What’s in a name?

For example, the folks behind the popular Radiolab podcast also launched a spin-off podcast last year about the U.S. Supreme Court called “More Perfect.”  The reason for naming it that, of course, is that it almost assuredly a reference to the famous line in the Preamble to the U.S. Constitution

But today it seems a funny/ironic name because the U.S. Supreme Court managed to make a pretty bad mistake that is being reported on now and that likely added some real stress into the life of a lawyer whose only crime was having almost the same name as another lawyer.

You can read about the story itself, and find links to other outlets reporting on the story, at the ABA Journal online, but the short version is that the U.S. Supreme Court intending to suspend and potentially disbar a Christopher P. Sullivan of Vermont instead suspended and issued show cause why disbarment should not occur to a Christopher P. Sullivan of Boston, Massachusetts.  The Vermont Sullivan’s middle name was Paul and he had already been disbarred in Vermont after being involved in a fatal automobile accident and pleading guilty to a DUI.  The Massachusetts Sullivan’s middle name is Patrick.

If you do the math, you will find that the Sullivan who was wrongfully sullied ended up with 15 days passing between being suspended and the U.S. Supreme Court fixing its mistake and reinstating him.  Presuming he was aware of and dealing with fixing the Court’s mistake, I imagine that was a long 2 weeks for that gentleman.

But, in terms of a larger lesson to be learned, I think the lesson is that we all need to be more deliberate rather than more perfect in what we do.  I can’t help but think that a more deliberate review of information on the Court’s part would have avoided the “mistaken identity” error in the first place.

I like to think that most errors I make are ones that, upon reflection, I could have avoided had I been more deliberate in the first place.  I reckon you might say the same about yourself, so …

A tale as old as time.

Stop me if you’ve heard this one … it’s about a lawyer getting into trouble for overbilling … where there are examples of the lawyer even trying to claim to have billed more than 24 hours in a day.

You probably stopped me somewhere in there because you have heard it before.  The legal profession is filled with people who bill their time fastidiously and honestly.  The legal profession also has among its ranks some folks who don’t.  A West Virginia lawyer subjected to a two-year suspension from practice is among the “don’t” and, remarkably, almost got a much lesser suspension, in part, simply because he was not among the worst overbillers that a West Virginia agency – Public Defender Services – was dealing with.

That context is actually part of what makes this particular incident really worth writing about because it is another unfortunate example of discipline for overbilling coming up in a context where some people can often try to argue it away as being somehow more understandable — lawyers who are trying to make a living off of court-appointed work at unfairly low hourly rates.  The problem, of course, is that not only is that still not a particularly good excuse for deceptive billing practices but it also is counter-productive to how much more difficult it makes it for people who want to advocate for better compensation arrangements for such lawyers to gain traction.

I tend to think the frequency with which lawyers get caught for over-billing in connection with court-appointed work isn’t necessarily a matter of those lawyers being more prone to doing so as much as it is that they are more prone to getting caught because there is effectively one “client” able to see all of their time records and, literally, do the math that the clients of lawyers in private practice serving a variety of clients aren’t as readily positioned to do.

Overbilling was not the only ethical flaw of the West Virginia lawyer made the subject of this 40-page opinion of the West Virginia Supreme Court of Appeals — interestingly enough his other problems involved missing deadlines and neglecting client matters and even includes an interesting side excursion into his suffering from low testosterone which manages to make the inflated billable numbers from prior years seem even more . . . nope, I’m not going to go for blue humor.  At least not today.

For those who don’t want to read a 40-page opinion about this kind of conduct, just a few of the highlights in terms of both the egregious nature of the billing practice and the really pretty remarkable testimony about how he stacked up compared to other lawyers in terms of Cooke-ing the books (We know while I may shrink at going blue I always rise to the opportunity for word play.)

First, here are the lawyer’s overbilling highlights uncovered by the Executive Director of West Virginia’s Public Defender Services:

  • “found to have exceeded fifteen billable hours a day on thirty-one dates from mid-January, 2014 to mid-September, 2014.” (NB: the lawyer’s claimed low testosterone problems were stated to be during and around August 2014 and the West Virginia court most certainly paid attention to that time line to point out that it was interesting that he claimed to be sleeping 10 to 16 hours a day when he couldn’t meet certain deadlines so that, at most, during the relevant time period he couldn’t bill more than 8 to 14 hours a day.)
  • “on four dates he submitted vouchers for twenty-three or greater billable hours and on two dates he submitted vouchers for greater than twenty-four hours” (including billing 27 hours on December 26)
  • “billed 2,568.5 hours, 2,279.3 hours, 2,671.2 hours, and 3,259.46 hours for the years 2011-2014, respectively. These billable hours equate to an average daily billable rate of 7 hours, 6.2 hours, 7.3 hours, and 8.9 hours, for 365 days.”
  • “rarely billed activity at less than .2 hours (12 minutes); the only .1 (6 minutes) entries are attempted phone calls and, occasionally, a hearing. Review of any and all documentation or correspondence, including email, is billed at a minimum .2 hours. Virtually every hearing entails billing .3 hours for “waiting in court,” which affords a higher hourly rate.”
  • “On April 17, based on Cooke’s accounting of his time utilizing his schedule and the court’s docket, in the two-hour window from 1:00 p.m. until a 3:00 meeting at the jail, he billed a cumulative 4.3 hours of “actual time”; the activity billed all consisted of travel, waiting in court, and attending hearings. Similarly, on August 18, Cooke’s incourt schedule shows hearings at 9:00, 9:30, and 10:30 with the docket resuming at 1:00. The matters which were scheduled in the three-hour window from 9:00 a.m. until noon, were billed at a cumulative 6.1 hours. Additionally, matters beginning at 1:15 p.m. on that date were billed at additional 7.2 hours and consisted solely of waiting in court, reviewing “court summaries” while waiting, and attending hearings.”
  • when first called on to explain certain aspects of his billing, he said he couldn’t do so because Public Defender Services hadn’t provided him the information he needed and ” his own time-keeping system would not permit him to retrieve that information.”

As to the chilling notion that this lawyer was not as bad as others, the Executive Director testified:

I still hold firm that we were billed for duplicate—we were billed several times for the same trip, that we were billed several times from the same period of waiting in court. In other words, if he had three hearings, let’s say he waited in 17 court for one hearing while he was actually doing another hearing. That’s not properly [sic] billing. That’s billing the same period of time. So I firmly believe that that had happened, but in looking through the vouchers and everything else, it appeared to be less frequent than I had seen with other counsel. 25 The only perceived fraud or deception that still exists in my mind is the fact that he may have been value billing, that is, billing a .2 for an activity that should’ve only been a .1 or a .4 when it should’ve been a .2. However, he wasn’t billing me 3.0 for these things and he was—and he was saying 12 minutes as opposed to 240 minutes. . . . I just did not see in his case the overt deception that existed with many other attorneys. . . . He was unable to exonerate himself completely in this situation because he had failed to comply with that time requirement, but that, overall, I believe that he was zealously representing his clients and he was providing the actual services that were described even though the time allotted to them may have been—may not have been the actual time.

and he also:

gave the example of one attorney who “rubber-stamped” the same time for each day and one attorney who billed 900 hours of travel in a three-month period.

As a way of further bolstering the problem this creates for those working hard to try to get better, fairer hourly rate reimbursements in place, the Executive Director of the West Virginia program also:

explained that PDS is paying $25 million a year to court-appointed counsel that are, in his opinion, undercompensated at $45/hour for “out of court” time and $65/hour for “in court” time.14 He indicated that when requesting an hourly increase at the Legislature he was typically confronted with the fact that many attorneys were making greater than $100,000.00 a year in court-appointed work and that the legislators took a dim view of an hourly rate increase when, in their opinion, the court-appointed attorneys had given themselves a “raise” by overbilling.

Well, anyway, get back to work I guess.

Whistling about where you work.

We appear to be living now in an era in which whistle blowers are going to be in the news (and perhaps be the news) more than ever.

Many who know me, know that I hold a pretty controversial opinion — Arrested Development is potentially the greatest television show in history.  For many years when I needed a fictional lawyer for my hypos at seminars, Barry Zuckerkorn, Bob Loblaw, and Wayne Jarvis were my go-to choices.  I could drop this blog and write a blog just about the genius of that show but (perhaps) even fewer people would read that, much like it never got its fair share of viewers.  One example of the simple brilliance of its writing though was its treatment of the issue of whistle blowers from the 20th episode of the first season, “Whistler’s Mother”:

Mr. Jordan: Listen, you’ve got the money now and you know my price. You don’t need a whistle blower around here.

Michael: Interesting choice of words, Mr. Jordan. He’s right, we don’t need a whistle blower. We need a building full of whistle blowers. Okay? Whistles. I want this place to be honest. That’s exactly why I had these made up for us. When you see something wrong…

[Whistle blows]

Michael: There you go. I want you to report it. I want you to…

[Whistle blows]

Michael: Exactly. Just like that. I want us to police ourselves vigilantly… Let’s wait till something’s actually happens, though.

[Whistles blowing]

Michael: All right… Good fun… Enough!

[twenty minutes later…]

Michael: 45, 46, 47…

Michael: Okay, there’s still three whistles left out there. Who’s got the whistles?

[Whistle blows]

Board Member #1: He kept one.

Michael: There’s a good example of whistle blowing, okay, but you’ve kept yours, so it’s hurting your case.

Board Member #1: I was in the bathroom when you asked for it back.

[Whistle blows]

Board Member #2: No, he wasn’t.

When lawyers (or those that work closely with lawyers) claim to be whistle blowers, the stakes tend to be even higher and the ethical issues for those lawyers and even for the lawyers that represent those lawyers are almost always complicated.  Even when answers seem straightforward, the tensions that exist between the public interest in preventing wrongdoing and the private interest in protecting confidentiality can lead to second-guessing as to where the right lines should be drawn.  When the traditional right of a client to fire their attorney for any reason or even no reason at all is wound into the mix, sometimes that readily clarifies how the tension is resolved  but not always.  It is a pretty good explanation for why there aren’t really many instances of outside counsel to companies or government entities serving as whistle blowers.  When the lawyer seeking to blow the whistle though is an in-house counsel, that absolute right to fire your attorney can be made to yield to public policy since the client is also the lawyer’s employer.

In the last couple of weeks, there have been three stories of interest making the rounds involving three high-profile cases – two of them in California and one in D.C. — where the classic tensions are playing out in differing ways.  The D.C. case is the longest running of the three and was actually pretty much believed to be over back in 2008 when the a former in-house counsel for GE’s Sarbanes-Oxley suit — which she supported using her former client’s confidential information — was dismissed as untimely filed.  The matter got renewed attention with a recent development of a disciplinary suspension recommendation against her.  One of the California matters is part of a roiling and unseemly dispute between the State Bar of California and the Chief Disciplinary Counsel that it fired within the last year.  The other California matter is currently in the middle of trial proceedings and involves the former General Counsel of Bio-Rad, Sanford Wadler, who filed suit back in 2015 alleging he was fired because he blew the whistle on his former employer’s violations of the Foreign Corrupt Practices Act.

The weird mess involving the California State Bar has been back in the news twice in succession.  First, there was a story that the former assistant to the former Executive Director, Joe Dunn, would not be permitted to use information she took with her on her laptop to pursue her claim that she too was fired in retaliation because of her knowledge of the same kinds of violations for which her boss has said he was terminated.  Then, even more recently, word came down that Dunn’s suit, which had previously been forced into arbitration, has been dismissed by the arbitrator.  The  former Bio-Rad General Counsel recently received a favorable ruling about his ability to use confidential client information to seek to prove his case despite what would otherwise be his ethical obligations of confidentiality.

At a primary level, the developments in the three cases underscore a few points.  One, none of them involve outside counsel.  Two, lawyers who claim to be terminated for whistleblowing are almost always going to be met with counter-allegations that that they just simply were bad at their job and were terminated for poor performance.  Three, the obligations lawyers owe to clients in terms of confidentiality not only complicate matters and raise the stakes but almost always create satellite disputes within the litigation about use of information that will make or break the case.

Rather than try to re-tread all of the details of the three matters (because you might care about all, none, or just some of them), I’m pretty sure through the links I have provided and a little Googling, you can immerse yourself as much as you want in available information about any of the three.

One piece of one of the matters though really piqued my interest and deserves a brief separate discussion — the detail of why the former GE attorney, Adriana Koeck, appears headed for a 30-day suspension and a lawyer representing her is also getting punished — going beyond the use of the confidential client information to support allegations in the complaint but providing some of that same information to the press.   One of the reasons the matter piqued my interest originally was that, here in TN, we have a version of RPC 3.6 on trial publicity that allows communications about the media regarding the contents of a complaint, for example.  D.C. has a much different version of that rule.

But, further digging is what further made me curious because D.C. really is a weird place, I guess.  Admittedly, at this point I have only read the Law360 article, but it seems bananas that a D.C. lawyer who assisted, Koeck, in providing documents referenced in her complaint to news reporters is being disciplined for doing so.  Koeck’s 30-day suspension seems to be explainable by the fact that she didn’t participate in the proceedings having already agreed to be suspended from practice by consent.  But punishing a lawyer for that lawyer seems Draconian.  Yet, and somehow I missed reading about this back in 2015, but even the prominent law professor who gave Koeck advice that the crime-fraud exception would apply to the documents also received disciplinary punishment for doing so — that seems even more Draconian.

In fairness, I’ll have to dig a bit further to educate myself on those proceedings to see if I can better explain all of that.

In the meantime, it does appear like Season 5 of Arrested Development is going to happen.  So yay for that.

 

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.

Violence should never be the answer.

Back almost twenty years ago, the New Jersey Supreme Court warned New Jersey lawyers that “any act of violence committed by an attorney will not be tolerated” and to expect that the likely consequence for engaging in violent behavior would be “[n]othing less than a suspension.”  They issued that warning in a case, In re Viggiano, where a lawyer responded to a minor traffic accident by getting out of his car, approaching the other vehicle involved, and proceeding to punch the female driver who was still sitting in the other car.  That lawyer received a three-month suspension.

Now, I was a mere law student in Tennessee back then, and I didn’t know anything about that decision before today.  I know about it now, thanks at first to a Law360 email newsletter blast, because of two decisions from the New Jersey Supreme Court that were issued simultaneously this week (and coincidentally were also both decided on the same day, more than 9 months ago on December 15, 2015, by the N.J. Disciplinary Review Board).

The outcomes in those cases – and all of the other precedent they describe — make me think that New Jersey lawyers still have a real problem with violence and that the New Jersey Supreme Court wants to make sure that warning, 20 years later, is renewed, repeated,and maybe more effective this time.

The first In re Collins affirms the Disciplinary Review Board’s decision to impose a three-month suspension on a N.J. lawyer for another “road rage” incident.  This time it involved a bat, but fortunately for the people in the other car, the lawyer took the bat only to their car – though they were inside of it at the time:

Respondent admitted that, while on a public street in Jersey City, during a “road rage” incident, he got out of his car, retrieved a baseball bat from the trunk and struck another person’s vehicle multiple times, breaking the windshield and side view mirror.

In the December opinion of the Disciplinary Review Board, the Board referenced the fact that it was issuing decisions at the same time in two other cases, mentioned that they were recommending imposition of censures on those attorneys, and attempted to explain why this one was more serious than those.

As of this afternoon, I can only find one of those other two on the Court’s website, the In re Buckley one.  I’d be interested to know what the other one involved and I’d be curious to see if it ends up in the same place as Buckley does because the NJ Supreme Court order on Buckley rejected the Board’s recommendation of only a censure and increased the punishment to the same three-month suspension imposed in Collins.

The acts of violence in Buckley as described by the Board opinion read like so:

On the night of the assault, Balde, a taxi driver, was hailed by respondent on the West Side Highway in New York City.  He agreed to drive respondent to Jersey City for a $63 fare.  Upon arriving in Jersey City, at approximately 10:30 p.m., respondent informed Balde that he had only $9 and asked Balde to drive him to his apartment so that he could obtain additional money.  Balde refused to do so and locked the doors in the taxi to prevent respondent from exiting.  Respondent, who is approximately 6′ 5″ tall and 280 pounds, began to kick at a door and window of the vehicle.

Balde then unlocked the doors and respondent exited the taxi and began walking away, pursued by Balde.  Respondent grabbed Balde’s face and then struck him in the face with a closed fist…. As a result of respondent’s assault, Balde sustained lacerations to his forehead and upper lip, his glasses were broken, he had blood on his shirt, and he reported pain in his nose and mouth.

Now, you give me the choice between a guy with a bat attacking my car and getting punched in the face by a 6’5″ 280 pound man, and I know what I would choose … I’d choose to stop playing “would you rather” with you and play Words With Friends with someone else instead.

The Board tried to explain its distinction in December on the basis of the different levels of violent conduct but the only thing the Board said that truly resonated was the fact that the lawyer who attacked the cabbie was not working as a lawyer at all but as a compliance officer for a national bank and so there was less need for a body such as the Board to protect the public from the lawyer as lawyer.  Nevertheless, on the New Jersey Supreme Court’s own terms dating back to Viggiano, the punishment in the second case suggested by the Board likely didn’t look like much of a “violence won’t be tolerated” message.

But, the Board did look like it was truly trying to apply post-Viggiano precedent and the New Jersey Supreme Court hadn’t quite always taken its own warning to heart.  The Collins opinion from the Board takes the reader on a tour of a few other cases including a bar fight and assault on a police officer that resulted in a one-year suspension (In re Gibson in 2005), an attorney who only received a censure for following another vehicle for roughly 10 miles while brandishing a knife at its occupants (In re Milita in 2014), a lawyer who was suspended for six-months for attacking a physician (choked the doctor and smashed his head against a plexiglass window?) who tried to help the lawyer after the lawyer fell backwards on some stairs (In re Bornstein in 2006), and a lawyer who only received a censure for assaulting special federal agents during an investigation (In re Nealy in 2011).

So, it seems like the New Jersey Supreme Court might well be trying to put some more teeth into that warning, but again I’d be curious to know anything more I can find about that other case mentioned in the December Board ruling – In re Rausch.  In the meantime, I guess it is fair to say:  “Beware violent New Jersey lawyers!”  But, maybe even more so, “Beware of violent New Jersey lawyers!”

Oh, and on what I am sure is a completely unrelated note, here’s a handy link to a report entitled Drug and Alcohol Abuse & Addiction in the Legal Profession that you can read at your leisure.

Bad blogger – please accept this potpourri like sprinkling of items

The week feels like it is getting away from me, some travel, some work, some personal life, but may be able to write about something more substantive I’ve been meaning to tackle for later this week.  For today, here is a scattershot of stories all of which involve something previously found to be worthwhile enough to have written about.

First, just a very short period of time after the Baker Hostetler announcement of its use of Ross in its bankruptcy practice, we get the announcement that DLA Piper will be using a competing AI software program known as Kira for document review in its mergers and acquisitions practice.  You can read the short ABA Journal story online here.  More indications that this is a fast-moving area and that there will likely be more such announcements coming with regularity.

Second, the availability to consumers of an array of other choices for the delivery of legal services has been a frequent topic here.  The FTC has long been willing to speak out when state bars go too far down regulatory paths that have the potential to really impact consumers — lawyer advertising being an area that they have, in the past, been not at all shy about weighing in on — and the FTC (in conjunction this time with the Antitrust Division of the US Justice Department) has done so again earlier this month with respect to companies operating in the legal service provider sphere and how the services they offer online are beneficial to consumers.  The context involves a North Carolina state senator who requested their input on potential legislation in that state that would address the scope of the definition of the practice of law to carve out certain interactive websites.  Specifically, there is apparently pending in North Carolina a bill that, as the FTC/DOJ describes it would:

amend North Carolina General Statutes Section 84-2.1 to exclude from the statutory definition of the practice of law the operation of interactive websites that generate legal documents based on a consumer’s answers to questions presented by the software.27 A website would have to satisfy several conditions in order to be excluded from the definition of the practice of law, and thus for its provider not to be subject to prosecution for the unauthorized practice of law. These conditions include providing a disclosure that the forms are not a substitute for attorney advice or services, and disclosing the provider’s legal name and physical location and address.

The comment of the combined agencies appears to view the bill, as it stands, as being pro-competitive but also provided some further guidance:

The Agencies recommend that the North Carolina General Assembly not adopt restrictions on such software products unless there is credible evidence that they harm consumers, any restriction is narrowly tailored to address that harm, and the benefits of the restriction will outweigh the harm that will likely result to competition. Should the General Assembly receive any claims of consumer harm from interactive websites or similar products, the Agencies urge the legislature to consider whether the evidence substantiates any such actual or predicted harm.

The full comment of the FTC/DOJ is worth a read and you can get it here.

Last, Karen Rubin and the folks at her firm’s fine blog bring you an update on the latest travails of the lawyer I wrote about here in my Drunk and Disorderly is No Way to Attend a CLE piece.  You can read there latest well done post here.

Redefining what it means to be a “nonlawyer.”

I’ve written (quite a long time ago now it seems, but it was only just last Spring) about the unfortunate nature of lawyers calling people who aren’t lawyers “nonlawyers” – rather than referring to them in a less condescending fashion such as “regular people,” for example.  But, I still do it all the time, so I’m little more than a hypocrite at the moment on this particular issue.  I will admit that usually the context of the discussion — especially if it is about legal ethics where the ethics rules repeatedly make reference to that term — can make it harder to avoid saying/writing it, but that’s not really the best of excuses.

Thus, the best way to eradicate the mildly offensive use of the terms would be to repurpose the word with a new definition.

Nonlawyer: n. someone who pretends to be a lawyer but actually isn’t one.

There would be two substrata of nonlawyers under this new definition: (1) a person who used to be allowed to practice law (see also “lawyer”), but who lost that right, and then continued to act as if they were still a lawyer; and (2) a person who was never actually licensed to practice law at all but have acted as if they were in dealing with other people.

In my reading pile from March, I find an instance of each of these two types.

Coming in the first category would be this New York nonlawyer who might be a real-life spoiler alert for fans of Better Call Saul (though can’t really say a true “spoiler” alert as much as speculation; I’m just guessing how/why James McGill ultimately has to take on the name Saul Goodman).  Most recently, Jay Lipis was disbarred in New York in March 2016 after he admitted that, during a time that he was suspended from the practice of law in Massachusetts, he continued to practice law but did so under a fake name – Jeffrey Kriger.  While still serving his suspension in Massachusetts, he went to work for his old personal injury firm:

as an unpaid “settlement consultant” reviewing files, valuing cases, determining demand amounts, negotiating settlements with insurance adjusters, and communicating with clients about settlement offers, without adequate supervision. Moreover, in conversations with insurance adjusters, the respondent at times falsely identified himself in order to conceal his identity as a suspended attorney, and at other times falsely identified himself as an attorney or failed to correct any misunderstanding that he was an attorney at the law firm

This summary of the 2015 order suspending him in Massachusetts provides more of the details and also makes clear that there were quite a few other issues of unethical conduct.  (For those that are interested in what, if anything, happened to the lawyers employing him at that personal injury firm, you can read about that over at the Legal Profession Blog.

Fitting into the second category would be Kimberly Kitchen.  Although her name actually sounds like a pseudonym, she wasn’t lying about her name… just about being a lawyer … for a decade.  In addition, to “practicing law” for almost 10 years before being caught, she also managed to serve as the president of a county bar association in Pennsylvania before being found out.  In March 2016, she was convicted of forgery, unauthorized practice of law, and felony records tampering.

There are, actually, a surprising number of people falling into this second category, and their existence (and short-to-medium term success) often says more about how lax law firms can be about doing background checks on the lawyers they hire than about why someone — with a seemingly infinite number of possible things to pretend to be — would choose being a lawyer.

Ms. Kitchen’s case, however, does not seem to be one where it is obvious that the law firm that hired her (at least the last one to do so and that was making her partner in April 2014 when the fraud came to light) failed to do sufficient due diligence, as NBC News reported back when the criminal charges were brought against her that she:

allegedly forged numerous documents attesting that she was a licensed attorney, including an attorney’s license for 2014, supposed bar examination results, supposed records of her law school attendance and a check purporting to show she’d paid her registration fees.

While there may seem like there were a number of available avenues where her deception could have been ferreted out given that she didn’t go about fabricating a nondescript background:

According to her resumé, she graduated summa cum laude from Duquesne University School of Law in Pittsburgh and had taught trust and taxation law at the Columbia University School of Law.

Yet, as the CBS news report on her conviction makes clear, she even forged an email from Duquesne to make it appear she had attended there.

Speaking of bad facts making bad law…

I’ve seen a number of short pieces around the Internet about the 70-year old Missouri lawyer who has gotten himself suspended for at least six months over a number of acts of misconduct, including (the thing most prominently mentioned) using information that his client improperly obtained by guessing someone else”s password.

There is no question that the facts, as laid out, in the Missouri Supreme Court opinion, justify a suspension and involve a violation of a number of ethics rules.  Specifically, there is no question that the use of the purloined information — payroll records and opposing counsel’s work product — was a violation of Missouri’s Rule 4.4(a) which prohibits the use of a method of obtaining evidence that violates a third party’s legal rights.  In addition, to the extent the tribunal concluded that that the lawyer had essentially threatened a disciplinary complaint against opposing counsel as leverage, it is a fair result to say that there was a violation of Missouri RPC 8.4(d), conduct prejudicial to the administration of justice, even though Missouri – unlike Tennessee- does not have an RPC 4.4(a) that specifically prohibits such threats.

But the rest of the ethics charges — all of which take issue with the lawyer not disclosing to the other side that his client had improperly obtained the confidential materials — is, at best, a lazy outcome and, at worst, just wrong, hence the “bad facts making bad law” title.

Unlike Tennessee, Missouri’s RPC 4.4 does not have any application to receipt of documents purposefully sent but by someone not authorized to have them in the first place.  It only addresses inadvertently produced documents.  As the opinion lays out the story, there was nothing inadvertent about this situation.  The lawyer’s client purposefully and intentionally provided the materials to the lawyer.  Nowhere in the opinion does the Missouri court cite to actual ethics rule language that would explain why the lawyer would be required to tell the other side about his client’s improper access to the spouse’s computer.  The closest it gets is when it misquotes language from a comment to its Rule 4.4.  Specifically, the court wrote:

The comment accompanying Rule 4-4.4(a) recognizes that lawyers “sometimes receive documents that were mistakenly sent or procured by opposing parties or lawyers.”  However, when a lawyer knows that he or she has improperly received information, “Rule 4-4.4 requires the lawyer to promptly notify the sender in order to permit that person to take protective measures.”  In this case, Rule 4-4.4 required [the lawyer] to promptly disclose his receipt of the information to Ms. Jones so that appropriate protective measures could be undertaken.

Except, Missouri’s Rule 4.4 most certainly does not require prompt notification to the sender unless the materials were inadvertently produced.  Importantly, the “sent or procured” quote by the court of its Rule 4.4 is just flat wrong.  The actual language of the Missouri rule is “sent or produced.”  The use of “procured” is a particularly unfortunate error because it makes it seem like the rule must contemplate purloined document issues when everything about Missouri’s actual Rule 4.4 is tied to inadvertence.

If Missouri had Tennessee’s version of RPC 4.4 – which requires notification for both inadvertent disclosure and unauthorized disclosure, then Missouri could look to RPC 4.4 and claim notification was required.  Given that the lawyer’s client’s improper access to the spouse’s computer could, for example, expose that client to criminal liability under federal law as a violation of the Computer Fraud and Abuse Act or the Stored Communications Act (or both), this is not merely an academic quibble.  It is one thing for a lawyer in such a situation to know better than to try to make use of the wrongfully obtained documents; it is another thing to flog the lawyer for failing to blow the whistle on their client’s wrongful conduct — potentially criminal wrongful conduct — by writing an opinion that makes it seem a matter-of-fact conclusion that a lawyer reading RPC 4.4 in Missouri would know they have to do that as well.

Because Missouri has a version of Rule 1.15 that is patterned after the ABA Model Rules, it does have an ethics rule on which it could have hung its justification for saying the lawyer was obligated to notify the opposing counsel about having the purloined materials.  Specifically, it could have pointed to RPC 1.15(d) and (e) as giving guidance:

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. . .

(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the lawyer shall keep the property separate until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. Lawyers shall cooperate as necessary to enable distribution of funds that are not in dispute.

Of course, doing that would have required that court to embrace the rationale that Doug Richmond and I have explained in a separate article written quite a few years ago.  Instead, Missouri now adds itself onto the list (along with Nevada) of courts that would rather disregard the plain language of their own Rule 4.4, than admit we’ve got a point.

 

Three updates for you on this election-year President’s Day.

Given that there isn’t a lot going on in the news that relates to legal issues, I feel obligated to offer lawyers something to read.  (I don’t think I’ve ever gone on record here about how badly I wish someone would create and implement a sarcasm font upon which all users could agree.  Maybe it would be a way to use comic sans where everyone would be ok with it?)

Back around Thanksgiving, I wrote about a Virginia federal court ruling that laid the framework for a future decision about whether a particular provision in a law firm operating agreement violated RPC 5.6.  Specifically, the provision required a departing shareholder who goes on to practice law in competition with the firm to forfeit half of their equity interest in the firm.  I concluded my original post by speculating that the outcome would ultimately hinge on how the court interpreted a paragraph in Comment [2] of D.C.’s version of the rule.  Sure enough, the court has now ruled, and its ruling did hinge to a significant extent upon application of that language as quoted in this piece from the ABA/BNA Lawyers’ Manual.  Interestingly though, much of the fight in the case actually came down to whether half of the shareholder’s equity interest was even a “substantial” financial penalty at all.

In the face of an argument from the firm that it wasn’t substantial because it was significantly less than the departing lawyer’s salary at his new destination, and expert testimony that the fragility of law firms should allow provisions forfeiting equity to avoid a “death spiral” when owners leave unexpectedly, the court looked only at the penalty in its own context:

Moreover, the practical effect of the Firm’s forfeiture clause is to penalize withdrawing members who wish to continue to represent even one of the Firm’s clients by depriving them of a previously accrued equity interest to which they otherwise would be entitled.  When Moskowitz left the Firm, he faced a choice: receive the full value of his [ownership interest] and turn down his clients who sought his continued representation, or forfeit fifty percent of his equity interest in the Firm and continue to represent his clients’ interests. There is a clear disincentive attached to the latter option.

Update part two & three – I’ve also tried to keep up with events in Pennsylvania and Texas as they unfold with respect to the fates of their top law enforcement officers, both of whom face criminal prosecution.

In Pennsylvania, the sitting Attorney General had something of a mixed bag of recent events.  Her effort to have her law license reinstated denied, but she managed on a first vote to survive being removed from office by the Pennsylvania Senate.

As to the Texas AG, you may recall that back when I first posted about any of this, I mentioned a disciplinary complaint that had nothing to do with, and predated in time, the indictment against him.  (Though unlike the events made the subject of the indictment, the disciplinary complaint actually related to the AG’s conduct in office.) Although there have not been any recent events regarding the indictment to catch my attention, there has now been news that the disciplinary complaint which originally was headed toward dismissal, has now been reinstated and will move forward over the AG’s advice to public officials that they could freely disregard the authority of the United States Supreme Court.

 

I’ll never understand why athletes hire non-lawyer agents.

Thanks to ESPN I’ve long known more about Johnny Manziel than I care to.  But, this past week, I learned something I really should never know — why his agent decided to fire Manziel as his client.  Up until this past week, Erik Burkhardt was Manziel’s agent.  Burkhardt is a law school graduate, but from the best I can determine is not licensed to practice law in any state.  (I will admit that I’ve only searched the rolls in the two states that would be most likely — Texas where the sports agency Burkhardt works for is officed and Florida where Burkhardt attended law school — but the fact that media outlets describe him as just a “law school graduate” leaves me comfortable that he’s not actually a lawyer.  Someone can feel free to correct me if I’m wrong.)

You do not have to be a lawyer to be a registered agent with the NFL Players Association — as is also true in many sports leagues.  But when it comes to professional athletes, who all can easily afford the services of even the attorneys in the U.S. who charge the highest of hourly rates,  the notion of hiring agents who aren’t lawyers bound by all of our rules of ethics has always puzzled me a bit.

Manziel, who is currently dealing with a plethora of problems, and probably doesn’t care too much at the moment that his agent decided to publicly fire him, but since he hired a non-lawyer who doesn’t have to worry about RPC 1.6 and RPC 1.9, if he ever gets around to caring about there isn’t much he can do.

Because of the obligations of confidentiality that lawyers must work under, I’d like to think that no reputable attorney would issue such a press release — or any press release at all — to say they’d fired one of their clients.  If they did, they could find themselves subject to discipline.

In Tennessee this past week, the Tennessee Supreme Court issued a pretty significant decision in a lawyer discipline case, not only because it was another example of the Court doing something relatively rare which is making a decision to increase discipline that had been consented to by the respondent and disciplinary counsel.  (I’ve written about another such rare instance before.)  The Vogel ruling will do doubt be most significant as precedent because it is the first decision of the Tennessee Supreme Court treating the issue of a lawyer’s sexual relationship with a client as a “material limitation” conflict under our RPC 1.7(a)(2).  The sexual misconduct aspect of the case will, of course, also be the focus of most of the attendant publicity, but it shouldn’t be overlooked that the lawyer involved also was disciplined for violating his obligations of confidentiality as to a different client as well.

The lawyer’s violation in that regard was one that many lawyers might not immediately grasp as improper — it certainly wasn’t a press release sort of scenario.  The lawyer had filed a motion to withdraw as counsel for a client and managed to do so in the appropriate fashion by not saying anything other than making reference to the fact that the rules required withdrawal.  The trial judge granted the motion to withdraw.  The former client then wrote a letter to the judge in the case complaining that she did not know why her lawyer had withdrawn.  The judge then communicated to the lawyer and instructed him to send his former a client a letter to explain.  The lawyer did so, but unfortunately and perhaps being more concerned with making sure the judge knew the lawyer had done as asked than focusing on the requirements of RPC 1.9, the lawyer copied the judge on the letter.  The Tennessee Supreme Court did a fine job of explaining why that was not something RPC 1.9 permitted.

Had Johnny Manziel retained a lawyer as his agent, then RPC 1.9 most certainly would not have permitted that person to pile on this past week.  A lawyer, if contacted by the press, might have confirmed the situation with a “Mr. Manziel and I have parted ways.  I wish him all the best in the future.”   But, a lawyer would never be able to ethically offer up the kind of “I’ve done all I can do, the guy won’t take my advice, and I don’t want anything that happens after this point to taint my own brand” statement Manziel’s agent put out into the world.