500: A Multimedia Extravaganza.

So, in my most recent post, I ended by acknowledging that there was a milestone upcoming and that it seems like a circumstances creating odd pressure.

I have now managed to do this for more than seven years and by my best guess there is roughly 500,000 words of content on legal ethics now available on this site.

So, what could one hope for to accomplish with a 500th post to feel like it is a successful one? Something engaging? Something discussing important information? Something perhaps involving shameless self-promotion of sorts? Something touting a great organization I am lucky to lead at the moment? Something that involves a subject matter that might change the profession?

Sometimes life steps up and provides an opportunity to do all of those things at once.

Robert Ambrogi, a much more famous blogger than me and who also is the host of a well-known podcast, was kind enough to extend an invitation to me to appear on his LawNext podcast and discuss the origins, motivations, and other issues addressed in APRL’s recent proposal to overhaul and replace ABA Model Rule 5.5.

You can give that episode a listen at the link below:

LawNext: Ep 162: Is the End in Site for State Limits on Law Practice? (libsyn.com)

(Or, and it is always fun to hear me say this in my head when I hear it said on so many things I listen to, you can get it wherever you get your podcasts.)

Requiring lawyers only to disclose whether they have malpractice insurance can do more harm than good.

So, this is an issue that states continue to “struggle” with from time to time, and the latest I am aware of is Vermont. Michael Kennedy has alerted the public to a pending proposal in Vermont that is now out for public comment that would require Vermont lawyers to disclose on their annual registration statements whether they have or do not have malpractice insurance.

The problems I have with all of these kinds of proposals, including ones that go further and require lawyers to actually have malpractice insurance, are the focus of today’s post.

But, first, just to be clear, I obviously recognize that ideally all lawyers everywhere would recognize that having malpractice insurance is better than not having malpractice insurance and that there are likely far too many lawyers practicing who do not have any malpractice insurance. Also, I want to admit that — while almost all of the information is anecdotal – I have no doubt that most consumers of legal services just blithely assume that the lawyers that they retain actually have some form of insurance coverage.

While all of that is true, I have a strong opinions that trying to regulate and require it in the ways that states have tended to do is not a helpful approach to the issue and, particularly when all that is sought to be required is disclosure of coverage vel non, can actually end up hurting rather than helping consumers.

Here’s why I say that. Given that the predominant nature of lawyers’ professional liability insurance is that it is issued on a “claims made and reported” basis, I don’t think that making available to a consumer information about whether, during a discrete window in time, a lawyer has an available insurance policy actually provides useful information. The notion that a lawyer may have had coverage at a particular date in the past does not give any clear reason to believe that the lawyer has a policy in place for a time frame that is relevant to when an act or omission might have occurred nor whether it covers any particular conduct nor any information about whether the attorney has provided timely notice to make sure not to lose coverage for the particular set of circumstances. And, if we assume the consumers will make decisions about whether to hire a lawyer based on whether or not they might have insurance that could help pay for any mistakes, the disclosure could well be unhelpfully misleading.

Here is the moment where I admit that I am now hopelessly old, forgetful, and sadly self-referential. I just spent some time trying to find someone that had eloquently made the point more clearly about how this kind of requirement could be counterproductive and even misleading. In so doing, I found … I’ve already done this and forgot. Sigh. So, here’s a link to that post from what is now almost 7 years ago.

Admittedly, actually requiring lawyers to obtain and have in place malpractice insurance is not a failsafe solution either, but if the concerns expressed by the jurisdictions that require notice of status are really to be addressed, it is a remedy that comes significantly closer to addressing the concern than does merely requiring notice of status at a given snapshot moment in time.

APRL is leading the way toward modernizing the practice of law.

Yesterday was potentially a very big day in the world of lawyers and clients. I am very pleased to report that yesterday the Association of Professional Responsibility Lawyers released a proposed overhaul of Model Rule 5.5., called on the ABA to take action to adopt it, and disseminated a very thorough and detailed Report explaining why the kind of reform called for by the rule proposal is both entirely justified and long overdue.

I have spent some time over the last 24 hours talking with a few reporters about this development, and I intend to update this post with links to stories as they come out. But talking the situation through with reporters has also, I think, helped me distill down a bit how best to describe the potential significance of this proposal and how strikingly different it is from the sort of “stop gap” measures that exist today with respect to various ethics opinions that have been put out by states during the course of the pandemic.

First, because readers of the blog know that I seem to always manage to quote myself when I can, here is an excerpt from my letter to the current President of the ABA that describes what APRL is proposing:

Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time. At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.

Second, while I am only one of 10 co-authors of the Report itself, I want to highlight a very important portion of that report (obviously written by someone else with better writing skills) in terms of how a fallacy about how competence as a lawyer works under the current approach to lawyering and how that feeds into a disconnect that impacts problems with access to legal services:

A lawyer’s voluntary devotion to one area of practice, however, in no way restricts the scope of the lawyer’s license in their state. An attorney with 20 years of experience, but only involving family law, who learns of a neighbor’s, relative’s, or former client’s severe car accident may agree to represent that person. Similarly, a lawyer who, following admission to the bar, works in a non-legal setting for twenty years, faces no licensing restrictions in taking on that same personal injury case as long as they have an active law license. Moreover, a newly minted lawyer immediately after passing the bar could take on a family law case, a car-accident lawsuit, and a contract negotiation with a hospital for a physician. The lawyers in these scenarios might not be the best lawyers for the job, but the Rules of Professional Conduct assume that the lawyers can educate themselves about the subject matter and competently handle the case. See Rule 1.1, cmt. [2].


The “Competency Fallacy of Rule 5.5,” however, dictates that a lawyer licensed in “State A”, who has devoted their entire career to personal injury work for example, would not be competent to represent the car-accident victim described above (without the association of local counsel) because the lawyer is presumed to be incapable of knowing or coming to understand “the law of State B.” Instead, if that State A-licensed lawyer wanted to be able to regularly represent clients with personal injury cases in State B, the lawyer would have to obtain a second license to practice law, a license issued by State B. Those who accept the current systemic issues often rely upon arguments that lawyers who wish to be able to practice across state lines more freely can simply obtain such additional licenses through reciprocity. This option to pursue additional licenses through reciprocity is not an adequate solution, and for many jurisdictions, is simply not true.

APRL’s proposal is a long-time coming but also long overdue.

If you believe that our profession’s approach to the multi-jurisdictional practice of law needs to change, I would encourage you to support APRL’s efforts and speak out to help us effectuate change in your jurisdiction. The current ABA Model Rule, along with a variety of state ethics opinions issued during the pandemic, have given some solace to lawyers about what might be okay on a “temporary” basis.

APRL’s proposal, however, would lend permanence to the idea that as long as a lawyer is transparent with their client about where they are licensed, then they could live or have an office anywhere without fear that representing a client in some other state or assisting a client with navigating and interpreting the law of some other state would be unethical or illegal. Our proposal would also improve the lives of lawyers with traditional practices who go into the office of their firm every day and live and work in the same jurisdiction because they would not have to second-guess whether a client who wants to hire them can do so without also having to enlist the assistance of an additional lawyer simply because that other lawyer is “local.”

As an earlier portion of the APRL Report explains, APRL’s proposal:

acknowledges that clients must continue to be protected from the incompetent practice of law. However, the proposal also elevates the client’s right to choose counsel to a co-equal status in the context of the regulation of multijurisdictional practice and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries that prevent clients from choosing competent counsel of their choice even if the lawyer they choose is licensed elsewhere.

A copy of my letter to ABA President Turner, APRL’s proposed Rule 5.5, and the Report can be accessed at the link below.

To date, the only story I know that is up is this first, short one from Bob Ambrogi.

But stay tuned …

Edited to add additional articles:

Reuters.

ABA Journal Online

Bloomberg Law

Above The Law

2020 too?

This past year has certainly been … something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice versa, and being bolstered along the way by a surprisingly large number of attorneys willing to file politically-motivated lawsuits that in normal circumstances I’d like to think wouldn’t pass muster under Rule 11 or RPC 3.1.

These anti-democracy lawsuits continue relentlessly with a parade of lawyers who don’t seem at all deterred by sanctions imposed against other lawyers.

So what will 2022 bring? Other than hopefully the end of the pandemic. Surely we will get that. Surely.

Here is where I go out on a limb and make a prediction or too about the world of legal ethics over the next year.

First, given the focus of media attention on lawyers who continue to help high-profile clients pursue questionable legal objectives — not all of which involve subverting democracy of course — I think there will be significant attention and action taken on further defining prohibitions on lawyers assisting unworthy clients in illegal endeavors.

Along those lines, with a particular focus on combatting lawyer-involvement in money-laundering activities, the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Regulation circulated thoughts on potential ways to address that issue better in the ethics rules in a memo put out seeking public input on December 15, 2021. The memo previews a number of possible ways that the comments to the rules could be amended to better define obligations of lawyers in doing due diligence on clients and toward having lawyers have obligations to report suspicious activity.

Interestingly, the memo floats no proposed changes to any rules but only in the guidance offered in comments to rules. Thus, for example, there would be no effort under such a proposal to remove any ethical barriers that currently exist to forcing attorneys to support suspicious transactions beyond what already would be required by law. The potential revisions include:

  • Addition of a new Comment [11] to RPC 1.0 indicating that, as to a lawyer’s knowledge, that it “may be derived from the lawyer’s direct observation, credible information provided by others, reasonable factual inferences, or other circumstances.” And that a lawyer “who ignores or consciously avoids obvious relevant facts may be found to have knowledge of those facts.”
  • Adding several new sentences of guidance to Comment [5] to RPC 1.1 including: “In some circumstances, competent representation may require verifying, or inquiring into, facts provided by the client. Ignoring or consciously avoiding obvious relevant facts, or failure to inquire when warranted, may violate the duty of competence.”
  • Adding significant new language to the Comment to RPC 1.2 including: “To determine whether further inquiry is warranted regarding whether a client is seeking the lawyer’s assistance in criminal or fraudulent activity, including money-laundering or terrorist financing, relevant considerations include: (i) the identity of the client; (ii) the lawyer’s familiarity with the client; (iii) the nature of the requested legal services; and (iv) the relevant jurisdictions involved in the representation (when a jurisdiction is classified by credible sources as high risk for criminal or fraudulent activity).”

You can read the entire memo here and, if you happen to be planning to be in Seattle in February, you can plan to participate in a public roundtable discussion about the potential proposals.

Another area that I predict will be the subject of significant attention in 2022 is whether changes to RPC 5.5 are needed to better address modern legal practice. The restrictions imposed on the ability of a lawyer duly licensed in one state to represent clients in other states or to handle matters because they involve laws of a different state have been questioned, off-and-on, over the years, but the last almost two years of practice in a pandemic has helped push things to a potential boiling point. Perhaps never before has it been easier to make people see the relative-absurdity that RPC 5.5 can prohibit a lawyer with 20 years of business law experience licensed in South Dakota from representing a client in North Dakota who needs a contract drafted but would not prohibit a lawyer licensed in South Dakota who has never handled a tax matter in 20 years of litigation experience from representing a South Dakota client in a tax dispute. I anticipate that 2022 will bring efforts from a number of different groups to seek to modify RPC 5.5 to better offer “full faith and credit” to a lawyer’s law license.

In the meantime, thank you ever so much for your readership, stay safe, and I will see you again in January 2022.

This for Thursday.

Originally, I had plans to do another of those three-in-one posts for today, but we have some news from Tennessee, so we are pivoting to just focus on that development.

I’ve written previously about the Court’s proposal to improve upon the approach to intermediary organizations in Tennessee. Well, yesterday, the Court entered an order adopting those proposed rule revisions effective January 1, 2022.

This means that, starting next year, this better, but not perfect, approach to addressing entities that offer “matching” and similar services between lawyers and consumers of legal services will come into existence.

No longer will such entities have to register in any fashion with the Board of Professional Responsibility because Tenn. Sup. Ct. R. 44 is being deleted. As a result, it will no longer be inherently unethical for a lawyer to accept fees from a client who found their way to the lawyer through an unregistered service.

Instead, whether it is ethical for a lawyer to do business with such an entity will turn significantly more on how transparent the arrangements are and the lawyer will be charged with doing the due diligence about any such entity.

Now, I mention that the new rules approach isn’t perfect — because it is not — but also as a way of justifying highlighting what I anticipate will remain as the “thorniest” issues for lawyers who want to work with such entities.

First, what will we mean when we say, “such entities?” As revised, Tennessee’s RPC 7.6 will apply to lawyer-advertising cooperatives, lawyer referral services, lawyer matching services, online marketing platforms, prepaid legal insurance providers, and “other similar organization[s] that engage[] in referring consumers of legal services to lawyers or facilitating the creation of lawyer-client relationships between consumers of legal services and lawyers willing to provide assistance for which the organization does not bear ultimate responsibility.”

Now, this still has a “catch all” concept, but it might be “better” than the previous catch all in terms of likely to snag fewer companies in its net. Regardless though, it constitutes an improvement in terms of the perspective of both lawyers and consumers, as well as servicer providers, because even if swept into the net, these entities will not have to go through any registration process with the Board.

Second, what will be the easy issues for lawyers to navigate. I think that it will be pretty easy for a lawyer to know whether the organization is trying to direct or regulate the lawyer’s professional judgment, and whether the organization is owned or controlled by the lawyer or their law firm. It will also be easy, perhaps not as easy, but still easy for the lawyer to ensure that the function of the referral arrangement is fully disclosed to the client at the beginning of the interactions with the lawyer and whether the organization “makes the criteria for inclusion available to prospective clients” including payments and fees at the beginning of the client’s interactions with the organization.

Finally, the sticking points. What will be significantly more difficult for the lawyer to determine will be whether the organization, including its agents or employees, are doing anything that involves improper solicitation under RPC 7.3 in Tennessee and whether the organization is only requiring the lawyer to pay “a reasonable sum representing a proportional share of the organization’s administrative and advertising costs.”

And, candidly, this last piece is where the need for further reform exists — it shouldn’t matter what the organization and the lawyer agree is going to be paid in terms of compensation as long as that deal is made fully transparent to the client.

Until then, this rule also at least provides some further protection for lawyers if they end up struggling with being able to figure out these two tougher sticking points because if they discover a problem after they get involved, they don’t have to immediately stop participating. Instead, they can first seek to get the organization to correct the noncompliance. Only if they cannot convince the entity to correct things do they have to withdraw from participation. Importantly, withdrawal from participation in the arrangement is what is required and not withdrawal from representing any client that may have found their way to the lawyer through the program.

Florida again. Sigh.

It has only been a little over a month at this point since I wrote about how Florida was a hopeless place.

Well, here we are again. The Florida Bar Board of Governors has unanimously rejected a few proposals aimed toward progress in the re-regulation of the practice of law in the last week or so. Now, I want to be realistic in both my outrage and disappointment.

So, let’s talk first about the much less surprising piece of this development because it is just Florida rejecting something that, to date, most every state has rejected and only two states and the District of Columbia have been willing to consider or enact.

The Florida Bar Board of Governors rejected a proposal that had been submitted to it by a Special Committee to Improve the Delivery of Legal Services established by the Florida Supreme Court. That proposal would have involved amending Florida’s ethics rules to allow some nonlawyer ownership in law firms as long as the majority ownership interest was still in the hands of lawyers and to allow fee-sharing to occur between lawyers and nonlawyers. The proposal involved the notion of giving these kinds of items a try in a regulatory sandbox approach rather than simply throwing doors open wide.

Given that, to date, only Arizona and Utah have joined D.C. in allowing for people without law licenses to have an ownership interest in a law firm, the fact that the Florida Bar rejected this proposal is really not surprising. It is maybe a little bit surprising that the vote was 46-0 and 45-0, but ….

Now, the other aspect of the Special Committee’s suggestions that was rejected at the same time really is a cause for outrage and disappointment. These suggested revisions targeted Florida’s regime for regulating lawyer advertising.

Florida has long been an embarrassment to the profession when it comes to its approach to restricting advertising by lawyers. And while reasonable lawyers can disagree about whether revisions to ownership regimes and fee-sharing are an inherently good direction for the profession to pursue, the notion that Florida can continue to insist that it’s approach to lawyer advertising makes sense is beyond the pale at this point.

The Special Committee had suggested revisions to the Florida advertising rules that were intended to streamline the rules — in large part this was proposed to be done by moving some of the more detailed rules into comments — if this sounds familiar to readers of this blog that would be because it should be. This kind of revision was recently enacted in Tennessee, and the Tennessee endeavor was inspired by the same things that inspired the proposal of the Florida Special Committee, the work of APRL in encouraging these kinds of revisions and the adoption by the ABA of more streamline advertising rules. The Florida Special Committee also proposed ending Florida’s mandatory review process of lawyer advertisements that offer more than just basic information or are not law firm websites.

The notion that a prominent member of the Florida Bar Board of Governors could explain opposition to such proposals by saying:

“While well intentioned, I think both of them are ahead of their time,” Sellers said.

That is the stuff of farce if not outright gaslighting. Ahead of their time? I guess if Florida wants to insist that it is the 1990s down there in terms of the refusal to streamline, and I guess the 1970s down there in refusing to stop imposing a prior restraint on constitutional speech, then, sure.

The notion that the vote on that was also unanimous (43-0) is extremely unsettling.

To be clear about what we are talking about when we talk about Florida’s advertising rules, these are rules that still, in 2021, have an entire separate rule prohibiting certain forms of advertisements as being somehow “unduly manipulative” because they contain the image or a voice of a celebrity. This is a state that has rule that also makes it improper to advertise using “an image, sound, video or dramatization in a manner that is designed to solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client.” This is a state that still has an entire separate rule that purports to tell lawyers what content for their advertisement will be “presumptively valid content.”

All of that is bad enough, but the notion that Florida still imposes a pre-publication review requirement for commercial speech — a concept that is anathema to any reasonable understanding of the First Amendment — and that its governing body of lawyers just reaffirmed unanimously that this should continue is just … sad.

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” ?