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.

Two for Thursday.

It is Thursday, right?

In a “recent” effort, I mentioned that there were recent developments I was planning to eventually write about. Today presents an effort at checking two of them off the list that have only Tennessee in common. Neither of which likely provides fodder for a full post, so they will be covered together.

The first is a recently enacted revision to Tennessee’s ethics rules regarding money held in trust accounts. Specifically, the Tennessee Supreme Court has adopted a revision to RPC 1.15 regarding trust accounts to impose requirements for dealing with “unidentified funds” held in trust.

As revised, RPC 1.15 now has a new subsection (f):

(f) A lawyer who learns of unidentified funds in an IOLTA account must make periodic
efforts to identify and return the funds to the rightful owner. If after 12 months of the discovery of the unidentified funds the lawyer determines that ascertaining the ownership or securing the return of the funds will not succeed, the lawyer must remit the funds to the Tennessee Lawyers’ Fund for Client Protection (TLFCP). No charge of ethical impropriety or other breach of professional conduct shall attend to a lawyer’s exercise of reasonable judgment under this paragraph (f).

A lawyer who either remits funds in error or later ascertains the ownership of remitted funds may make a claim to TLFCP, which after verification of the claim will return the funds to the lawyer.

I personally was opposed to this proposal because in almost all circumstances “unidentified funds” simply shouldn’t exist in a trust account in the first place and, thus, this is one of the very few places in the rules that addresses a situation which can nearly only come to pass because of lawyer misconduct. Although the rule doesn’t define “unidentified funds,” my understanding is that these are different from “unclaimed funds” because the lawyer simply has no idea to whom the funds belong at all. Comment [14] still indicates that as to “abandoned” funds those will likely have to go through the process of escheatment to the State. Thus, other than circumstances in which a lawyer purchases someone else’s law practice and then finds that the underlying records aren’t up to snuff, this rule addresses obligations of a lawyer who has already dropped the ball on a very important duty.

The Tennessee Bar Association publicly signaled support for the proposal, however. The rule revision was not accompanied by any new comment paragraphs, so perhaps a time will come in the future for the Court to give a bit more clarity about how funds might come to be “unidentified” and whether the protection for judgment extends only to whether to send funds to the TCLF or not and not also to judgments about whether funds qualify as “unidentified” or not.

The second development raises a question of judgment as well. If you’ve been following aspects of how the legal profession is trying to cope with the ongoing, and now worsening in the U.S., pandemic, you’ve likely seen a variety of approaches in various states to dealing with graduates of law school and how to provide them with an opportunity to get their law license. Some states have transitioned to having their bar exam online, some states have limited the number of people who can sit for the traditional bar exam in a socially-distanced room (and some of those states have given preference to in-state law school grads), and some states have opted instead to offer diploma privilege rights to law students and allow them to become licensed without having to sit for a bar examination.

To date, my state has gone with an approach that involves limited availability but with a twist. The traditional July bar exam would have limited spaces, but they also determined to hold an extra bar exam later in the fall.

Last month, however, a collection of law school graduates has filed an emergency petition with the Tennessee Supreme Court requesting that the Court take action to allow for diploma privilege in Tennessee because of, and in response to, the pandemic. You can go read the full petition here.

It is hard to try to argue that they don’t have a point.

Edit/update: About an hour after putting this up, the Tennessee Supreme Court posted an order cancelling the July 2020 bar examination in Tennessee. You can go read the order here … it doesn’t sound like the Court is seeing it along these lines … but having to cancel it rather than move it online seems to me to be more support for seriously considering the diploma privilege route.

Utahlking real reform? Yes, Utah absolutely is.

Infrequent readers will know this pun structure is one that I have no shame in running into the ground every time it is relevant.

Frequent readers will know I am far too willing to break the fourth wall here. So just for background I had resigned myself to writing a post on Friday about the New Jersey lawyer who could only get reinstated to practice if he could assure that his wife would not have any further access to their trust accounts and it was going to likely be unnecessarily preachy and riddled with hacky references to how hard that might be when everyone is trapped in their house. So, while you are only getting content a few days late, thanks to Utah you at least are spared that the content that could have been.)

Last Friday, Utah released for public comment the final version of its work product for an overhaul of significant parts of its ethics rules. If you need to get back up to speed on that issue and the pre-pandemic discussions of it, you can find prior posts about the rapid work of Utah’s task force here.

If you’d rather read the source materials put out for public comment on April 24, 2020 yourself, you can get to them all through this link.

If you’ll allow me to describe them to you in all of their relative glory, I’ll do so now.

I’d like to start with what ought to be the least controversial piece but a part that still really ought to be cherished for the elegant thing that it is, reducing the rules on lawyer advertising down to the core and nothing but the core.

  • The Utah Supreme Court’s proposal would eliminate RPCs 7.2, 7.3, 7.4, and 7.5 and, instead, revise RPC 7.1 to address the terrain by (a) prohibiting lawyers from making false and misleading claims about themselves or their services and (b) prohibiting lawyers from going about dealing with people in ways that involve coercion, duress, or harassment.

If any state were proposing to do this to their advertising rules, and only just this, it would be an exciting development toward important regulatory reform. But wait … there’s so much more to Utah’s proposal. As a result, comprehensive reform of the advertising rules is nearly just the icing.

The centerpiece of Utah’s proposed rule revisions though involves an overhaul of RPC 5.4 in the form of the creation of two rules, one 5.4A that will look a good bit like the current rule with one very significant change and another 5.4B that will look like nothing that has been actually implemented so far in the United States.

Under the proposal, RPC 5.4A will apply to lawyers who continue to operate in the traditional fashion (read, at least in its pre-pandemic context to mean working in a law firm owned and operated only by lawyers). That rule would carry forward existing restrictions on partnerships with non-lawyers and on operating in the form of any entity in which someone who is a not a lawyer has a financial interest but would permit lawyers in such conventional settings to be able to share fees with people other than lawyers as long as sufficient disclosure is made to the client (and anyone other than the client who is paying the fee) about the fact that such sharing is occurring/going to occur and with whom. The rule though is also refashioned to make clear that lawyers still can only do these things as long as there is no interference with their independent professional judgment, maintaining their loyalty to their client, and protecting client confidences.

(One other seemingly pedestrian item in its package of revisions is to remove the current restrictions on fee sharing between lawyers not in the same firm by deleting RPC 1.5(e) altogether. This makes a lot of sense on a standalone basis as a variety of jurisdictions already permit “naked” referrals between lawyers not in the same firm as long as there is a certain amount of disclosure, but if you are going to open the doors for lawyers to share fees with people who aren’t lawyers then you certainly have to drop the RPC 1.5(e) approach.)

RPC 5.4B would be a new thing altogether and would govern the conduct of lawyers that choose to practice in nontraditional structures as part of a legal regulatory Sandbox to be launched Utah. This proposed rule establishes an ability for lawyers to practice in ways that RPC 5.4A would prohibit as long as there is no interference with any of the lawyers duties that are also stressed in RPC 5.4A (independent professional judgment, loyalty, and confidentiality). Specifically, what it permits is best described using the proposed rule itself:

(b) A lawyer may practice law with nonlawyers, or in an organization, including a partnership, in which a financial interest is held or managerial authority is exercised by one or more persons who are nonlawyers, provided that the lawyer shall:

(1) before accepting a representation, provide written notice to a prospective client that one or more nonlawyers holds a financial interest in the organization in which the lawyer practices or that one or more nonlawyers exercises managerial authority over the lawyer; and

(2) set forth in writing to a client the financial and managerial structure of the organization in which the lawyer practices.

And to implement the Sandbox concept that RPC 5.4B will permit lawyers to participate in, and to make sure that there exists an entity that will have regulatory authority over those participants in the Sandbox who are not lawyers, the Utah Supreme Court has released a proposed Standing Order that would be the foundational document for establishing the relevant regulatory entity and the regulatory principles that will govern its work.

The relevant regulatory entity will be the Office of Legal Services Innovation and, for a pilot period of two years from whenever the effective date of the Standing Order comes to pass, this Innovation Office will “establish and administer a pilot legal regulatory sandbox (Sandbox) through which individuals and entities may be approved to offer nontraditional legal services to the public by nontraditional providers or traditional providers using novel approaches and means, including options not permitted by the Rules of Professional Conduct and other applicable rules.”

And, as for the relevant regulatory principles? Those will be as follows:

  1. Regulation should be based on the evaluation of risk to the consumer.
  2. Risk to the consumer should be evaluated relative to the current legal services options available.
  3. Regulation should establish probabilistic thresholds for acceptable levels of harm.
  4. Regulation should be empirically driven.
  5. Regulation should be guided by a market-based approach.

There is a 90-day comment period on the proposal which ends on July 23, 2020. That comment period is not only for Utahns. (And, yes, according to the Standing Order that is how to refer to a collection of residents of Utah. College football fans likely believed, and My Cousin Vinny fanatics would likely have been demanding, that Utes to be the official term.)

Change seems like it never comes … right up until it does.

So, I’m not a public health expert and I try to pride myself on not talking too much about conversations to which I am unable to meaningfully contribute. Thus, I’m not going to purport to speak directly to how to be dealing with the pandemic looming over everything. I’ve been doing what little I can to try to help “flatten the curve,” because I’m economically privileged enough and have robust access to technology to be able to do so. If you are in a similar situation, I hope you will do the same.

I’m going to instead focus on something much smaller … the disappointing news out of California yesterday that goes a long way toward kneecapping the efforts of the California ATILS task force. As mentioned in an earlier post, the ATILS task force itself had already scaled down its efforts but the California State Bar voted down significant aspects of even the watered-down proposal.

If you’d like to read the details, you can do so at this The American Lawyer article. If you’d like a sense of what comes next, you can read this Twitter thread from Andrew Arruda, a very irked member of the task force.

All I want to say for today is that I don’t think the California State Bar is going to have the last word on this, not by a long shot.

Beyond the fact that the post-pandemic world is going to be different, I’m not prepared to predict what different exactly looks like. But it seems clear already that, at least in the United States, we are learning quickly that a lot of things people have been told weren’t possible actually are.

Your job likely can be done remotely through telecommuting. The for-profit health system can make allowance to discount costs. A quality legal education can be obtained through online classes. Courts do not have to have as many in-person hearings in order to dispense justice.

The list is much, much longer.

It is hard not to think that there are going to be a variety of businesses, large and small (including law firms), that will not be able to survive in an environment where large swaths of the population do not venture out of their house for much of a 30 or 60 day period. It won’t all be businesses in the food and beverage delivery industry and businesses that otherwise require large groups to gather. Yet, given the legalistic nature of U.S. society today, the demand for people to be helped with their legal and contractual rights likely only increases.

Whether that translates to an increased demand for lawyers to do those things though is a lot less clear.

Innovations will likely happen out of necessity.

In the meantime, stay safe out there.

PDA: If you’re going to get disbarred in TN, get it done before July 1, 2020.

Because if you can get it finalized by June 30, then you might still have the chance to be reinstated starting July 1, 2025. In this instance, PDA is short for “public disservice announcement,” not “public display of affection.” You might remember back last year I wrote about a proposed revision to the rules of disciplinary enforcement in Tennessee and my reasons for thinking it was not a necessary change.

On Friday, the Court entered an order adopting the revisions as proposed. The order mentions that in addition to comments filed by the Tennessee Bar Association, the Board of Professional Responsibility, and the Knoxville Bar Association, there were comments filed by two individual lawyers. It should probably come as no surprise to anyone reading this that all of the comments, except for the BPR’s comment, voiced opposition to the proposed changes. You can read all of the comments that were submitted here.

The Court’s order offers no explanation for why the Court thought the revision to be necessary in the first place, nor does it undertake any explanation of why it disagreed with the majority of the comments or what about the Board’s position it found persuasive, if anything. (The most effort that the Board put into its response was actually to talk at length about the Hughes case that already demonstrates that the Court had the power and willingness under the current system to refuse to reinstate a disbarred lawyer who it doesn’t feel should be reinstated.) So … disbarment in Tennessee is about to become a “forever” punishment, putting Tennessee into a very small group of states that embrace such an approach, and we still don’t know “why” the Court thought the change was needed.

Thus, on the present record, there seem to be only two possible conclusions to draw: (1) the Court simply thinks that disbarment under the current system is not sufficiently severe in terms of a penalty because it provides for a second-chance; or (2) the Court thinks that disbarment should truly be reserved only for the worst-of-the-worst offenses and that most lawyers who get disbarred should actually be hit instead with a suspension of somewhere between 6 and 10 years in length.

Which one is it? Only time will tell I guess.

My favorite post of 2019

For the second straight year, I’m ending the year with an homage to a concept (ripping off an idea) pursued by Nate DiMeo the writer and performer of The Memory Palace podcast. I’m going to re-post what was my favorite post from the past year.

Deciding what to put out there again this year was fairly easy as it is a post that (I think) offers the most solid and original idea about anything related to ethics that I offered up this year. It also continues something of a theme of last year’s repeat offering as it focuses on what the profession should be moving toward and, thus, also is a nice way to usher in a new year — particularly a new year where the numbering offers plenty of opportunities for puns about vision.

Of course, as often happens when I think I have offered up a solid and original idea, it ends up pretty much entirely ignored. So, let’s give this one another chance to gain relevance.

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).

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.