Following up despite it not being Friday – Tennessee advertising changes

So, sort of as promised, or at least in substantial compliance with a prior promise, I wanted to elaborate a bit more on the news out of Tennessee that we have adopted revisions to our lawyer advertising rules and talk a bit about what is now a new, pending proposal put out directly by the Tennessee Supreme Court.

As to the changes that were adopted, I scooped my own blog by articulating most of those more detailed thoughts in this piece for Bloomberg Law put together by Melissa Heelan.

The one topic I didn’t really mention in that interaction was the fact that the revisions also create a new exception to allow in-person solicitation directed at “a person who routinely uses for business purposes the type of legal services offered by the lawyer.” This is a category slightly different than what the TBA had proposed to the Court but still an improvement on the existing rule.

As to the Court’s new, separate proposal for how to revise Tennessee’s treatment of “intermediary organizations,” the TBA had proposed a “surgical” revision that simply would have removed a “catch all” category from how the concept of an “intermediary organization” is defined. The TBA did not seek to propose any changes to any other aspect of the regulatory structure that requires such organizations to register with the Court.

The Court now has. It has proposed for public comment a revision that would delete Tenn. Sup. Ct. R. 44 in its entirety and that would make some significant revisions to RPC 7.6 itself but that would still leave something of a “catch all” in the definition, though not as broad as the current rule and a few other revisions to the ethics rule portions. Importantly, because the proposal removes the requirements of registration and some other obstacles, what it leaves is a rule that largely places the burden on individual lawyers to make certain they are only doing business with entities that conduct themselves in a fashion that is consistent with the lawyer’s own ethical obligations. The proposed revised rule also requires transparency from the intermediary organization in terms of the furnishing of information to those who might use its services to find a lawyer. Speaking of transparency, the proposal is transparently inspired by a similar proposal recently adopted in North Carolina. You can read the full court proposal at the link below.

Given the removal of the more onerous requirements of Rule 44, this proposal seems worthy of public support as it would seem to make it much more likely that entities that can offer “matching” services that Tennessee lawyers and consumers of legal services alike are interested in using will do so in an open, above-board fashion.

In sum, the proposed revised version of RPC 7.6, paired with the deletion of Rule 44, would appear to be a rule more likely to be complied with rather than ignored.

If you are interested in submitting any public comment to the Court, you have until November 30, 2021 to do so.

TN Adopts Revisions to Lawyer Advertising Rules

This site has not historically been a “breaking” news sort of site. Today will be an exception with very pithy editorial content.

I am very happy to report that the Tennessee Supreme Court today adopted proposed revisions to the lawyer advertising rules which I have written about in the past. You can download today’s order at the link below.

The Court did not adopt the proposal that had been made for revising our rule on lawyer intermediary services but did put out a separate order proposing different revisions. I will write more about that, and discuss these changes a bit more, later this week.

Update on racial insensitivity within the practice of law.

It still exists, of course. No real surprises there.

In just the last two weeks, there have been multiple stories that drive that point home. One such story, while admittedly actually involving a sitting judge rather than a practicing lawyer, is this one out of Colorado. Another such story involves a New York lawyer who was serving both as General Counsel to her employer and as an adjunct law school professor and has now lost her GC position over multiple uses of the same racial epithet the Colorado judge explored during a lecture in her professor position. There are other examples just occurring over the last few months that are readily found through searching online.

While both the Colorado judge, and the New York lawyer, have found themselves on the outs with respect to their employment status, the resolution of the individual judge’s situation and how it came about through judicial ethics proceedings including a public censure and agreement to resign, is also a reminder that the judicial ethics rules already have broad enough language to address and resolve certain kinds of conduct involving sustained racial insensitivity in a way that the current lawyer ethics rules in many locales do not.

As readers of this space are well aware, there have been a variety of efforts in a variety of places over the last 5 years or so to try to remedy that. A few very recent noteworthy developments in the now long-running saga of the effort to enact better language into the ethics rules of various jurisdictions to tackle the problem of lawyers engaging in harassment and discriminatory conduct are worth mention.

My guess is the one that has the most potential for significant impact is a proposal out of New York. But, given the rapid state of overall developments, I need to be clear about which proposal out of New York. Not this proposal put out for public comment in March 2021 that would suggest replacing New York’s existing RPC 8.4(g) with the ABA Model Rule version. No, I’m talking about this one:

That proposal for a revised RPC 8.4(g) in New York was put out late last week for public comment by the New York State Bar Committee on Standards of Attorney Conduct. It has a comment deadline of May 28, 2021. The Chair of that Committee, Roy Simon, was kind enough to send me a copy of the proposal last weekend.

This one appears – from the backstory of which I have been made aware and despite the fact that it does not show all of its work as certain kinds of reports often do — to have been the product of a significant amount of time and effort, including efforts at trying to consensus-build. Early reactions I have seen involve some long-time vocal opponents of both the ABA Model Rule and some other states attempts at implementation seeming to take something of a shine to this proposal. Now, admittedly some of the reactions I’ve seen also involve the vocal opponents to other versions trying to argue that this version won’t actually mean what it purports to mean as to the scope of “conduct in the practice of law.” Specifically, it has already been argued that teaching of a CLE could not be conduct in the practice of law despite the fact that the rule itself would define “conduct in the practice of law” to include “participating in bar association, business, or professional activities or events in connection with the practice of law.”

For whatever reason, almost always the various “parade of horribles” hypotheticals offered about how these rules will curtail free speech by lawyers always involve the teaching of a CLE somewhere. It would seem to me that if you cannot manage to speak at a CLE without managing to violate at least this version of the rule (given the further bells and whistles described below), you should probably stick to being an audience member and not a presenter. But, whatever on that, I guess.

It appears that the most significant ways this proposed anti-discrimination and anti-harassment rule deviates from the ABA Model Rule are: (1) in using that turn of phrase regulating “conduct in the practice of law” rather than “conduct related to the practice of law;” (2) defining “harassment” for purposes of the rule to require something that is both “severe” or “pervasive” and that is directed at an “individual or specific individuals;” and (3) trying to go even further with respect to clarifying that definition of harassment in a comment that would explain:

[5C] Petty slights, minor indignities and discourteous conduct without more do not constitute harassment. Severe or pervasive derogatory or demeaning conduct refers to degrading, repulsive, abusive, and disdainful conduct. Verbal conduct includes written as well as oral communication.

I have long believed that we need to bolster the rules on this subject matter and if the NY proposal becomes something that can gain traction, then consider me to be all for it. (I would suggest, however, that the second sentence of proposed Comment [5C] would be better off with a disjunctive connector rather than a conjunctive connector so that it would say “degrading, repulsive, abusive, or disdainful conduct.” Surely something would not have to check all of those boxes to be prohibited.)

There also is another very recent proposal that appears to head down a path that is somewhat similar to the New York proposal, at least in terms of trying to address arguments made time and again by those who have voiced steadfast opposition to ABA Model Rule 8.4(g), by making clear that prohibited discrimination or harassment has to actually target some other specific person. The D.C. Bar Rules of Professional Conduct Review Committee has put out this lengthy report proposing that D.C. adopt a new RPC 8.4(h) that would also differ from Model Rule 8.4(g) in that it would specifically state that conduct to be prohibited must be directed at another person and that also attempts to offer more clarity about what is or is not within the scope of covered circumstances. harassment. The DC proposal rather than using either the “related to” language of the ABA Model Rule or an “conduct in the practice of law” language now proposed in New York, uses the language “with respect to the practice of law.” Unlike New York’s latest proposal, however, the D.C. report does not propose requiring something be “severe” or “pervasive” in order to amount to harassment. You can access the full D.C. report at the link below:

Protecting lawyers and law firms from themselves.

Let’s talk about something coming out of D.C. but entirely unrelated to politics for a change. If you know, you know. And, if you know, then based on the post title you’ve guessed we are going to talk about the D.C. Bar Rules of Professional Conduct Review Committee’s draft Report on proposing changes to the ethics rules to address outside counsel guidelines and client-generated engagement letters.

A long time ago in Internet time, I wrote a bit about how problematic the calls in certain segments of our profession for protection against outside counsel guidelines are. Even back then I made a tie-in to politics by comparing the arguments in favor of trying to change the rules to stop clients from being able to get what they want through outside counsel guidelines to demands for term limits. For those that don’t want to go back and refresh, they both suffer from a similar Achilles heel – they both are solutions to problems that have a more organic solution.

Term limits. Just stop electing the incumbent when they are awful.

Outside counsel guidelines. Don’t agree to them.

Rather than offering that solution, the D.C. bar draft report runs 26 pages, proposes revisions to RPC 1.6, 1.7, 5.6, and 1.16 in D.C., and asks for public comments on the proposed revisions by February 11, 2021. (For those keeping track, this is actually the second go-round for D.C. in asking for public comment, they previously requested public comment in 2019 with respect to issues raised by outside counsel guidelines. This report is generated in response to that feedback.)

Now, to repeat myself on the overriding issue associated with proposed changes to RPC 5.6 and 1.7 that are designed to make it unethical for clients to propose certain approaches to conflicts under an engagement letter, I fail to see how any such effort is at all consistent with the idea that lawyers can also ask clients to waive situations that would otherwise be conflicts. It is very, very difficult to find a path where it seems fair to allow lawyers to ask clients to waive conflicts but also say that clients cannot ask lawyers to agree to very broad definitions of what constitutes a conflict in a matter.

Having repeated myself on that, let me say that the D.C. report does a pretty admirable job of trying to find that path. I’ll let you go read the report for the full treatment of that issue, but the rationale offered is rooted in the notion of not allowing one client to improperly limit a lawyer from being available to represent other clients. I still don’t find it sufficiently persuasive, but they’ve laid it out as well as can be managed, I think.

The report, and the proposed revisions, also address some other issues. Some of them are a bit unique to D.C. given D.C.’s variations on aspects of the Model Rules, but at least one other topic of note has more universal applicability.

Agreements between lawyers/firms and clients involving indemnification. This again is wrapped within the mantle of provisions included by clients in engagement letters or outside counsel guidelines, but this one feels like a more appropriate topic for pushback through rulemaking, at least to me.

Specifically, the D.C. report proposes revising D.C.’s current rules to add a provision to RPC 1.8 that would prohibit a lawyer from agreeing to any conditions that would impose liability on the lawyer under circumstances where liability wouldn’t flow from either existing common law or existing statutory law.

And, I don’t think it is hypocritical for me to take this position because I think it fundamentally avoids the hypocrisy of the conflicts issue. Of course, I might only think that because I practice in Tennessee where we have a rule that restricts lawyers’ ability to ask clients, in advance, to waive any liability for malpractice. Given that RPC 1.8 deals with that issue in that fashion, I see nothing unfair – or otherwise in violation of any goose/gander protocols – with protecting lawyers from agreeing to indemnify clients for things that the lawyers otherwise could never be held responsible for.

Oh, also, there is one other topic that the report addresses on which I cannot control myself to avoid weighing in. In terms of overall importance, it might not be the most important issue, but in terms of ham-handedness it might be the most egregious piece of the report. This is so because it addresses an issue a lawyer can simply avoid on the front end and proposes a poorly-drafted rule revision as a solution.

The topic addressed is outside counsel guidelines that give the client the right to unilaterally change the guidelines/change the terms of engagement. This is another thing that lawyers could protect themselves against simply by refusing to agree to such a term. Nevertheless, the D.C. proposal would revise RPC 1.16 to provide for a new subsection on when a lawyer has the discretion to seek to withdraw reading as follows:

(5) a lawyer has agreed that a client may make unilateral changes in the
conditions of engagement or other terms of the representation, and the
client unilaterally makes a material change to which the lawyer is
unwilling to assent;

Now, if you absolutely believe there needs to be a rule revision to protect lawyers from this, why would you want to offer the protection only if a lawyer has already agreed that a client can make unilateral changes? Wouldn’t the better course of action simply be to have the rule say: “the client unilaterally makes a material change in the conditions of engagement or other terms of the representation to which the lawyer is unwilling to assent” ?

Three short burst updates

In case you haven’t yet “checked out” for the week to have what I hope is a makeshift, stay-at-home Thanksgiving banquet to kick-off your holiday weekend, here are four very short but, mostly timely, updates on topics of prior posts.

First, the Tennessee Supreme Court has put the TBA advertising rule revisions proposal out for public comment. You can access the order here. The deadline for public comments is March 12, 2021, so you can anticipate that if these revisions are adopted, they likely will not be going into effect prior to May or, more likely, June 2021 at the earliest.

Second, despite the fact that most if not all of the “battleground” states have certified their results, the outgoing, impeached, one-term President’s lawyers do not seem to be relenting on their insistence on court filings and out-of-court false statements. The ongoing behavior has spurred quite a few prominent voices in legal ethics to speak out on the issues, but that there appear to be clear violations and also the reasons that there will quite likely never be any discipline imposed. You can read a couple of different articles surveying the landscape here, and here. Also, as a slightly more direct follow up to my post from late last week, you can read this article from Reuters that includes some interactions with yours truly.

Third, and technically not what would typically qualify as an “update,” nor possibly even a “short burst,” lawyers continue to have difficulty navigating protecting client confidences when seeking to withdraw from representations. I haven’t written about any instances of lawyers getting disciplined for such missteps in a long time, but there now is an extremely recent example of a lawyer being publicly censured for exactly that, and it arises from my home state. You can read the press release about the public censure here.

The press release, unsurprisingly, does not contain much in the way of details beyond indicating that the problematic conduct was “negligently disclosing confidential client information in an affidavit filed with [a] Motion to Withdraw from representation.” In fact, it would be horrible if too many details were included in such a press release when the underlying problem was the lawyer disclosing too much information in connection with seeking withdrawal.

What is a little surprising is that this discipline came about only have a full trial before a hearing panel. If you’d really like to know more of the full story, you can read the Hearing Panel judgment after the trial at the link below. (Bad link replaced with PDF download.)

For those readers who may be thinking to themselves, sure but I would never make that kind of error, the lawyer in question has been licensed in Tennessee for nearly 50 years. So maybe you shouldn’t be so confident?

But, for the benefit of those same readers, the lawyer in question also made clear in his efforts to defend himself in the proceedings (a fact that likely explains the need for the trial) that he did not comprehend (even after 50 years of practice) that the ethics rules impose an obligation of confidentiality that is much broader than the attorney-client privilege.

So, maybe you can be confident?

Increasing access to information about legal services – TN Edition

This will be a mostly short entry for this week because the most important item to put into your reading pile is what I’m writing about rather than the post itself. (Admittedly, I’m certain many of you are thinking … “well, that’s kind of always true Einstein.”)

I have written over the years here about a number of cutting-edge undertakings occurring in various states to try to address re-regulating the practice of law. I will not repeat that content here, but I will confess that I’ve fallen behind as there are some that have happened that have avoided my attention.

Many of those endeavors involve changes to the rules on legal advertising as a secondary-level improvement to other, bolder regulatory reforms. Here in Tennessee I don’t think we are very close to launching any sort of task force aimed at re-regulating the practice of law in the immediate future, but I am pleased to report that the wheels are beginning to turn on the topic of seeking reform of the rules on lawyer advertising.

Earlier this week, the Tennessee Bar Association filed a petition with the Tennessee Supreme Court asking it to adopt proposed revisions to the current ethics rules in Tennessee located at RPCs 7.1 through 7.6.

As the petition indicates, the rules revision proposal involves a blend of what APRL proposed back in 2015 and 2016 and what the ABA ultimately adopted as revisions to the Model Rules in 2018 regarding advertising matters. Like those reforms, the TBA petition would delete three rule provisions (RPC 7.2, 7.4., and 7.5) and move remaining comment guidance from those rules into the Comment to RPC 7.1. Tennessee would retain an RPC 7.3 addressing solicitation and some other issues.

The TBA also retains some existing Tennessee-specific approaches to issues, but, on the whole, the revisions would be significant progress toward two goals as explained in the petition itself:

(1) winnowing down restrictions imposed on lawyer advertising to the core requirement that lawyers not make false or misleading statements about themselves or their services, and (2) removing restrictions on communications by lawyers where the types of communications now barred are not likely to cause consumer harm.

As the petition was only filed this week, the Court has not taken any action on it such as putting it out for public comment.

Because I know a guy, if you’d like to read the petition and review its proposed changes, you can download those documents at the links below.

The era of permanent disbarment in TN has begun.

What now seems like an eternity ago, because it was written in the before-times, I wrote about Tennessee’s change to its disciplinary procedural rules resulting in implementation of permanent disbarment. I questioned exactly why the change was needed and what it would mean given that it was being paired with changes to extend the maximum length of suspensions from 5 years to 10 years.

As with a lot of things I have written, it amounted to nothing more than screaming into the void as the changes went forward and became effective as disbarments entered on or after July 1, 2020. (Also, “Screaming into the Void” sounds like a very good high school yearbook theme for 2020-2021.)

Earlier this month, the first two permanent disbarments were entered in Tennessee under the new procedural rules. An attorney practicing in middle Tennessee was disbarred forever on September 10, 2020. The charges against him stemmed from having pled guilty in federal court in 2019 to wire fraud, identity theft, and tax fraud. The underlying conduct involved misappropriations of funds in trust belonging to a minor and misappropriating other funds in a probate case.

The second permanent disbarment order was entered a day later involving a Tennessee lawyer based in Alabama. Her case has few similarities to the first beyond the ultimate outcome. She essentially took on clients in immigration matters (6) and failed to provide services despite being paid, dumped the clients, and retained the fees. She apparently did this in the process of abandoning her practice. Once a disciplinary investigation began, she did not respond to the Board, was then temporarily suspended (did not comply with the requirements for providing clients notice after such a suspension), and then consented to the permanent disbarment ruling against her.

So, what we can learn from this with respect to how permanent disbarment might be used? Not much, I guess. Neither of these lawyers have very sympathetic stories, one of the two consented to being disbarred forever and the other is likely in federal prison for essentially stealing money. That doesn’t mean that neither might have been able to trod a path to redemption under the prior procedure, but neither presents the kind of case that would make anyone want to even online browse for, much less go to, any mattresses.

But there are two things still worth thinking about.

The first is the capriciousness of timing. As mentioned in my ancient posts, the rule change implementation was not one that was going to apply only to new cases arising after a certain date but to orders of disbarment entered after a certain date. To drive that point home, on June 26, 2020, a lawyer in Washington County, Tennessee consented to disbarment over conduct that is not publicly clarified in any respect other than with reference to rules (RPC 8.4(a)(b)(c)(d) and (e), which would imply the situation would have involved some sort of criminal conduct and some sort of dishonesty. But, because the order was entered before July 1, 2020, that lawyer has the glimmer of hope for redemption because they can apply for readmission to the bar on or after June 27, 2025.

The second is an administrative issue that probably does not matter in the two permanent disbarments so far but that might be worth some further scrutiny in the future. Both of the September 2020 permanent disbarment orders end with the statement that the former lawyers must also comply with the portions of the rules applying to disbarred attorneys with respect to notifying clients and others of the disbarment. Now that disbarments are permanent in Tennessee, that’s a pretty pointless requirement. There is no hammer to force compliance and now no longer any carrot to incentivize compliance. In the past, whether a lawyer complied with those notice requirements would play a role in any future efforts to be reinstated.

But now? If not a purely aspirational requirement to maintain, it is practically, entirely toothless.

The thing about the re-regulation of the practice of law …

. . . is it really could go either way. It could make things better or it could make things worse. It truly depends on who ends up doing the re-regulation and what motivates them along the way.

What is prompting the need to say this sentiment out loud today exactly? Well, cynical types might say it is because there are these two things I want to write about and maybe it is the only thing they have in common. Less cynical types might say … well pretty much the same thing.

It also might come from the general feeling, shared by lots of folks out there I believe, that so many things in life sit on a knife’s edge at the moment and, depending on lots of variables, could pivot in one direction and start to get better or another direction and get even worse.

Recently, we revisited the state of things on the general topic of re-regulation to note that the Utah Supreme Court actually pulled the trigger on creating their regulatory sandbox to allow lawyers and others to collaborate more closely in the delivery of legal services. Frequent readers of this space will know that, in the past, posts about the happenings in Utah have always been in close proximity to the happenings in Arizona and will not be surprised to know it has happened again.

The Arizona Supreme Court has once again jumped ahead of Utah’s trailblazing by simply eradicating RPC 5.4 altogether (as well as eradicating any restrictions on solicitation by lawyers in the advertising rules) effective January 1, 2021. No sandbox or limited experiment, just full steam ahead.

My initial belief (which will also come as no surprise to readers) is that this is and will be a good thing for consumers of legal services. But there is no guarantee that it will be. Much will depend on who takes advantage of the changes. If Arizona sees an influx of interest by investors into lawyers and law firms that represent consumers, then the needle will almost undoubtedly move in the direction of greater access to both information about the availability of legal services and access to meaningful justice. If Arizona instead sees growth mainly in the delivery of business services or expansion by large accounting and consulting firms into the practice of law and outside investment in lawyers and law firms that defend wealthy clients, then things could actually get worse in terms of the balance between the haves and the have-nots.

The battle for the re-regulation of the practice of law, however, will not be fought only in changes to ethics rules that govern those who actually already have become lawyers. It will also be fought over how those who wish to become lawyers are evaluated before being admitted to practice. In terms of evaluation, I do mean both from an intellectual preparedness standpoint but also on the topic of character and fitness to be a lawyer.

As to the first, there are many, many stories to be read on the internet these days about the difficulties facing states all over the country in how to deal with bar examinations for law school graduates as we, as a nation, still struggle with COVID-19. Unfortunately, less than a handful states so far have pivoted to granting diploma privilege to the graduates caught in this professional limbo. Fortunately, only a few states insisted on simply plowing forward with in-person examinations. All of the other states have engaged in experiments in trying to deliver online examinations. The results have been mixed at best. (With luck I will have a bit more to say on this topic later today, but only over on Twitter so hit me up with a follow @bsfaughnan over there.)

As to the second, the process of evaluating the character and fitness of those who aspire to be lawyers is a significantly less-than-perfect process. The fact that the same process is also applied to lawyers who seek additional licenses from other state bars further reveals its flaws. That it is a process that often improperly seeks to force aspiring lawyers to provide information about receiving treatment for mental health unrelated to questionable conduct further invites strong criticism.

This week in an opinion out of federal court in Kentucky a judge managed to simultaneously strongly call out that state’s problematic and invasive approach in a way that is nearly impossible to disagree with on the merits but also to provide evidence that the ABA was correct when it concluded that he was not fit for the federal bench in the first place. The opinion is a particularly bittersweet ride given that, effective today, the judge in question is now being elevated to a set on the U.S. Court of Appeals for the D.C. Circuit. (As to the appellate position, the ABA has concluded that he is qualified.)

If you’d like the short version of the opinion in question, you can check out this ABA Journal online article. A full copy of the opinion, however, can be obtained at the download button below.

In the opinion, the judge absolutely savages how Kentucky treats applicants for licensure and does so in circumstances involving a lawyer who had practiced, without incident, for many years in Florida before seeking to add a Kentucky license to her tool belt. The judge particularly focuses upon the invasive nature of Kentucky’s demands for disclosures about treatment for mental health conditions, demands unbounded by any relationship to any prior inappropriate conduct or any effort by the lawyer-applicant to explain such conduct as being caused by some prior untreated condition.

In the strongest and most emotionally charged language that tends to resonate with those of us who strongly believe that mental health issues in the profession need to be de-stigmatized, the judge closes his opinion out as follows:

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him — as Kentucky’s did against Jane Doe.

It is not a matter of if, but when.

The entire opinion, in fact, is filled with this kind of simple language that is compelling and easy for lawyers to understand. But 90% of the 18-page opinion is all dicta because the judge actually disposed of the lawsuit filed by the lawyer because they had now finally become a lawyer and no longer had standing to challenge the process they went through when they were an applicant. Only an applicant would have standing to bring the kinds of claims being sought – and, perhaps, not even then because of immunity issues associated with the decision-makers. It could have been a straightforward, nondescript, three- or four-page opinion.

Thus, what the opinion really reads like is an attack on what the judge “tags” as the “Bar Bureaucracy” and drips with the vindictiveness of someone whose credentials were challenged by the largest national association of lawyers in the United States, the ABA.

As someone who believes, on the facts laid out in the opinion, that the Florida lawyer was poorly treated by the Kentucky approach to such issues, reading the opinion is still a highly bittersweet experience. (A bit like watching a shark attack even your worst enemy — something you can’t take any pleasure in because at any point the shark might turn its attention to tearing into you.)

This is particularly true when you bear in mind that this judge – like many that have been installed on the federal courts during the last 4 years and that are career-long members of The Federalist Society — appears to have a very likely overall agenda that is not centered in the kind of empathy that he now expresses over issues of mental health in the legal profession.

Instead, this is a judge whose other prominent decisions during his short-lived tenure include attacking a mayor in Kentucky who was trying to deal with the pandemic as having “criminalized the communal celebration of Easter.” He is also a judge who, if given the opportunity, is likely to vote to strike down the Affordable Care Act and strip healthcare from millions in the middle of a pandemic. He is a judge in a mold of judges who will decry all that they do not like as “judicial activism,” but blithely engage in the kind of judicial activism that involves writing a scolding and self-righteous decision nearly 90% of which was unnecessary as dicta.

If the landscape surrounding entry into the practice of law is shaped and re-regulated by the kinds of judges that have been enshrined into power over this last Presidential term of office, then things might improve for the better or they could very well become much worse.

Three developments presented in decreasing order of importance.

Last week, the Utah Supreme Court officially approved the most “radical” change in any state’s ethics rules since DC adopted a limited approval for law firms to have partners who are not lawyers several decades ago.

The Utah Supreme Court announced its adoption of a package of reforms aimed at improving the access to justice gap in Utah as well as improving the availability of access to legal information generally. I’ve written about the Utah proposal in the past, but you can read the press release regarding approval of the reforms issued by the Utah Supreme Court here.

In addition to reforms to the advertising rules, the re-regulation effort revises Utah’s version of RPC 5.4 and 7.2 to allow people who are not lawyers to have ownership interests in law firms, allow lawyers and people who are not lawyers to work together in entities that will provide legal services and allow lawyers to compensate people who are not lawyers for bringing them work. As part and parcel of these efforts, Utah has formed a regulatory “sandbox” where entities can apply to take advantage of these provisions and deliver legal services and through which data can be gathered about the effectiveness of the revisions. The sandbox program will operate initially as a two-year program. You can read more takes online about this development here, here, and here.

Also, just shy of a month ago now, the Chicago Bar Association became the first voluntary bar association to have a task force report that also proposes altering aspects of the legal landscape to address these issues. You can read the full task force report from the Chicago Bar Association here if you’d like. What the Chicago Bar proposes does not go nearly as far as what Utah is undertaking – specifically the Chicago Bar was not willing to take on ownership restrictions — but it does propose significant reforms, including:

  • Removing restrictions on the ability of lawyers to work with intermediaries to deliver legal services
  • Creating a new category of licensed paralegal that could deliver certain limited legal services to consumers
  • Streamlining the Illinois ethics rules related to advertising

Finally (for today), the least important development of the three, but one I shamelessly will still write about… I am honored to report that on Friday of last week I was elected as President-Elect of the Association of Professional Responsibility Lawyers. As a result, I will serve in that capacity from August 2020 to August 2021 and will then become President of APRL for a one-year term commencing in August 2021. I am very much looking forward to being able to serve APRL as the 32nd President in its history as an organization.

Opposite ends but still the same spectrum (mostly).

Lawyers can get into significant amounts of ethical trouble over money issues. They can put their licenses at real risk by messing up their trust accounting obligations, they can get in trouble for overbilling clients, and, often, if they end up suing a client for failure to pay bills that are appropriately due, they will get a counterclaim for legal malpractice filed in response.

Over the last week, two items popped up on the radar screen that demonstrate even more ways that lawyers can run afoul of the ethics rules on topics involving money.

The first is a classic example of things that lawyers cannot do – because of the dishonesty involved – even if the end result is that their clients are not actually harmed by what transpired.

This story involves a lawyer in Pennsylvania who has been suspended for four years for making payments from his own personal funds to clients and misleading them about the outcomes of the handling of their matters. As happens pretty frequently, I saw this story thanks to an ABA Journal online article, but here is a link to the full order of the Pennsylvania Supreme Court which really comes about by way of a consent agreement for the level of discipline.

Interestingly, as far as these things go, his suspension was made retroactive all the way back to February 25, 2016 when the lawyer was temporarily suspended on an emergency basis over the misconduct. So, by the time the ultimately suspension order was issued, he has already served the full amount of the suspension and can, presumably, seek reinstatement in Pennsylvania.

More interestingly, his downfall came about as a result of falling down, quite literally. He experienced a vasovagal syncope and collapsed in such a way that he broke his face very severely. While hospitalized, others at his firm tried to cover on his matters and learned of what the lawyer had been doing.

As the filings with the Pennsylvania court detail, what he had been doing was paying clients out of pocket on their cases and telling him that these were settlements obtained for them in their cases, when, in reality, he had failed to file their matters. (There were even more clients identified where he was stringing them along about the status but had not yet gotten to the point of paying them.)

There were, as you might expect, lots of other deceptions the lawyer had to engage in to cover up the trail of what he was doing. The filings also lay out that, as often is the case when something like this takes place, the lawyer’s conduct came along despite a clean prior disciplinary history after he began experiencing problems of anxiety and depression. And that aspect of the tale makes it a little easier to attempt to be sympathetic, right up until you focus on the amounts involved.

The amounts involved amounted to in excess of $500,000, including a $424,000 payment to one of the four clients. Yes, you read those numbers right.

If I happened to have a half a million lying around that I could easily part with, I’m pretty confident I would not still be practicing law in the first place.

Shifting to the related topic that is easier to invoke sympathy, one of the things that the ethics rules in nearly every jurisdiction do is bar lawyers from providing funds to clients in order to help those clients meet their day-to-day needs. Instead, the only things that lawyers can do by way of advancing expenses to clients for which no repayment would be required is if the expenses are litigation expenses related to a matter the lawyer is handling for the client.

Last week, in connection with its first ever virtual annual meeting, the ABA House of Delegates was reportedly going to consider a resolution revising Model Rule 1.8(e) to allow for a “humanitarian” exception to this ethical prohibition. A proposal was recently enacted in New York to do likewise. I thought I had read somewhere that the ABA proposal had passed, but I cannot find anywhere online to confirm that. The resolution and report that was to be considered can be obtained from the download button link below.

Historically, the primary concern (as I understand it) that has always driven this prohibition is that, without it, deep pocketed lawyers would be able to obtain business simply by being able to pay clients directly to keep their cases.

Given the continued economic struggles being created as the pandemic rages on, it will be interesting to see what sort of traction, if any, such measures get moving forward.