection with the practice of law.  Paragraph (g) does not prohibit conduct undertaken to promote diversity.

[5]  Paragraph (g) does not prohibit legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation.  A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law.  A lawyer may charge and collect reasonable fees and expenses for a representation.  Rule 1.5(a).  Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause.  See Rule 6.2(a), (b) and (c).  A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities.  See Rule 1.2(b).

I still have some misgivings about aspects of the proposal, but I will say that my view on it has largely come around and changed from where I was back when I first wrote about an earlier version of the proposal.  It does seem from the more I read about, and hear people debate these issues, there are still very significant workplace problems presented by the way lawyers treat other lawyers, as well as those that are not lawyers but must work with them on a day-to-day basis.  I will also admit that my view has changed on the need for that, in no small part, by watching events as they have played out on the national political stage and becoming very uncomfortable in hearing the rhetoric of those who are decrying this rule proposal as somehow fostering “political correctness,” sound eerily like one of our two presidential candidates, the one who seems to think it is appropriate to demean and vilify almost all who do not look like he does.  In a world in which there can be seemingly a third of the population as a whole that embraces such an approach to life, it seems the least that an organization like the ABA can do to advocate for this kind of additional protection from harassment and discrimination to be a part of its Model Rules.

The misgivings I still have are mostly with the language and meaning of new Comment [5].  By adding “that is material and relevant to factual or legal issues or arguments in a representation,” to modify “legitimate advocacy,” it makes me think the intent is that there could be “legitimate advocacy” of some other type.  I’m not sure there is, but if there is it should probably likewise be exempt and, thus, “legitimate advocacy” without further elaboration would seem to be the right language to use.

I also wonder whether this provision would truly mean the end — for example — of family law firms that market themselves as exclusively representing one gender or another in such proceedings.  I know what my thoughts are on what should be the correct result, but I have some trouble reconciling the proposed rule and the explanation in the Comment to determine how that item would be treated.

The entire report accompanying the resolution is available at that link provided above and it is worth a read.