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.

 

 




Neither a stalker nor a burglar be.

Matters of the heart have caused people lots of problems throughout the course of human history.  Matters of the heart, when the heart is located inside the chest of a lawyer, work pretty much the same way.

Of course, sometimes stories that, on the surface, seem like matters of the heart might be more fairly characterized as being really about the inability of men to avoid controlling or toxic behavior directed toward the women in their lives (or who used to be in their lives).

This post is about a story of a Pennsylvania lawyer who is now suspended from practice over really bad judgment flowing either from a matter of the heart or from the more toxic issue of controlling behavior.  I don’t know the back story or the people involved in any way so I don’t know which, but I have my suspicions.  The story itself makes for an interesting post (maybe?) over and above just being an example of a lawyer behaving badly because it offers another reminder of how aspects of the ethics rules can apply to a lawyer even when they aren’t practicing law, and it taught me that I apparently do not know the full extent of what can constitute burglary.

If this blog is on your reading list, you likely already have read at least one article about this suspended lawyer (hopefully this one) — but in case you haven’t the suspension flowed from his secretly putting a GPS tracking device on the back of his ex-girlfriend’s car and hiding an audio recording gadget insider her car (under the driver’s seat to be more specific) in order to spy on her in hopes of finding out who she was now dating.

To some extent, being suspended for a year followed by four more years of probation is a secondary problem professionally for this particular lawyer because he also will be serving probation in the criminal system for five years as result of a guilty plea to two felonies: criminal trespass and to something of a violation of a criminal wiretapping statute in Pennsylvania for the same conduct.

Because of the felony convictions, it should certainly come as no surprise that the ethics violations with which he was tagged include a violation of Pennsylvania’s Rule 8.4(b) – conduct involving the commission of a crime reflecting dishonesty.

His suspension was also premised on a violation of Rule 8.4(c) which is simply the general provision prohibiting lawyers from engaging in any conduct involving dishonesty or fraud.  I’ve written in the past about the problematic potential scope of Rule 8.4(c)’s prohibition for lawyers given that it is not in any way actually textually moored to representation of a client or even to conduct related to the practice of law.

This probably would not be the kind of case where a lawyer would get much traction trying to argue that applying that rule to this kind of conduct would amount to overreaching.

As promised above, the other tidbit of note – more just educational for me – is the notion that, although he didn’t plead to the charge, he was also charged with burglary under Pennsylvania law for what he did to his ex-girlfriend.  That’s a new one for me given that while he may have broken into her vehicle, he didn’t actually take anything out of it but instead left something inside of it.

Turns out, under Pennsylvania law, burglary is defined to be entering any building or occupied structure with the intent to commit a crime inside.  So, this must mean that for the charge against him to have been colorable, his ex-girlfriend’s car was inside a garage at the time he put the recording device inside.

So, while there are many lessons to take from the situation described above, hopefully for most of you reading this the most practical one — the one that addresses the thing you are most likely to do that would be bad — is to remember that if you do not regularly practice a particular area of law you probably don’t know as much about it as you think you do.

(Also, though I know you don’t need this reminder, once your significant other moves on, you should too.  And, even if you can’t, don’t stalk them.  Seriously.)




Making it up as you go (but for a good cause): Texas State Bar Op. 673

There has been something of a trend of late in terms of ethics opinions focusing on variations on the breadth of the duty of client confidentiality and the inconvenience it creates for lawyers who have bought in to the modern trend of sharing and oversharing when online.  There was this opinion from the ABA and then this opinion from the ABA, for example.

The latest opinion in this vein is Professional Ethics Committee for the State Bar of Texas Op. 673.  Except, it is only partially in this vein because, while it starts out heading down the path of explaining how the duty of client confidentiality might prohibit lawyers from being able to do something useful, it swerves away from what would be the likely conclusion in most jurisdictions.

Of course, it does so essentially by making up a justification nearly out of whole cloth but, if you’ve ever participated in, and benefited from, access to any kind of online forum or listserv frequented by lawyers, it reaches a conclusion for which Texas lawyers should be grateful.

The questions addressed in Op. 673 are:

  1.  Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client from other lawyers in an online discussion group?
  2. Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice for the benefit of the lawyer’s client through informal, direct consultation with another lawyer in a different firm?

The opinion then goes on to describe arrangements that will be familiar to anyone who has spent anytime on any sort of lawyer listserv or other social media group setting or online forum but also makes the point that lawyers reaching out to pick someone’s brain about an issue or perform “lazy person’s research” can also happen in the “meat space,” offline when one lawyer seeks out another lawyer’s input in a version of informal mentoring.

The Texas opinion squarely flags that the biggest concern for the asking lawyer in such scenarios is protecting the confidentiality of client information.  (Importantly, the opinion also does a nice job of flagging for the answering lawyer the most significant risks for her – potentially creating duties to the asking lawyer’s client or wittingly or unwittingly violating duties to her own other clients by helping the lawyer.)

Nevertheless, the opinion explains that the asking lawyer can proceed even if providing some background information that is likely to identify the client or situation is necessary in order to get the advice without violating the ethics rules as to the disclosure of confidential information.

It is the opinion of the Committee that Rules 1.05(d)(1) and (d)(2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.

This is where the Texas opinion is able to rely on two things.  One is a “creative” interpretation of the “implied authorization” aspect of the rule on client confidentiality that most jurisdictions also have.  (Texas Rule 1.05(d)(1)).  The other is a nuance in Texas’s rule that jurisdictions tracking the Model Rule don’t have at their disposal to justify this kind of lawyer-friendly (and not exactly consumer unfriendly) outcome.  (Texas Rule 1.05(d)(2)).

Starting with the second is the easy approach because it really is the most important thing to know to explain the outcome – Texas’s version of RPC 1.6 (which they have numbered as Rule 1.05) contains an exception (d)(2) that allows a lawyer to reveal information that is “confidential” but “unprivileged” when “the lawyer has reason to believe it is necessary to do so in order to ‘carry out the representation effectively.'”

For context, here is the entirety of Texas 1.05(d):

(d) A lawyer also may reveal unprivileged client information:

(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

Now, I could quibble with that word “necessary” and how seeking out assistance from an online discussion forum could ever be “necessary,” but I can admit to being a fan of outcome-determinative analysis when I’m a fan of the outcome.  (To be clear, I have always tried very hard when making use of any kind of online forum to not let any cats out of any bags in terms of actual whos, whats, and wheres.)

The fact that the Texas opinion still involves a “making-it-up-as-you-go” approach though comes through loud and clear by the fact that the opinion has to provide a set of numbered considerations spanning more than a full page to guide lawyers in deciding whether and how much confidential but unprivileged information could be disclosed.  If you want to work through those factors, you can do so at pages 2-4 of the actual opinion itself here.

In any jurisdiction that does not have something like Texas’s Rule 1.05(d)(2) though, getting to this kind of result is a lot more difficult since it involves having to try to push the envelope on the “implied authorization” aspect of Model Rule 1.6(a).

Yet, again, this kind of conduct is likely not anything that a client would complain about and often results in driving down the cost of the representation by gathering the wisdom of a crowd before spending hours on research so… as good a time as any to bring back up again my thoughts on how Model Rule 1.6 ought to be revised.




Information overload; summer struggles.

Mid-August often feels like summer doldrums.  Yet, there has been so much recent information of interest in the world of legal ethics that it is hard to keep up.  Thus, one can manage to feel simultaneously adrift and overloaded.

In that spirit (and because I am that “one”), here are a handful (plus 2) of laconic (if not insightful) entries about important things that have happened of late but that between the constant push/pull of overload and doldrums will not be written about here separately at any great length:

  1.  The competitive space in the legal industry impacted by developments in artificial intelligence and the continued push of providers of legal services other than law firms had a “you got your chocolate in my peanut butter” moment recently with the announcement that one of the Big 4 accounting firms – E&Y – was purchasing Riverview Law, which among other things is responsible for the AI product KIM.  You can read a pretty good summary of what this might mean in the short (and long) term at the first link above and here.
  2. A California Bar task force is undertaking exploration of whether to change rules to permit people other than lawyers to own legal services firms.  This move was prompted by a report the California Bar commissioned from a leading guru, Bill Henderson who you can keep up with here.   Though action from this report could be seismic for the legal profession the task force isn’t scheduled to provide any such report until the end of 2019 by which time, California might not actually be able at the rate things are going to “go first.”
  3. Utah is about to be able to be added to the list of U.S. jurisdictions that allow limited licensing of paralegals so that they can practice certain types of law similar to Washington’s set up for Limited License Legal Technicians (LLLTs).
  4. LegalZoom put out a press release about having received a secondary investment of half a billion dollars in a deal that values it at $2 billion dollars total.  (As the old joke goes, that is a tough amount of money to envision, so try thinking of a billion dollars as being represented by a one-hundred dollar bill and now imagine you had 2 of those!)
  5. A coalition of law firms (including law firm biggie Baker Hostetler – which you might recall as being the first major law firm to sign up with ROSS) and startups in the blockchain space have made a big announcement about an endeavor they intend to launch in October, as Forbes reports, to: “develop a new legal services platform called the Agreements Network. Originally revealed in April, the network is being designed to allow lawyers to perform tasks like managing contracts, leases, and governance documents via smart contracts that are compatible with the public ethereum blockchain.”
  6. The enacted-but-never-implemented “Persuader Rule” that I wrote some about many, many moons ago was rescinded by the Department of Labor, in part, having heard the concerns that were expressed by many over the harm it would inflict on attorney-client privilege and client confidentiality.
  7. And speaking of the intersection of government and legal ethics, the current occupant of The White House speaks of John Dean as if he were a villain in the story of Watergate.  For those of us who focus on legal ethics, and are familiar with the role that the events of Watergate played in the evolution of modern legal ethics, that is a pretty chilling piece of information.