Traps for the Unwary – Married lawyers edition.

Within the last week, there was an interesting Law.com article (subscription required) on a topic that has been something of a pet . . . well not really “peeve” of mine, and not really a pet project of mine, but a topic that I feel like is somewhat uniquely overlooked by the people to whom it should be most relevant — spouses/significant others who are both lawyers but who work different places.

The article discusses an Ohio disciplinary case that is ongoing and that involves something that – based on anecdotal evidence over the course of my career — is an extremely frequent occurrence:  the sharing of information about cases and matters between spouses and significant others who both are lawyers but who aren’t both representing the client in question.

Although (as indicated above – unless you are particularly wily about how you use the Internet and various search engines ability to “cache” content — you need a subscription to read the article, here’s a snippet to give you a flavor of the fact pattern involved.

The Ohio high court is set to review a proposed disciplinary sanction against two education law attorneys, ThomasHolmes and Ashleigh Kerr, who are engaged to one another and admitted to exchanging emails that included work product and confidential client information.

Although Holmes and Kerr focus on similar types of law—namely the representation of public school districts—they have never shared clients and they worked at different firm. Holmes practiced most recently at [a firm] in …Ohio, and Kerr practiced at [a different firm] in … Ohio.

In a disciplinary complaint lodged in December against the couple, the Ohio Supreme Court’s board of professional conduct said the two have lived together since October 2015 and became engaged in November of that year. From January 2015 to November 2016, the disciplinary complaint alleged, the two exchanged information related to their client representations on more than a dozen occasions.

“Generally,” the board alleged, “Kerr forwarded Holmes an email exchange with her client in which her client requested a legal document (i.e. a contract, waiver or opinion). In response, Holmes forwarded Kerr an email exchange with his client which attached a similar legal document that he had drafted for his client. More often than not, Holmes ultimately completed Kerr’s work relative to her particular client.”

If you want more of the detail, you can access the disciplinary complaint here.  And you can go read the pending recommendation of the Ohio board as to the discipline — which has been agreed to by each of the lawyers here.

The proposed, agreed discipline is a six-month suspension from the practice of law for each lawyer (but with the suspension fully stayed/probated.)

I suspect the outcome of that matter – and perhaps even the fact of disciplinary proceedings at all — will come as a huge surprise to many lawyers.  But the simple fact is that the underlying practice — sharing information about cases in order to try to get your spouse or significant other to help you — despite how much it may seem consistent with human nature is almost always going to be undeniably a violation of the ethics rules.  It is possible that one of the lawyers could get the client to consent to the arrangement, but beyond that approach there are very few ways to avoid the simple fact that RPC 1.6 in almost any jurisdiction won’t permit doing this.

I also strongly believe that most lawyers who do this kind of thing — if they think about it from an ethics standpoint – believe that the risk is quite low of ever being found out because of the marital privilege.  But not only because of some of the inherent limits on how far that may take you, but also because of the increasing frequency in which we all do everything digitally… this case demonstrates that there are a number of ways that the communications can surface into the light without anyone ever having a spouse voluntarily provide information any marital privilege notwithstanding.

RPC 5.6 and settlement agreements: The TN BPR messes up another ethics opinion.

This is not truly a development that merits the “Bad Ethics Opinion or the Worst Ethics Opinion” treatment, but it is a development that deserves commentary.

Last week while my wife and I were getting some short R&R, the Tennessee Board of Professional Responsibility issued Formal Ethics Opinion 2018-F-166.  If all you read of it were the first two paragraphs, it would sound like a reasonable (albeit somewhat circular) ethics opinion to have issued:

The Board of Professional Responsibility has been requested to issue a Formal Ethics Opinion on the ethical propriety of a settlement agreement which contains a confidentiality provision that prohibits any discussion of any facet of the settlement agreement with any other person or entity, regardless of the circumstances, and which prohibits the requesting attorney from referencing the incident central to the plaintiff’s case, the year, make, and model of the subject vehicle or the identity of the Defendants.

OPINION

It is improper for an attorney to propose or accept a provision in a settlement agreement that requires the attorney to be bound by a confidentiality clause that prohibits a lawyer from future use of information learned during the representation or disclosure of information that is publicly available or that would be available through discovery in other cases as part of the settlement, if that action will restrict the attorney’s representation of other clients.

So, again, that sounds reasonable in a vacuum (and it’s that last clause that makes it relatively circular as an application of RPC 5.6.  As the opinion makes clear that the rule on which it is premised and hinges is RPC 5.6(b), which provides:  “A lawyer shall not participate in offering or making: (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

But, this opinion isn’t issued in a vacuum.  It manages over the course of 4 pages to barely acknowledge the existence of an earlier-issued ethics opinion — Formal Ethics Opinion 98-F-141.  It also doesn’t even mention the existence of a more recent Formal Ethics Opinion 2010-F-154.  Those oversights are extremely unfortunate because the existence of those two FEOs should have made the issuance of this new FEO entirely unnecessary.

FEO 98-F-141 explained that a plaintiff’s attorney should not be required to, and should not agree to, be a party to a release and settlement agreement of their client unless the attorney is specifically releasing a claim for attorney fees.  Otherwise, being a party to the release creates conflict of interest issues between the client and the lawyer.  FEO 2010-F-154 repeated this guidance as part of explaining why – despite the problems associated with Medicare super liens — settlement agreements could not require the lawyer for the plaintiff to agree to indemnify the defendants for such liens.  Thus, the second paragraph of FEO 2018-F-166 (if it was ever issued at all) could have read:

We have already opined in FEO 98-F-141 and FEO 2010-F-154 that it is unethical for a plaintiff’s attorney to be required to, or to agree to, be a party to a client’s release and settlement agreement.  For any such provisions to be enforceable against plaintiff’s counsel, (s)he would have to be a party to the settlement agreement, which we’ve already explained is a no-no.  As long as the lawyer is not an actual party to the agreement, then any such provisions are only binding upon the client – not the lawyer — and whether or not the client wishes to agree to them is up to the client given that RPC 1.2(a) declares that the client’s decision to settle a case is something that a lawyer has to abide.  Thus, if a client wants to agree to terms of settlement that are lawful and the lawyer cannot be held to those terms as a party, then the client gets to do as the client wishes in that respect.

And then, FEO 2018-F-166 could have stopped right there.

Since it didn’t go down that way, this new opinion is, at best, unhelpful to the extent that it implies that a client doesn’t have the right to agree to things that they obviously would have the right to agree to or that it implies that if a client does it is somehow binding on the client’s lawyer going forward in future situations even if the lawyer is not a party to the release and settlement agreement and not bound thereby.

Awesome post. Except for the part that isn’t.

There is an awful lot to like and agree with in this post from Dan Lear, one of the folks who have been the face of Avvo for quite some time.  But there is a piece of it that is just simply wrong, and while it would be hyperbole to say it is dangerously wrong, it certainly is wrong in a way that lawyers don’t need to have reinforced.  Lear writes:

Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.

Even understanding the larger point Lear is attempting to make, this is utterly and simply wrong.  ABA Model Rule 8.4 – with language that is tracked in I believe pretty much every U.S. jurisdiction — does not limit itself to situations in which a lawyer is only representing a client and also does not draw a bright line around a lawyer “being a lawyer,”

The easiest, and most obvious, part of the rule that makes the point is RPC 8.4(b) which gets lawyers in ethical trouble for certain criminal acts even having nothing to do with, or not happening while, they are working as a lawyer.

But there are two other, more broadly problematic ways that RPC 8.4 does extend to, and actually govern, the conduct of people who happen to also be lawyers while they are doing things that they don’t think of as working as a lawyer know matter how much they may subjectively think they are being “awesome.”

Those two other pieces are RPC 8.4(a) and (c).  When combined those pieces of the rule read:

It is professional misconduct for a lawyer to . . .

(a) violate or attempt to violate [the ethics rules], knowingly assist or induce another to do so, or do so through the acts of another . . . [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation….

I’ve often joked about 8.4(c) as being the only ethics rule in the books that has to mean something other than what it actually says because, as written, it would make it professional misconduct for me to answer questions from children about Christmas presents or bluff while playing poker or dive to get a call while playing over-35 soccer on Monday nights.  I’ve also, once before and also in response to something written by a lawyer more famous than I, advocated that it shouldn’t apply to a lawyer operating a parody account on social media.   But there are aspects of how that rule truly does apply to dishonesty by lawyers, even when not acting as lawyers, which are quite serious.  Easy examples from the recent past involve deans and others affiliated with administrative positions at law schools lying about statistics to improve enrollment numbers and the like.

And, perhaps the most perplexing and concerning of the examples Lear offers of things a lawyer could do where they wouldn’t be bound by the ethics rules is serving as an expert witness.  I’ve been fortunate enough to serve as an expert on more than a handful of occasions in my career, and, suffice it to say, RPC 8.4 is not the only ethics rule that will still apply to the lawyer when serving in that capacity.

Idaho why lawyers are so often tripped up on this.

I’m writing from Boise where tomorrow I’m delighted to have the chance to speak on legal ethics for the Idaho Prosecuting Attorneys Association.  (I’m also delighted that the weather is unseasonably warm at the moment.)  Last year I had the chance to do a similar presentation for the Tennessee District Attorneys General Conference.  Prosecuting attorneys throughout the country are finding themselves more frequently in the cross-hairs of disciplinary proceedings.

But today’s post isn’t really about that, but it does help explain the selection process.  As I find myself drawn to write about a recent instance of discipline imposed on a private attorney in Idaho that involves behavior that I’ve counseled lawyers about so I know it happens to be relevant beyond just the Idaho Bar.

The case involves the issuance of a suspension order against Attorney Beckett issued at the end of January 2018, but for which the 28-day active suspension period will run during the month of February.  You can read the press release put out by Idaho State Bar Counsel here.

The underlying case was a personal injury lawsuit, and Beckett was able to get the case successfully settled for his client.  His client, though, wanted immediate access to parts of what would be forthcoming from the settlement.  Perhaps simply motivated by an effort to be accommodating, or more likely because of a failure to properly communicate with the client and manage expectations regarding how long such things take, Beckett agreed to provide two advances of the forthcoming settlement funds to the client out of his own money and from money belonging to a separate company Beckett owned.

As the press release explains, he didn’t do that in a way that was at all proper because she didn’t manage to keep the funds properly segregated to avoid commingling them with money in other accounts and also didn’t communicate to the client the available alternatives.  Despite the fact that, as the press release makes clear, Beckett didn’t charge any interest or fees for the transaction and that no other clients were harmed in any way, the conduct violated Rule 1.15 and 1.4 of the Idaho Rules and merited a 60-day suspension, with 28 days of active suspension, and a six-month probationary period.

What is interesting is that the press release makes no mention of Rule 1.8(a) governing business transactions with clients.  When I have had to counsel lawyers about inquiries from clients along these lines, that is the Rule most pertinent to the discussion for a path to actually doing what the client wants if the lawyer is insistent on providing an accommodation.

Idaho, like Tennessee, has a Rule 1.8(a) patterned after the ABA Model Rule.  Tennessee’s, for example, provides that a business transaction with a client – which is what a loan like what Beckett did would be — cannot happen unless

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Now, working through that rule is not 100% of the battle altogether, because the risk still exists that a bar counsel would argue that other provisions in the same rule, RPC 1.8(e) and (i) in Tennessee for example, would still work to prohibit such a business transaction altogether if the case has been settled but no order of dismissal ending the litigation has been entered.

Those provisions provide:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

and

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

RPC 1.8(i) has always struck me as a prohibition that can be drafted around in the transaction documents to sever any connection between the litigation and the loan, but (e) is trickier if the litigation, despite being settled is technically still “pending” at the time of the client’s inquiry.

EVA(n) good things are complicated by ethical obligations.

So, this week’s biggest news in terms of the role of artificial intelligence in the practice of law is the rollout of a new, free AI product from ROSS Intelligence.  The product is called EVA, and you can read all about it here.

The short version of it is that when the other side files a brief in your lawsuit, you can upload the brief and EVA will analyze the cases being relied upon, alert you to other cases where those cases have been negatively treated, and point you to other relevant cases to fast track your research efforts.

It sounds great, and it probably is great.  But, me being me, I immediately started thinking about questions such as:

Will ROSS, through EVA, be keeping all of the data that is uploaded to it?

What are the terms and conditions lawyers have to agree to in order to use EVA?

Will those lawyers need their client’s permission to upload such documents into the EVA platform?

Here is a link to those terms and conditions so you can read them yourself should you be so inclined (at that link, you will need to click on the link titled Terms of Use to get those to popup on your screen), but I think the short version is that, almost always, a lawyer can safely make the decision to upload the other side’s brief into EVA without even talking to your client by relying upon the authority provided under Rule 1.6(a) to say that doing so is impliedly authorized in order to carry out the representation of your client.

It is, of course, interesting that what you are uploading is actually the work product of the other side and that the terms and conditions require you to say that you have all the necessary ownership rights to send the document through the EVA service.  Along those lines, I would imagine the weird instances of counsel attempting to claim trademark rights in briefs they file could complicate usage issues.  More realistically though, cases that are operating under protective orders and where briefs are filed under seal would seem to be the one area where lawyers could get themselves into trouble by using the free EVA service.

Friday follow up – TIKD off by a DQ motion and the Supremes won’t stop suspending the wrong lawyers.

In the middle of Roadshowing (short break until the next stops next week) and also still trying to handle client matters to boot, so this will be a quick post.

(If you are here next week looking for the Roadshow playlist, just keep scrolling down as it can be found in the post immediately below this one.)

The dustup between the smartphone app known as TIKD and the Florida Bar has been back in the news in the legal trades recently over a motion to disqualify TIKD’s counsel filed by the Florida Bar.

On its face, it sounds like a pretty decent disqualification motion on the merits as the Florida Bar is alleging that TIKD’s counsel who is a former Florida Bar president had access during his term in office to internal information evaluating the Florida Bar’s antitrust liability exposure given its structure in the wake of the U.S. Supreme Court’s ruling in an antitrust suit against the board that regulates dentistry in North Carolina.  (You might recall that I wrote a bit about that in the past as well as it is that case that has revived interest in, and concerns about, antitrust issues for the regulation of the practice of law in unified bar/mandatory bar jurisdictions.)  That would seem like a slam-dunk in terms of disqualification if that person had been a former General Counsel or otherwise a lawyer for the Florida Bar, but the analysis may be a lot murkier if, as is the case generally of bar presidents, that the president of the Florida Bar is always a lawyer but isn’t necessarily acting as a lawyer for the organization during the term of office.

Oh, and speaking of the U.S. Supreme Court, I wrote a bit earlier this year (as many other people did) about the weirdness associated with the fact that the United States Supreme Court made the very unfortunate mistake of suspending the wrong attorney – confusing one lawyer named Christopher P. Sullivan for another lawyer named Christopher P. Sullivan.  At the time, I tried to make discussing the circumstances a bit more worthwhile substantively and not just anact of piling-on by citing that epic mistake by the highest court in the land as maybe the ultimate example of the need for people in our profession to be deliberate in their actions and take their time because what we do can have real consequences for us and for others.

As is of course true for literally billions of other people on the planet, the Clerk of the U.S. Supreme Court is not a dedicated reader of this space (or didn’t take heed of that message) as a new story came to light a week or so ago of pretty much the same thing happening again with the Court suspending a lawyer named Jim Robbins instead of a lawyer named James A. Robbins.  (Even more coincidentally, the Sullivan who was wrongly suspended earlier in 2017 practiced law with a firm called Robins Kaplan.)

Actually, to say that pretty much the same thing happened isn’t quite right, as the James A. Robbins that deserved to be suspended wasn’t actually a member of the U.S. Supreme Court bar at all.

I’ve been fortunate enough to have been admitted to the U.S. Supreme Court since December 2008 and even more fortunately it appears to be an admittee with a name, Brian S. Faughnan, that seems highly unlikely to be duplicated on (or off) its rolls.

Coming to praise rather than bury: NYC Bar Op. 2017-6

About two weeks ago, I had the opportunity to speak to the Tennessee Defense Lawyers Association for an hour on ethics issues, using a “hot topic” format.

One of the topics I covered was the many things there are beyond just being parties on opposite sides of the “v” in litigation that present conflicts to be managed, avoided, and addressed in handling lawsuits.

I mentioned the difficult situations that can arise as a case evolves and someone shows up on the radar screen as an important witness — particularly an expert witness — and the importance of running supplemental conflicts checks to make sure that a lawyer or her firm doesn’t first figure out the problem when learning during the deposition that the witness claims to be a client of the lawyer’s firm.  That is a scenario that lawyers sometimes don’t always think about in advance but for which there is little, if any, push back on the idea that it is a conflict about which to be concerned.

I pivoted from that topic to a similar topic — issuing subpoenas for documents to witnesses — that lawyers are more inclined to want to try to intellectualize as not creating a conflict situation because it can have the feel of a “routine” act and it also “feels” like an administrative hassle.

At the time of that presentation, I somehow had not yet seen a recent Formal Ethics Opinion out of the New York City Bar on that very topic – if I had seen it I certainly would have pointed to it — because it is a very well done treatment of the issue.  The question addressed in NYC 2017-6 is:

What ethical restrictions apply when a party’s lawyer in a civil lawsuit issues a subpoena to another current client or may need to do so?

Now, a word before delving into the insight that can be gleaned by all lawyers in all jurisdictions from this opinion about an important, but not dispositive, difference in the language of New York’s Rule 1.7(a).

In Tennessee, and many other jurisdictions with rules patterned after the ABA Model Rules, RPC 1.7(a) reads so as to address two types of conflicts as being “concurrent conflicts of interest.” One where the lawyer would be required to represent one client in matter directly adverse to the interests of another client, and one where the lawyer’s duties to someone else (or the lawyer’s own personal interests) will impose a “material limitation” on the lawyer’s ability to represent the client.

The NY version of Rule 1.7(a) has slightly different language on each of those two fronts.  NY’s 1.7(a) indicates that a lawyer has a conflict:

if a reasonable lawyer would conclude that either (1) the representation will involve the lawyer in representing differing interests; or (2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.

And, “differing interests” is specifically defined in NY’s rules to mean “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.”  Now those NY variations on the language make it a bit easier and cleaner to see the issues created when a lawyer pursues a subpoena for records from one client for another client but so much of the opinion that explains the analysis is written not just well, but in a practical fashion that, in my opinion, allows it to resonate for lawyers in jurisdictions with the ABA Model Rule language on conflicts as well.

After surveying the landscape of earlier opinions on these subjects, the NYC opinion laid out a number of helpful conclusions:

First, issuing a subpoena to a current client to obtain testimony from that client will ordinarily give rise to a conflict of interest.  Obtaining testimony typically inconveniences the witness, involves probing a witness’ recollection, and at times may involve challenging and confronting the witness, any of which a current client may reasonably perceive to be disloyal.

[snip]

Second, it will ordinarily be a conflict of interest for a lawyer to seek to obtain documents via a subpoena to a current client.  The production of documents in response to a subpoena very often requires an allocation of resources (time and money) which the subpoenaed party would prefer not to expend.  This is all the more so when outside counsel needs to be retained, and the scope of production needs to be negotiated.

[snip]

The opinion then goes on to offer some further practical advice for lawyers to keep in mind because of their ethical obligations which the opinions lays out as:

(a) the necessity for lawyers to run conflict checks prior to serving a subpoena; (b) the potential need to decline or limit a representation, or to obtain informed consent, if a lawyer knows before being retained that subpoenaing a current client may be necessary; and (c) the retention of “conflicts counsel” to avoid the need to withdraw, or the risk of disqualification, when a lawyer learns during the course of a litigation of the need to subpoena another current client.

The opinion does go on to provide helpful explanatory details for each of those topics, and you can go read the opinion in full at this link.

 

A three-part discussion of LA County Bar Op. 528

Though news to me much more recently, the LA County Bar Ass’n Prof’l Responsibility and Ethics Committee issued an  interesting ethics opinion back in April on a wrinkle that can arise in the tripartite relationship created in insurance defense situations.  You can read the whole thing here, but its summary is pretty to-the-point:

When an attorney engaged by an insurance carrier to defend the interests of an insured obtains information that could provide a basis for the insurance carrier to deny coverage, the attorney is ethically prohibited from disclosing that information to the insurance carrier.  In such a situation, the attorney must withdraw from the representation.

In honor of it being an opinion that hinges on California’s approach to the tripartite relationship, I want to divide this post into a three-part discussion of it.

Part the first: it certainly appears to get the answer right from a California perspective.  The answers appear clear and correct given California’s approach to the question of who is/are the client(s) when an attorney is retained by an insurance company to represent an insured.  While all jurisdictions have reached agreement on using the term “tripartite relationship,” to describe insurance defense arrangements, California is a jurisdiction that treats it as truly being one in which the lawyer involved has two clients, both the insured and the insurance company, and the duties to each are “equal and potentially competing.”  Working from that premise, then the particular scenario confronted in the opinion is certainly one that causes the ultimate result — the lawyer  being prohibited from telling one client the important information learned about the other client’s situation can no longer represent either client and has to move to withdraw.  Though the specific scenario is presented in a way that raises some immediate questions given that it involves the existence of a document and its authentication through a request for admission.  For example, does the opinion just assume both authenticity and that the insured would tell the lawyer not to let the insurer know?

Part the second:  While that is the correct result given California’s approach to the “who is the client?” issue, the outcome is more revealing for serving to demonstrate the folly of the approach California follows.  In Tennessee, for example, the tripartite situation exists but the lawyer only has one client, the insured.  The insurance company hiring the lawyer to defend the insured is not a client of the lawyer.  There are, of course, still thorny ethical issues that can arise (see below) but at least in the scenario in question, the lawyer’s path forward is both clear and one that permits continued representation of the lawyer’s only client and a focused effort to try to use the document to establish the statute of limitations defense.

Part the third:  On the California side of things, what in the world happens next in the scenario to keep things from just playing out the same way all over again?  Because the withdrawing lawyer will not be in a position to tell the insurance company the reason for the withdrawal, the whole scenario is likely to simply repeat itself when the insurance company retains a new lawyer to represent the insured.  That lawyer will eventually learn of the same information – be prohibited from disclosing to the insurance company — and then lather, rinse, and repeat.  Or, at least, that’s how it will go unless either the lawyer shirks the duty of disclosure to the insurance company or the insurance company figures out what is going on that is causing the withdrawals and goes ahead and makes a definitive coverage decision.  Either way, it is a particular example that paints a much more favorable picture of approaches to this relationship structure in which the lawyer’s only client is the insured.

(In fairness, the particular scenario examined in the opinion could be pretty readily spun out just a bit further to demonstrate how no system for this would be perfect by exploring what would happen if the the insured was trying to demand that the lawyer attempt to settle the case for the insured without disclosing to the insurer that the reason for seeking settlement prior to having to respond to the request for admission was to avoid defeating coverage.)

A kind note from a satisfied client

Since I’m seeing quite a few of these notes from satisfied clients on LinkedIn, Facebook, and other places in various formats, it seems like a good time to share a touching one I received recently.

Brian,

Thank you very much for the really great work and the successful outcome.  I really appreciate you and all that you do.  I’m sure I don’t even need to say this, but I’m certainly hopeful that you have the common sense not to try to publicly share my kind, private remarks to you about my case on any social media or anywhere else.  I figure you probably know not to do this without my consent because … well, you have that obligation of client confidentiality under RPC 1.6 and posting this as some sort of “atta-boy pat-on-the-back” which is really just a kind-of-but-not-really-all-that-subtle effort at marketing and touting your excellent work and client satisfaction certainly isn’t something that would be impliedly authorized in order to carry out the representation.

Plus, if you did that, it would be just kind of … I don’t know … crass (gauche?).  The mere act of sharing it to crow is one thing I guess, but then the way social media works you’re just crying out for people to comment and say, yeah you’re great and your clients are lucky to have you, or to “like” it and provide you further validation which certainly wasn’t why I sent you this kind note.   And even if the reason I’m so excited and grateful about your work is that the matter is over and now I’m just a former client, you still have confidentiality obligations to me under RPC 1.9 and if this had become generally known as would be necessary at that point, then you probably don’t need to do this because if you are going to get accolades they would come more naturally (right?), so, I mean, again.  How about you just not with the sharing this?

I mean I guess you could try to strip down any information anyone might use from my message to you to be able to figure out who I am or what the matter was, (because remember the Comment to RPC 1.6 talks about how even disclosures that don’t directly disclose confidential information are prohibited if the disclosures “could reasonably lead to the discovery of such information by a thid person”) but once you’ve done that it truly becomes so impersonal that it doesn’t really have the impact you were hoping for, and depending on the format you use, it might even look like you’ve maybe just made the whole thing up.

And, if you don’t do something like that, then you really are placing my confidentiality rights at risk because maybe you did remove everything you needed to in order to protect anyone in your network or circle of connections from being able to figure out who it was that would have sent this, but maybe you didn’t.  If you didn’t, I’m potentially not going to be very happy about that.  Plus, you might in your introductory paragraph of your social meda “update” say something about time and place or circumstances that actually does — combined with this note — let the cat out of the bag.

So, anyway, thanks for getting me that extension of time.  Sorry for being such a scold.

[name redacted]

These are the kind of messages that make being a lawyer worth it all.

Happy Friday!

It’s been a while.

Today I’m going to splice together two short discussions about topics that I haven’t mentioned in a while.  (And, for any fans of the podcast U Talking U2 to Me that are out there, you do have to read the title of this post to sound like the first words of this remake right here.)

I have not written in a while of an instance of a lawyer getting into disciplinary trouble over saying too much in the process of withdrawing from a client representation.  But it’s happened again, so it’s worth reminding people not to do that.

A week ago, the Ohio Supreme Court issued its opinion affirming a recommended one-year suspension (but with all of the suspension stayed) for a divorce lawyer who paired an affidavit with his motion to withdraw from a client’s matter.  The Ohio court succinctly laid out the problematic contents of the affidavit:

In the affidavit, he recounted communications he had had with
[the client] about the scope of his representation and his compensation, accused her of refusing to pay his agreed-upon fees “without cause,” and disclosed legal advice that he had given her. He also described [the client]’s discharge of him as “retaliatory” and alleged that it had “occurred because of [his] advice to her
concerning her objectionable and potentially illegal actions” relating to her ex-husband, which he characterized as “a problem similar to the one [he] experienced in [his] previous representation of her.”

The Ohio opinion not only cogently walks through why the lawyer’s attempted arguments that such disclosures were permitted to be made under exceptions set out in Ohio’s Rule 1.6(b) weren’t triggered, but also stresses another point too often overlooked by lawyers even when they might have justification to make certain disclosures:

Finally, even if [the lawyer] had reasonably believed that Prof.Cond.R. 1.6(b) permitted him to disclose [the client]’s allegedly fraudulent conduct, the means by which he chose to do so were improper. The comments to Prof.Cond.R. 1.6 clarify that when a lawyer believes that disclosure of client information is
necessary, the lawyer should first seek to persuade the client to take suitable action to obviate the need for the attorney’s disclosure and that a disclosure adverse to the client’s interest should be no greater than necessary to accomplish the purpose. Prof.Cond.R. 1.6, Comment 16. And “[i]f the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent possible.” Id. Here, [the lawyer] failed to notify or communicate with [the client] about the allegations in his affidavit prior to filing it, and he did not attempt to limit public access to the document.

Another topic I haven’t mentioned in a while is ABA Model Rule 8.4(g) and how it’s playing in various states.  You will recall on at least one occasion when I did write about it, I mentioned how one of the ABA’s talking points was that somewhere north of 20 states already had black-letter rules in one form or fashion making acts of discrimination unethical.

About three weeks ago, one of those states, Vermont, just decided to scrap its version of such a rule and replace it with a Rule 8.4(g) that is substantially equivalent to the ABA Model Rule.  You can read the order of the Vermont Supreme Court adopting such a rule which will become effective on September 18, 2017 here.