Another ethics opinion that wouldn’t be required if all lawyers were good (or at least chaotic-neutral) lawyers.

There has been A LOT of stuff going on this week in the world of legal ethics. I will refrain from dedicating an entire post to try to tie this plea I made in a post back in December 2020 to these two developments, here and here.

Instead, I want to talk a little bit about a recent ethics opinion that comes out of Washington state and that address an unfortunately recurring issue that has unfortunately been made the subject matter of multiple ethics opinions which unfortunately also conflict with each other.

The Washington State Bar Association has issued Advisory Opinion 202201 that addresses a question regarding whether a lawyer’s communication with a represented opposing party violated RPC 4.2 when the communication occurs through using “reply all” on an email thread where the opposing party’s lawyer cc’d their client on a communication to the lawyer.

The opinion gets to, what I continue to believe is the absolute correct answer, it depends. But the factors on which it depends help demonstrate why this is not something lawyers should be doing unless they have reached a prior understanding with the opposing lawyer in question. The opinion offers helpful bullet points listing these kinds of factors, including the prior course of conduct of the parties and counsel and the nature and subject matter of the communication at issue.

The conclusion of the opinion essentially involves offering “best practice” guidance:

To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.

What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion. Of course, not all jurisdictions take the same view as Washington. Last year, New Jersey issued an ethics opinion on the topic that concludes that implied consent is always present when the sending lawyer includes their client as a cc in the communication with the other lawyer.

Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.)

Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.

And, in reference to the title of this post, the unfortunate reasons opinions like this continue to be necessary in no small part comes from the fact that there are lawyers out there that will purposefully cc a client on a communication in hopes of trapping the other lawyer into allegedly unethical conduct by replying without removing the client from the thread and, likewise, there are lawyers out there that will take advantage of a reply all with the other lawyer’s client to talk about subject matter other than what the thread involves.

Don’t be those lawyers.

Should racists be permitted to practice law?

This is a question I’ve asked in the past. It is not instinctively an easy question to wrestle with. It can easily boil over into various slippery-slope arguments and accusations regarding risk of inviting concepts of the “thought police” and the like.

But another news item invites the question back into the arena for further discussion. This ABA Journal online story details efforts of two criminal defendants to seek relief from their convictions/guilty pleas because of information that has emerged indicating that the Massachusetts lawyer that represented them in their cases was a racist. That lawyer was appointed to and assigned to these cases through Massachusetts’ public defender agency.

In terms of the facts of the matter, there are at least two interesting wrinkles.

One, the lawyer in question has now passed away and cannot speak further in the matter to defend himself. Two, the proof of the asserted racism on the part of the deceased lawyers come from a variety of Facebook messages believed to be attributable to the deceased lawyer.

The posts in question are collected at the link above, but also appear in an affidavit filed by the public defender agency through which the lawyer was appointed to the cases. (Unless you are truly looking for offensive stuff to read, I would skip the link though.) As happens at a surprisingly frequent rate, these posts were easily accessible because the lawyer left his Facebook profile set to public access rather than limiting his posts to being viewed only by his Facebook friends.

Both of the defendants seeking relief — are African American males of the Islamic faith. One seeks leave to withdraw a guilty plea while the other is seeking a new trial in a case in which he was convicted of armed assault with intent to commit murder.

One of the avenues of pushback that arises in kicking around issues regarding whether racist beliefs are so inherently disqualifying for someone to be a lawyer or not tends to be lots of examples, both historical and verifiable and anecdotal, of lawyers being able to represent clients that they found to be repugnant or clients who had horrible racist or even genocidal views directed towards a class of people that would include the lawyer.

There is certainly no question that open-minded, non-racist lawyers are entirely capable of representing, for example, people who are racist. But those examples don’t really move the needle.

What there do not seem to be are examples of things working out well in the opposite direction. Examples of situations in which a racist attorney is able to competently and zealously represent a client who is a member of a group that the racist attorney hates and thinks is “lesser” than they are.

Now, are the lack of those examples simply a lack of data that is out there and exists — perhaps in part because there are few examples of people who are attorneys but who are open about their racist views? Or do such lawyers simply turn down all such cases where they would have to represent someone outside of the group with which they align themselves? (And that might be something they are simply required to do after all under RPC 1.16 and 1.7 if their own personal interests would create a significant risk of material limitation on the representation.) Or is the lack of such examples an inevitable consequence of the inherent problem?

There are obvious First Amendment concerns as the issuance of a law license is something done by the government and evaluating someone’s views that manifest themselves through speech can be problematic when it amounts to the government favoring one form of speech over another. But, aspiring lawyers already do face inquiries into character and fitness that sometimes can straddle that line in ways that the profession seems to tolerate and, of course, lawyers often have aspects of their First Amendment rights hampered by ethics rules when they are engaged in representing a client

Nevertheless, I’m still left pondering a variation of the question I left off with over 4 years ago:

Does empowering a racist by conferring a license to practice law on them something that is inherently prejudicial to the administration of justice?

“It’s Groundhog Day… again.”

This past week included one of our nation’s most heralded fake holidays. Groundhog’s Day. Silly occasion, but still a really good movie, of course. But, playing off of the theme of repeating events and disappointing outcomes, we return to the oft-discussed topic of lawyers trying to respond to online criticism.

We’ve covered in the past in these parts that the current version of the ethics rules, in any jurisdiction using the ABA Model approach to RPC 1.6, prohibits lawyers from responding to online criticism posted by clients or former clients, even if the criticism is off base. We’ve also talked about the fact that if the criticism comes from someone who wasn’t actually a client, then the ethics rules do not prohibit a lawyer from going online to respond. We’ve also talked about how if the person is a client or former client and they lie about you online, that you could try to sue them for defamation. As to all of those approaches, we’ve also stressed that there are practical problems with doing some of the things that you could do, including The Streisand Effect.

What we’ve never directly addressed is the “could” or “should” of deciding to respond to online criticism from someone who was never a client or nonclient by deciding to file a lawsuit for defamation. This was an approach that an Illinois lawyer tried but was unsuccessful at the trial court level, having the claims dismissed as not actionable. Within the past week or so, the Seventh Circuit has now affirmed that dismissal. You can read the ABA Journal article about the ruling here. If you have more time to delve into the matter, you can read the full Seventh Circuit opinion here.

Interestingly, the underlying story is both one of a pretty unsympathetic character (the lawyer) and a story in which the lawyer stepped into puddles of his own making both in how he responded to initial online criticism and then in attempting to turn his situation into a federal case.

This lawyer’s tale of Internet woe starts, as many do, with a round of activity on Facebook. In response to the tantalizing “What’s on your mind, David?” that Facebook lays out to prompt users to post, this lawyer wrote: “Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!” This initial statement was met with a good amount of negative feedback and criticism but limited to comments and replies in the Facebook thread itself.

The lawyer, however, proceeded to — in the words of the Seventh Circuit “double down” by responding in his comments thread with:

My business with Ukrainians will be done when they stop declaring bankruptcies. If this offends
your national pride, I suggest you look for underlying causes of why 9 out of 10 cleaning ladies we’ve had were Ukrainian and 9 out of 10 of my law school professors were not. Until then, if you don’t have a recommendation for a cleaning lady, feel free to take your comments somewhere else.

Now, the problems with this approach are varied, but they include the invitation to folks to branch out with where they provided their feedback. And branch out they did. The lawsuit explains that the people he offended with his anti-Ukrainian sentiments proceeded to the lawyer’s law firm Facebook page, his Google listing, and to Yelp to offer their opinions. The various statements ran the gamut from just 1-star reviews without comment, comments about the lawyer generally as a person, and some comments that negatively characterized his ability to be a lawyer since he was seen as being inappropriately prejudiced.

The lawyer filed a lawsuit in federal court for defamation against these posters and claiming a civil conspiracy. The opinion lays out examples of posts of the vaguer variety and those of a more specific variety, but, importantly, it does not appear that anyone he sued posted a statement that was clearly capable of being read as falsely indicating that the person had ever hired the lawyer and was commenting about something specific. Just about the closest any statements came to that was someone posting a 1-star review with the only feedback indicated being “awful customer service.” The courts at both levels were entirely unconvinced that anything that written online was something other than an unactionable expression of opinion.

Perhaps, best summarized in terms of the view of that particular court, and as food for thought for attorneys anytime they contemplate suing in similar circumstances, is this excerpt:

More fundamental, we must consider the particular social context of these online reviews and what it may signal about their contents. The defendants posted their reviews on Freydin’s Law Office’s Facebook, Yelp, and Google pages, which invite unfiltered comments. We trust that readers of online reviews are skeptical about what they read, both positive and negative. But it is enough in this case that these short reviews did not purport to provide any factual foundation and were clearly meant to express the opinions of the defendants in response to Freydin’s insults to Ukrainians generally.

Illinois, apparently, does not have any anti-SLAPP mechanism’s, or, if it does, they were not taken advantage of here, but in any state that does, this kind of lawsuit by a lawyer would likely face that additional hurdle as well.

Just another follow-up Friday.

Yes, if you are about the same age as me, you can sing that title to The Bangles tune of “Just another Manic Monday …”

So, this is a weirder follow up post as it follows up on something I posted in October 2021 but involves substantive content that came into existence in July 2021 and, thus, I really should have known about and mentioned in my October 2021 post. Does that feel like the sort of confusing timeline of events you might encounter if you are watching Archive 81 on Netflix and paying full attention or the sort of confusing timeline you could encounter if you are watching Dopesick on Hulu and a bit distracted so as not to see the numbers flash on the screen? If so, fair.

So here is the elaboration. Back in October 2021, I shared the video of my FRED talk from the APRL Annual Meeting discussing a variation of a kind of scam about which lawyers really need to be aware. What I didn’t know when I gave that talk is that The North Carolina State Bar had put out a comprehensive ethics opinion on the same topic in July 2021. That opinion, 2021-2, can be viewed in full here.

It is a particularly well-done and well thought out analysis of a number of varieties of the ways in which versions of this trust account scam can happen. But it is also noteworthy because it has a very good list of some “alerts” that exist out there that lawyers can digest and bring themselves up to speed. This excerpt from that opinion might be among the best takeaways from it:

State and federal agencies have alerted the public to the existence and persistence of these counterfeit check scams for some time. See, e.g.Counterfeit Check Scams, North Carolina Department of Justice, https://ncdoj.gov/protecting-consumers/sweepstakes-and-prizes/counterfeit-check-scams/; How to Spot, Avoid and Report Fake Check Scams, Federal Trade Commission, https://www.consumer.ftc.gov/articles/how-spot-avoid-and-report-fake-check-scams. Similarly, state and national bar associations, lawyer regulatory bodies, and malpractice carriers have reported on and alerted lawyers to the reality that such scams often target members of the legal profession. See, e.g.Six Indicted in $32M Internet Collection Scam That Snagged 80 Lawyers, ABA Journal (Nov. 22, 2010), https://www.abajournal.com/news/article/six_indicted_in_32m_internet_collection_scam_that_snagged_80_lawyers/; Counterfeit Check Scams Continue to Target Law Firms, California Bar Journal (January 2012), https://www.calbarjournal.com/January2012/TopHeadlines/TH6.aspx; New York City Bar Formal Ethics Opinion 2015-3, Lawyers Who Fall Victim to Internet Scams (April 22, 2015), https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-3-lawyers-who-fall-victim-to-internet-scams; Laura Loyek, Counterfeit Check Scams are Still Snaring Lawyers, Lawyers Mutual North Carolina (March 22, 2019), https://www.lawyersmutualnc.com/risk-management-resources/articles/counterfeit-check-scams-are-still-snaring-lawyers; Joanna Herzik, Scams Continue to Target Texas Attorneys, Texas Bar Blog (July 14, 2020), https://blog.texasbar.com/2020/07/articles/law-firms-and-legal-departments/scams-continue-to-target-texas-attorneys/; E-Mail Scams and Lawyer Trust Accounts, Illinois Attorney Registration and Disciplinary Commission, https://www.iardc.org/information/alert.html. The North Carolina State Bar has also published a number of warnings to the legal profession in North Carolina about these scams. See, e.g.New Variation of Fake Check Scam Targets Law Practices, North Carolina State Bar (December 6, 2010), /news-publications/news-notices/2010/12/fake-check-scam/; Bruno Demoli, Bruno’s Top Tips: Protect Yourself from Financial Con-Artists, North Carolina State Bar Journal (Fall 2011 pp. 34 & 37); Alert: Beware of Scams that Target NC Law Practices, North Carolina State Bar (January 8, 2016), /news-publications/news-notices/2016/01/scams-targeting-nc-law-practices/. These publications describe the scenarios associated with the scams and identify the relevant warning signs to assist lawyers in detecting and avoiding such scams.

So, if you have time, you should give it a read. And, if you don’t understand either of the television show references I made above, and you have even more time on your hands and subscriptions to those platforms, go watch those shows as they are both very, very good.

The thing about doing bad things on purpose…

Is that you have to be perfect about it pretty much all of the time.

I’m not going to tell you that there are only two kinds of people in the world because I know that kind of thing is only used as the set up to really good jokes. But among the various kinds of people in the world are people who follow the rules because they believe in rules and want to do right and people who only follow the rules because they are afraid of getting caught.

As to that second category, if they really think they can get away with breaking a rule they just might try. Another kind of person is the kind that has no problem flouting rules and sometimes does not even think about the consequences of getting caught.

I have no idea which kind of person the lawyer we are writing about today is but, regardless, this tale provides supporting evidence of two things: (1) the convenience of Zoom depositions does probably also increase the risk that lawyers will improperly try to coach witnesses if they think they can get away with it; and (2) the point made in my title plus introductory sentence … if you are going to do bad things on purpose you pretty much have to be perfect about it or you likely will get caught.

You can read the full opinion suspending this lawyer for 90 days for improper coaching of his client during a deposition here. His approach was not a very high-tech one but the one that I think many lawyers believe is going on when they suspect the other side of coaching during these kinds of depositions — he was sending text messages to his client. The opinion lays out the blunt nature of the “coaching” that the attorney (James) was doing with the client (Gray) during the questioning by the opposing counsel (Villaverde):

The following messages were exchanged between Gray and
James during Villaverde’s questioning of Gray:

10:19 a.m. (James): You don’t
10:20 a.m. (James): As to settlement checks expiration
10:20 a.m. (James): You remember the deposition but not discussing checks
10:20 a.m. (James): yes
10:21 a.m. (James): Just review notes from 02/20/2018 forward
10:23 a.m. (James): Be careful just say
10:23 a.m. (James): You may not see today
10:25 a.m. (James): Take a break in 15 minutes?
10:25 a.m. (Gray): Up to you

The opinion also details how all this misconduct came to light. So, in a development that some might say actually does shed light on which type of person this lawyer is, after 10:25 a.m., opposing counsel called out what he heard as typing during the deposition and confronted the lawyer and the witness about whether they were texting each other during the deposition. They denied the allegation and the lawyer claimed he was only receiving a text from his daughter. All the same opposing counsel requested that the lawyer put his phone away and the lawyer agreed.

Then after a break, the lawyer sent the following text messages:

11:53 a.m. (James): Just say it anyway
11:53 a.m. (James): Just say 03/28
11:54 a.m. (James): In addition to the 03/28/2018 email
containing the signed release I show . . .
11:55 a.m. (James): Don’t give an absolute answer
11:55 a.m. (James): All I can see at this time but I cannot rule out existence
11:55 a.m. (James): It’s a trap
11:56 a.m. (James): Then say that is my best answer at this time.

The text messages above, however, were somehow sent to the opposing counsel instead of the lawyer’s client. Once the opposing counsel checked his phone and saw the messages, the jig was up, and the result was the 90-day suspension for violating RPC 3.4(a) because coaching a witness about how to testify during ongoing deposition testimony is easily understood as “unlawfully obstruct[ing] another party’s access to evidence….”

Now above I mentioned that this case likely will confirm suspicions lawyers have that Zoom depositions bring a greater risk of “cheating” by the lawyers involved. In fairness, that is something of a pretty big leap because, in case you were wondering, the deposition involved in this case happened back in 2018 and occurred over the telephone, not on Zoom during the pandemic.

It’s another fine day to abolish the bar exam.

Now is another of the various times of year throughout the nation when law school graduates finish waiting anxiously for bar results and find out whether they passed and get the opportunity to start digging their way out of the debt they amassed in law school or failed and, thus, have to wrestle with the “sunk cost” fallacy and decide whether to amass some more debt to take another shot at passing the exam.

I’ve written a little bit before about how I’ve come to conclude that the bar exam needs to be abolished. I have admittedly not always felt this way but have come to the position over time and (I happen to think) because of growth and a better appreciation for the fact that it is a test that does not measure in any meaningful respect whether the examinee has the skills to be a competent attorney.

That was true even before the pandemic and the “pivot” from in-person exams to online undertakings but has become even more undeniable over these last 18 months.

Very, very little of the work of an attorney involves memorizing things and knowing answers off the top of one’s head. Success during a law school career spread out over three years is a much more reliable indicator of whether someone should be issued a law license. Now that states have had to partner up with software companies to administer the bar exam remotely — an opportunity that could have been used as a perfect vehicle for shifting what is tested to an open-book format that might better test the skills that an actual lawyer would have to use going forward has instead become a test of resources and sometimes just endurance.

Over the pandemic there have been a variety of news articles about the plight endured by folks taking the bar exam online. To the extent those stories ever mentioned litigation it involved efforts before an exam occurred to try to stop it from happening under certain terms and conditions or various kinds of petitions under state procedures to try to convince courts to grant a diploma privilege in lieu of requiring the exam take place.

What you do not hear a lot about is any efforts to sue by someone who fails the bar exam to seek a court ruling that they should be considered to have passed instead. There is a very good reason for that. Most states strictly circumscribe the grounds upon which the outcome of the grading of a bar exam can be challenged.

As an example, here in Tennessee, Tenn. Sup. Ct. R. 7 takes great pains in explaining the various mechanisms for seeking to have the Tennessee Supreme Court review actions of our Board of Law Examiners that are believed to have aggrieved someone seeking their license to make clear that the decision about whether you obtained a passing score is not reviewable.

Sec. 13.02. Petitions to Board.

(a) Any person who is aggrieved by any action of the Board involving or arising from the enforcement of this Rule, other than failure to pass the bar examination or a determination that an applicant has not completed the application process for an examination, may petition the Board for such relief as is within the jurisdiction of the Board to grant.

(emphasis added)

ARTICLE XIV. REVIEW OF BOARD DECISIONS

Sec. 14.01. Petition for Review.

Any person aggrieved by any action of the Board may petition the Supreme Court for a review thereof as under the common law writ of certiorari, unless otherwise expressly precluded from doing so under this Rule. 

Sec. 14.04. No Review of Failure to Pass Bar Examination.

The only remedy afforded for a grievance for failure to pass the bar examination shall be the right to re-examination as herein provided.

Now, at a surface level, this makes perfect sense because absent such a restriction you could foresee graduates seeking a redo of a subjective process – grading – in court. But, given the kinds of technological failures that are coming to light from the less-than-ideal approaches being taken to online examinations and approaches to remote proctoring when the exam is administered online, the notion that asking courts to step-in and change unfair failing grades to passing grades is verboten seems worthy of some reconsideration.

And with all of that as a pretty lengthy prologue, that brings me around to what prompted these thoughts today — this story about a graduate who missed a passing score on the remote bar exam by 5 points and has filed a petition in Arizona seeking a law license because, while he was taking the exam, the software crashed, costing him the time it took to reboot his computer and that caused him to have to redo the portion of an answer he was working on. Importantly, the graduate’s score on the portion of the exam being worked on at the time of the crash was significantly lower than the score obtained on the other portions.

This kind of lawsuit can potentially be filed in any state – even in the face of a Court’s own rules seeking to handcuff itself – in reliance upon the inherent authority that the highest court of any jurisdiction has to determine who should, or should not, receive a law license. But interestingly in Arizona at least, the relevant rule appears to provide some wiggle room for directly challenging whether a passing grade was obtained.

As the Petition itself explains, Arizona Sup. Ct. R. 35(d) provides that “the Committee on Examination’s decision regarding any applicant’s grade score is final and will not be reviewed by the Court absent extraordinary circumstances.”

Hopefully, before there become enough instances of this type of outcome becoming “ordinary” circumstances, this applicant’s challenge will be successful and other jurisdictions will thoughtfully tackle the entire question of what purpose does the bar exam actually serve.

The scams evolve. So too must lawyers.

I mentioned in a prior post that I was going to be fortunate enough to preside over the first in-person meeting of APRL in many, many moons last week.

I’ve also written in the past about APRL has begun working into its programming items we call “Fred Talks.” These are Focused. Rapid. Ethics. Discussions. Shorter and snappier presentations focused on an ethics issue or topic that is of interest but that might not justify a longer presentation than 10-12 minutes of time.

I think APRL’s program in Chicago went pretty well, and we avoided most technological glitches that might come from something of a hybridized program. It wasn’t a true hybrid as large parts of the program were simply available as a live stream to online attendees. But, I think it went fairly well.

At least it did up until it was time for me to present by own Fred Talk. That’s when things melted down. So, as promised to attendees, here is my Fred Talk on a new iteration of a potentially very devastating (and pretty sophisticated) scam that is targeting lawyers.

Florida is a hopeless place.

No, I’m not going to have to get into talking about that it has a joke of a governor and has been actively trying to not make decisions in the best interest of public health during a crisis.

I’m just going to focus on two developments in the legal ethics space that have occurred in the last 24-48 hours.

First, in something that will be given short shrift because of the second development, the Florida Bar has advanced a proposal to revise its rules to establish that disciplinary complaints filed by judges against lawyers should be entitled to greater weight than other complaints. I have defended many lawyers in disciplinary proceedings. I have defended lawyers when complaints were filed against them by judges. The fact that a judge has filed a complaint against a lawyer does not inherently mean that the complaint should be entitled to more weight nor that it should be harder to convince disciplinary counsel to drop the complaint. This kind of proposal is problematic on at least two levels – One is that it becomes ripe for abuse by judges. But the other is that it inherently indicates an existing flawed process must exist already. Either you have a mechanism for enforcing discipline that can appropriately investigate and evaluate a complaint to determine if it should be pursued or you don’t. If you tell the public that complaints from certain categories of people need to get special treatment, then you don’t.

Second, you might recall many years ago I wrote a series of posts about the TIKD app down in Florida and its fight with regulatory authorities. What you might find crazy is that up until today the Florida Supreme Court had not gotten around to ruling on the question of whether TIKD was engaged in UPL. Well, the Florida Supreme Court ruled today and what you might find even crazier is that they concluded that the TIKD app was UPL and entered an order permanently enjoining it from operation. The Florida Supreme Court did this even though that the referee that initially heard the matter granted summary judgment in favor of TIKD. Madness.

Three justices attempted to stave off this madness in their well-done dissent. That part of the opinion starts at p. 21 of the link above.

If you don’t have the time to read that part, the following two snippets would tell you what you need to know:

TIKD formulated no legal strategy. It gathered no evidence. It filed no court papers. It made no court appearances, no arguments to a judge or jury. Other than in explaining its offerings on its website, it answered no questions. It did not, because it could not, promise its customers that their communications would be privileged. In short, if you had hired TIKD to solve your legal problem and received only what the company offered—without the
services of the member of The Florida Bar it helped you find—you probably would have wanted your money back.

That is because TIKD offered not legal services, but a business proposition: hire a lawyer we introduce, at a fee we set, and you will not bear the risk that the lawyer’s services, or indeed your ticket, will cost you more than our fee. Offering that bargain does not constitute the practice of law, and thus cannot have constituted the unauthorized practice of law. Because today’s decision reaches well beyond our constitutional mandate to “regulate the admission of persons to the practice of law and the discipline of persons admitted[,]” art. V, § 15, Fla. Const., and into the business arrangements of people trying to solve their legal problems, I respectfully dissent.

If you ever wanted to think about just how difficult the task of regulating the practice of law will be and how entrenched some mindsets are within the bar and the judiciary, today is the kind of day to mull it over.

NFT = No From Tennessee

I am about to write a series of statements that are each fairly described as, if you will allow me to use the technical, legal term, “bananas.”

  1. People with way too much money on their hands are spending actual money on things called Non-Fungible Tokens (“NFTs”). NFTs are – in laymen’s terms – unique electronic-only items ranging from the category of – at least somewhat understandable though overpriced – fan paraphernalia like the NBA’s Top Shot product to digital-only recreations of works of art that people are paying literally millions of dollars for.

2. The Tennessee Judicial Ethics Committee has issued an ethics opinion (Advisory Opinion 21-01) for Tennessee judges to advise that a judge cannot ethically agree to have their likeness used in an NFT that would be sold to raise money for a for-profit organization even if part of the funds raised would then be contributed to not-for-profit entities engaged in efforts to help provide better access to justice.

3. An actual company was proposing to create an NFT of the image of one or more Tennessee judges to auction off to the highest bidder under the premise that this would raise money and that some of the proceeds would then be able to be donated to Legal Aid entities and other charitable entities.

4. One of the reasons that the judicial ethics committee pointed to in explaining that it would be unethical for a judge in Tennessee to participate in the arrangement was the concern that members of the general public might perceive that the person who purchased the NFT of the judge’s image might have a position of influence over the judge.

Now, for the non “bananas” content, other than that last little bit that almost is more grounded in voodoo orthodoxy than the judicial ethics rules, the opinion reaches the correct result and gives the correct guidance that a judge cannot participate because they cannot lend their image to such a fundraising endeavor because of ethical prohibitions on abusing the prestige of judicial office to advance the economic interests of others.

So, in the end, this is good advice to Tennessee judges but, sakes alive, I can’t believe the question even came up.

I guess now the only thing left to know is how for how exactly much can I sell this NFT of Opinion 21-01 I’m about to create?

Brooding about ethics.

So, it’s been a minute or so since my last content. You’ve probably moved on and found a new favorite ethics blog. It’s probably Michael Kennedy’s actually, he’s been relentless with content in March 2021.

You might be wondering what has happened to keep me from writing over these last 20 or so days. First, it’s definitely not workload or client issues. Second, it’s definitely not a lack of things out there worth commenting on these last three weeks. Third, it’s definitely not the guy who’s been attacking my site trying to hack it. That just results in mildly annoying little emails telling me the person is hopelessly trying. (I know with about 99% certainty exactly who it is, but he’ll have to keep trying a bit more so that I can have exactly what I need to help his friendly local law enforcement officers confirm it’s him.)

No, it’s because of the cicadas. You might have read something about how, over the next few weeks, billions of Brood X cicadas will emerge after 17 years of hiding away. It’s always weird to see yourself talked about in the media – that’s been going on over the last few weeks as well in some other settings – but it’s really weird when an article refuses to acknowledge you by name. The Vox article linked above, and a few others, speak in terms of these billions of cicadas hearing “the call of Spring” and deciding to wake up.

I think this is the first time I’ve ever been called “the call of Spring.” If you think that billions of cicadas just all decide to wake up at roughly the same time on their own, you are pretty gullible. Somebody has to travel around and wake them up. And, let me tell you, it’s exhausting.

But anyway… it’s done now. So, for the sounds you are about to experience and cherish, you are welcome. Along the way, I’ve also managed to get two doses of Pfizer vaccine in me, so we should be well on our way to resuming normal, intermittent posting.

For today, let’s ease our way into it and offer some content about a topic that (of course) that Kennedy fellow has already managed to write about. A new proposed ethics opinion in Florida (a place I fortunately did not have to go to for any Brood X cicada wake-up calls) addressing the ethics of accepting client payments through various popular digital platforms like Venmo and others.

The proposed opinion issued by the Florida State Bar’s Professional Ethics Committee appears to be a largely commonsense approach to an inevitable development as such apps have arisen and that focuses, for the most part, on the same kinds of ethical issues that were looked at and resolved in the days when lawyers were “struggling” to figure out whether they could ethically accept payment of fees using credit cards — confidentiality issues and Rule 1.15 safeguarding of funds/trust accounting/commingling issues.

The confidentiality issues are certainly more complex than was true about credit cards because of some of the more social media style angles of certain payment apps, which is another point that Kennedy makes well in his post today that focused on the confidentiality issues in the opinion.

The opinion also addresses in detail what lawyers will have to do to ensure that payments received through such an app that are earned when received go to one type of account and payments to be held in trust go to another kind of account. Likewise, the opinion addresses the need to make sure that any “costs” of using the service – like transaction fees – do not get paid out of any trust funds being held by the lawyer.

You can get the full Proposed Advisory Opinion 21-2 here. Among the most valuable pieces of advice offered in the opinion though comes at the end in the form of something of a disclaimer:

Note: The discussion about specific applications in this opinion is based on the technology as it exists when this opinion is authored and does not purport to address all such available technology. Web-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.

Truer words and all of that, right? For example, the UI I had to deal with on the Cicada app? Don’t get me started.

More seriously, the forthcoming nature of this opinion was already on my radar screen, and the radar screen of all who attended the APRL mid-year meeting because we were fortunate enough to hear a “Fred” talk” from the Chair of the Florida Bar Professional Ethics Committee, Culver “Skip” Smith.

Interspersing our meeting with these “focused, rapid, ethics discussions” was something new APRL is trying. Skip’s “Fred” talk has been eclipsed by the release of the actual proposed opinion but let me end my return from a long slumber by offering you a link to another “Fred” talk that was given at our APRL mid-year meeting that I thought was excellent and that demonstrated some of the possible cool approaches these kinds of short talks can offer.

Give yourself 10 minutes or so this weekend and watch Joanna Storey of Hinshaw talk to you about whether miscommunication is inevitable.

Is Miscommunication Inevitable? Lessons Learned from Misunderstandings in Literature and Sitcoms – YouTube