The ethics of putting together an unenforceable contract.

It is still astounding (as well as deeply dispiriting) that the context of the discussion I’m about to launch is the work of White House Counsel but this is the world we currently occupy.  You may very well have read this fascinating The Washington Post article by now released in connection with the ongoing news story of a former White House staffer who repeatedly secretly taped conversations – including her own firing in The Situation Room — inside The White House and what those recordings may reveal about whether that person says even more outrageous things in private than the outrageous things he says in public, as well as whether that person is suffering from a decline in his mental faculties.

Because tackling the notion of the ethics of representing a client with diminished capacity if that client happens to be – at least theoretically – the most powerful politician on the planet – is too depressing to tackle, I’m not writing about that today.  If you want to delve into those issues, your starting point is ABA Model Rule 1.14.

Instead I want to talk about [as the title of the post telegraphed] what can be a thorny ethics issue even in much more pedestrian contexts: is it ethical for a lawyer to draft and create a contract for a client’s use that the lawyer knows to be unenforceable?

As the topic du jour the context of the question is requiring staff at The White House – public employees — to sign non-disclosure agreements including provisions that would prohibit them from disparaging the 45th President of the United States.  Seemingly everyone acknowledges that given the nature of public employment, democracy, the at-least-still-for-the-time-being cherished concept of transparency in government, and numerous other federal laws such an agreement is obviously and undisputedly unenforceable.  The article describes what the media has been told about the events:

A number of White House aides were urged to sign NDAs in early 2017 by White House Counsel Donald McGahn, according to current and former aides, who requested anonymity to discuss internal West Wing deliberations. Trump was obsessed with leaks to the news media and repeatedly demanded that McGahn draft the agreement, the aides said.

Initially, McGahn told Trump he would not draft or give aides the NDAs because they were not enforceable, White House officials said. But in the end, McGahn created a document that said aides would not divulge any confidential or nonpublic information to any person outside the building at any time, according to three people who signed it.

Other media outlets have reported that McGahn may have convinced people to actually sign the document by reassuring them that it was unenforceable.  One of the reasons the question is important ethically is that if you create a contract for a client that you know is unenforceable, they will likely still try to use that contract in the future against people and cause them harm (at the very least economic harm and inconvenience associated with defending a lawsuit seeking to claim a breach of the unenforceable contract).  Media reports today indicate that something like this is now being undertaken – although admittedly apparently based on an NDA that was required by the campaign and not the actual government.

My opinion about the answer to the question of whether any such conduct by a lawyer is unethical is, unfortunately, less than equivocal.  At heart, it will have to turn on a situation-by-situation analysis.  Using the Model Rules to explain, this is because there is not exactly a specific rule outside of the litigation context that flatly prohibits a lawyer from assisting a client in pursuing a frivolous position in negotiation of a document in the same way that there is such a rule prohibiting the pursuit of frivolous claims in litigation.

What is available is a collection of rules that would need to be sifted through and applied to the circumstances to reach a conclusion about the lawyer’s role in assisting a client in getting someone to agree to a provision in a contract (or an entire contract) that is known to be unenforceable.  Those rules are:

RPC 1.2(d):  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

RPC 1.16(a):  … a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law ….

RPC 4.1:  In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RPC 4.3:  In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. . . . The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

RPC 4.4(a):  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….

RPC 8.4(d):  It is professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice.

Assuming that, at all times in dealing with the members of staff being asked to sign the contracts, White House counsel was truthful about the situation, then the most troublesome provisions from the list above would be RPC 4.4(a) as there seems no “substantial” purpose other than to burden these people to seek to have them agree to an unenforceable contract — particularly where one of the grounds of unenforceability in this scenario is a constitutional issue.

In other circumstances, for example, where the unenforceable piece of the contract puzzle is just one part of an otherwise enforceable contract or, on the other extreme, where the contract itself is unenforceable because its purpose is inherently criminal or illegal, then the interweaving of these rules may provide a clearer outcome.

That escalated … but not all that quickly.

You’ve likely already read something this week about the Florida lawyer who was disbarred last month as the culmination of his “cumulative and escalating misconduct,” so I don’t know that I have anything truly unique to offer about the situation.

But because I so clearly remember talking about the first event in his series of bad behavior in seminars I did about 8 years ago, I feel compelled to write about his disbarment.

Back in 2010, an opinion came out that suspended Robert Ratiner for 60 days over an incident involving a highly aggressive and inappropriate reaction to another lawyer putting a sticker onto his laptop during a deposition.

That case garnered some substantial legal media attention because the Florida Supreme Court described Ratiner’s conduct as something that ought to be viewed in professionalism courses to teach lawyers how not to behave.  In that incident which happened in 2007, Ratiner responded to the other lawyer’s placement of the exhibit sticker by first trying to physically run around the table to where the lawyer was and then, instead, forcefully leaned over the table, angrily yelled at the other lawyer, and through the wadded up sticker at him.

Between that incident and the latest, Ratiner received a three-year suspension in 2015 flowing from more litigation behavior evidencing problems both with inter-personal skills and with recognizing and respecting physical boundaries.  In that case, Ratiner first called opposing counsel a “dominatrix” during a document review session and, on the following day, tried to grab a document away from her which prompted the involvement of a security guard.  That event happened in October 2009.

The February 2018 order of disbarment (which you can read here), unlike the prior two incidents, involved conduct inside the courtroom.  Ratiner was accused of loudly kicking the table of other counsel during a hearing, saying “lie, lie, lie” during the cross-examination of one of his law partners, and wrinkling and throwing documents in court.

The ethics rule Ratiner ran afoul of is Florida’s slight variation on the traditional Model Rule 8.4(d) about not engaging in conduct prejudicial to the administration of justice.  That rule in Florida reads:  “A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers.”

Perhaps remarkably, the initial proposed discipline for this event was another 3 year suspension rather than disbarment.  The Florida Supreme Court decided, however, that disbarment was required.

As the Florida Supreme Court explained:

Ratiner has denied the existence of such objectionable, disrespectful conduct over the years, even in the face of videotaped evidence and witness testimony. His argument or belief that said conduct constitutes the zealous representation of his clients is completely unacceptable.

[snip]

In cases where lawyers have previously been disciplined for engaging in misconduct of a similar nature, the Court has generally taken an incremental approach in imposing discipline, increasing the severity of discipline in each instance.

[snip]

Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.

Other than what is set out in the various opinions, I do not know anything more about this lawyer’s situation.  Although none of the opinions include anything to clearly signal underlying, treatable problems plaguing this lawyer,  this certainly feels like a sad story that has issues of lawyer wellness at its heart.

It also involved a pattern of conduct spread out over a fairly long time (though not as long as it feels at first when you have 10 years elapsing between the sticker-throwing incident that prompted the first, short suspension and the disbarment) when you think about it in terms of “escalation.” Ratiner practiced law for 28 years before being disbarred.  Almost 4 years passed between the deposition sticker row and the table-kicking courtroom incident.

Nevertheless, it’s as good a reason as any to remind people in our profession to add this report from the National Task Force on Lawyer Well Being to your reading pile and to actually read it.  Particularly, when news in the world of lawyering brings developments like this shooting — a situation which I would say truly involves quick and very scary escalation — and the notion that this odious lawyer is out there representing our profession to the public.

If racism is disqualifying for a juror, why not for an aspiring lawyer?

Nothing like the day after a holiday weekend to pose a difficult, potentially controversial, question, right?  But when the holiday weekend in question is one to celebrate the life and legacy of Dr. Martin Luther King, Jr., this particular question is certainly topical.

This is a post I have had rattling around inside of my head since this I read this weighty article from The Huffington Post.  Now, I know, for many, HP is not thought of as a place for weighty articles, but this one really fits the bill.

The article’s title is “Should White Supremacists Be Allowed to Practice Law?”  The article delves into the nature of the question and elaborates a bit on the underlying concept that people who wish to be admitted to the bar in any given state not only have to demonstrate competence in the law but also must satisfy “character and fitness” requirements to be issued a law license at all.

The HP article does an effective job of examining the thorny, and obviously problematic, nature of the problem with staking out a position that someone’s ideas or thoughts alone should prohibit them from being permitted to pursue a chosen profession – a profession for which they have otherwise demonstrated qualifications by passing the required tests and satisfying the objective criteria.  But — given that fundamental principles of white supremacy (for example) can be shown to go beyond mere beliefs and into promised actions and conduct that are at least inherently discriminatory and taken to the logical conclusion of the movement are even genocidal — the slope being argued over does not sound all that slippery in such a context.

Further, the slope our profession has to wrestle with on such a question is inherently slippery because of how subjective the admission standards are as to character and fitness as a concept — the idea that existing lawyers will evaluate the candidacy of applicants for admission to see if they have the requisite “character” and “fitness” to be a member of the profession.  Moreover, as someone who has represented quite a few folks in bar admission proceedings, I can tell you that the admissions process often creates seemingly ridiculous barriers to entry labelled as character and fitness matters.  Traffic offenses and underage drinking as just a few common examples where law school graduates frequently find themselves having to respond to orders to show cause why they shouldn’t be denied admission.

The notion that an avowed white supremacist would be deemed to be an acceptable candidate to practice law from a character standpoint when a person who struggled with a “lead foot” throughout college gets extra scrutiny seems laughable.

For a little more context, here are the admission standards in Tennessee from which character and fitness questions spring:

Tenn. Sup. Ct. R. 7 requires the Board of Law Examiners to decide that an applicant

has demonstrated the reputation and character that in the opinion of the Board indicates no reasonable basis for substantial doubts that the applicant will adhere to the standards of conduct  required of attorneys in this State.  (Section 1.03(d))

The same rule elaborates in more detail what this means:

(a) An applicant shall not be admitted if in the judgment of the Board there is reasonable doubt as to that applicant’s honesty, respect for the rights of others, and adherence to and obedience to the Constitution and laws of Tennessee and the United States as to justify the conclusion that such applicant is not likely to adhere to the duties and standards of conduct imposed on attorneys in this State. Any conduct which would constitute grounds for discipline if engaged in by an attorney in this State shall be considered by the Board in making its evaluation of the character of an applicant.  (Section 6.01)

If espousing an inherent belief that one race is inherently superior to other races and that certain races are so inferior that the world would be better off if they were eliminated from society is not something that would “justify a conclusion that such applicant is not likely to adhere to the duties and standards of conduct imposed on attorneys,” then what exactly is the point of referencing “respect for the rights of others” in such a standard?

And, if even you are inclined to agree that would move the needle in the direction of being unfit, then you probably still might have more difficulty agreeing with the idea that racism is not inherently as bad as white supremacy and is more just an idea or state of mind that should not be regulated and, thus, there can be no cogent argument made that just being a racist should prevent someone from being issued a law license.  After all, as noted above, in Tennessee, the standard requires the Board of Law Examiners to only look to conduct of an applicant which – if undertaken by someone who is already a lawyer could trigger discipline.  You would be hard pressed to find many instances of lawyer discipline imposed against a lawyer merely for holding dear to a belief system, no matter how ignorant or odious.

And, yet, quite recently, the United States Supreme Court issued its decision in Tharpe v. Sellers that reversed and remanded a case over a certificate of appealability in a death penalty case that turns on whether racist statements made by one of the jurors who voted for death could justify the reopening of habeas corpus proceedings premised upon arguments that improper racial animus infected the jury deliberations.

Although the analogy is admittedly not a perfect one, it seems very difficult to feel very comfortable with the idea that racism on the part of a member of the jury is unacceptable but that letting someone with the same views become a lawyer and, thus, be in the position of getting to routinely strike citizens from being selected to be on juries because of the color of their skin is just part of the system.

And, no this is not intended to be an advocacy piece for the proposed rule revision in Tennesee that I’ve written about before, because these questions are extremely ripe ones in my jurisdiction and other jurisdictions under even existing ethics rules.  In Tennessee and elsewhere, the rules already prohibit lawyers, regardless whether they are representing clients or not at the time, from engaging in conduct that is prejudical to the administration of justice.  (RPC 8.4.)

So, I guess the true question to struggle with is this:  Does empowering a racist by conferring a license to practice law on them something that is inherently prejudicial to the administration of justice?

Texas Ethics Opinion Offers Stellar Example of Why You Ought to Have a Rule About This.

I’ve mentioned in the past the fact that Tennessee has a version of RPC 4.4(b) that directly addresses, and provides what I happen to think is the correct outcome, for what a lawyer is supposed to do about the receipt of someone else’s confidential information either inadvertently or via someone who isn’t authorized to have it in the first place.  Our RPC 4.4(b) goes further than the ABA Model Rule in two respects on this front in that: (1) it doesn’t just require notice as to inadvertently received information but makes clear that the lawyer has to either abide by any instructions as to what to do with the information or has to refrain from doing anything further with it until a court ruling can be obtained; and (2) we apply the same standard to information received unauthorizedly, e.g. a purloined document.  (Of course, I’ve also mentioned … repeatedly I admit … that the ABA Model Rules ought to be construed via Model Rule 1.15 to fill the gap on that second point, but … leading horses… and drinking water… and all that.

Earlier this month the State Bar of Texas Professional Ethics Committee issued Opinion 664 which “addresses” the following two questions:

1. Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they are in possession of confidential information taken from the opposing party without the opposing party’s knowledge or consent?

2.  Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they have inadvertently received confidential information of the opposing party?

In a relatively short opinion that discusses almost exclusively the first question, the Texas Committee ultimately says, “hey look, we don’t have a rule on any of this… so you are kind of on your own.”  That’s not really a quote from the opinion, of course.  The real quote from the opinion is longer but the gist is pretty much exactly the same as my fake quote.

The opinion then goes on to hold out the possibility that if you have this fact scenario plus something more than maybe one or more other rules could be violated — like Texas’s equivalents of Model Rule 1.2(d) or or Model Rule 3.3(a) or Model Rule 4.1 or Model Rule 8.4(d).  Quoting the opinion this time for real:

It is possible that under some circumstances the failure to provide notice to opposing counsel, or take other action upon receipt of an opponent’s confidential information, might violate one or more of the Texas Disciplinary Rules requiring lawyers to be truthful and to avoid assisting or condoning criminal or fraudulent acts or denigrating the justice system or subverting the litigation process.

The opinion also reminds readers that the lawyer’s course of conduct in such circumstances must be well thought through because the risk of disqualification still lurks, but in the end the opinion largely concludes with something that is mostly a restatement of the problem for Texas lawyers (and of my general inability to get horses standing so close to water to drink since Texas does have a version of ABA Model Rule 1.15  and confidential information certainly is “property”):

The Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party’s confidential information outside the normal course of discovery.

The insistence on referencing discovery and, thus, making it seem like this is solely a problem for litigators rather than all lawyers is also a bit unfortunate.

The “Now You Know” ad – quite savvy or absolutely horrible?

I had been hoping I could wait a bit to write about this topic but it’s making news via the ABA Journal online today, so I’ll just plow in with this rush job of a post because I’ve already heard discussions in Tennessee about this same ad and before someone more articulate than me blogs about it before I do.

Here’s a link to the article about the Georgia dust up:.

Here, if I’ve done this correctly should be able to watch the advertisement itself at this link — “Now You Know”

For those who can’t get the video to play or who didn’t read the Georgia story above, the gist is that the advertisement explains that the fact that someone has insurance to cover liability in say an auto accident case is something that gets withheld from the jury.  (For what it is worth to those outside Tennessee, in our state insurance coverage is not even discoverable in state court although it is, of course, in federal court.)

Now, based on someone asking me about it, I thought it was already running in Tennessee, but it may only be up in Georgia at the moment.

I’m not at all prepared to weigh in on whether it presents a problem under Georgia’s advertising rules, but I feel pretty comfortable saying that it would be difficult in Tennessee to make the case that the advertisement violates any of our ethics rules.  On the first front, it is hard to point directly at any aspect of the content that would be untruthful so challenges under RPC 7.1 or similar provisions would go nowhere.  Someone might argue that the ad puts a lawyer in the position of doing something “prejudicial to the administration of justice,” in violation of RPC 8.4(d) but the natural retort to that would be, well… is it … really?  And, I suspect that the firm running the advertisement would very much like to spend time debating whether the dissemination of the information is really prejudicial to the administration of justice or not.

If there is a provision that could be fruitfully pursued, I tend to think it would be RPC 3.6(a) which prohibits lawyers from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  That rule is usually thought of as being designed to protect against publicity that would impact a particular matter, but a statement like this that would apply to all matters to some extent might just be capable of being argued to have sufficient deleterious impact to any one matter to trigger the rule.

I tend to believe that the best response to speech though is more speech, so what I’d really like to see is a defense-oriented firm cut an ad to educate the public about something like the collateral source rule.  Someone could even try to argue that RPC 3.6(c) which permits some responsive statements in order to “protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

It’d be interesting to see that play out and whether  the firm strenuously defending this current advertisement would see any problems with a defense-oriented counterpoint.