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.

 

Time to choose: are you Illinois or New Jersey?

Blackhawks or Devils?

Bulls or Nets?

Barack Obama or Chris Christie?

Northwestern or Rutgers?

Kanye or Wu-Tang Clan?

Wilco or Bruce Springsteen?

Some of those are easy calls; some are harder decisions to make.  What they all have in common though is that one comes out of Illinois and the other comes out of New Jersey.

As to the future of legal ethics, we now face a similar decision that has to be made.  Are you down with what is coming out of Illinois or will you choose what New Jersey has to offer?

I’ll explain further.  Avid readers of this space will be well aware that I have devoted quite a few bits and bytes to discussions of the evolving market for legal services and the push/pull in place between companies that push the envelope of what lawyers can do under existing ethics rules and various ethics opinions that have been released explaining how lawyers can or cannot do business with such companies.  In order to avoid spamming this post with about 10-15 links to previous posts of mine, I’ll just say that if you are just getting here for the first time (welcome!), then look through the older posts for ones with the tag “Future of Legal Ethics” and you are sure to find one pretty quickly that discusses these topics.

Within the last couple of weeks, these have been the two developments that pretty nicely identify the choice that lawyers (and the legal profession) face.

First there is the Illinois development.  The Illinois ARDC — which is Illinois’s regulatory and disciplinary agency [Attorney Registration and Disciplinary Committee] — issued a more than 100-page report making the case for why the ethics rules need to be overhauled to permit lawyers to ethically participate in “lawyer-matching services” such as Avvo and other platforms but that, along with such changes, there need to be regulations adopted to impose certain requirements on such companies and platforms for lawyers to be able to participate.

In large part, much of what Illinois describes sounds a bit like a subtle variation on RPC 7.6 in Tennessee that I have written about in the past.  But it still also requires fundamental changes to other pieces of the ethics rules addressing financial arrangements between lawyers and those not licensed to practice law.

By way of juxtaposition, the New Jersey Supreme Court, asked to review a joint opinion issued by its legal ethics regulatory body, its advertising regulatory body, and its body focused on UPL aligned with other jurisdictions that have issued ethics opinions prohibiting lawyers from participating in programs like Avvo Legal Services, declined to review the opinion or otherwise disagree with its conclusions.

For my part, I think the choice is an easy one to make.

But, the most important thing for today (IMO) is for people to understand that there really is not a middle ground position here — you are going to have to make a choice and you are going to have to decide that you are either on board with the Illinois approach or the New Jersey approach to this topic.

Choose wisely.

The good and bad of social media on display

Today’s title refers to two developments worth writing about that caught my attention in the last little bit that only have the issue of social media in common.  I will try to let the reader decided which is which (or if both are both) in due course.

The first development is an example of a lawyer behaving badly who managed to get caught in a lie because of his own social media posts proving that he had not been truthful with a federal judge.  Now lying to a federal judge is never a good choice to make, but doing so and then providing the seeds through social media for someone to prove that you did is just… well… “sloppy” seems like the wrong sort of word given that it appears to imply a value judgment that the “wrong” here is not the falsehood, but the careless unwillingness to try to maintain the facade.  Nevertheless, that is the one of the takeaways of the short version of the story of how this New Jersey lawyer ended up in this situation.  In summary form, lawyer blew some important deadlines, told the court it was because of a family medical emergency, but posted on several occasions during the time period in question on Instagram pictures showing she was on vacation in Miami, traveling and sightseeing in New York City, and other places.  You can read the much longer version at the link.  In the end, it was the freedom (and accompanying folly) that robust use of social media can bring that brought the lawyer down but that also brought the truth to light.  As the story reveals, the lawyer now no longer represents the clients in question and, instead of learning the art of the Latergram has, at least, now managed to set her Instagram account to private.

The second is a new judicial ethics opinion issued out of Massachusetts that continues the process of taking Massachusetts down a path in which judges cannot have lawyers as “friends” on Facebook at all if those lawyers are likely to appear before the judge.  I learned about CJE Opinion No. 2018-03, and the earlier opinion on which it builds (Letter Opinion 2016-01), because it was circulated on a very robust (and very valued) listserv/forum that is available to members of the Association of Professional Responsibility Lawyers.  (If you aren’t an APRL member, it is always a good time to explore the benefits of membership.)  This opinion talks about the obligation of judges to disclose to litigants whether they used to be Facebook friends with any of the lawyers appearing before them since the earlier opinion mandated that they delete lawyers as friends.  I normally like to proffer original content here, but, in this instance, I’ll simply restate the opinion I offered on that forum a few days ago.  (Repasting it seems particularly appropriate where loyal readers will recognize that the sentiment is pretty much repetitious of earlier content here anyway.]

Well, that’s a pretty silly add-on to an inherently silly underlying opinion.  The judicial ethics rules don’t prohibit judges from having friends who are attorneys.  If someone can be a friend IRL, then there is no reason they cannot appear as a friend on social media.  The fact that this entity had to issue this opinion about how long you have to disclose that you essentially tried to cover your tracks by deleting attorneys from your connections belies the point that allowing/encouraging judges to go about their normal friendships on social media is actually a good thing since it permits a way to “search up” information they might not disclose about relationships they have with the attorneys appearing before them.

In fact, the only thing that judicial ethics opinion writing bodies ought to be mandating is that judges make certain that they have their settings established in a way that lets the public have access to their list of friends/connections even if they put all of the rest of it into a “private” setting.

They got away with it, but that doesn’t make it worth trying.

Lawyers billing clients on the basis of time spent is less than ideal for all involved.  For lawyers, it isn’t the best proxy for value delivered in terms of service and incentivizes inefficiency.  For clients, it isn’t the best proxy of value received in terms of service and leaves clients feeling like the only way to cut corners on costs is to either demand limited time on a task or to just not agree for a lawyer to perform a particular task.  For clients and lawyers alike, it also creates distrust of lawyers with respect to second-guessing the amount of time they spend on tasks (or claim to have spend on tasks).  It also doesn’t give clients much of a sense that they are paying for results or accomplishments.  Lots of pieces have been written, over many, many years, about how the billable hour model is outdated or on its way out the door.  Yet, it persists.

This is not going to be one of those pieces today.  Rather, I want to write a few words about a case out of Wyoming that I would worry is going to send exactly the wrong message to lawyers.  That case is a ruling on fee dispute litigation out of the Wyoming Supreme Court, Manigault v. Daly & Sorenson, LLC.  You may have seen headlines of stories about it that are in the nature of: Court rules billing in 15-minute increments was not abusive.

All lawyers who bill by the hour end up having to pick some base line minimum increment for billing purposes.  I, and my firm, do so using 6-minute increments (.1) as the baseline.  It is certainly possible to measure time more accurately than that, but (I believe) that the standard minimum these days for keeping time is to carve time up into 6 minute blocks.  There was a time when the standard minimum for those blocks were 15 minute intervals, but technology has advanced, timekeeping has improved, and the time when minimum quarter-of-an-hour billing was acceptable (in my opinion) has passed.

In the Wyoming decision, the Court ultimately found that this particular law firm’s use of a 15-minute minimum increment with this particular client was ultimately reasonable.  Remarkably, it did so even when the firm did not have a written fee agreement with the client.  But there are a couple of things about the case that – to me – stand out as crucial to the particular result and also help drive home the point that this is not something that most lawyers could get away with and, thus, should not attempt to do.

The first, and I think the more outcome-determinative, is that the fee dispute was one that was with a very long time client of the firm and, thus, someone who, over time, would be much less sympathetic to be heard complaining about 15-minute billing increments as the minimum.  Since apparently that was how this client and that firm had interacted over the course of almost 100 prior matters over 15 years.

The second is that the record indicated that the firm was relatively diligent about aggregating tasks into the minimum increments so that the minimum increment was not used as a method of easily increasing the charge to the client.

The Wyoming Supreme Court explained quite cogently the difference between the situation it had before it this time and other, prior circumstances in which it took lawyers to task for how they used their 15-minute minimum billing increment approach:

Manigault likens the firm’s use of a fifteen-minute billing interval to that which was the subject of a disciplinary proceeding in Casper.  In that case, the attorney employed a number of unethical billing practices and admittedly misused her fifteen-minute minimum billing interval.  She billed fifteen minutes every time she signed a document, and several times she billed fifteen minutes for reviewing a one-page document.  She also billed fifteen minutes to review a short document and then billed the same amount of time again for signing it.

In Casper, this Court discussed the practice of billing according to minimum intervals of six, ten, and fifteen minutes. . . . we observed it would be abusive to bill two fifteen minute charges for two five-minute phone calls in the same fifteen-minute period.

Nothing approaching that sort of unreasonable or abusive billing is evident on this record.. . .

[snip]

What is not often discussed is this concept of the need to still attempt to hew toward composite accuracy in the amount of time billed regardless of what minimum increment is used.  “Composite accuracy” might not be the right phrase but what I’m using it to attempt to describe is that the ultimate measure for a lawyer who bills by the hour has to be that you don’t use it to bill clients for more time in the day than the total time you actually spend working.

The truly pernicious problem for lawyers who attempt to still use 15-minute increments as their method of billing is how easily that can lead them to bill a collection of clients for 8 hours of time while only putting in 3 or 4 hours of actual work.  Or, more likely, billing 14 or 15 hours for a day where 6 or 7 hours of actual time was spent performing work for clients.

The Wyoming case also, unfortunately, gave credence to a common attempted justification by lawyers confronted with trying to justify the 15-minute billing increment that – to me – involves a significant amount of disingenuity:  that billing a client 15 minutes of time for a phone call that they know full well may have taken only 5 minutes is justified because the 15 minute time period also captures the time associated with stopping one task, shifting to the client’s task, making a note in the file about the interaction, and then trying to get back into the mindset of whatever you were working on before.

In modern practice, however, there is one dominant form of communication that simply – and often unequivocally – undercuts any lawyer that tries to use that justification.  Email.  Find me a lawyer who wants to justify a 15-minute minimum increment based on that kind of rationalization, and I strongly suspect that I can show that lawyer, by way of a review of their email history, that they turned much more quickly from answering an email for one client, to crafting an email for another client, then on to responding to some other email.

What that means is, if a lawyer is out there trying to charge their clients for 15 minutes of time for reading and responding to an email, which may have only taken them 5 minutes, and then attempting to justify it based on other things that were done or time lost as part of that, then it will often be extremely easy to demonstrate that within the same 15 minute period they will have replied or sent other emails to other clients on other matters and, likely, they will have billed that client for a 15 minute block as well.  This quickly adds up and is how a lawyer could easily manage in only 20 minutes of actual working time to attempt to bill for an hour of work.

That fudging of the numbers, of course, can also happen using 6-minute increments of time, which raises the ultimate larger point that I fear escapes notice of far too many lawyers:  no matter the minimum increment you pick (unless you are recording and billing for your time truly down to the minute), you are supposed to still be using that system as a proxy toward attempting to best capture your actual time spent.

That means that even if you are billing in 6-minute increments, you are supposed to be trying to bundle smaller tasks during the course of the day together into one of the minimum increments.  If, for the same client, you respond to 2 and only 2 emails during the course of a day and each one took you only a couple of minutes to address, you are supposed to bill that client for one .1 time entry – because you spent a total of 4 minutes working for them that day and you have arranged to bill them at a minimum increment of 6 minutes.  You are not supposed to bill .2 (12 minutes) for that 4 minutes of working time.  When lawyers do both this and opt for the minimum 15 minute incremental block, then the problems with the arrangement increase in magnitude because the lawyer ends up billing the client for 30 minutes of time for 2 tasks that only took 4 minutes to perform.