Rule revision roundup.

That title is probably a thing somewhere else on the interwebs already, but I’m just lazy enough to not look it up at the moment.

So, it’s been a minute since I have written anything about the progress (or lack thereof) of jurisdictions adopting ABA Model Rule 8.4(g) and since I have written anything (other than indirectly) about whether any progress has been made on adopting the revised, modernized approach to lawyer advertising rules seen in the APRL-inspired, ABA Model Rules revision from last year.

In overlooking those stories in favor of writing about more radical proposed changes to the ethics landscape (some of which have thrown modernized advertising proposals into the stew), I’ve been highlighting a lot of activity in the western United States. But spending a bit of time on these other two topics, gives me a chance to write about happenings in the New England region of the United States.

Specifically, earlier this year (more than five months ago in fact), Maine became the second U.S. jurisdiction to adopt a version of ABA Model Rule 8.4(g) to seek to address harassment and discrimination related to the practice of law. A neighboring state, Vermont, is the only other state to have done so. Unlike Vermont, however, Maine did not adopt an exact version of the ABA Model Rule. Instead, Maine tweaked it in a few significant ways: (1) the Maine version does not include “marital” or “socioeconomic” status among the grounds for which discrimination is off-limits; (2) the Maine version does not include bar activities or professional social functions within what counts as “related to the practice of law,” and (3) it provides more detailed examples of what amounts to “harassment” and what amounts to “discrimination” under the rule. You may recall that an effort to adopt a modified version of Rule 8.4(g) here in my state of Tennessee failed miserably in 2018.

A bit more recently (only just three months ago), Connecticut became the first state to adopt the ABA revisions to the Model Rules related to lawyer advertising. You may recall that Virginia actually overhauled its rules even before the ABA took action by adopting the original APRL proposal back in 2017. In so doing, Connecticut (for the most part) has stripped its advertising regulations down to just three rules — patterned on ABA Model Rules 7.1, 7.2, and 7.3. Connecticut does still keep a couple of its additional bells and whistles (though it can be hard at first blush to know for certain because they used [brackets] to indicate deletions rather than strike-through text). One deviation that it kept was its 40-day off limits provision for people involved in accidents. Another deviation is that they have a three-year record retention requirement in their version of these rules. A few other deviations made it through as well.

If I could take issue with one choice Connecticut has made (well, technically two — seriously, don’t do the brackets thing ever again), it would be the level of unnecessary detail in the following provision about record retention:

An electronic communication regarding the lawyer’s services shall be copied once every three months on a compact disc or similar technology and kept for three years after its last dissemination.

The problem with this is … well there are several. In 2019, a whole lot of computers don’t even have CD-ROM drives any longer, but also the level of specificity and detail is both micromanagement of an unneeded degree and entirely unlikely to actually accomplish anything. As to micromanagement, just require that an electronic record be retained for the three year period – if they want to store it in a server or in the cloud or wherever, it won’t matter as long as they retain it so that if you ever need to examine it you get it from them.

And also, every three months? Both micromanagement and ineffectual, a lawyer who wants to game that system just changes an electronic communication to be shady in the middle of the three month window and changes it back in time to make the every three-month copy.

Except, of course not really, because the stories about Connecticut’s adoption of the ABA Model Rules on advertising, including this story, all buried the lede — Connecticut still requires lawyers who advertise in public media to file a copy of the advertisement in the form it is distributed with the Statewide Grievance Committee. Sigh. While this is not a “prior restraint,” it is a “prior pain-in-the-ass” (TM, TM, TM, TM) that serves little to no purpose other than imposing additional expenses and red tape on lawyer advertising.

To have both such a filing requirement and a three-year record retention requirement is among the worst sort of “belt and suspenders” arrangements.

In the end, I guess that’s part of why it took so long to actually write this post. Between reading the headlines and being a bit excited and actually studying what Connecticut did, I ended up feeling like I just got nutmegged.

But why though?

This past week the Tennessee Supreme Court proposed revisions to the rules of disciplinary enforcement that would transform disbarment into an irrevocable form of discipline in Tennessee and that would extend the potential length of a suspension from 5 years maximum to 10 years maximum.

Which leads me to the highly-technical title of this post: But why though?

Under Tennessee’s current approach, the maximum length of suspension is 5 years, and the only harsher punishment is disbarment. At present, in Tennessee, if you are disbarred it is not a “death penalty” as to your license because you can apply for reinstatement after 5 years has passed.

What is going on that would make anyone think this was a needed change in Tennessee?

I assume that if this change were enacted what it would mean is that some percentage of lawyers who are presently finding themselves disbarred might now instead just end up receiving suspensions in the 6-10 year range and some other percentage of lawyers who are already going to end up disbarred will still be disbarred but will have it be a new “disbarment is forever” standard.

But … why? I admittedly do not have access to all information about what is going on in the world of discipline in Tennessee, but I have some decent insight, and I’m simply not attuned to what the problem is that this seeks to fix.

Lawyers who get disbarred do not just get automatically reinstated after spending 5 years disbarred. They have to apply for reinstatement. They have the burden of proving that being permitted to return to the practice of law will not be detrimental to the public and the profession. Disciplinary counsel has the opportunity to zealously advocate against the requested reinstatement and marshal whatever evidence they can get their hands on to demonstrate why the person involved has not changed sufficiently to be given the privilege to practice law once again.

By the way, that is also how it works if you get a 5-year suspension (or a 3-year suspension or a 1-year suspension). You have to apply to be reinstated; you have to prove the required elements to demonstrate why you should be reinstated. If you can’t, you stay suspended for 6 or 7 or 8 or even 10 years until you can prove you should be able to practice law again. Based on other revisions to the rules not too long ago, that is also how it works even if you only get suspended for 30 days. You still have to get yourself reinstated by way of a petition.

Why doesn’t that work? Why does Tennessee need to add itself to the list of a handful or so other states to have permanent, irrevocable disbarment? Why does Tennessee need to double the length of available periods of suspension up to 10 years?

It has now been more than 10 years since our Court issued its decision in Hughes v. BPR but it certainly knows that it already has the precedent to deny a lawyer reinstatement if it thinks it should not happen even in the face of significant evidence of rehabilitation.

The statistics that are easily accessible also do not seem to indicate anything is horribly awry with the current approach. If you look at the most recent annual report from the TBPR, there were 21 lawyers disbarred, 18 lawyers receiving disciplinary suspensions (which would be anywhere between the 30-day minimum and the 5-year maximum), and 7 lawyers reinstated. If you look at the report for the year before that, there were 23 lawyers disbarred, 28 lawyers receiving suspensions, and 14 lawyers reinstated. The year before that, 23 disbarments, 18 suspensions, and only 5 lawyers managed to get reinstated.

And, also, while I think that what I’ve discussed above is the big and truly weighty question at play here, even if one decided there should be a change, why in the world would it ever make sense to pick a future date when disbarments would become permanent and not indicate that it is for disbarments arising from disciplinary proceedings commenced on or after that date?

The proposed revision would change Section 30.2 of Tenn. Sup. Ct. R. 9 to read as follows:

30.2. Individuals disbarred on or after July 1, 2020, are not eligible for reinstatement. Individuals disbarred under Rule 9 prior to July 1, 2020, may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.

Why inject a questionable level of due process deficiency into this situation by proposing to revise the rule so that people who already have cases in the system would have a different meaning for the outcome of disbarment depending on whether it was complete by June 30, 2020? Lawyers on their way to disbarment are admittedly not sympathetic characters, but if they have begun being investigated and prosecuted under one set of rules, there seems no really good reason to change those rules on them in the middle of the process.

One possible answer: Radical transparency in design for legal services?

So, this post isn’t exactly about legal ethics. Of course, it isn’t exactly not about legal ethics. I’ve written a bit here recently about various jurisdictions launching increasingly bolder initiatives to try to reform the regulatory landscape when it comes to the delivery of legal services.

Many critical voices of these initiatives demand evidence that any changes to the ethics rules will result in better access to justice; others wonder what it is that technology companies or others who aren’t lawyers might be able to bring to the legal services marketplace that lawyers can’t afford to or are not interested in.

I certainly can’t provide a great answer to the first question. And I’m not sure I’m the definitive authority for answers to the second question. But I do have a thought that hit me yesterday while listening to the latest episode of one of my favorite podcasts – 99% Invisible.

If you aren’t familiar with it (and you really should be), it is a design podcast. Its most recent episode is entirely about the condition of waiting and how, as technology has advanced, people have designed ways to deal with people’s expectations as to waiting and how to manipulate them to have people feel better about their experience.

The episode is entirely worth your time in its entirety, but without giving too much away it focuses on things like changes over time to how you interact with Internet websites and how where once there was just a spinning hourglass that did not tell you anything about how long you might expect to have to continue waiting to the way the travel deal website, Kayak.com, shows you in a fully transparent fashion what is being searched while you are waiting.

One of the examples of the steady change in the direction of transparency the episode discusses is one of my favorite things online — something where I never really had previously thought about the “why” of its existence – the Domino’s pizza tracker.

The episode of the podcast talked about research and other studies measuring the effect of transparency, even “radical transparency,” on customer satisfaction. Examples of situations where a customer is happier with an online experience that involves an extended wait – but with flowing information about work being done in the meantime made transparent – than with a non-transparent but “instant” result. And, not all examples involved online interactions. One example was a restaurant that changed its design so that diners could see what was going on in the kitchen to make their food and that resulted in survey responses about how much better the food tasted than before.

My mind quickly moved to the experience for clients of hiring and relying upon lawyers and ways it could be made more transparent that are somewhat similar to the pizza tracker and other situations detailed in the episode. Anthony Davis of Hinshaw once explained to an audience (which included me) about how important it was for lawyers to be more communicative as to their billing because hiring a lawyer was like riding in a taxicab but with the windows blacked out. All you could see was the meter continuing to increase but had no idea how much closer to your destination you were.

Now the analogy is still a great one, even though fewer people experience cab rides now and opt instead for shared rides with prepaid fares.

In fact, the analogy is an even better one now because we live in a world where shared ride companies are putting cab companies out of business. Not only do you know on the front end how much you are agreeing to pay for the ride, but you also, through the app, can monitor your progress toward your destination the whole time (and can even track where your driver is when they are on the way to you).

Now, lawyers could try to be as descriptive as possible in the bills they send their clients, but those still only go out once a month or so. And lawyers could try to communicate more frequently to clients about what they are, or are not, doing on their case, but in an hourly billing scenario each of those communications just drives up the price for the client.

Thus, it seems logical that someone could harness technology and understanding of the life cycle of legal matters to provide a web portal that a firm (or a lawyer) could make available to clients where they could log in at any time of day and “see” something that would tell them what is going on in the life cycle of their matter.

It could be as simple as something that would tell them what the last significant event in their matter was and what the next upcoming significant event is. Or it could be as robust as something that not only gives immediate access to the big picture but would also tell them exactly when the last time was that the lawyer had “touched” their file and what work had been done and when the lawyer has calendared to next do something on the matter. Legal ethics would play a role in restricting certain parts of what could be done because some of the “manipulation” that occurs in terms of managing expectations would be quite risky given ethical restrictions on deceptive or misleading conduct of all kinds.

After those thoughts hit me and I was done with the first level of wondering if an approach surrounding “radical transparency” would work when applied to practicing law to improve the experience for clients and perhaps make people more willing to spend their money on acquiring the assistance of legal professionals, I almost immediately, and instinctively, brushed it off as something that would require too much investment and infrastructure to ever even try it.

And, that’s the real point. Isn’t it?

Can Utahp Arizona?

I know. I’m either: (a) such a sucker for Utah-centric wordplay; (b) a lame, repetitive sort of humorist; or (c) both a and b.

But nevertheless today’s post is really important – at least the subject matter of it is – and so it is being designed to try to be short and sweet and get you, Dear Reader, to go read the source material.

I wrote about Arizona’s efforts in reshaping the legal regulatory landscape a couple of weeks ago. I emphasized how much faster it was moving than California. But Utah has gotten to something of the “finish line” on a very bold regulatory initiative even sooner.

This week it was announced that the Utah Supreme Court unanimously voted to approve the August 2019 Report and Recommendations from the Utah Work Group on Regulatory Reform.

So, for some light reading during this holiday weekend, I offer you the link below to download the Utah report itself – which was titled “Narrowing the Access-to-Justice Gap by Reimagining Regulation.”

To try to immediately pique your interest in reading it, here is the concluding paragraph:

Decade after decade our judicial system has struggled to provide meaningful access to justice to our citizens. And if we are to be truly honest about it, we have not only failed, but failed miserably. What this report proposes is game-changing and, as a consequence, it may gore an ox or two or upend some apple carts (pick your cliché). Our proposal will certainly be criticized by some and lauded by others. But we are convinced that it brings the kind of energy, investment, and innovation necessary to seriously narrow the access-to-justice gap. Therefore, we respectfully request that the Supreme Court adopt the recommendations outlined in this report and direct their prompt implementation.

For what it is worth, I also offer for you the four most important takeaways (in my opinion) about this development:

  1. The framing of the current legal landscape using the term “Age of Disruption,” is very good. It is not only quite accurate but a compelling choice of words.
  2. The Utah report manages to adroitly articulate a number of very important points about the fact that the need for regulatory reform and the problem of the lack of true access to justice in the U.S. are both intertwined with, and independent of, each other. The need for regulatory reform exists whether it will ultimately result in true access to justice or not. The need to strive toward true access to justice exists and must be addressed even if we don’t manage true regulatory reform. The report also says out loud what is often not said — that the lack of access to justice is not the fault of lawyers because it is not a problem that can be made to go away simply by volunteering more or donating more.
  3. I don’t know, however, that it helps to move any needles to be quoting Heraclitus exactly, given that he is most famously known for cosmology. While the point about “Life is flux” is well and good in terms of making the overall point that the only constant in life is change. I think the more appropriate reference for that point in the Age of Disruption is something better than an obscure 5th Century Greek. Probably would have been better to go with a more modern approach and use a variation of the message spoken by a well-known character in Grey’s Anatomy. (I’m largely kidding about this and it really doesn’t deserve to be treated as one of four takeaways. Having only “three” most important takeaways seemed cliché.)
  4. The Utah approach does the two things that, I believe, have to be done hand-in-hand to address this problem. Both freeing up lawyers to compete by paring down certain aspects of the ethics rules, AND establishing regulation to address those who are going to be out there doing the delivery of legal services but who are not lawyers. And, I happen to think that doing so through the “regulatory sandbox” approach Utah will pursue is the path that makes the most sense for that second piece.

Okay, enough about what I think about it. Put it in your reading pile, find a relaxing spot this weekend and read it for yourself and see what you think.

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.