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

It’s always easy to get distracted by the cat.

So, if you’re involved in the legal profession, one thing was guaranteed to make it into your email inbox or social media feed or both. And, no, it wasn’t even the atrocious lawyering that was on display in the defense in Washington, D.C. of a former social media influencer. It was undoubtedly the 34 second video from a Zoom hearing of a lawyer who was stuck using a cat filter and didn’t know how to disable it.

I am extremely confident that you’ve seen the video. I probably watched it at least 5 times yesterday and laughed pretty raucously each time. Everything about it is pretty seriously funny. Except for one part. That’s the part that I think needs to be discussed seriously and, so far, hasn’t been.

Now I’m not going to weigh in on the “tech competence for lawyers and ethics” piece, others have already rapidly covered that ground. You can read three of the better quick pieces here, here, and here.

No, I want to focus on a slightly larger issue for lawyering and a much larger issue for the public at large.

While all the humor was occurring in the bottom right square of the video, the upper left square had text of warning. (Now, admittedly, the warning may have been disregarded in order for all of us to have seen the video, but it was still there and presumably appears ubiquitously in proceedings in that particular court.)

The language of warning read:

394th Judicial District Court

Recording of this hearing or live stream is prohibited.

Violation may constitute contempt of court and result in a fine of up to $500 and a jail term of up to 180 days.

Excuse me?

Earlier in my career, along with normal litigation and legal ethics work, I represented a few media entities from time-to-time including work on access to courts issues so I can still remember many of the better quotations by heart, including this one:

What transpires in the courtroom is public property.

Now I remember the quote off the top of the dome, but have to look it up to be able to tell you the name of the U.S. Supreme Court case it comes from, which is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and, actually, is quoting an even older U.S. Supreme Court case, Craig v. Harney, 331 U.S. 367 (1947).

The pandemic has sown much chaos and disruption into our judicial system. This has been particularly difficult for people facing criminal charges as many have had to languish in prison for inability to take their case to trial in states where in-person judicial proceedings have continued to be prohibited because of the risk of transmission of the virus.

The ability to allow the business of the courts to continue through remote virtual proceedings has been a positive, but the cavalier nature in which courts are disregarding the issues associated with finding ways for the public to still have access to proceedings is not at all a positive for our system of justice.

While the restrictions on physical access to court proceedings where such in-person proceedings still take place can be justified on emergency grounds of being necessary for the protection of the actual, physical health of the public, presumptive restrictions on members of the public being able to monitor and watch judicial proceedings that are able to happen online are very unlikely to be justifiable as necessary at all. Such restrictions also are harmful to the health of our judicial system.

As another of the most important cases serving as the foundations of public access to judicial proceedings fleshes out, allowing for people to see and scrutinize trials and court proceedings “enhances the quality and safeguards the integrity of the fact finding process” and “fosters an appearance of fairness, thereby heightening public respect for the judicial process.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982).

The fact that our profession, 11 months into a pandemic, is being pretty blithe about the idea that the contents of public court hearings in February 2021 come with a broadcast threat that you could go to jail for recording them or sharing the contents of a live stream of them is not at all a good look for attorneys, judges, and the system.

The ethics rules in most jurisdictions (patterned after ABA Model Rule 6.4) make clear that lawyers are allowed to participate in judicial and legal reform efforts even if doing so might get you crosswise with the interests of clients you represent, I’d like to encourage lawyers out there to be more willing to do so to make certain that the increasing trend toward making what happens in court proceedings essentially private comes to an end.

Pennsylvania wins the race to be first with COVID-19 ethics guidance.

I’ve lived in Memphis since 5th grade at this point, but I was actually born in Pennsylvania. I’ll heed all the guidance making the rounds of social media about not sharing information that might be a security question somewhere and won’t tell you what city.

But a part of my heart will always be in Pennsylvania since part of me really grew up there. It’s also the reason why my sporting allegiances beyond the Memphis Grizzlies and Chelsea Football Club all involve Pittsburgh teams.

So, I feel somewhat proud that the Pennsylvania State Bar seems to be the first bar to put out a truly comprehensive ethics opinion attempting to give guidance to lawyers and law firms about their ongoing ethical duties during the pandemic and in dealing with the “new normal” of working remotely from home.

While typically Pennsylvania ethics opinions have been hard to get access to some times because they have historically restricted them, Bob Ambrogi seems to have gotten his hands on the full opinion in digital format, so I’m linking to it as his site here.

It is quite good and really quite thorough (and you probably have some time on your hands), so I’d encourage you to read the whole thing. It addresses a number of rules, including Pennsylvania’s version of the ethics rules on competence and supervising non-lawyer assistants.

I only want to highlight two things that it specifically addresses and one thing that it, unfortunately, does not say at all.

First, I think this is the first ethics opinion from any lawyer regulatory body that comes out so clearly to call out what happens with smart speakers and other “always on” listening devices. It links to a vox.com article to allege that Amazon’s Alexa device and the Google Home speaker actually do have people reviewing the recordings of what those devices pick up and encourages lawyers (and people who work for lawyers and law firms) to not have client conversations in rooms where those always listening devices are located. I cannot remember for certain and have run out of the mental bandwidth today to go searching but I think I’ve written before about how the epiphany is obvious once you have it that the only way such devices can recognize when you call out their name for assistance is that they have to be “listening” before their name is uttered, but your view of such items profoundly changes once you have the epiphany. For what it is worth, I’ve been doggedly adhering to this by trying to have all of my calls take place in one of two places in my house (and on my second-floor balcony) where such devices are not located. And, yet, there’s still my iPhone and Siri which presumably also is a vigilant digital assistant just waiting for me to say her name.

Second, I feel a little personally attacked by the guidance that is stressed about only going to websites that are “secure” in that they have the https: designation. You might notice that this blog is not such a site but also I don’t ask you for any information or try to sell you any products here, so please keep coming around.

And, finally, the one thing that the opinion does not say that I really wish it would have done is this: Pennsylvania’s rules, like Tennessee’s and most others, contain language in the Preamble/Scope to stress that the ethics rules are rules of reason and should be construed as such.

All of the guidance in the opinion is very good and particularly offers a very good clearinghouse of things that lawyers should be trying to do, if at all possible. At the same time though, given how difficult all of this is we should not be sending messages to the profession that we are going to make perfect the enemy of the good.

During these difficult times, my hope will be that mistakes that lawyers may make with respect to the confidentiality and safeguarding of information will be treated as fodder for disciplinary proceedings only in instances of truly reckless or grossly negligent conduct and not mere negligence caused from trying to accomplish what client’s need to get accomplished in circumstances of a prolonged emergency.

That, to me, is a highly practical but entirely timely application of what the rules mean when they say they are rules of reason. Along those lines, while not guidance from a state bar or regulatory entity itself, I also commend for your reading a piece put out by the Holland & Knight law firm that ultimately grabs the spirit of that aspect of the ethics rules to analyze some guidance that can be found in the Restatement of the Law Governing Lawyers.

Lawyers continue to struggle with tackling online negative reviews.

Today’s topic come up again for two different reasons. First, because the North Carolina State Bar has put out a new proposed ethics opinion seeking public comment about the topic. Second, because it was also discussed at one of the presentations made at the APRL mid-year meeting a week or so ago.

As the title of the post indicates, the topic is the ethical constraints on lawyers when faced with trying to respond to an online negative review posted by a client where they feel hard done and feel like, if allowed, they could demonstrate that the client’s negative allegations are unfair.

Proposed 2020 Formal Ethics Opinion 1 in North Carolina reaches roughly the same conclusion as the other ethics opinions issued on this topic: tread carefully because none of the confidentiality exceptions offered by RPC 1.6(b) are satisfied merely by the posting of an online review. Attempting to offer some practical advice, the proposed opinion says that the attorney can “post a proportional and restrained response that does not reveal any confidential information.” Given the broad scope of confidentiality under the ethics rules, this outcome offers little room for lawyers to offer much of a response. Perhaps recognizing that a bit, the opinion tries to find ways to authorize a lawyer to contest the negative review with denials while walking a fine line of not disclosing actual information by referencing some “generic” or limited denials that other ethics committees have proffered.

It’s a fine proposed ethics opinion in so far as it goes. (It’s also a good round-up of the opinions issued to date on this issue by other groups.) But it fails to fully wrestle with one ethical question it acknowledges is relevant and fails to address at all at least one interesting ethical question that ought to be the most relevant one of all.

It does address, in part, the meaning of certain language in Comment [11] to RPC 1.6 about a lawyer not being required to “await the commencement” of an action or proceeding to rely upon the self-defense exception. But it only focuses on it in one direction. Looking only to whether the disenchanted (or disingenuous if you believe the lawyer targeted) client is likely to pursue a proceeding, the opinion brushes aside that language as any justification for a lawyer on the basis that the client’s willingness to post a negative review does not alone demonstrate that the client is contemplating pursuing any formal proceeding against the lawyer.

But the opinion does not spend any time talking about the flipside, which was actually raised by an audience member at the APRL mid-year meeting I referenced above: What if the lawyer is the one contemplating pursuing a proceeding?

For example, some lawyers — lawyers who rely very heavily for work on their online presence and can be very badly damaged by a false review — may view the inability to respond to an online negative review as meaning that actually filing a suit for defamation against the client/former client is their only viable option. If they actually filed the suit, they’d be able to disclose information about the representation to make the case. So the logic goes, could they not begin to exercise that right of self-defense before they have commenced that proceeding?

Under that line of thinking, couldn’t they respond to the online review to contest the allegations, and indicate to the client that they will file suit for defamation if the client doesn’t retract the statements? I don’t think that works primarily because any such communication to the client about the review making that kind of demand before filing suit would have no need to occur publicly. In fact, it would seem reasonable to read the language in the Comment to RPC 1.6 exhorting lawyers to take certain steps, including seeking protective orders or filing matters under seal, even when pursuing litigation so as to keep reasonable disclosures of client information from unnecessary public dissemination as fundamentally contrary to such a course of public action prior to commencing such a suit.

The relevant ethical question that the opinion does not address at all is what a lawyer can do with respect to crafting a path for being able to respond through RPC 1.6(a) rather than RPC 1.6(b). As a practical matter, having written frequently about The Streisand Effect here in the past, I still believe that most of the time the best course for a lawyer is not to do anything to risk amplifying the megaphone the client has already obtained. Usually, engaging in a public skirmish with the person is only going to result in more people learning about the criticism, but I recognize that there are some lawyers who simply cannot afford the damage that can be caused to their business pipeline from negative online reviews.

For those lawyers, I think the only ethical path to get beyond offering platitudes and perfunctory denials would be to secure a client’s agreement, in advance, as part of an engagement contract that the lawyer may respond to any future online negative review that the client chooses to make.

Given that RPC 1.6(a) clearly allows lawyers to disclose information about their representation of a client if they have the client’s informed consent to do so. It seems to me that if the issue is described sufficiently on the front end, and the client agrees in advance that the price of going online to complain is that the lawyer can use information about the representation to respond to the complaint, then the requirement of informed consent can be satisfied. While it could feel very much like a truly awful first foot to put forward with a client by raising the issue, if the lawyer’s practice is such that the issue is that important, there also is a benefit to being up front with the person about it at the time that they are prospective client.

But maybe you all can tell me if I’m missing something in that respect?

WhatsApp at Atrium? A lot, but also WhatsApp with you?

Now, I’m certain the 5 or 6 of you still left who haven’t been alienated by the long hiatus are a bit miffed about the lack of content over the last couple of weeks.

Fair, but technically there has been new content posted to the blog first on January 10 and then on January 12, just not by me. Two interesting comments on this post of mine about Atrium Law were left by someone who — other news sources tell me – may well have been one of the lawyers laid off by Atrium in the past few weeks.

Now I’m not really in the breaking of legal news business as much as the commenting on breaking legal news business so the fact that I life and work conspired to cause me to miss the opportunity to be among the first to speak on that development is not so bad. My delay allows me to instead point you to a number of good pieces that have been written about the goings on over at Atrium. Try here, here, and here.

For today, I want to try getting slightly out in front of a different issue that needs to be relevant to lawyers struggling with finding the right balance for how to engage in electronic communications with clients on various platforms. While “scary” is an overused term in a world as unstable as ours and where wealth is unevenly distributed and people all over the world truly live in scary conditions, concerns associated with the security of communications platforms can at least be “scary” at the “world of lawyering” level.

With WhatsApp being a pretty prominent texting platform, particularly for international organizations, the news of one or possibly two very prominent apparent hacks through use of that platform should make lawyers very cautious about using it to communicate with clients. The one that seems more concrete is the news regarding Amazon’s CEO having been hacked by a Saudi Arabian royal through the sending of a link through WhatsApp. You can read a good article about that trending story here. That article also helpfully reminds users of the fact that a similar-sounding vulnerability was acknowledged and patched by the app in November 2019.

The more speculative story making the rounds ties together these stories about potentially improper use of personal devices and apps to pursue official White House business and the known friendship Jared Kushner and the particular Saudi Arabian royal involved in the alleged Jeff Bezos hack.

Now, others have written long ago about reasons to be concerned about whether this particular app can be used ethically at all given other issues that are known risks, like this article that was in Above the Law more almost a year ago.

Prominent news stories such as these raise the specter of concern over less obvious risks of use. Such risks tied in with the fact that almost every state now has adopted some version of the “ethical duty of technical competence” concept through embrace of language in paragraph [8] of the Comment to ABA Model Rule 1.1 just adds more fodder for lawyers to be wary of the risks associated with third-party platforms when communicating with clients and to be deliberate about deciding whether to address such concerns in advance through language in engagement agreements.

The perils of letting your clients speak for themselves.

I’ve been known in the past when writing or speaking about Model Rule 4.2 and the restrictions it imposes to make the point that our ethics rule treats grown up adults as incapable of making decisions for themselves. Mostly jokingly I make that point. When elaborating it is merely to focus on the idea that in order to protect clients from overreaching by adverse counsel the rule does not allow the client to make the decision it wishes to communicate with the lawyer for their adversary. The consent to allow such a communication to occur has to come from the lawyer for that person.

But, what can happen when a represented client decides to freelance and talk about their legal issues without the input of their counsel? Well, as luck would have it during this extremely historic week in the United States, we have an example that can be taught and learned from.

An example where the client made a public communication that could be described by those who read it as “incoherent,” “utterly frivolous,” “chock-full of impenetrable arguments and unsupported assertions,” “organized in ways that escape our understanding,” and that “capitalizes words seemingly at random.”

You probably know exactly what I am referring to.

What? No, I didn’t see that the third President in U.S. history to ever be impeached sent a letter out earlier this week that his lawyers didn’t bless. I’ll have to check that out.

No, I’m referring to a brief that was filed in the Seventh Circuit Court of Appeals by a represented party but that wasn’t actually authored or approved by the lawyer for the party.

The ABA Journal has a story about it here. You can give the two opinions of the Court of Appeals that resulted a read if you’d like here and here.

Though as both the article and the opinion stress in their own ways, the true problem for the lawyer involved in this situation, and the reason for sanctioning, was the decision to let the client’s filing appear as if it had been the work-product of the lawyer and not a pro se filing by the client. The Seventh Circuit was particularly chapped when it first ruled at the notion that an attorney was responsible for a “monstrosity of an appellate brief.”

The patently frivolous nature of this appeal isn’t the only thing that troubles us. The hopelessness of McCurry’s cause didn’t deter her lawyer, Jordan Hoffman, from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law.

That, in and of itself, is a rare variation on a topic much-discussed, and likely much more common, when a lawyer offers behind-the-scenes assistance to a client but then has the client make the filing pro se and without disclosing that a lawyer’s assistance was provided. That is a set of circumstances that can also bring about ire from a court but for entirely different reasons.

As a reminder to my Tennessee-based readers, we have a Formal Ethics Opinion addressing that particular ghostwriting issue, which you can refresh your memory about at this link.

Really good guidance, but not good enough for some.

While I’m catching up on things I should have managed to write about sooner, ABA Formal Ethics Op. 488 is deserving of a few words. That opinion was issued back in early September of this year. What particularly brought it to mind now was that it covers one of multiple topics I was lucky enough to get to talk about last weekend at that PilotLegis member meeting I mentioned in a post last week.

Opinion 488 is a very well written opinion covering the landscape of what the consequences for judges should be in situations where they have some sort of relationship with lawyers or parties appearing before them. The opinion addresses this question with an eye toward what folks online refer to as IRL situations.

It divides the world for judges into three categories of relationships: (1) acquaintances; (2) friendships; and (3) close personal relationships. Having done so, it proceeds on a pretty straightforward basis to explain that if a judge and a lawyer, or a judge and a litigant, are just acquaintances, then the judge has no obligation to even make disclosure of that fact and certainly no obligation to decide to recuse themselves because they are disqualified from presiding. The opinion offers a fairly succinct proffered definition of what it means by the term “acquaintances” — “A judge and lawyer should be considered acquaintances when their interactions outside of court are coincidental or relatively superficial, such as being members of the same place of worship, professional or civic organization, or the like.” The opinion also makes clear that a judge and a litigant should be considered acquaintances under the same kinds of circumstances as judges and lawyers. As to the third category, “close personal relationships” the opinion explains that those require disqualification outright only if the relationship is a romantic one or what I’m going to call “unilaterally, aspirationally romantic.” Where the judge wants to have a romantic relationship with the person. As for the rest of the world of friendships and other close personal but non-amorous relationships, the opinion candidly admits that they are all pretty much fact specific as to whether disqualification is required or merely a disclosure on the record is what is required accompanied by an explanation of the grounds for why the judge believes they can still preside is appropriate instead.

I can manage to have some real fun criticizing ethics opinions from time-to-time so I can’t really begrudge others when they do. But this is one that I think gets things correct.

Two other prominent legal ethics experts, Karen Rubin and Alberto Bernabe, criticized this opinion in slightly different ways. Karen expresses disappointment that is does not do enough to provide what she called “needed” guidance about the impact of judges’ use of social media and connections with lawyers and litigants on questions of disqualification. Professor Bernabe mentioned that omission but was a bit more critical of the nature of the opinion as being an “it depends” and is largely “up to the judge” in the first instance.

I disagree on Professor Bernabe’s point because I think that is the very nature of the beast. And, I appreciate the opinion being candid about the exercise. I disagree with Karen Rubin for what might be two reasons, but might really just be one overall reason.

First, treating social media as something so important or different as to be deserving of its own space and separate treatment (I think) misses the larger point. A social media connection simply is just one piece of the overall puzzle of determining whether or not the judge and the person have an actual relationship that is a friendship or something less. Second, the opinion does address the topic – and does so in a way that is entirely consistent with my first point. It does this in footnote 11:

Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.

By simply acknowledging that it matters, but that it is no more dispositive of the relevant question than any other piece of the puzzle, I think that Opinion 488 handles it exactly the correct way. Stated another way, given the widely varying state opinions that Karen addressed in her much more timely post about this, I think the guidance needed from the ABA on the social media front was pretty much exactly what was in the footnote and nothing more. If that guidance is heeded, then perhaps state entities can start to “chill out” a bit about the trees and focus on the forest.