Don’t sleep on Arizona

We’ve (in that creepy royal “we” sort of way) now dedicated two posts to discussing the ATILS proposal coming out of California, but California is certainly not the only state working on reform. In fact, while it may be the biggest, it is not the state offering the boldest reforms, and it also isn’t the fastest in the race by far.

While I did not manage to make my travel work to stay in California for the public hearing on the ATILS proposals, one thing I did learn (along with others in an audience) about it is that before California actually does anything with respect to rule changes there would have to be a second task force put together that would actually craft rule proposals and other specifics.

The state that – at the moment at least – appears to be proposing the boldest reforms when it comes to the future of legal ethics and is doing so at a much quicker pace is Arizona. The Arizona Supreme Court has created its own Task Force on Delivery of Legal Services. You can review as much or as little of the happenings to date of this Task Force by spending some time perusing what is available at this link.

That task force meets again on August 14, 2019 but a review of the minutes of some of their prior meetings will tell you that the Task Force has already approved two revisions that it would be a bit of an understatement to simply call bold:

  • Included within a series of changes to the Arizona advertising rules spurred to some extent by the original APRL proposal for advertising reform and the recent ABA Model Rules revisions, the Arizona Task Force has approved the deletion of RPC 7.2 in its entirety.
  • The Task Force also appears to have approved the deletion of RPC 5.4 altogether (what the various minutes refer to as “Option 3”) so as to open wide the doors to partnerships between lawyers and nonlawyers and financial investment in law firms. In order to make certain that the requirements for lawyers to maintain professional independence are not lost, however, revisions are being made to other rules including comments to RPC 1.7 to highlight the issues.

The Task Force is also moving forward with a proposal to allow nonlawyers to provide certain limited legal services in a fashion that is similar to the concept of LLLTs adopted in a few other jurisdictions.

The Arizona Task Force is also working on evaluating what form of entity regulation may be required or desirable to address the fact that the regulators with jurisdiction to preside over complaints against lawyers and enforce the ethics rules against lawyers would not otherwise have authority over those not licensed to practice law.

So, at the pace Arizona is moving along, it is quite possible that, by as soon as early 2020, there could be a state out there in which there are no limitations on financial investment in law firms (or solo lawyer shops), no limits on what can be accomplished through lawyers partnering with people from other disciplines and backgrounds, and no restrictions on the ability of a lawyer to share compensation received from a client with someone who assisted in delivering that client to that lawyer so that the lawyer could serve the client’s legal needs.

California dreaming.

As promised, I’m not done writing about the ATILS initial recommendations that have been put out for public comment in California.

In fact, I’m here in San Francisco for the next few days at the APRL meeting where there will also be a public forum about the recommendations on August 10.

The public comment period continues until September 23, but if the sentiment that gets expressed at the hearing is anything like the feedback during the public comment period, there may be pitchforks and torches.

It should come as no surprise to those paying attention but California lawyers are scared and uninterested in embracing reform of the way legal services are delivered. While I cannot find anywhere online to actually read the comments that have been submitted so far, you can access something of a spreadsheet here that is a tally of favorable or opposed submissions. People so far even have overwhelmingly commented against doing the easy stuff I mentioned in my prior post.

Nevertheless, let’s talk about a piece of the ATILS recommendation because I still think reform has to happen … one way or another.

The piece I want to talk about today is the proposed recommendation about changing RPC 5.4 in terms of prohibiting partnerships between lawyers and non-lawyers. This is an issue that the APRL Future of Lawyering project is also tackling but California has more quickly made tangible proposals. They’ve done so in the alternative offering a proposed recommendation 3.1 and an alternative proposed recommendation 3.2.

3.1 – Adoption of a proposed amended rule 5.4 [Alternative 1] “Financial and Similar Arrangements with Nonlawyers” which imposes a general prohibition against forming a partnership with, or sharing a legal fee with, a nonlawyer. The Alternative 1 amendments would: (1) expand the existing exception for fee sharing with a nonlawyer that allows a lawyer to pay a court awarded legal fee to a nonprofit organization that employed, retained, recommended, or facilitated employment of the lawyer in the matter; and (2) add a new exception that a lawyer may share legal fees with a nonlawyer and may be a part of a firm in which a nonlawyer holds a financial interest, provided that the lawyer or law firm complies with certain requirements including among other requirements, that: the firm’s sole purpose is providing legal services to clients; the nonlawyers provide services that assist the lawyer or law firm in providing legal services to clients; and the nonlawyers have no power to direct or control the professional judgment of a lawyer.

3.2 – Adoption of an amended rule 5.4 [Alternative 2] “Financial and Similar Arrangements with Nonlawyers” which imposes a general prohibition against forming a partnership with, or sharing a legal fee with, a nonlawyer. Unlike Recommendation 3.1, the Alternative 2 approach would largely eliminate the longstanding general prohibition and substitute a permissive rule broadly permitting fee sharing with a nonlawyer provided that the lawyer or law firm complies with requirements intended to ensure that a client provides informed written consent to the lawyer’s fee sharing arrangement with a nonlawyer.

Now, my quibbles with either proposed amendment to RPC 5.4 would be at the margins. I think what is missing from the second alternative is that also there would need to be protection that the nonlawyer have no power to direct or control the professional judgment of a lawyer. As to the first alternative, my only real quibble is that I think the second alternative is better on substance.

I understand why a lot of lawyers would get queasy at the second alternative, but I’m at something of a loss to see how – other than based purely on either pure self-interest or “guild” protection – lawyers can wield torches in response to the first alternative. Very weirdly there has (so far) been more opposition to 3.1 than to 3.2.

To some extent recommendation 3.1 is not strikingly different than what D.C. already permits and it embraces the reality of what is (or at least with respect to Avvo “was”) already happening online when it comes to business providing marketplaces to pair willing attorneys with interested clients.

Really big goings on in California.

And, no, in the title I’m not referring to the leak of information about the California Bar essay topics before the bar exam. Although that story is certainly bananas.

You’ve likely by now read at least something somewhere online about the most recent product coming out of the California State Bar Task Force on Access Through Innovation of Legal Services, consisting of tentative recommendations that has been formally put out for public comment. Most of the usual places where you can readily get good news about issues relevant to (or related to) the practice of law have done a piece of some sort about it.

It really is a significant step in the national discussion about what the regulation of the practice of law ought to look like moving forward and, if you have the time, the full 250-or-so-pages of report and related attachments is worth a read and available at this link. (To be clear, if you only have time to read one report spanning hundreds of pages, it should be The Mueller Report. The future of legal ethics in this country isn’t going to be of much importance if we can’t get a handle on just how badly the rule of law is currently being threatened by our institutions (Part 2) and just how little faith and confidence we can have in the integrity of our elections process (Part 1). So, if you are a lawyer and still have not read that report yet, then you need to do so.)

(If you have time to read two massively long reports, then the ATILS report should be the other one.)

There is so much about the ATILS proposal, and its variants, that is worth writing about that I’m pretty certain I’m going to end up dedicating a few posts to the subject matter – though spread out a bit so as not to only write about it and nothing else for too long a time period. Aspects of what is being discussed are really substantial changes to the way things work now and will most certainly be scrutinized and subjected to significant debate.

To start off though, I want to just talk about two aspects of the report that ought to be much less controversial both because it is an easy jumping off point and because, on their own, they give a glimpse into how fast things are moving these days.

Now you may recall that California only very recently (effective November 1, 2018 as a matter of fact) revised their ethics rules in an overhaul that more closely resembles aspects of the ABA Model Rules. In so doing, California became the very last U.S. state to do so. But getting there took more than 17 years. With those revisions, California adopted a version of ABA Model Rule 1.1 on competence and adopted ethics rules related to legal advertising that at least followed the numbering and overall framework – with some deviations – of ABA Model Rules 7.1 through 7.5.

Despite the fact that California’s versions of those rules still essentially have a “wet paint” sign on them, the task force report is proposing a revision to California’s RPC 1.1 and is proposing that another pass be taken at California RPCs 7.1 through 7.5 to either put them more in line with the most recent revisions to the ABA Model Rules or possibly more in line with the less modest proposal that the Association of Professional Responsibility Lawyers made that (as written about here a time or two) started the process moving that led to the ABA revisions.

Being willing to consider such things less than a year since adopting new rules is a bit unusual on its own, but when it comes to RPC 1.1, the task force is going a bit further and proposing that California revise the language a bit even from what the ABA Model Rule says. To a large degree the proposed deviation is a bit wonky because, at heart, it stems from the age-old debate about where exactly the right lines are in terms of what Comments can be used for and what they can do when compared to the text of the rule itself. (The discussion of the motivation and issue is found at p. 18-19 of the task force report documents.)

The ABA Model Rule comment language reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and in practice, including the benefits and risks associated with relevant technology….

The California proposal would instead be:

The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.

For what it is worth, I can manage to both think that the ABA Model Rule approach does not run afoul of the balance between comment and rule but also agree with the task force proposal that if California adopted the proposed variation, it would likely be a better approach.

Now the cynical amongst us may say that these topics wouldn’t be being addressed if there wasn’t a much larger set of reforms being put on the table. And those folks are probably right … about which more later.

Asking in South Carolina and definitely not receiving.

This development in South Carolina happened last month and I saw some folks getting a little worked up about it but am only getting around to writing a little about it now. (In fairness, last month only became last month around 80 hours or so ago.) But for some people getting worked up about it, it wouldn’t actually be all that noteworthy given that all South Carolina did was adopt a comment that made plain what the rule already truly required.

Nevertheless, it makes for an interesting subject not only because of the reaction it garnered but how it came about… in response to a petition seeking to change South Carolina’s Rule 1.6 in an entirely different direction.

But, I’ve managed to get way ahead of myself with the textual throat-clearing and have started in on all of this like you know what I am talking about.

In June 2019, the South Carolina Supreme Court entered an order that rejected an attempt by the South Carolina Bar to seek to have RPC 1.6 revised to permit lawyers to make reference to published court decisions in their advertising without having to get their client’s informed consent. And, to be clear, what the bar was asking for was a very incremental level of permission. They were seeking to have the rule allow a lawyer to make reference to the citation of a published case, not the details of it, just the citation.

Now I suspect many lawyers would assume that no such revision was even necessary on the basis that they simply think that public information is public information and can be used in whatever fashion is desired. In fact, this Bloomberg article quotes someone from a law firm I used to work for saying something along those lines. That might well be a common sense approach but it is simply an entirely incorrect statement when it comes to how the ethics rule on confidentiality works.

As I’ve written about in the past (probably more times than you care to remember but most recently in August 2018), RPC 1.6 continues to impose confidentiality obligations on lawyers as to information related to representation of a client even as to the most public of events. And, what that means is, when you work through the rule and its various provisions authorizing disclosure of such information . . . there simply isn’t a provision that justifies use of the information in commercial advertising endeavors without the consent of the client.

The South Carolina Supreme Court was not interested in what the Bar was seeking. Instead, it opted to adopt a new comment to RPC 1.6 to drive the point home about what the text of RPC 1.6 already requires.

Specifically, the Court added the following new Comment [7] to its RPC 1.6:

[7] Disclosure of information related to the representation of a client for the purpose of marketing or advertising the lawyer’s services is not impliedly authorized because the disclosure is being made to promote the lawyer or law firm rather than to carry out the representation of a client. Although other Rules govern whether and how lawyers may communicate the availability of their services, paragraph (a) requires that a lawyer obtain informed consent from a current or former client if an advertisement reveals information relating to the representation. This restriction applies regardless of whether the information is contained in court filings or has become generally known. See Comment [3]. It is important the client understand any material risks related to the lawyer revealing information when the lawyer seeks informed consent in accordance with Rule 1.0(g). A number of factors may affect a client’s decision to provide informed consent, including the client’s level of sophistication, the content of any lawyer advertisement and the timing of the request. General, open-ended consent is not sufficient.

Of course, the South Carolina Supreme Court is not wrong about this. And, at a practical level, requiring client consent is not truly that onerous.

However, given the connection to lawyer advertising generally that this development has, it is worth pointing out that South Carolina is still a generally bad jurisdiction when it comes to that topic. Partly, this is because it still refuses to recognize at a fundamental level what the purpose of advertising actually is by having this kind of requirement in its RPC 7.2(a):

All advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.

Loosing a big (maybe?) idea into the world.

I had originally promised myself that the articulation of this thought would debut here at my blog. I almost managed it but I raised this notion in the real world lately among some very bright lawyers. So, before I do it again somewhere other than the Internet, I’m following through to put this idea out through this platform for anyone who wishes to chew on it to chew on it.

The only background that I think you need (even if you are not a regular reader of this space) is that there is much activity going on across the country in terms of real efforts at proposed change to the way lawyer ethics rules address certain topics that are largely viewed as barriers to information about the availability of legal services.

Two of the potentially most important, and relatively fast-moving, endeavors are the work of the California Task Force on Access Through Innovation of Legal Services, the APRL Future of Lawyering project. But there is movement happening in a number of different states to propose changes to the ethics rules to loosen, if not outright delete, restrictions on monetary and other arrangements between lawyers and people who are not lawyers, that are currently placed in rules patterned after ABA Model Rule 5.4 (generally prohibiting fee-sharing with people who are not lawyers) and 7.2 (restricting the ability of lawyers to make payments to others for referrals to, or recommendations of the lawyer).

It is anticipated that there will be some significant level of outcry over any such proposed changes on the grounds that removal of such rules erodes the protection against lawyers having their exercise of independent professional judgment interfered with. Most every time I engage with anyone on that topic, I find myself making the point that, even without those provisions, the rules still require lawyers to maintain their independent professional judgment.

But, here’s the idea I am letting loose into the world: perhaps we should make that obligation more prominent. At present, outside of any particular context, the only rule that plainly starts down this path is the first sentence of Rule 2.1 which reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Should we, as part of the coming necessary reform of the ethics rules, revise the first rule? Perhaps like this?

Rule 1.1: Competence and Independence

(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer representing a client shall not permit any person to direct, regulate, or otherwise interfere with the lawyer’s exercise of independent professional judgment.

If that rule existed, then in all places in which restrictions considered to be barriers to access to legal information but which are justified because of the risk to lawyer independence could be replaced with a pointer back to the lawyer’s obligation under Rule 1.1(b).

Two For Tuesday For Tennessee

From time to time I feel a real obligation to write about things that are primarily (if not exclusively) only of interest to Tennessee lawyers. Today is one of those days so apologies in advance if this is not your cup of tea. (On the upside for you, this will be relatively short so you might be able to justify still reading it.)

There have been two significant developments this week in Tennessee involving rule changes (not ethics rule changes) but rule changes important to the practice of law in Tennessee. One is the adoption of a new Tennessee Supreme Court Rule authorizing collaborative law family law practice. The other is a further structural and substantive set of changes to the rule that governs the admission of lawyers in Tennessee – Tenn. Sup. Ct. R. 7.

The revisions to Rule 7 address a number of non-substantive changes including architectural reworking of the structure and ordering of portions of the rule but also address some substantive issues as well. You can read the entirety of the order implementing the revisions (which includes both a clean and a red-lined copy of the revised Rule 7) here.

Perhaps the most important substantive change to Rule 7 is the expansion of a registration procedure (currently available to in-house counsel admitted in another U.S. jurisdiction but working in Tennessee) to foreign legal counsel employed as a lawyer by an organization as well. In connection with that development, a 180-day amnesty period for foreign legal counsel presently practicing in Tennessee is on offer (as occurred in the past with the in-house counsel provisions).

Second, while the provisions addressing the right to practice pending admission have been explicitly tweaked to make clear that someone can apply and obtain that authority whether seeking admission by comity or by sitting for the bar exam (or, now that TN has embraced the UBE, submitting a score on the UBE from another jurisdiction), the rule has also been amended to make plain that a disciplinary complaint filed against someone practicing pursuant to the practice pending admission rule is also a disciplinary complaint against the attorney who is on record as being their supervising attorney (as is also the case with qualified law students permitted to engage in limited practice in compliance with the rules.

The adoption of a new rule permitting collaborative family law practice in Tennessee has been in the works since 2017 but was finally implemented this week and takes effect immediately. You can read the entirety of new Tenn. Sup. Ct. R. 53 here.

For those unfamiliar with the concept of collaborative family law practice (and I suspect there are many of you), a review of the rule is worth your time to get a flavor for the dynamic. One of the most important pieces is the notion that lawyers engaged in this kind of representation are prohibited in almost all circumstances from engaging in any litigation proceedings on behalf of the party they are representing related to the issue for which the collaboration is focused. (Which is a bit of weird end around on what would otherwise likely be viewed as a restriction on the right to practice in violation of our RPC 5.6.) In terms of impact on lawyer ethics, the other piece of the rule that has a direct impact is the piece that provides relief from the imputation of a collaborative lawyer’s conflicts to other lawyers in their firm in instances where the representation involves a person of “low income.” Specifically:

Section 10. Exception from Disqualification for Representation of Low-Income Parties.

After a collaborative family law proceeding concludes, another lawyer in a law firm with which a collaborative lawyer disqualified under Section 9, Subsection (a), is associated may represent a party without a fee in the collaborative family law matter or a matter related to the collaborative family law matter if:

(a) the party has an annual income that qualifies the party for free legal representation under the criteria established by the law firm for free legal representation;

(b) the collaborative family law participation agreement authorizes that representation; and

(c) the collaborative lawyer is isolated from any participation in the collaborative family law matter through procedures with the law firm that are reasonably calculated to isolate the collaborative lawyer from such participation as set out in Tenn. Sup. Ct. Rule 8, RPC 1.10.

New Lunar Year, New Lunar Rule?

Okay, the title is something of a stretch to acknowledge that today marks the beginning of a new lunar year, the Year of the Pig. Nothing about what I have to say relates to the moon or anything Lunar.

But I did want to continue one part of the discussion begun in Las Vegas last month, and truly follow through on my insistence about how what happens in Vegas shouldn’t just stay in Vegas this time, by sharing the text of a proposed new Model Rule that I drafted and that we kicked around during a panel discussion at the APRL Mid-Year Meeting.

The general topic is what to do with the rules, if anything, to address the reality of online lawyer matching services and other similar platforms that are benefiting consumers by helping connect consumers who are willing to pay a certain price point for legal services and lawyers who are willing and able to deliver those services at that price point but that are always in tension with the current ethics rules because of restrictions on lawyers providing compensation for referrals or recommendations and related restrictions on fee sharing.

We have a rule here in Tennessee which I believe to be substantively bad, but the architecture of the rule is pretty good if you change its goals. Sort of like an old house with really good bones but simply god-awful interior decorations. That rule is RPC 7.6 and imposes certain registration requirements and limitations on things denominated as “intermediary organizations.” Long time readers of this blog, might remember this post about how I believed RPC 7.6 applied to Avvo Legal Services back when that was still in operation.

The rule I have drafted as a conversation starter uses the architecture of the Tennessee rule but is designed to provide a more permissive and more flexible approach to the topic.

Implementation of such a rule would likely also require changes to Model Rules 5.4 and 7.2 to make clear that payments to intermediary organizations are not prohibited as fee sharing or prohibited by the restrictions on payment for referrals, and the accompanying Comment would likely need a paragraph to make clear certain things that are not intended to be swept up as an intermediary organization, but carts and horses and all of that.

The draft is posted below, all feedback is most welcome.


Proposed Model Rule 7.7:  Intermediary Organizations
(a)  An intermediary organization is a lawyer referral service, lawyer matching service, or other similar organization which engages in referring consumers of legal services to lawyers or facilitating the creation of attorney-client relationships between consumers of legal services and lawyers willing to provide assistance.


(b)  A lawyer may make a payment to an intermediary organization, including a payment that would be considered sharing of an attorney fee with an intermediary organization, in connection with any referral or facilitation of a relationship with a client as long as:


                (1)  The relationship between the lawyer and intermediary organization is fully disclosed to the client including, if requested by the client, the amount of any payment made by lawyer to the intermediary organization;
                (2)  The cost to the lawyer of any payment to the intermediary organization is not passed on to the client; and
                (3)  The lawyer does not permit the intermediary organization to direct or regulate the lawyer’s professional judgment in rendering legal services to the client.

Texas Two Steps Forward…One BIG Step Back

I have written in the past about the fact that I am fortunate to be the Chair of the Tennessee Bar Association’s Standing Committee on Ethics and Professional Responsibility. Because our committee is currently beginning a process of chewing over whether to try to recommend changes to the advertising rules in Tennessee, I’ve been trying to pay closer attention to developments in other states. Specifically, trying to pay closer attention to whether the revisions to the ABA Model Rules inspired by the work of APRL are moving the needle in the correct direction.

Long time readers of this space will know that my long-espoused view is that the only real rule needed in terms of lawyer advertising is a prohibition on false or misleading communication. The ABA Model Rules have moved closer – but not all the way of course — to that kind of approach.

Today’s post is about the fact that the Texas Committee on Disciplinary Rules and Referenda has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.

You can read the proposed revisions here.

The short version is that these proposed revisions seem like a very positive development in a few respects as to regulation on lawyer advertising. The biggest positive is that these changes would replace wholesale the kind of improper categorization of certain statements that can be made truthfully (like comparison of one lawyer’s services to another or discusses past results obtained for clients) currently housed in Texas’s Rule 7.02(a) with a revised Rule 7.01 that isn’t perfect in terms of just prohibiting actually false or misleading communications but is better.

Unfortunately, the other piece of the short version is that the Texas revisions would still perpetuate a very pernicious and unnecessary barrier to speech in the form of filing requirements and payments in the form of filing fees for any advertisements that are not limited to certain types of “pre-approved” information.

The Texas proposed revisions would do this by continuing to carry forward in a revised Rule 7.04 the following requirement:

A lawyer shall file with the staff of the Advertising Review Committee of the State Bar of Texas, no later than the date of dissemination of an advertisement of legal services via public media, or the date of a solicitation communication sent by any means, including social media, for the purpose of obtaining professional employment:

(1) a copy of the advertisement or solicitation (including packaging if applicable) in the form in which it appeared or will appear upon dissemination;

(2) a completed lawyer application advertising and solicitation communication application; and

(3) payment to the State Bar of Texas of a fee set by the Board of Directors.

For context, currently the fee is set at $100. You can review the relatively invasive application form that is required and all of its bells and whistles here. In reading it you will also learn the cute part where if more than one lawyer in separate firms is involved in the same advertisement they are still each required to separately submit applications and pay multiple $100 fees.

The proposed revision would also exempt certain limited types of communications from these requirements as long as they only contain the “vanilla” categories of information pre-approved by the regulators.

Such a regulatory regime does not exist for any reason other than to fundamentally discourage advertising., should not be tolerated, and pointlessly mars any progress the Texas proposal otherwise offers.

Proposed revisions to the Code of Conduct for U.S. Judges

So last week I was quoted a bit in a Law360 story related to Judge Kavanaugh’s continued effort to ascend to the highest judicial position in our nation.  If you are a subscriber, you can read the article here.  It had to do with the news of the lawyer who was going to be representing Dr. Blasey-Ford and whether his departure from his firm was really sudden or not and the reasons why a firm with a significant appellate court practice might not want to let themselves have to treat Judge Kavanaugh as an adverse party.  If you are not a subscriber, I’ll offer you the two snippets involving what I had to say:

If Bromwich had stayed at Robbins Russell, Judge Kavanaugh would consequently have become an adverse party for conflicts purposes, potentially complicating the firm’s appellate efforts on behalf of clients, said Brian S. Faughnan, a legal ethics attorney at Lewis Thomason.

“That could have led to Judge Kavanaugh recusing himself from any appellate cases in which Robbins Russell was counsel of record or likely required the firm to seek Judge Kavanaugh’s recusal in all such cases. If he were confirmed, that would mean placing firm clients in a position where potentially only eight justices could hear their cases,” Faughnan said.

Even if Kavanaugh is not confirmed to the Supreme Court, the representation of Blasey Ford could still hurt the law firm as long as Judge Kavanaugh continues to hold a spot on the D.C. Circuit, Faughnan said.

Although that article came out just a week ago, it feels more like a year ago.

Based on the highly partisan nature of what Judge Kavanaugh had to say in his prepared testimony, it seems likely that, for as long as he has a position as a federal judge in any capacity, there will be lots of litigants and counsel that will have to seriously weigh whether to pursue motions for him to recuse from their cases.  “What goes around comes around,” could be a recurring quote referenced in motions seeking recusal for many years to come.

There are lots of other things I might write today about the troubling nature of things, but I will instead send anyone with an interest in where my perspective is at the moment to this piece published elsewhere.

While we are on the subject of federal judicial ethics though, I’d like to point out that there are proposed revisions to the Code of Conduct for United State Judges pending and for which there is a November 13, 2018 deadline for public comment.  The proposed changes do not impact in any fashion the existing rules for disqualification of federal judges — Canon 3(C) —  nor the rule that would be most difficult for a federal judge to claim would permit the making of any false statement under oath — Canon 2(A).

What the proposed changes do address are the conclusions of the June 1, 2018 Report of the Federal Judiciary Workplace Conduct Working Group and the perceived need for additional ethical guidance regarding workplace harassment in the world of federal judges — an area to which none of the accusations against Judge Kavanaugh extend.

The most extensive proposed changes are set out in Canon 3(B) addressing the performance of administrative responsibilities and in new explanatory Commentary.  The rules would include a new provision:

(4) A judge should practice civility, by being patient, dignified,
respectful, and courteous, in dealings with court personnel,
including chambers staff. A judge should not engage in any form
of harassment of court personnel. A judge should not engage in
retaliation for reporting of allegations of such misconduct. A
judge should seek to hold court personnel who are subject to the
judge’s control to similar standards in their own dealings with
other court personnel.

A new paragraph in the Commentary would further explain:

Canon 3B(4). A judge should neither engage in, nor tolerate, workplace
conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation
for reporting such conduct. The duty to refrain from retaliation reaches retaliation
against former as well as current judiciary personnel.  Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others. See also Rules for Judicial-Conduct and Judicial-Disability Proceedings, Rule 4(a)(2) (providing that “cognizable misconduct includes: (A) engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault; (B) treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner; or (C) creating a hostile work environment for judicial employees”) and Rule 4(a)(3) (providing that “cognizable misconduct includes discrimination on the basis of race, sex, gender, gender identity, pregnancy, sexual orientation, religion, national origin, age, or disability”).

You can read all of the proposed revisions here.

Making it up as you go (but for a good cause): Texas State Bar Op. 673

There has been something of a trend of late in terms of ethics opinions focusing on variations on the breadth of the duty of client confidentiality and the inconvenience it creates for lawyers who have bought in to the modern trend of sharing and oversharing when online.  There was this opinion from the ABA and then this opinion from the ABA, for example.

The latest opinion in this vein is Professional Ethics Committee for the State Bar of Texas Op. 673.  Except, it is only partially in this vein because, while it starts out heading down the path of explaining how the duty of client confidentiality might prohibit lawyers from being able to do something useful, it swerves away from what would be the likely conclusion in most jurisdictions.

Of course, it does so essentially by making up a justification nearly out of whole cloth but, if you’ve ever participated in, and benefited from, access to any kind of online forum or listserv frequented by lawyers, it reaches a conclusion for which Texas lawyers should be grateful.

The questions addressed in Op. 673 are:

  1.  Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client from other lawyers in an online discussion group?
  2. Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client through informal, direct consultation with another lawyer in a different firm?

The opinion then goes on to describe arrangements that will be familiar to anyone who has spent anytime on any sort of lawyer listserv or other social media group setting or online forum but also makes the point that lawyers reaching out to pick someone’s brain about an issue or perform “lazy person’s research” can also happen in the “meat space,” offline when one lawyer seeks out another lawyer’s input in a version of informal mentoring.

The Texas opinion squarely flags that the biggest concern for the asking lawyer in such scenarios is protecting the confidentiality of client information.  (Importantly, the opinion also does a nice job of flagging for the answering lawyer the most significant risks for her – potentially creating duties to the asking lawyer’s client or wittingly or unwittingly violating duties to her own other clients by helping the lawyer.)

Nevertheless, the opinion explains that the asking lawyer can proceed even if providing some background information that is likely to identify the client or situation is necessary in order to get the advice without violating the ethics rules as to the disclosure of confidential information.

It is the opinion of the Committee that Rules 1.05(d)(1) and (d)(2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.

This is where the Texas opinion is able to rely on two things.  One is a “creative” interpretation of the “implied authorization” aspect of the rule on client confidentiality that most jurisdictions also have.  (Texas Rule 1.05(d)(1)).  The other is a nuance in Texas’s rule that jurisdictions tracking the Model Rule don’t have at their disposal to justify this kind of lawyer-friendly (and not exactly consumer unfriendly) outcome.  (Texas Rule 1.05(d)(2)).

Starting with the second is the easy approach because it really is the most important thing to know to explain the outcome – Texas’s version of RPC 1.6 (which they have numbered as Rule 1.05) contains an exception (d)(2) that allows a lawyer to reveal information that is “confidential” but “unprivileged” when “the lawyer has reason to believe it is necessary to do so in order to ‘carry out the representation effectively.'”

For context, here is the entirety of Texas 1.05(d):

(d) A lawyer also may reveal unprivileged client information:

(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

Now, I could quibble with that word “necessary” and how seeking out assistance from an online discussion forum could ever be “necessary,” but I can admit to being a fan of outcome-determinative analysis when I’m a fan of the outcome.  (To be clear, I have always tried very hard when making use of any kind of online forum to not let any cats out of any bags in terms of actual whos, whats, and wheres.)

The fact that the Texas opinion still involves a “making-it-up-as-you-go” approach though comes through loud and clear by the fact that the opinion has to provide a set of numbered considerations spanning more than a full page to guide lawyers in deciding whether and how much confidential but unprivileged information could be disclosed.  If you want to work through those factors, you can do so at pages 2-4 of the actual opinion itself here.

In any jurisdiction that does not have something like Texas’s Rule 1.05(d)(2) though, getting to this kind of result is a lot more difficult since it involves having to try to push the envelope on the “implied authorization” aspect of Model Rule 1.6(a).

Yet, again, this kind of conduct is likely not anything that a client would complain about and often results in driving down the cost of the representation by gathering the wisdom of a crowd before spending hours on research so… as good a time as any to bring back up again my thoughts on how Model Rule 1.6 ought to be revised.