A weird-ish ethics opinion out of New York.

I have written a few times about the ABA’s adoption of a new Model Rule 8.4(g).  One point that was brought up in the run-up to that rule actually finally being adopted was that some more than 20 jurisdictions already had an anti-discrimination rule in place in the black letter of their rules in one form or another.

One of those jurisdictions is New York, and the New York State Bar Association Committee on Professional Ethics issued an ethics opinion back in January of this year that says it addresses an interpretation of NY’s Rule 8.4(g) and whether it prohibits a lawyer from refusing to accept a representation because of a lawyer’s own religious affiliation.

Specifically, the scenario addressed in NYSBA Ethics Opinion 1111 is this:

A lawyer has been requested to represent a person desiring to bring a childhood sex abuse claim against a religious institution.  The lawyer is of the same religion as the institution against which the claim is to be made.  Because of this religious affiliation, the lawyer is unwilling to represent the claimant against the institution.

The opinion, ultimately, doesn’t really answer the question of whether refusal to accept under those facts would be illegal discrimination.  Instead, the opinion first provides reassurance (at least of the rhetorical variety) that lawyers do not have any ethical obligation to accept every request for representation that they receive.  Then, though, it mostly punts on how to reconcile that fact with the fact that lawyers cannot engage in conduct that would violate a federal, state, or local anti-discrimination statute.  The opinion references New York case law which addresses certain kinds of professional services as being “place[s] of public accommodation” and directly admits that New York’s 8.4(g) contains language acknowledging that law could limit a lawyer’s ability to freely choose to decline a representation, but, despite the fact that the very rule itself that New York chose to adopt requires for its enforcement a conclusion about “unlawful discrimination,” just punts on whether the facts trigger such a conclusion.

At some level I get why the opinion goes that route as typically bodies providing ethics opinion have refrained from ruling on questions of law as being outside the scope of the rules.  But it does seem to me like once you adopt a rule that envelops the need for such a legal determination into the enforcement of the rule, you lose some of the ability to credibly punt on such an issue.

For context, here is the language of the rule New York has in place providing that a lawyer shall not:

(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding….

For what it is worth, you would think that the body issuing the opinion could — at least on this particular inquiry – have been able to comfortably say that since the facts presented did not even involve a lawyer turning down a potential client because of the potential client’s religious affiliation that it would be safe to say that it is highly, highly unlikely that a credible case of unlawful discrimination could be made out against the lawyer.

One thing that this opinion does help sharpen in terms of a salient point is that ABA Model Rule 8.4(g) appears to be a better drafted approach to this issue given its explicit terms protecting decisions on whether to take on the representation of a client.  Unlike the New York version of the rule, the ABA Model — in addition to not having all the language about the need for a ruling by a tribunal to be a condition precedent in certain instances — includes this sentence in the black-letter of the rule:  “This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”

Jurisdictions adopting a version of Rule 8.4(g) with that kind of language would appear to be much better positioned to actually address questions like the one raised in the New York opinion by providing the lawyer with assurance about the ability to simply choose not to take on the representation of a client where doing so would require them to sue their own church.

 

Tennessee has adopted the Ethics 20/20 changes effective immediately.

I’ve written a couple of times in the past about the status of the Tennessee Bar Association’s petition seeking to have the Tennessee Supreme Court adopt essentially all of the ABA Ethics 20/20 changes.  Yesterday, the Tennessee Supreme Court entered an order doing just that – effective immediately — which now adds Tennessee to the list of jurisdictions that have adopted that package of ABA Model Rule changes focused on updating certain aspects of the rules to address technology and the role it plays in modern law practice.

I’m pleased to be able to report that as to the issues where our Board of Professional Responsibility had offered counter proposals to certain aspects that would both be contrary to the Ethics 20/20 language and for which the TBA expressed a level of disquietude with the proposals, the Court opted to stick with what the TBA was proposing.

You can read the Court order and the black-line of the changes made to those rules impacted at this link.  As a result of the order, effective immediately, Tennessee now has:

  • a definition of “writing” in RPC 1.0 that refers to “electronic communications” rather than just “e-mail”
  • paragraphs in the Comment to RPC 1.1 that provide more guidance about the need to obtain informed consent from a client before involving lawyers from outside the lawyer’s own firm in a client matter
  • language in the Comment to RPC 1.1 that makes clear that the lawyer’s duty to “keep abreast of changes in the law and its practice” includes “the benefits and risks associated with relevant technology”
  • more modern language in the Comment to RPC 1.4 making clear that not just telephone calls from clients but all modern forms of communication by clients need to be responded to or acknowledged promptly
  • a specific discretionary exception to confidentiality under RPC 1.6(b) for disclosing information “to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in composition orr ownership of a firm”
  • black-letter treatment in RPC 1.6(d) of the duty to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client”
  • a little clearer, and more focused, guidance in RPC 1.18 about what kinds of communications will suffice to trigger a lawyer’s obligations to someone as a prospective client
  • important distinctions described in the Comment to RPC 5.3 as to a lawyer’s supervisory obligations as to nonlawyer assistants within and outside of the lawyer’s firm
  • important guidance in the advertising rules about the appropriateness of working with certain companies providing lead-generation services

In addition to adopting the ABA Ethics 20/20 changes, the black-line materials also reflect some housekeeping revisions we had proposed to catch a few items that needed changing in terms of cross-references from other Tennessee Supreme Court rules that had changed over the last few years.

Dear ABA – Embrace reform of the lawyer advertising rules. Please.

I have written in the past about the APRL white papers providing the rationale for, and data supporting the need to, reform the way lawyer advertising is regulated in the United States by state bar entities.  You can read those prior posts here and here if you are so inclined.

Jayne Reardon, the Executive Director of the Illinois Supreme Court Commission on Professionalism, over at the 2Civility blog has posted a very thorough report on events that transpired in Miami earlier this month and that reminds folks that the deadline put together by the ABA working group looking at whether to back APRL’s proposals is March 1, 2017.

I am a proud member of APRL – actually presently I’m even fortunate enough to serve as a member of its Board of Directors – but was not able to make it down to Miami for our meeting and the ABA meetings this year.  If you are a reader of this blog, you know that my view is that the only advertising rule that ought to be necessary is a version of RPC 7.1 that states, as does the ABA Model:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Period.  Full stop.

Now Jayne’s report from the ground mentions that some folks criticized or complained about APRL’s proposal because it would not apply only to advertisements by lawyers.  To me that is a feature, not a bug.  As I’ve also written and spoken about, RPC 7.1 is violated when a lawyer sends a fraudulent bill to a client saying they spent more time on something than they really did and that’s a good thing.  It also, for example, applies to lawyers who lie on their resumes as we saw with this recent instance of lawyer misconduct.

The concern expressed by someone that it could result in discipline against a lawyer politician (presumably one who would have to have lied about some aspect of their personal history I guess) does not give me much pause because if it were so applied it would likely fail First Amendment scrutiny because of the higher standards afforded to protect political speech rather than constitutional speech.

While I think RPC 7.1 ideally is the only rule that ought to exist, I recognize that people are going to insist there be some restriction on in-person solicitation so I also support APRL’s proposed approach to having an additional rule, over and above RPC 7.1, to address that.  As I’ve said before, my only quibble with APRL’s proposal on that front is as to how it defines a sophisticated user of legal services:

If I had one criticism of the APRL proposal, it is with the way it defines a sophisticated user of legal services.  The second part about regular retention of legal services for business purposes is likely where it should have stopped, as the first portion of the definition is pretty amorphous and subject to manipulation.  For example, would a recidivist offender who has gone through repeated jury trials and spent many years in prison someone who would qualify as having had significant dealings with the legal profession?  Seems like a pretty clear argument could be made that the answer would be yes.

I’m going to send this post in to the ABA working committee as my own personal comment.  If you have a viewpoint on these issues (whether it jibes with mine or not), I’d encourage you to send your thoughts as well to them at this email address: modelruleamend@americanbar.org.  (Unless you don’t think lawyer advertising rules are strict enough already.  Then I’d encourage you to stay busy doing other things.  Kidding, just kidding.  But more like Al Franken’s kidding on the square actually.)

Arkansas and Wisconsin weigh in on client files in different ways and on different sides.

The need for clarity with respect to what makes up the “client file” has been an issue I have tried to stay up to date on dating back to our unsuccessful efforts back in 2009 to convince the Tennessee Supreme Court to adopt a rule – what would have been RPC 1.19 — to address the issues.  As I’ve explained before, our unsuccessful RPC 1.19 was patterned largely after North Dakota’s Rule 1.19.  There is no ABA Model Rule addressing client files and, as recently as last year, the ABA’s guidance as to client files still leaves many questions open so states navigate these waters pretty much on their own using only the language about lawyers’ obligations to “surrender papers and property of the client” in their versions of Model Rule 1.16.

As you may recall from a couple of posts I wrote last year, some seven years later we’ve obtained some real clarity in Tennessee on a few fronts as to client files through two Formal Ethics Opinions issued by our Board of Professional Responsibility.  Particularly, we now have clear guidance that we are an “entire file” jurisdiction rather than an “end product” jurisdiction regarding what are the contents of the client file.

Late last year, Arkansas adopted its own RPC 1.19 addressing client file issues but although they went with an approach that adopts a black letter rule to address the matter, they’ve gone in the opposite direction from us as Arkansas RPC 1.19 opts for an “end product” approach.  Technically, Arkansas has been an “end product” jurisdiction for more than seven years dating back to a 2009 opinion of the Arkansas Supreme Court – Travis v. Committee on Professional Conduct.  You can read the Arkansas Supreme Court order with the full text of RPC 1.19 and its comments here.

The architecture of this new Arkansas rule tackles client file questions in two parts.

RPC 1.19(a) defines what makes up the contents of the client file both positively [(a)(1) identifies items that are in] and negatively [(a)(2) identifies items that are excluded] .  The most important exceptions being “the lawyer’s work product,” “internal memoranda,” and “legal research” materials.  It appears though that (a)(2)(E) serves to override any attempt to view (a)(1) as a comprehensive identification of what is included as that subpart explains that anything that isn’t listed as excluded in (a)(2)(A-D) are things that “shall be considered to be part of the client file to which the client is entitled.”  RPC 1.19(a) also addresses the need to honor requests by the client for delivery of file and when a lawyer may charge costs of copying or retain a copy for their own purposes.  Smartly, the rule also expressly clarifies that a lawyer and client can address all of those issues regarding copy costs and delivery costs in a fashion they prefer by contract as part of the engagement agreement.

RPC 1.19(b) addresses the length of the obligation to retain client file records and under what circumstances a lawyer can destroy client files in his possession.  Five years is the default length of time chosen for retention in Arkansas, and any time after that the lawyer is free to destroy the file materials.  RPC 1.19(b)(3) also makes clear that these time frames can be varied by contract between attorney and client.  RPC 1.19(b)(4) takes certain criminal matters out of the general rules of retention and destruction, however, and instead requires the lawyer to maintain the client’s file for the life of the client in those particular situations.

Another jurisdiction has weighed in recently but differs from what Arkansas has done both structurally and substantively.  Wisconsin recently put out an ethics opinion to further clarify the obligations lawyers have to clients in terms of turning over files at the end of the representation.  Wisconsin, like Pennsylvania, denies public access to its ethics opinions, but you can read a well-written article about Wisconsin Formal Ethics Op. EF-16-03 here.

The primary focus of the formal opinion appears to be clarifying that lawyers can neither try to leverage retaining the client file in order to obtain payment nor condition turning the file over upon the execution of a release of malpractice liability.  (Both things you might be surprised to hear about how often lawyers attempt to do despite the perils.)

But Wisconsin’s latest opinion on the subject matter also addresses some of the same vital issues that are at the heart of resolving situations involving disputes between attorneys and clients over who is entitled to what.  Unlike Arkansas, Wisconsin takes an approach more in keeping with the “entire file” approach to the question as several items carved out from the file in Arkansas are not in Wisconsin.  The Wisconsin opinion specifically identifies “legal research and drafts of documents that are relevant to the matter” as being included in the client file as well as “[a]ny materials for which the client has been billed, either directly or through lawyer or staff time.”

Yet, the Wisconsin opinion does limit certain categories of items as being allowed to be withheld from the client — including two items that were at the heart of the battles that doomed our effort in Tennessee to adopt an RPC 1.19 of our own — “materials containing information, which, if released, could endanger the health, safety, or welfare of the client or others,” and “materials that could be used to perpetrate a crime or fraud.”  Interestingly, however, the Wisconsin opinion also crafts an exclusion for materials that seems pretty antithetical to the idea that the guidance is really consistent with Wisconsin being an “entire file” jurisdiction:

Materials containing the lawyer’s assessment of the client, such as personal impressions and comments relating to the business of representing the client.  If a lawyer’s notes contain both factual information and personal impressions, the notes may be redacted or summarized to protect the interests of both the lawyer and the client.

The Wisconsin opinion also addresses the inability of the lawyer to hold the file hostage as a way to first receive payment and provides a clear answer that a lawyer cannot refuse to provide the entire file at the end of the representation based on an argument that lawyer provided everything to the client along the way during the life of the representation.  The Wisconsin opinion also offers insight on when the lawyer has to provide a client with an electronic copy of a file and stresses that while a lawyer can retain a copy of the file, the lawyer cannot charge for that expense because that is being done for the lawyer’s own benefit.

Another interesting wrinkle of the Wisconsin opinion is that it gives a nod to a scenario that is rarely discussed in such opinions — though it does come up in discussions of “red flags” of new client intake matters — but that is an exceedingly difficult situation to deal with:  “There may be unusual circumstances where a client has specifically instructed a lawyer not to surrender a file to a successor counsel, and the lawyer must abide by those instructions.”

In the end though, both the Wisconsin opinion and, in part, the Arkansas rule, offer guidance that furthers what ought to be the primary, practical guidance for lawyers given the disparities that exist on this issue from jurisdiction to jurisdiction — the more focus can be given to these issues in an engagement agreement such that you can have a contractual agreement between lawyer and client on just what will be provided, how, and when (and at whose cost) the better off all involved will be.

 

Harmonizing practice pending and pro hac vice provisions in Tennessee

The Tennessee Supreme Court issued an order last week implementing a helpful change to our rules on pro hac vice admission so that lawyers who are taking advantage of recent rule changes in Tennessee to permit practice pending admission can also be admitted pro hac vice in a lawsuit on behalf of a client.  You can read the order here.

The gist of the issue is that effective January 1, 2016, our Court adopted a rule (located at Section 5.01(g) of Tenn. Sup. Ct. R. 7) to permit a lawyer licensed elsewhere who has moved to Tennessee and has applied for comity admission to be able to practice in Tennessee for up to 365 days while awaiting action on their application for admission.  Until the adoption of this latest order, however, the way our rule on pro hac vice admission (Tenn. Sup. Ct. R. 19) was written, someone who was a resident of Tennessee simply could not seek pro hac vice admission in our state courts.

This order fixes that situation for folks operating under practice pending admission by expressly mentioning that rule as an exception to the residency restriction.  This change certainly seems like the appropriate thing to do.

The next related questions though might be whether the same rule might need to be further tweaked to permit those in Tennessee who are practicing law as registered in-house counsel under Section 10.01 of Rule 7 or under the new rule as to temporary licenses permitted for spouses of those in military service to seek pro hac vice admission in litigation matters.

My initial instinct was that there might not be a very good argument for treating either of those categories differently than those blessed only by practice pending admission.  But with a bit more reflection, the fact that pro hac vice admission by its very nature is supposed to be a short-term, limited repetition event might be enough of a justification for a distinction as to in-house counsel.  Practice pending status can only go on for the 365 days whereas an in-house counsel can rely upon a registration license in lieu of a full license for their entire career.  As to the military spouse rule, I’m unable to come up with a distinction of note.

(At certain times, world events make it feel a bit silly to write about legal ethics matters.  This is one of those times.  Like most grown adult human beings, I have strong opinions on a lot of topics, but I try my best not write about things unless I can at least find some plausible way to tie them back to core questions of legal ethics and lawyering.  So, in this superfluous paragraph, I will only say that I happen to be the Treasurer of the Tennessee branch of a non-profit organization much in the news of late, and if you believe in the work it does — and particularly if you live in Tennessee — feel free to donate what you can afford.)

Glitch in the TN disciplinary procedural rules?

I got a call a week or two ago from another Tennessee lawyer trying to noodle through a situation.  The caller was curious to see if I could offer any insight about why a situation that seemed a bit broken was not.

I couldn’t.  Instead, I was able to sort of confirm for the lawyer that the situation does seem to be a bit broken.  The situation involves an aspect not of the ethics rules in Tennessee but the rules that govern disciplinary proceedings and the enforcement of their outcomes – which are housed in Tenn. Sup. Ct. R. 9.

More particularly, the situation involves the application of a provision that governs certain things a lawyer must do by way of notice when being disbarred, suspended (even temporarily), or having their license transferred to disability inactive status.  The problem arises from treating suspensions and disbarment the same way.  When the suspension is a lengthy one, these provisions make sense, but when you are talking about a short suspension — 30 or 60 days for example — the analogy breaks down.

The specific section, Section 28, contains 11 sub-parts of provisions addressing requirements that are triggered by any order of disciplinary suspension just as with an order of disbarment.  The first four sub-parts, Section 28.1 through 28.4, present no real issues as they address the effective date of an order, that a notice has to be sent by the lawyer to clients, and opposing counsel/adverse parties within 10 days of the order, and requirements to maintain records about such things having being timely done.

The problem with having this rule apply to”[o]rders imposing disbarment, suspension, transfers to disability inactive status, or temporary suspension” alike kicks in with the next three sub-parts of the rule:

28.5.  Return of Client Property.  The respondent attorney shall deliver to all clients any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property.

28.6.  Refund of Fees.  By no later than fifteen days after the effective date of the order, the respondent attorney shall refund any part of any fees, expenses, or costs paid in advance that has not been earned or expended, unless the order directs otherwise.

28.7.  Withdrawal from Representation.  The respondent attorney shall within twenty days after the effective date of the order file in the court, agency or tribunal in which the proceeding is pending a motion for leave to withdraw or a motion or agreed order to substitute and shall serve a copy of the motion or agreed order on opposing counsel or the adverse party, if unrepresented, in the proceeding.

Now, again if we are talking about a lengthy suspension, these provisions make sense.  And, Section 28.6 at least acknowledges that the order imposing a suspension could even direct otherwise as to refunding unearned fees, but similar language, however, surely needs to be added to Sections 28.5 and 28.7 because the application of these requirements might not only be contrary to a client’s interest but will have the impact of essentially practically extending the length of an otherwise short-term suspension.

Looking at Section 28.7 specifically, if you do not even have to file such a motion until twenty days from the order, by the time you have it heard and ruled on by a court, a lawyer’s 30-day suspension will either be over, or practically will be over.

Now, perhaps the justification for these provisions is that even for 30 days a client shouldn’t be left defenseless in a matter and represented by a lawyer who cannot do anything, but there seems to be a very good reason to believe that all three of these provisions ought to reference the potential for an order to direct to the contrary and not just Section 28.6.  It may be more trouble for client and lawyer alike for these things to have to happen for just a short suspension rather than permitting the order to say to the contrary so that the client can simply choose to wait out the suspension.  Likewise, in situations in which more than one lawyer (whether at the same firm or different firms) is representing the same client in the same matter, during the suspension the client won’t be left defenseless at all.

This situation particularly seems in need of fixing when other related provisions in Rule 9 are examined.

Section 28.10 indicates that “[p]roof of compliance with Section 28 shall be a condition precedent to any petition for reinstatement.”  Section 12.2(a)(1) makes clear that, unlike in the past when lawyers could automatically resume practice after certain short-length suspensions, “no attorney suspended” under any part of Rule 9 :shall resume practice until reinstated by order of the Court.”

And, Section 12.2(a)(3) plainly indicates that all suspensions “regardless of duration” are subject to Section 28 “unless otherwise expressly provided in” Rule 9.

My 200th post: Living in a “post-fact” world?

So, not a milestone for some, but, for me, it feels like an achievement to have made it to my 200th post.  And because I’m a sucker for wordplay, I’ll use a “post” milestone to talk about an issue I’ve written about a good bit before but with a twist that also involves the word “post” but as a prefix.

If you’ve been paying attention at all to U.S. politics, you may have seen some discussion about how we seem to be living in a “post-fact” world and lots of accompanying criticism about how the media has played a large role in making it easy for prominent people to simply refuse to acknowledge facts and then inculcate beliefs in those who support them or identify with them that such facts are not actually facts.

Well, here’s something of an example — but in the world of legal ethics — of just how easily it is for that kind of thing to seem to happen.

So, in late October, the Montana Supreme Court put an order out for public comment about potentially adopting the new ABA Model Rule 8.4(g) addressing harassment and discrimination by lawyers in conduct related to the practice of law.  The Montana Supreme Court has floated adopting the entirety of the ABA Model Rule black-letter language such that if adopted, Montana’s 8.4(g):

would provide that it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

You can read the Montana Supreme Court order here.  The deadline for public comments is actually today and, within the last few days, there was some publicity in Montana about the proposal.

This story is what has prompted me to write.  The reporter has included a quote from a law professor at a Montana law school who stakes out the position that the rule would suppress free speech and who is quoted as saying:

“There’s a wide variety of attorneys from a wide variety of backgrounds that are opposing this proposed rule, not necessarily on faith based reasons, but on the ability to ask questions in depositions and determining who should be seated on a jury. So it’s raised concerns amongst all types of attorneys.”

But, you might say to yourself, I just read that the proposed rule, if adopted, would have a sentence that says: “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”  And, also since you read the blog, it probably means you keep up enough with these issues to know that the ABA Model Rule, at least, has specific language in an accompanying comment even addressing peremptory challenges, but that even if Montana isn’t also looking at adopting the comments, as long as what the lawyer does in jury selection is “legitimate advocacy,” it ought to be protected.  Yet, the news article contains no push back against the law professor’s statement and not even a competing quote from someone saying the actual rule would raise no such issues.

How can that be?  Well, there is a fairly easy and revealing answer that is pertinent to a number of much larger issues going on in the world around us these days (in my opinion).  The news article, describing the rule for the public, merely says this about the content of the proposed rule:

Proposed rule 8.4 (g) states: It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

So, the news report simply omits two of the sentences of the proposed rule including the one that contradicts the law professor’s stated concerns.  Thus, regular folks would have no idea of the rest of the content of the proposed rule when reading the story and certainly no reason to question why the law professor would be willing to make claims that appear to be contrary to clear language in the rule.

Sigh.

(And, if you are in Chattanooga or Knoxville, I’ll be doing those stops on the Ethics Roadshow next week and ABA Model Rule 8.4(g) is one of the topics on the menu for discussion.  It’s not too late to register and attend if you are so inclined.)

ABA Ethics 20/20 revisions. New York adopts some; Tennessee proposal still pending.

Roy Simon, the Chair of the NY State Bar Association Committee on Standards on Attorney Conduct, was kind enough to include me on an email last week and, as a result, I learned that New York’s proposed adoption of certain aspects of the ABA Ethics 20/20 revisions was approved, effective January 1, 2017.  Back in 2015, New York adopted certain revisions to Comments to the Rules consistent with Ethics 20/20, but the proposal to change the rules themselves required Court action.  You can read the details of the revisions that were adopted in this PDF: order-adopting-black-letter-amendments-to-part-1200-eff-jan-1-2017.  As with many jurisdictions, New York has picked up the move to a black letter duty in Rule 1.6 to “make reasonable efforts” to safeguard confidential information but not adopted several of the other Ethics 20/20 black-letter revisions  For example, New York has not adopted the Ethics 20/20 revision to acknowledge in Rule 1.6 the need to disclose certain information in connection with lateral moves and mergers in order to comply with the concomitant duty to avoid conflicts under Rule 1.7.  The Comments adopted in 2015 in New York did pick up the Ethics 20/20 revisions to the Comment to Rule 1.6 on that topic, however.

The Comments adopted back in 2015 also included the new paragraphs in Rule 1.1 that are touted by many as establishing a duty of technological competence for lawyers.

I wrote back in the late part of the summer about the TBA’s petition to the Tennessee Supreme Court proposing that Tennessee adopt almost all of the ABA Ethics 20/20 revisions.  The deadline for public comments expired in November 2016, but not before our disciplinary body, the Board of Professional Responsibility, filed comments proposing a number of additional amendments to be layered upon the TBA proposal.  Several of the BPR proposals, all of which you can read here (starting at page 2 of the linked PDF), are puzzling.

The TBA filed a response/reply to the BPR’s comment arguing against the majority of the BPR proposals.  The TBA’s response is not yet up at the Court’s website, but as I was one of the signers of it, I happen to have a copy, and you can read it at this link:  petition-bpr-comment-response

This situation regarding the pending proposal is one of the 12 developments I’ll be covering, including a detailed discussion of some of the puzzling pieces of the BPR proposal, during this year’s Ethics Roadshow.

The first stop is this morning in Memphis, and I’ll be doing it again tomorrow in Nashville.

 

California offers opportunity for a word (or 1,000) on the topic of sex with clients.

So, many moons ago I wrote a post about the fact that California was working through the process of trying to overhaul its ethics rules.  I said I’d get back to that topic, but never really did.  So, today, I am.  Kind of.  But not really.

In the news within the last 24-36 hours are articles about a split of opinion on whether California’s proposed revised rules should follow the ABA Model Rules to impose a ban on lawyers having sex with clients.  You can check out the short ABA Journal online snippet here.  You can read the original article referenced here.

Here is how the ABA Model Rule, Rule 1.8(j) reads:

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Pretty simple and straightforward admittedly.   At present, the articles explain that California rules only prohibit lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  (That’s not really much to prohibit when you think about the fact that both such acts would already be prohibited under other ABA Model Rules.  For example, the latter essentially being prostitution and thus likely a violation of Model Rule 8.4(b).)

The news articles grab quotes and thoughts from lawyers on either side of the argument in California which mostly boil down to — the relationship between attorney and client is so close that the injection of sex into the mix will always result in imbalance v. consenting adults should be permitted to do as they please even if one of them is the other’s attorney.

There is little I can say on this subject definitively, but I do feel pretty strongly that the term “a blanket sex ban” used in the article is the wrong one as it can be read to be far too narrow a restriction (as opposed to “a blanket ban on sex”), and it is one where I read it and can’t help but hear Sterling Archer, in my head, immediately say: “Phrasing.”

My reason for writing though is not just to be able to make that Archer reference, I swear.  My reason for writing is to advocate for my belief that the Tennessee approach to this issue in the ethics rules really gets it right and ought to be emulated by California and anywhere else that is in need of a rules fix on this front.

In Tennessee, we did not adopt Model Rule 1.8(j) but in large part because it is too narrow rather than because it is too broad.

The Model Rule, for example, doesn’t cover a lot of ground that is problematic.  Imagine the context of a divorce case in which the lawyer for the wife is having sex with the husband.  Or imagine a criminal defense lawyer who is representing a jailed husband but having sex with the husband’s wife.  Or imagine an even less conventional arrangement where there are three people in a room and sexual relationships are present but at no point does the attorney in the room engage in sexual conduct with the person in the room who happens to be the attorney’s client.

Those are all real conflict of interest problems for the lawyers in question but the approach taken by the ABA Model Rules wouldn’t prohibit any of them.   (They also each have really happened and been the subject of publicity but I’m not going to dig up and provide links so as not to open any old wounds for anybody involved.)

In Tennessee, we recognized (and in so doing we largely followed the lead of D.C. if memory serves) that the only approach to the issue of conflicts created for lawyers by sexual relationships that goes as far as it needs to but that also still provides for the ability, in rare circumstances, for a lawyer and a client to have a mutually-consented-to sexual relationship (perhaps say if they were married) is an approach that treats the issue as just one variety of “personal interest” conflict of a lawyer that can result in a material limitation conflict under RPC 1.7(a)(2).

Thus, our rules address the topic through three paragraphs of Comment to RPC 1.7 as follows:

[12]  The relationship between lawyer and client is  fiduciary one in which the lawyer occupies the highest position of trust and confidence.  Because of this fiduciary duty to clients, combing a professional relationship with any intimate personal relationship may raise concerns about conflict of interest, impairment of judgment of both lawyer and client, and preservation of attorney-client privilege.  These concerns may be particularly acute when a lawyer has a sexual relationship with a client.  Such a relationship may create a conflict of interest under paragraph (a)(2) or violate other disciplinary rules, and it generally is imprudent even in the absence of an actual violation of these Rules.

[12a]  Especially when the client is an individual, the client’s dependence on the lawyer’s knowledge of the law is likely to make the relationship between the lawyer and client unequal.  A sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant risk that the lawyer’s emotional involvement will impair the lawyer’s professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict the extent to which communications will be protected by the privilege, because communications are protected by the privilege only when they are imparted in the context of the client-lawyer relationship.  The client’s own emotional involvement may make it impossible for the client to give informed consent to these risks.

[12b]  Sexual relationships with the representative of an organizational client may not present the same questions of inherent inequality as the relationship with an individual client.  Nonetheless, impairment of the lawyer’s independent professional judgment and protection of the attorney-client privilege are still of concern, particularly if outside counsel has a sexual relationship with a representative of the organization who supervises, directs, or regularly consults with an outside lawyer concerning the organization’s legal matters.  An in-house employee in an intimate personal relationship with outside counsel may not be able to assess and waive any conflict of interest for the organization because of the employee’s personal involvement, and another representative of the organization may be required to determine whether to give informed consent to a waiver.  The lawyer should consider not only the disciplinary rules but also the organization’s personnel policies regarding sexual relationships (for example, prohibiting such relationships between supervisors and subordinates).

I happen to think these three paragraphs cover the waterfront quite ably when it comes to running such an issue through the “material limitation” conflict spectrum as a personal interest of the lawyer that can impact the representation.

To the extent we stole this good idea from D.C., California ought to feel free to steal it from us should it wish.

Going from “easiest” to “most difficult” in three weeks.

It is Election Day, but neither the title nor the subject-matter of this post have anything to do with that.

Later this week, November 11, I will be fortunate enough to present at the annual meeting of the Tennessee Association of Construction Counsel in Nashville and have billed my topic as “The Easiest Hour of Ethics You’ll Ever Learn.”  Unlike my normal seminars, I don’t plan to push the audience to participate at all, but (and this is a warning for those who are planning to attend and reading this post… here be SPOILERS and if you want to stay surprised you should read no further…)

Okay.

That should be enough hard returns and buffers for those who are trying to hit the back tab.

As most of you won’t be there, let me continue.  My plan is to essentially provide an “everything you ever wanted to know about the disciplinary process in Tennessee but were afraid to ask” presentation.  Far too few lawyer truly understand how the process works – and no one wants to learn about it for the first time when dealing with a disciplinary complaint filed against them, so hopefully it should be informative and a bit enjoyable.

Exactly three weeks later though, we’re going down the opposite path as I’m going to present at the Memphis Bar Association Labor and Employment Law section’s annual seminar in Memphis and my presentation is titled:  “The Most Difficult Ethics Hour You’ve Ever Earned – An Open Discussion of New ABA Model Rule 8.4(g) and What Comes Next.”  That one is going to be almost entirely interactive and given that the folks in the room will be employment and labor lawyers… I expect an opinionated bunch with thoughts on the relative merits of turning an employment law issue into an ethics and disciplinary issue.

I’ve written on this blog three times previously about the ABA Model Rule and won’t repeat myself today.  But I did want to briefly discuss a development along these lines.  Specifically, it comes from the Philadelphia Bar Association which, on October 26, 2016, passed a Resolution urging the Supreme Court of Pennsylvania:

to adopt the amendment to Rule 8.4 of the ABA Model Rules of Professional Conduct which adds section (g) making it an ethical violation to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

It will be interesting to see if this spurs any action from the Pennsylvania Supreme Court, or not, particularly given the negative publicity that various justices have brought upon that court over the last few years.