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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And, that’s the real point. Isn’t it?

Really big goings on in California.

And, no, in the title I’m not referring to the leak of information about the California Bar essay topics before the bar exam. Although that story is certainly bananas.

You’ve likely by now read at least something somewhere online about the most recent product coming out of the California State Bar Task Force on Access Through Innovation of Legal Services, consisting of tentative recommendations that has been formally put out for public comment. Most of the usual places where you can readily get good news about issues relevant to (or related to) the practice of law have done a piece of some sort about it.

It really is a significant step in the national discussion about what the regulation of the practice of law ought to look like moving forward and, if you have the time, the full 250-or-so-pages of report and related attachments is worth a read and available at this link. (To be clear, if you only have time to read one report spanning hundreds of pages, it should be The Mueller Report. The future of legal ethics in this country isn’t going to be of much importance if we can’t get a handle on just how badly the rule of law is currently being threatened by our institutions (Part 2) and just how little faith and confidence we can have in the integrity of our elections process (Part 1). So, if you are a lawyer and still have not read that report yet, then you need to do so.)

(If you have time to read two massively long reports, then the ATILS report should be the other one.)

There is so much about the ATILS proposal, and its variants, that is worth writing about that I’m pretty certain I’m going to end up dedicating a few posts to the subject matter – though spread out a bit so as not to only write about it and nothing else for too long a time period. Aspects of what is being discussed are really substantial changes to the way things work now and will most certainly be scrutinized and subjected to significant debate.

To start off though, I want to just talk about two aspects of the report that ought to be much less controversial both because it is an easy jumping off point and because, on their own, they give a glimpse into how fast things are moving these days.

Now you may recall that California only very recently (effective November 1, 2018 as a matter of fact) revised their ethics rules in an overhaul that more closely resembles aspects of the ABA Model Rules. In so doing, California became the very last U.S. state to do so. But getting there took more than 17 years. With those revisions, California adopted a version of ABA Model Rule 1.1 on competence and adopted ethics rules related to legal advertising that at least followed the numbering and overall framework – with some deviations – of ABA Model Rules 7.1 through 7.5.

Despite the fact that California’s versions of those rules still essentially have a “wet paint” sign on them, the task force report is proposing a revision to California’s RPC 1.1 and is proposing that another pass be taken at California RPCs 7.1 through 7.5 to either put them more in line with the most recent revisions to the ABA Model Rules or possibly more in line with the less modest proposal that the Association of Professional Responsibility Lawyers made that (as written about here a time or two) started the process moving that led to the ABA revisions.

Being willing to consider such things less than a year since adopting new rules is a bit unusual on its own, but when it comes to RPC 1.1, the task force is going a bit further and proposing that California revise the language a bit even from what the ABA Model Rule says. To a large degree the proposed deviation is a bit wonky because, at heart, it stems from the age-old debate about where exactly the right lines are in terms of what Comments can be used for and what they can do when compared to the text of the rule itself. (The discussion of the motivation and issue is found at p. 18-19 of the task force report documents.)

The ABA Model Rule comment language reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and in practice, including the benefits and risks associated with relevant technology….

The California proposal would instead be:

The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.

For what it is worth, I can manage to both think that the ABA Model Rule approach does not run afoul of the balance between comment and rule but also agree with the task force proposal that if California adopted the proposed variation, it would likely be a better approach.

Now the cynical amongst us may say that these topics wouldn’t be being addressed if there wasn’t a much larger set of reforms being put on the table. And those folks are probably right … about which more later.

A modest proposal (about NYC Bar Op. 2019-5)

I have made a living (well not actually a living since no one compensates me in any form of currency, whether crypto or otherwise, for my writings here) writing about problematic ethics opinions. July 11, 2019 brings what might be the most practically useless ethics opinion ever released. If it were only just practically useless, then it might not be worth writing about. But it adds into the mix the fact that it appears, without discussion, to significantly expand the scope of the rule being interpreted as well.

It comes from the New York City Bar, and it addresses cryptocurrency. Well, that’s not fair exactly. Nebraska opinion 17-03 which I wrote about almost two years ago can be described as an ethics opinion that addresses cryptocurrency. This opinion from the New York City Bar addresses a highly speculative question related to cryptocurrency. It asks “what if…a lawyer entered into an agreement with a client that would require the client to pay the lawyer in cryptocurrency?” Not kidding. That is literally the overriding premise. Now, admittedly, Memphis is a long way from New York City, but is this really a potential fee contract provision with relevance to more than a handful of lawyers?

If it is relevant to you, then you could go read the full opinion at this link. Before you decide whether that is how you wish to spend your time though, here is an excerpt from the opinion that literally identifies the three variations of possible fee agreements it considers:

  1. The lawyer agrees to provide legal services for a flat fee of X units of cryptocurrency, or for an hourly fee of Y units of cryptocurrency.
  2. The lawyer agrees to provide legal services at an hourly rate of $X dollars to be paid in cryptocurrency.
  3. The lawyer agrees to provide legal services at an hourly rate of $X dollars, which the client may, but need not, pay in cryptocurrency in an amount equivalent to U.S. Dollars at the time of payment.

If those questions cry out to you as needing answers, then by all means do go read the full opinion.

But, if those questions don’t sound like they are relevant to you and your practice (and the opinion itself even acknowledges that the first scenario is “perhaps-unrealistic” and the second scenario is only “perhaps more realistic”), then here’s my modest proposal.

Let’s pretend that NYC Bar Op. 2019-5 starts at roughly p. 12 and just includes the rest…. because (1) those four pages of analysis are a pretty good overview of how you work through RPC 1.8 in most jurisdictions in order to evaluate the business transaction with a client issue, and (2) it reminds the reader of the two significant ways that New York’s version of RPC 1.8(a) differs from the ABA Model Rule.

New York’s version differs from the ABA Model by making the scope of its RPC 1.8(a) less broad in two different ways. It mandates that the rule only applies to transactions where the lawyer and client have “differing interests” in the transaction and where the client expects the lawyer to be exercising professional judgment on behalf of the client.

Nevertheless, the last four pages of the opinion give sound guidance of what a lawyer has to be concerned about with respect to a business transaction with a client:

First, the lawyer must ensure that the transaction is “fair and reasonable to the client” and must disclose the terms of the transaction in writing and “in a manner that can be reasonably understood by the client.”

[snip]

Second, the lawyer must advise the client, in writing, about the desirability of seeking separate counsel and must then give the client a reasonable opportunity to consult separate counsel.

[snip]

Third, the client must understand and agree to “the essential terms of the transaction, and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.”

One added benefit of my modest proposal is that it will also avoid the Pandora’s Box this opinion appears to wish to open. As long as the full version of this opinion exists, then lawyers will need to pay very close attention to what happens on page 4. That is when the opinion blithely sticks the words “(or prospective client)” in without discussion. Given the text of the rule, this reference would appear to entirely transform RPC 1.8(a) from a rule that only applies to a business transaction with someone who has already become your client into a rule that now applies to contracts to form an attorney-client relationship.

While the NYC Bar Opinion does cite to Professor Simon’s annotated version of the New York Rules of Professional Conduct (not surprisingly in the four pages at the end which should stay), my admittedly quick review of what Professor Simon offers in the annotations to RPC 1.8(a) doesn’t appear to indicate that the rule is as expansive as this opinion seems to indicate. Many of those annotations certainly read like the transaction in question can’t be the one that creates the attorney-client relationship itself. That seems like a pretty big thing to parenthetically speak into existence in this ethics opinion.

Friday Follow Up: TIKD off at the Wisconsin judicial system

Just two short items by way of follow up from pieces I’ve written about in the past here.

First, I’ve written several different posts about the saga down in Florida that appeared to be one of the first big disputes – post the U.S. Supreme Court decision in the North Carolina Board of Dentistry case –  in which the rise of technology and alternative methods of delivering legal services to consumers would be pitted against traditional bar regulation with antitrust law issues serving as the rules of engagement.  You can read each of those older posts at the links above and this one right here too.

If you haven’t read any of those earlier posts, or don’t know the reference to the Florida litigation, TIKD is an app that you can put on your phone to use to resolve speeding tickets and similar moving violations without ever having to go to court yourself.  It arranges the retention of a lawyer for you and even provides you with a financial guarantee on cost and a promise to pay court fines for you if unsuccessful.  The company behind the app filed an antitrust lawsuit against The Florida Bar and a Florida law firm (The Ticket Clinic) challenging allegedly conspiratorial conduct designed to damage TIKD’s business operations.  I’ve focused so much on the dispute and what its ramifications might be that it would be a pretty big cop out not to mention the fact that the federal district court in Florida issued a 1-page order earlier this month granting the Florida Bar’s motion to dismiss the antitrust claims against it.

It is a classically unsatisfying order for an outsider to litigation to read because it offers no insight into its rationale other than to say it ruled that way based on the “reasons stated at the motions hearing.”  Having followed the events, I would think the reasons have to be a belief that, despite the fact that the Florida Bar regulators include market participants, the regulations they are enforcing are clearly delineated and emanate directly from the Florida Supreme Court.  Assuming there will be an appeal, then there may be more discussion of how this shook out, but, for now, it appears that TIKD’s shot at the regulatory framework in Florida ended up being full of sound and fury but signifying nothing.

Going much back further into the archives, you will find a couple of posts expressing frustration and outrage with a particular Wisconsin lawyer who became infamous (at least for a while) with the release of Netflix’s Making a Murderer documentary.  You can read my original thoughts on the awfulness that was Len Kachinsky’s way of practicing law here and here.

His was a name I was never hoping to run across again so it was quite a roller coaster of emotions to simultaneously learn that Kachinsky had been arrested and charged with stalking but to simultaneously learn he had been acquitted of the charge.  The roller coaster ride went even lower though at the moment the words I was reading about his employment situation fully engulfed me … he had become a municipal judge in Wisconsin.

WT actual F Wisconsin?  Are y’all not even trying?  How can that guy have failed upward into a position in your judiciary?  How is he allowed to preside over any case about any thing?  That’s just a travesty.

Nevada provides lawyers yet another reason not to blow their own horn online.

I have beaten the drum for many, many years now about lawyers not understanding the true scope of their obligation of confidentiality under rules patterned after ABA Model Rule 1.6.  The ability to quickly share information far and wide online has not been helpful to lawyers who lack that understanding.  I remain astounded at how lawyers do not seem to recognize the unnecessary risk they are taking on by touting achievements in particular cases online.

Now, of course, I’m not privy to discussions between those attorneys and their clients in advance of such efforts so, perhaps, everything I see is kosher because every time I see a lawyer engage in such conduct they have gotten their client’s consent to do so in advance.

Based on my experience over the past 20 years though, I’m highly skeptical of that.  What I think is much more likely is that because these sorts of things usually never amount to any disciplinary proceedings much less instances of public discipline, this just continues to be something that many lawyers do either on the basis that the risk is minimal compared to the perceived reward or on the basis that they don’t see any risk at all.

For some lawyers, it is the misunderstanding about how confidentiality functions that can be the problem as they either aren’t aware (or simply don’t care) about the counter-intuitive fact that a public jury verdict is still RPC 1.6 confidential information as far as the lawyer is concerned.  Those transgressions can likely be forgiven by most, if not all, involved.  But, particularly when the self-congratulatory efforts in question go beyond just providing information about a jury verdict and also opt to reveal information about pre-trial settlement negotiations, the egregious nature of the breach of confidentiality is nearly impossible to forgive.  And, thanks to the way the Internet works, it is certainly impossible to forget.

Just this week, I saw one of these posts from lawyers with whom I use to practice law blowing their own horn about a very large jury verdict and revealing what the settlement offer from the defense was before trial.  I hope that they were operating with the consent of their clients or, if they happen to be reading this, that they go and at least get retroactive consent from the client involved which is better than having never gotten consent at all.

As if the risk of discipline (even if perceived to be a small risk) wasn’t enough to discourage lawyers from self-congratulatory social media postings (and if you spend any time on social media you know that it isn’t enough to discourage most), the Nevada Supreme Court provides a new opinion in a piece of defamation litigation that ought to give lawyers another reason to think very, very carefully about blowing their own horn online.

In Patin v. Lee, the Nevada Supreme Court rejected the effort of a lawyer and a law firm to stop a defamation case brought against them by a dentist.  The dentist had been one of the opposing parties of the firm’s client in a dental malpractice case.  The lawyer and law firm tried through exercise of an anti-SLAPP motion to bring the defamation case to a quick end.  They were unsuccessful though as Nevada adopted California’s approach to determining whether something written online can be considered “in direct connection with an issue under consideration by a judicial body.”  If you aren’t familiar with the general concept of anti-SLAPP statutes, then such language is likely meaningless to you.  But, if you read the opinion it will give you a pretty efficient primer on the concept of anti-SLAPP statutes (SLAPP being an acronym for Strategic Lawsuits Against Public Participation). You can read that opinion right here

From a loss prevention standpoint, let me drill down on what is readily understandable in terms of the problematic conduct by the lawyer and law firm.  The lawyer represented a plaintiff in a dental malpractice lawsuit against three defendants – a dental group and two individual dentists.  The lawyer obtained a $3.4 million verdict in favor of the client against the dental group and one of the two individual dentists.  The jury verdict against the other dentist was one finding no liability.

There was some appellate wrangling in the malpractice case after the jury verdict but because the ultimate outcome on appeal did not change, that wrangling matters much less than what the lawyer and law firm decided to post on their website to tout their success in the case:

DENTAL MALPRACTICE/WRONGFUL DEATH – PLAINTIFF’S VERDICT $3.4M, 2014 Description; Singletary v. Ton Vinh Lee, DDS et al.

A dental malpractice-based wrongful death action that arose out of the death of Decedent Reginald Singletary following the extraction of the No. 32 wisdom tooth by Defendants on or about April 16, 2011.  Plaintiff sued the dental office, Summerlin Smiles, the owner, Ton Vinh Lee, DDS, and the treating dentists, Florida Traivai, DMD and Jai Park, DDS, on behalf of the Estate, herself and minor son.

The problem with this self-congratulatory post on the firm’s website — separate and apart from the normal questions that might be asked about whether the clients were consulted and consented before the post was made — is that it doesn’t mention that Dr. Lee — the person named in the caption headline and in the body of the update — was the individual dentist found by the jury to have no liability.  That dentist, in turn, is who sued the lawyer and law firm for defamation because a reader of the post in question would reasonably think that Dr. Lee had been on the wrong end of a $3.4 million jury verdict.

Those that know me know that I am not much for dropping Bible quotes but, even I have to say that this would be a pretty good place to drop Proverbs 27:2 – “Let another praise you, and not your own mouth….”

Friday Follow-Up: Florida Finds Facebook Friendship Fine

You’ve probably heard this news by now.  But, it’s Friday and I wrote about this before, so … I feel a sense of obligation to follow-up.

The Florida Supreme Court ruled yesterday that the fact that a judge is Facebook friends with a lawyer appearing before her in a litigated matter is not alone sufficient to justify disqualification of the judge.  You can read lots of good articles providing summary treatment of this decision.  I’d recommend this one from the folks at Bloomberg/BNA.

The majority certainly got to what I strongly believe is the right result.  And, the core of the correctness of that result lies in these six sentences which I have admittedly spliced together from different parts of the majority opinion:

[T]he mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature. Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.”  Therefore, the mere existence of a Facebook “friendship” between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship.

I’m writing today about this more to make three points that I feel like have to be said out loud.

  1.  I can’t believe it was a 4-3 decision and that three justices of the Florida Supreme Court were willing to sign their names to the following position:  “The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted.”
  2. I’m even a bit more amazed that the concurring opinion (“I concur with the majority opinion. However, I write to strongly urge judges
    not to participate in Facebook.”) demonstrates a majority of the Court (4 justices) believes that judges simply shouldn’t be on Facebook at all.  There are legitimate reasons why maybe all of us should delete Facebook, but the reasons espoused by the dissent and concurrence aren’t among them.
  3. If you are in a band and aren’t actively considering naming it, or changing its existing name to,”Friends of an Indeterminate Nature,” then I don’t really think I can ever understand you.

One thing that lawyers and judges have in common.

People often think of lawyers and judges differently.  And, to a large extent, they should.  In almost every situation, someone cannot become a judge without having been a lawyer first.  But once a lawyer transforms into a judge, their role in the judicial system becomes radically different and they now have a new set of ethics rules to which they have to comply.

Yet, lawyers who become judges are still human beings and lawyers who become judges can be plagued by some of the same flawed aspects of being human as lawyers who never become judges.

This post for your Friday wants to offer up 4 very recent examples – 2 involving lawyers and 2 involving judges – of human beings all demonstrating the same variation of a common flaw:  Not knowing when to simply not say stupid things out loud (or in digital format).

On back-to-back days earlier this week, The ABA Journal online had stories about two different lawyers (who likely would have hit it off if they knew each other) getting in trouble for communications to or about clients that were roughly equally ill-advised although they involved the use of two different means of electronic communication.

The first was a New Jersey lawyer who has now been publicly censured over a text communication to a criminal defense client.  The client in question had ceased paying the lawyer and the lawyer had tried on two occasions to be granted leave to withdraw but was unsuccessful as the court denied the withdrawal motions.  Despite being stuck with having to pursue the representation (or perhaps because of it), the lawyer sent a text to his client that the ABA Journal described as follows:

In a text, Terry told the client he wouldn’t prepare in the weekend before the trial without getting paid first. Then he wrote, in all capital letters: “HAVE FUN IN PRISON.”

That text ultimately did manage to get the lawyer out of the case as the client showed it to the judge and the judge then removed the lawyer as counsel.  But it also resulted in the public censure.  At core, the ethics rule the lawyer was deemed to have violated was a conflict of interest rule by placing his own personal interest in getting paid ahead of his obligation to diligently represent the client.

The second was an Iowa lawyer who allowed himself to get too worked up on Facebook — enough to publicly disparage a client.  While, as things currently stand, the lawyer has only been the subject of negative publicity, it remains a real possibility that a disciplinary proceeding could be part of the lawyer’s future.  The ABA Journal treatment of the core of what happened is pretty succinct so I’ll just offer it up for your reading:

In the post, Frese told of a meeting to help prepare a client for trial on federal drug and gun charges. The client told Frese he would have a hard time connecting with blue-collar jurors because he hadn’t “had to work for anything in your life.”

Frese wrote that he was “flabbergasted” by the comment because anyone who knows him is aware of his modest background. Frese wrote that the man is an “idiot and a terrible criminal.”

“He needed to shut his mouth because he was the dumbest person in the conversation by 100 times,” Frese wrote. “You wonder why we need jails huh?”

The lawyer deleted the post in question after he was contacted by the Associated Press about it.  The article points out that the AP was able to piece together from what was written exactly who the lawyer was talking about even though the lawyer didn’t use the name of the client in the post.  The Iowa lawyer’s story highlights one of many reasons why lawyers shouldn’t be writing about their client’s matters without express and clear consent from their client.  Of course, technically, the lawyer made the situation even worse by what it is reported that he said to the AP when contacted:

Frese told AP that he told the client he was in jail because he was terrible at what he did, and they left the meeting on good terms. He didn’t immediately respond to a voicemail from the ABA Journal seeking comment.

On the judicial front, Law360 had two examples reported on the same day of judges demonstrating problems with communications as well.  One of the judges in question also hails from New Jersey.  That judge, as Law360 explained, was censured for inappropriately making certain when communicating to court staff about his own personal child support case to emphasize his status as a judge.  This came across as an obvious attempt to use his judicial office to achieve special treatment.  The other judge highlighted in Law360 this week ended up later engaging in actual conduct that was much worse than the original communications but still also managed to allow the ready access of text messaging to start him down the bad path.  As with most Law360 articles, you will need a subscription to read the full article, but you can get a strong sense of the Jeopardy category of wrongdoing from the opening blurb which explains the circumstances for which he was now offering an apology to a state ethics body in an attempt to avoid discipline:

An ex-Pennsylvania judge facing discipline for exchanging sexually explicit text messages and eventually sleeping with the girlfriend of a man participating in a court-mandated rehab program he oversaw ….

These are, unfortunately, not earth-shattering examples of “new” problems in the human condition.  They do though tend to highlight how much easier modern technology makes it for well-educated professionals to somehow make really poor judgment calls when technology makes it easy to do so and to do so rapidly.

 

The intersection of the ethics rules and the GDPR “right to be forgotten”

Although today is Halloween in my part of the world, I am not offering any spooky content.  I thought about trying to replace all mentions of Maryland in this post with Scaryland, but that just seemed like I was trying too hard.

In fact, I’m a bit torn about even writing about this particular topic because I’m really of two minds in all respects about what to say about Maryland becoming the first U.S. jurisdiction to issue an ethics opinion attempting to wrestle with any aspect of the EU’s General Data Protection Regulation (“GDPR”).

On the one hand, it seems like Maryland ought to be applauded for trying to be on the leading edge of issues of concern and many lawyers (and their firms) are struggling with exactly what GDPR might require of them.

On the other hand, the core premise of the inquiry being addressed involves an assumption about a legal question — not an ethics issue — and is the kind of thing ethics-opinion-writing bodies likely ought to stay away from.

Lots of commentators will give ethics-opinion-writing bodies grief for not, for example, striving to apply Constitutional issues when issuing opinions about the ethics rules.  I’ve probably done that myself in the past.  But, on the whole, more trouble for lawyers can likely come from ethics opinions straying outside the lines and getting a legal issue altogether wrong.

That might or might not have been how it would have shaken out if the Maryland State Bar Association Committee on Ethics had fully committed to trying to figure out whether the premise of the question posed to it in Opinion No. 2018-06 was even how the GDPR would work in the circumstances.

Instead, the committee flagged for the reader the possibility that the GDPR would not require the lawyer to respect the request to be forgotten at all but offered up what is, on the whole, pretty sound guidance that lawyers can bear in mind as to this and similar questions as other jurisdictions start adopting new privacy laws and regulations that may hit closer to home than the GDPR.

The question posed relied on the premise that a former client, if a citizen of the EU, could exercise the “right to be forgotten” by demanding the lawyer delete data about the person and, thereby, cause the lawyer to delete information that would otherwise protect the lawyer in terms of conflict checking in the future to avoid taking on a new client or matter that would involve an unethical conflict of interest as to the former client representation.

The core of the guidance ultimately given – again explicitly premised on assuming that it might ever be necessary – is this:

If a former client asks an attorney to delete the information needed to manage conflicts of interest, and the GDPR requires the attorney do so, we believe that the client’s request can act as a waiver of conflicts that could have been discovered had the data been retained if: (1) the firm provides written advice to the former client that fully informs the former client that deleting the information could result in a conflict and that by requiring such deletion the client consents to the firm’s potential future representation of other clients with conflicts that might have otherwise have been discovered, and (2) none of the attorneys who handle the matter for the firm have any retained knowledge of the former client’s information.

That’s pretty good guidance, actually.

It probably would have been better though if they hadn’t imposed quite so large a burden of communication and advice to the firm in response to the former client.  I think that simply saying that any such request from a former client can be treated by the firm as equivalent to a waiver on the basis that a former client cannot demand that s/he be forgotten and then try to later claim the “forgotten” relationship presents a conflict.

You can read the full Maryland opinion here.

And, if you are interested in more opportunities to hear me try to talk intelligently about what the GDPR does actually mean for U.S. lawyers, I’ll be participating in a panel discussion in Washington, D.C. on November 9 as part of a joint program presented by APRL and the Law Society of England and Wales.  If you’re interested, you can register at this link.

ABA Confirms that Model Rule 1.15 Should Solve What Model Rule 4.4 Doesn’t

So, I am certain you have heard by now that a little under a week ago the ABA issued a new Formal Ethics Opinion to address the ethical obligations of lawyers in the aftermath of a cyber-attack or an electronic data breach.  ABA Opinion 483 makes for a good read and provides good guidance about how the ethics rules work on the subject.

There are lots of decent summaries out there already of this ethics opinion if you want to try the tl:dr approach and just read secondary sources.  I am not going to repeat those summaries here.  Instead, I want to focus on what is, to me and perhaps only me, the most important development that ought to come from this opinion — the recognition by the ABA that “property” in Model Rule 1.15 has to also include digital property.

In the latest ABA Opinion, this issue is addressed with an eye toward thinking about electronic copies of client files, specifically as follows:

An open question exists whether Model Rule 1.15’s reference to “property” includes information stored in electronic form.  Comment [1] uses as examples “securities” and “property” that should be kept separate from the lawyer’s “business and personal property.”  That language suggests Rule 1.15 is limited to tangible property which can be physically segregated.  On the other hand, many courts have moved to electronic filing and law firms routinely use email and electronic document formats to image or transfer information.  Reading Rule 1.15’s safeguarding obligation to apply to hard copy client files but not electronic client files is not a reasonable reading of the Rule.

Now, why is this such an important takeaway to me?  Well, myopia often flows from the egocentric nature of people and I am no exception.  This is an important takeaway to me because I’ve been trying to make this point in an entirely different context – and to little avail — since 2010 when I co-authored an article entitled: “Model Rule 1.15: The Elegant Solution to the Problem of Purloined Documents” published in the ABA/BNA Lawyers’ Manual on Professional Conduct.  Now that article – which you can still find here — was itself an excerpt of part of a chapter of a book I was also fortunate enough to co-author with Doug Richmond that came out in 2011.  The “Elegant Solution” article explained that the lack of guidance offered by Model Rule 4.4(b) on what a lawyer must do if they receive stolen documents (whether on paper or electronically) should be resolved by application of Model Rule 1.15 and the obligations lawyers have under subsections (d) and (e) of that rule.

There are likely lots of reasons why that article has been largely ignored – and when not ignored treated as offering a controversial view to be shunned — but the primary one is that Model Rule 4.4(b) becomes a bit unnecessary as a rule if such questions could have been resolved under Model Rule 1.15.

Model Rule 4.4(b) reads:

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Model Rule 4.4(b) only addresses information that a lawyer receives that is known to have been inadvertently sent and only requires the receiving lawyer to give notice to the sending lawyer of what has happened.  It does not address information sent purposely but without authorization, and it punts on what comes next.

In the “Elegant Solution” article, we explained why Rule 1.15 provided answers to the questions Model Rule 4.4(b) won’t address and, particularly in light of this latest ethics opinion recognizing the need for Model Rule 1.15 to apply to digital information, I think our explanation is worth repeating to close out this post:

The Model Rules do, in fact, appear to offer an elegant answer for lawyers who question
their professional responsibilities when they receive documents that may have been purloined or otherwise improperly obtained from another. The answer lies in Model Rule 1.15 and its provisions establishing lawyers’ obligations with respect to ‘‘safekeeping property.’’ See Model Rules of Prof’l Conduct R. 1.15 (2010).  Although lawyers are generally familiar with Rule 1.15 in the trust account context, the scope of the rule is clearly not so limited, as amply evidenced by its repeated references not just to funds or fees or expenses, but also to ‘‘property.’’

Model Rule 1.15(a) declares that ‘‘[a] lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property.’’ Id. R. 1.15(a) (emphasis added). Model Rule 1.15(d) further requires that ‘‘[u]pon 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.’’ Id. R. 1.15(d) (emphasis added). Finally, Model Rule 1.15(e) mandates that ‘‘[w]hen in the course of the representation
a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer)
claim interests, the property shall be kept separate by the lawyer until the dispute is resolved.’’ Id. R. 1.15(e) (emphasis added).

Analysis of over-the-transom deliveries through the lens of Rule 1.15 establishes that a lawyer, upon receiving purloined documents (or if not clearly purloined at least clearly reflecting privileged or confidential information belonging to someone other than the person who delivered the documents), is obligated to hold those documents separate from the rest of the lawyer’s documents, promptly notify the person from whom the documents were taken, and, if the lawyer is going to refuse to return the documents to that person (and thereby claim either that the lawyer or the lawyer’s client has an interest in them), continue to keep those documents segregated from the rest of the lawyer’s property until the dispute over the documents is resolved,
presumably through a ruling by a tribunal. This approach places no meaningful burden on the receiving lawyer and respects the rights of the party to whom the materials belong.

Yet another reason for change. Pretty much the most serious reason.

So there are things that can really make you feel small.  And there are things that can really lead to despair and a feeling of helplessness.  Fortunately, there are few things that do both at once.  The report from the Intergovernmental Panel on Climate Change can do both of those things pretty simply.  If you haven’t read it, or at least parts of it, you can do so at this link.  If you don’t want to read the report itself (or parts of it), then you can go read one of the many articles discussing at length its sobering warnings of what the future (the close-enough-future that we can imagine ourselves in it pretty easily) here or here or here for example.

You really ought to read as much about it as you can because, to a pretty significant extent, whether we have a habitable planet is just about all that really matters.  And, though the more you digest the news about the situation the easier it is to feel small and helpless, the reaction needs to be significantly different from that.

Why am I writing about this at a legal ethics blog?  (Beyond the cop-out sort of reason in which I would tell you it feels a bit petty to write about anything else given the stakes, of course.)  Well, it isn’t because lawyers are somehow going to save us from this outcome.  For every lawyer out there who lobbies a state legislature to impose some new regulation to try to reduce carbon emissions, there will be another lawyer who ends up representing the industry that seeks to challenge that legislation in court.  That’s the nature of our profession.

But, our profession can try to do a few things to not be part of making the problem worse.

A lot of the discussion about what the future of the practice of law is going to look like involves embracing technology and regulatory questions about ways in which the traditional approach to lawyer regulation may be stifling innovation that would ultimately benefit consumers of legal services.  In my opinion, all of that should continue as quickly as we can move the conversation forward.  But, as we try to talk about what the future of the profession should look like, we ought to be bearing in mind many of these much larger issues.

What can we do to make sure that technological solutions are used so that people in the court system do not have to make multiple, ultimately unnecessary, trips across town for court when nothing happens that couldn’t be handled over the telephone or by video conference or web stream if courts would permit that to occur?

What options should we be considering empowering so that fewer disputes go into the traditional court system at all if they could be resolved through online dispute resolution?  What can we do to try to better fashion courts into places that can themselves be resolving disputes online?

What can we do to persuade those remaining jurisdictions that have been unwilling to move to electronic filing to give up the fight and swiftly enact electronic filing?

Pursuit of these sorts of initiatives can save an incremental number of natural resources.

And, why can our profession readily get comfortable with relaxing the artificial barriers we impose on the ability of a lawyer licensed in one state to actively practice law in another state only in the aftermath of disasters?  Many states have issued ethics opinions in the wake of various weather disasters or passed court rules to permit flexibility for out-of-state lawyers to go to the disaster area and render legal assistance without fear of being accused of unauthorized practice of law.  My own state did so a few years back.

The ABA very recently just issued Formal Ethics Opinion 482 encouraging lawyers to be ready for disasters and to plan ahead to protect their own practice and protect their clients’ cases and matters from adverse impact in the wake of disasters.  The ethics opinion gives very good guidance and, perhaps, it gave that guidance far enough in advance of the devastating impact that Hurricane Michael is currently inflicting on a part of the world where my family has vacationed every summer for the last almost 20 years, Apalachicola and St. George Island, Florida, so that lawyers in that part of the world knew enough to have been prepared in advance.

The IPCC report presents a pretty clear indication of the coming disaster if radical change is not undertaken.  Overhauling the regulation of the legal system to remove artificial barriers to cross-border practice and barriers that prevent technology from making it easier for clients to find lawyers and for lawyers to practice law without unnecessarily wasting resources seem like some things that amount to the least our profession can do to not be part of making worst-case scenarios even more likely to come to pass.