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# Faughnan on Ethics

Thoughts on legal ethics, professional responsibility, and other aspects of the law of lawyering.

## Sitemaps

- [XML Sitemap](https://faughnanonethics.com/sitemap.xml): Contains all public & indexable URLs for this website.

## Posts

- [Stop using the lie machine.](https://faughnanonethics.com/stop-using-the-lie-machine/) - Hi, it’s me again. I really don’t want to be writing about lawyers continuing to get sanctioned nearly daily at this point it seems for filing things with the court containing AI hallucinations. I know I always have excuses for these long stretches where I don’t post anything to the blog. This time (my May/June
- [The Rule of Law in 56 pages](https://faughnanonethics.com/the-rule-of-law-in-56-pages/) - Today was a potentially pivotal day in figuring out whether the Rule of Law in the U.S. will actually survive until whenever the end of the Trump Administration comes to pass. Judge Kathleen Williams, a federal district judge in Florida, issued a 56-page order, addressing the sham litigation filed by Trump, his sons, and his
- [Regulatory Reform in TN - an update](https://faughnanonethics.com/regulatory-reform-in-tn-an-update/) - A month ago today, I wrote a post laying out my full thoughts on the things that the Tennessee Supreme Court ought to do in the realm of regulatory reform and submitted the same to the Court as my formal comment. Since that time I have also been involved in the submission of two other
- [Wait, that violated what?](https://faughnanonethics.com/wait-that-violated-what/) - On April 1, 2026, a press release issued about a Tennessee lawyer getting suspended for what primarily appears to be misconduct in connection with withdrawing from representation of a client of a type I've written about in the past. The matter involved a lawyer in Washington County, Tennessee* who, in seeking to withdraw from the
- [Joining the army of G(A)I Woe](https://faughnanonethics.com/joining-the-army-of-gai-woe/) - I've lamented before that it seems like I could spend every day writing about another example of lawyers not learning the obvious lesson that using generative AI in connection with legal research or writing court filings is more trouble than it is worth. Even if the toll that GAI is taken on the planet weren't
- [Regulatory Reform in TN](https://faughnanonethics.com/regulatory-reform-in-tn/) - I am certain many of you have forgotten but I did promise last year to offer more thoughts on potential regulatory reforms being considered by the Tennessee Supreme Court. Today is the day I make good on that promise. If you are looking for a refresher, read here first. Now that you are back, you
- [It's 2026 and the DOJ is a Total Clownshow](https://faughnanonethics.com/its-2026-and-the-doj-is-a-total-clownshow/) - And not just a fun clownshow like maybe you'd be able to see back in the heyday of Ringling Bros. Barnum and Bailey. No, as of March 2026, the DOJ is fully a clownshow in service of one petty, shitty man. I hate that this is where we find ourselves. I also hate that there
- [CLE credit by podcast](https://faughnanonethics.com/cle-credit-by-podcast/) - So, there will be more substantive stuff in the works that I'll be publishing here at my site, but, in the meantime, if you are interested in hearing me talk about some ethics issues in a different media format, I was on a podcast that was released late last month. No, not this podcast, all
- [Legal Principles for a Republic (if we can keep it)](https://faughnanonethics.com/legal-principles-for-a-republic-if-we-can-keep-it/) - We are fewer than three weeks into 2026, and it appears that the grave problems impacting the rule of law are only proceeding apace for another year. Trying to come up with something to say so far this month here at the blog has felt difficult. Who wants to hear me continue to scream into
- [Neglect can lead to ruin](https://faughnanonethics.com/neglect-can-lead-to-ruin/) - A fundamental precept for lawyers ought to be that, when it comes to clients, the only things that are worse than neglecting them are lying to them and stealing from them. For a shorthand version of that, if you find yourself failing to communicate with a client for 57 days (you know, the amount of
- [The importance of knowing how things work](https://faughnanonethics.com/the-importance-of-knowing-how-things-work/) - I could have titled this post: "In case you needed another reason not to use LinkedIn," but that wouldn't be fair. No one actually needs any additional reasons not to use that platform. The "grindset mindset," AI groupies, and other toxic personalities you can find there daily provide more than sufficient reason to let reasonable
- [Conflicts beyond lawyers](https://faughnanonethics.com/conflicts-beyond-lawyers/) - I have written in the past about the perhaps "unique" approach that Tennessee has to the question of allowing non-consensual screens to cure conflicts arising from lateral movement of lawyers. That approach can make lateral movement of lawyers both less and more complicated. What a lot of lawyers and firms in Tennessee do not grasp,
- [ICYMI (Because I sure did)](https://faughnanonethics.com/icymi-because-i-sure-did/) - Some potentially big news out of Tennessee with respect to the overall conversation about the re-regulation of the practice of law happened last month. I missed it completely probably because it happened the day before I started a three-day disciplinary trial. But, I am still surprised I missed it. The Tennessee Supreme Court, sua sponte,
- [Beyond Bad](https://faughnanonethics.com/beyond-bad/) - Here we are again, left with no real option but to write about the erosion of the rule of law and its replacement with adherence to the whims of a fascist. Late last night, the news broke that within a week of demanding on social media that the Attorney General of the United States get
- [Suffering from withdrawal.](https://faughnanonethics.com/suffering-from-withdrawal/) - The Tennessee appellate courts are kind of on a roll (if 2 in one month can be characterized as a "roll") in issuing opinions making educational points about the Tennessee ethics rules. The latest example is a decision from the Tennessee Supreme Court highlighting a reality that lots of lawyers in Tennessee (and elsewhere) continue
- [A rarish reminder of the intersection of the ethics rules and causes of action](https://faughnanonethics.com/a-rarish-reminder-of-the-intersection-of-the-ethics-rules-and-causes-of-action/) - You can wake most ethics lawyers up in the middle of the night to ask them whether a violation of the ethics rules provides a cause of action, and they'd be able to answer off the top of their head by either quoting from, or at least pointing you to, their jurisdiction's version of the
- [So, here's the thing](https://faughnanonethics.com/so-heres-the-thing/) - The expeditious descent of the United States into a place ruled by fascist authoritarianism is a dark time to deal with. The woes of an upper middle class white lawyer who owns and controls his own law firm pale in comparison to the way this is impacting so many folks. But it is definitely making
- [Gee, AI isn't getting any better.](https://faughnanonethics.com/gee-ai-isnt-getting-any-better/) - Stop me if you are shocked to hear it, but the legal profession won't stop trying to tout AI and GAI in particular as something that absolutely has to be enmeshed into all aspects of a lawyer's practice. But here's the thing, there continues to be a lot of things that GAI simply isn't useful
- [Animal Farm in Tennessee.](https://faughnanonethics.com/animal-farm-in-tennessee/) - Are you sitting down? You should probably sit down so that the shock isn't too much. I'll wait. Ok. Now that you are sitting down. It does not appear that the bar regulators in my state are very interested in holding powerful lawyers accountable for their conduct. Readers of the blog know that on Monday
- [About that Abrego Garcia press conference...](https://faughnanonethics.com/about-that-abrego-garcia-press-conference/) - There are lots of concerning things going on in the country. One of them is the continuing problem presented by the Attorney General of the United States viewing her role as being President Trump's lawyer and a partisan willing to do his bidding at all times. I have written a few times about what I
- [Dangerously incompetent. Intensely dishonest.](https://faughnanonethics.com/dangerously-incompetent-intensely-dishonest/) - Those are the four words that should be used to succinctly define Pam Bondi, the current Attorney General of the United States. I have written about her previously, and I fully recognize that the Florida Bar is never going to take action against her. But rarely does a day pass without something occurring that serves
- [New Po(pe)st](https://faughnanonethics.com/new-popest/) - Pursuant to my commitment that every time a new Pope is elected, there will be a new post here on the blog, here's a post while everyone still has papal fever. And, as a bonus almost justifying the attempt to tie these events together, there will be Pope content. I've dedicated entire posts in the
- [The Bare Minimum is No Longer Enough](https://faughnanonethics.com/the-bare-minimum-is-no-longer-enough/) - First, I have to clearly admit that the Memphis Bar Association has outdone the Tennessee Bar Association in terms of trying to speak out about the consequences of the Trump Administration on the rule of law. But surpassing the TBA was not a high bar. Yesterday, on Law Day, the Board of Directors of the
- [Update:  TBA Action to defend the rule of law? Nonexistent](https://faughnanonethics.com/update-tba-action-to-defend-the-rule-of-law-nonexistent/) - I've gotten some requests from folks for an update on my latest post. On a day when Trump's FBI has arrested a judge in Wisconsin for alleged obstruction of the efforts of ICE to arrest someone in a courthouse, it seems like a good day to update. The TBA remains steadfast in deciding to remain
- [The failure, so far, of the Tennessee Bar Association.](https://faughnanonethics.com/the-failure-so-far-of-the-tennessee-bar-association/) - This post is a follow-up to my indication that I would be writing soon about what I am doing, perhaps the least I can do, to send a message that is commensurate with this moment in history. The erosion of the rule of law, the attacks on law firms and judges, and the speed run
- [A Follow-up Open Letter to The Florida Bar](https://faughnanonethics.com/a-follow-up-open-letter-to-the-florida-bar/) - I know, I know. Who in the world am I, right? You aren't going to read anything I write or do anything about the things I am writing about. But you really, really should be doing something about Pam Bondi. Her penchant for going out in public and telling brazen lies isn't going to stop
- [Some lawyers are being brave.  Far too many are failing all of us.](https://faughnanonethics.com/some-lawyers-are-being-brave-far-too-many-are-failing-all-of-us/) - Although this post could have been prompted by many things, the specific inciting incident for it is this news story out of Detroit involving the appalling treatment of a U.S. Citizen and Michigan lawyer named Amir Makled. The news article makes clear that this man was targeted by our government because it knew he was
- [An open letter to the Florida Bar](https://faughnanonethics.com/an-open-letter-to-the-florida-bar/) - The Attorney General of the United States is a member of the Florida Bar. She also appears to be someone about whom real, substantial questions can be raised about her honesty given a recent television appearance. Many years ago, Kelly Conway, acting as a Presidential advisor, went on television, spewed a fairly obvious lie and
- [An "alter"nate topic today](https://faughnanonethics.com/an-alternate-topic-today/) - It is, of course, tempting to want to post about one of the largest law firms in the nation going full quisling and bending the knee in response to an unlawful Executive Order targeting it. Instead, I will point you to this very well written piece by a fellow ethics nerd based in Wisconsin: Lawyering
- [Nothing that's happening is normal.  None. Of. it.](https://faughnanonethics.com/nothing-thats-happening-is-normal-none-of-it/) - This next stretch of time would likely be hard enough for many folks to get through if nothing else troubling was going on in our nation. This is the stretch of time where we will be reminded time and time again of the five-year anniversary of events that changed, for many irrevocably, our lives because
- [R.I.P.  - NJ Advisory Ethics Opinion 745](https://faughnanonethics.com/r-i-p-nj-advisory-ethics-opinion-745/) - Before launching into the substance of this post, I wanted to briefly acknowledge that tomorrow is the 10th anniversary of the existence of this blog. In the 10 years that have gone by since I put my first post into the tubes, I have written 583 more posts likely spanning at least 750,000 and perhaps
- [Corruption of Blood](https://faughnanonethics.com/corruption-of-blood/) - You may be familiar with the term in an entirely different context than today's post. Sometimes it is fun to just write about something light and less significant than certain other topics. Such is the state of the world when I can say that about a state supreme court opinion in a brutal, first-degree murder
- [Texas Two (proposed ethics opinions) Step](https://faughnanonethics.com/texas-two-proposed-ethics-opinions-step/) - The world is already an exceedingly difficult place. Yet, I continue to seem to think it makes sense for me to spend time thinking I can influence how Texas goes about thinking about legal ethics. There should probably be a DSM-V category for this behavior, but oh well I am doing it again. (It's probably
- [More stuff on the ongoing DOJ turmoil](https://faughnanonethics.com/more-stuff-on-the-ongoing-doj-turmoil/) - The fascist tide in the United States is moving so fast it is difficult to keep up with it. Spending what feels like the appropriate amount of time trying to digest what is happening, and figuring out what can be done about it, can be extremely deleterious to mental health and overall well-being. And yet,
- [Bondo fixes damaged things.  Bondi won't.](https://faughnanonethics.com/bondo-fixes-damaged-things-bondi-wont/) - Given the state of the nation, it is very difficult to write anything about legal ethics that isn't also about politics. So, I'm not even going to bother to try this week to come up with something that isn't. Among the parade of daily horrors to the rule of law happening in the last 3
- [Trump cannot ruin America without the help of lawyers](https://faughnanonethics.com/trump-cannot-ruin-america-without-the-help-of-lawyers/) - Unfortunately, it seems clear that he will have no trouble finding ones willing to do his bidding. Section 1 of the Fourteenth Amendment of the U.S. Constitution provides: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they
- [Can you just "nuh uh" civil rights violations?](https://faughnanonethics.com/can-you-just-nuh-uh-civil-rights-violations/) - Apparently, when you are the Tennessee Supreme Court that might just be something you are powerful enough to do. For a variety of reasons over the years, I have refrained from writing anything here about the Tennessee Lawyers Assistance Program. During the course of my career, there have been times I have been a huge
- [Bullying between clients and lawyers remains a one-way street](https://faughnanonethics.com/bullying-between-clients-and-lawyers-remains-a-one-way-street/) - Many years ago now, I wrote a post about a lawyer improperly making a public announcement that they were no longer representing a prominent client. On the cusp of the United States beginning a journey caused by repeating one of its gravest electoral mistakes, I will not repeat that post in its entirety. Instead, I
- [APRL Takes the Lead Again](https://faughnanonethics.com/aprl-takes-the-lead-again/) - Not quite, but almost, three years ago, I wrote about a proposal by the Association of Professional Responsibility Lawyers urging the ABA to revise Model Rule 5.5 to make it easier for clients to retain the lawyer of their choice without being inhibited by state lines. Regrettably, while the ABA has not yet ultimately acted
- [A rejected "______ makes me a better lawyer" column comes to life](https://faughnanonethics.com/a-rejected-______-makes-me-a-better-lawyer-column-comes-to-life/) - So, from time to time I have really thought about writing something about how much a particular column series in a major legal ethics publication bothers me. If you read the title of this post, and you have access to a subscription to Legal Ethics Law360, then you probably already know which one I am
- [Textual Relations in PA: A Tale of Two Rule Revisions](https://faughnanonethics.com/textual-relations-in-pa-a-tale-of-two-rule-revisions/) - While lots of ethics discussions and regulatory efforts have been focusing on more advanced technology like Generative AI, Pennsylvania has been laser-focused on making it unethical for lawyers to use text messages as a means of soliciting clients in more ways than one. In October 2024, the Pennsylvania Supreme Court adopted revisions to its RPC
- [Another GAI ethics opinion & more](https://faughnanonethics.com/another-gai-ethics-opinion-more/) - Among the topics I have been regularly addressing in presentations during 2024, including here at the end of year rush for CLE credits, has been the ethics issues associated with the rise of Generative AI. The core presentation I have done now almost 10 times has been a constant evolutionary process as things have rapidly
- [Discussing a little discussed rule.](https://faughnanonethics.com/discussing-a-little-discussed-rule/) - For certain, I have failed as a blogger by having another month or so of no content. Understand, I aim to do better on that front; I really do. Coming up with meaningful legal ethics issues to discuss here is not easy, but between my bustling practice (for which I am grateful) and other professional
- [Being a lawyer is testing, becoming a lawyer still shouldn't turn on passing "a test"](https://faughnanonethics.com/being-a-lawyer-is-testing-becoming-a-lawyer-still-shouldnt-turn-on-passing-a-test/) - Yes, I know. The gap in content around here is inexcusable. Every week or so I should at least post this gif to keep people interested. Today though we offer content. We are spurred to drop all the other projects and write because two things happened today. First, of local interest, the results for the
- [Two brutal 2024 ethics opinions highlight the need for reform.](https://faughnanonethics.com/two-brutal-2024-ethics-opinions-highlight-the-need-for-reform/) - Over the last couple of years, as a result of my involvement with APRL, I've had the opportunity to work with a group of smart lawyers to seek to advance reform with respect to the status of Model Rule 5.5 and, more recently, am involved similarly in trying to start the process of reform for
- [Can you name all the ABA Model Rules that can never be violated?](https://faughnanonethics.com/can-you-name-all-the-aba-model-rules-that-can-never-be-violated/) - Instinctively, if you know your way around the attorney ethics rules, I don't think the question posed by the title of this post is a particularly hard question. But two incidents I've experienced within the last few weeks have caused me to question how well understood it is among the legal community that there are
- [The idea of an independent DOJ also died today.](https://faughnanonethics.com/the-idea-of-an-independent-doj-also-died-today/) - It feels very "fiddling while Rome burns" to write about the legal ethics implications of today's Supreme Court ruling that has the potential to have ended core concepts of our Constitutional Republic just 3 days before what would have been its 248th birthday, but legal ethics issues are things that I am more than qualified
- [Generating more Generative AI content](https://faughnanonethics.com/generating-more-generative-ai-content/) - It has somehow been a minute since I've written any updates on anything in the world of Generative AI issues. That hasn't, of course, been because things haven't been happening. They have. And even today I found myself as part of yet another panel presentation on the ethics issues surrounding the rise of the use
- [Anti-discrimination v. anti-diversity](https://faughnanonethics.com/anti-discrimination-v-anti-diversity/) - It has been a while since I have written anything here about ABA Model Rule 8.4(g) and efforts to adopt variations of it at the state level anywhere. Part of why that is the case is that there hasn't (to the best of my knowledge) been many developments of note to write about. Part of
- [Texas Op. 701 - half right is still wrong.](https://faughnanonethics.com/texas-op-701-half-right-is-still-wrong/) - We aren't doing "Bad Ethics Opinion or Worst Ethics Opinion" only because it is Texas so grading has to be on a curve. But we are still going to take a Texas opinion addressing whether a Texas attorney can offer a "subscription model" of legal services to task. Opinion No. 701 issued during May 2024
- [505 and 506 are not the ABA's best.](https://faughnanonethics.com/505-and-506-are-not-the-abas-best/) - So, for a variety of reasons, I've stewed over whether to write anything about what (before yesterday) was the most recent ABA Formal Ethics Opinion to be issued. That opinion was ABA Formal Op. 505 and presents itself as an opinion on, among other things, whether the ABA Model Rules permit the charging of any
- [It's frustrating when appealing to heaven is your only chance.](https://faughnanonethics.com/its-frustrating-when-appealing-to-heaven-is-your-only-chance/) - It would be both easy, and simultaneously anything but easy, to write directly about yet more ethics issues surrounding Justice Alito and whether he has any business hearing certain cases and the continuing dilemma of having there be no mechanism for enforcing any judicial ethics rules as against the United States Supreme Court. Easy because
- [To "Non" or not to "Non"?](https://faughnanonethics.com/to-non-or-not-to-non/) - Is currently sort of a question it seems. It is not the world's most pressing question, but it is a discussion topic in the world of the practice of law getting some extensive media scrutiny in legal publications. For example, here, here, and here. For those not fully enmeshed in the topic already, the issue
- [Bad Ethics Opinion or the Worst Ethics Opinion? Massachusetts edition](https://faughnanonethics.com/bad-ethics-opinion-or-the-worst-ethics-opinion-massachusetts-edition/) - Let's play a blogpost game we haven't played in a long time. (Yeah, I know, you're saying to yourself ... well that could be anything since you took all of March 2024 off buddy. A month or so seems long, but it's actually been almost 7 years since I whipped out the "bad or worst"
- [Beyond disbarred in Colorado](https://faughnanonethics.com/beyond-disbarred-in-colorado/) - Stop me if I've said this before ... but I'm a bad blogger. With that out of the way, here is something exceedingly rare and that caught my attention -- a court ordering that a lawyer, who had already been disbarred, was now no longer entitled to even file things in court on a pro
- [Another failed effort to pretend Rule 5.6(a) has no teeth.](https://faughnanonethics.com/another-failed-effort-to-pretend-rule-5-6a-has-no-teeth/) - It has been a minute since I've had a decent reason to write a post regarding efforts of law firms to try to come up with ways around the ethical restriction imposed by RPC 5.6(a) in jurisdictions that track the Model Rules. A recent Colorado case does the trick. (And, thankfully it does, because otherwise
- [You have to unring a bell the right way & you really can only do it once.](https://faughnanonethics.com/you-have-to-unring-a-bell-the-right-way-you-really-can-only-do-it-once/) - Welcome to 2024 y'all. Lawyers spend an inordinate (but not actually unduly excessive) amount of time worried about making mistakes that involve sending the wrong information to the wrong people. For lawyers in most U.S. jurisdictions, the ethics rules do not provide truly comprehensive guidance about how to fix such a mistake because the ethics
- [New York States of Mind](https://faughnanonethics.com/new-york-states-of-mind/) - Let's end 2023 on a high note, shall we? Governor Hochul must be high. She just vetoed a bill that would have finally ended New York's requirement that New York lawyers have to have an office in New York. Yes, you heard that right. Despite all of the talk in the legal profession of the
- [Fifth Shortcircuit on AI?](https://faughnanonethics.com/fifth-shortcircuit-on-ai/) - It is very hard to get very far in any sort of "end of year" evaluation of legal ethics questions without talking about the rise of generative AI, how to use it ethically, and what its rapid (and continuing) development will mean for the practice of law. I've written earlier this year about the unfortunate
- [Welcome to a new type of post](https://faughnanonethics.com/welcome-to-a-new-type-of-post/) - We will call it: An update on something I could have sworn I wrote about but didn't. After some events in Tennessee that I did write about, a number of petitions were filed to seek to enact some changes to rules in Tennessee related to the admission of attorneys. The first filing in the series
- [The Bare Necessities](https://faughnanonethics.com/the-bare-necessities/) - Let's just blow past the usual excuses when I go this long without posting and jump right in instead. Ok? Great. Today, the United States Supreme Court has adopted and released a Code of Judicial Ethics to which they say they will adhere. You can read the whole thing here. Having written a few times
- [A Bridge Too Far to Terabithia](https://faughnanonethics.com/a-bridge-too-far-to-terabithia/) - (If the pop culture reference doesn't automatically make sense to you, you can scroll to the end for an explanation.) In addition to representing lawyers and law firms over the years, I've also represented quite a few law students during their application and admissions process and had to handle a few Show Cause hearings where
- [Libertarians + Access to Justice = Change?](https://faughnanonethics.com/libertarians-access-to-justice-change/) - First of all, I know I am long overdue for new content here. There have been quite a few things that caught my eye that I wanted to write about, but there were so many to choose from it got into a weird, overwhelming, and highly unusual sort of "writer's block" situation. Second, some anniversaries
- [One bad apple spoils bunch?  Ethics opinion edition](https://faughnanonethics.com/one-bad-apple-spoils-bunch-ethics-opinion-edition/) - I'm sure you are familiar with the idiom "One bad apple spoils the bunch" or in some parts of the country "one bad apple spoils the barrel," but probably not in the context of legal ethics opinions. Someone could (or has) already written versions of posts applying that idiom to lawyers generally and perhaps unethical
- [At the intersection of ethics and entrepreneurial acts](https://faughnanonethics.com/at-the-intersection-of-ethics-and-entrepreneurial-acts/) - A case written up by Mike Frisch earlier this month caught my eye because it involves a discussion of two still-evolving areas of claims that can get made against law firms. Most of the case, and most of what Frisch focuses on, is the malpractice claim that was made regarding an alleged lost opportunity to
- [Breaking? BPR Issues Two Formal Ethics Opinions](https://faughnanonethics.com/breaking-bpr-issues-two-formal-ethics-opinions/) - With little to no fanfare (and in fact I only know they came out because I happened to go look on the website out of curiosity), the BPR has now issued the two opinions it had put out in draft form for public comment earlier this year. Both of these opinions were adopted on August
- [Some bad news, some good news, and some "just news."](https://faughnanonethics.com/some-bad-news-some-good-news-and-some-just-news/) - All, Just a PSA. Do not get COVID. It is no good. Very bad. You don't want it. I managed to go all the way to August 2023 without ever getting it, but I came back from Denver with it earlier this week. It sucks. If you are traveling, I'd suggest you mask up. I
- [Hot Censure Summer in Tennessee](https://faughnanonethics.com/hot-censure-summer-in-tennessee/) - I've written once before about the dynamics for disciplinary defense lawyers in trying to work through precedent based on limited information when a variety of disparate conduct by lawyers all results in the same level of discipline. In that post, the variety of discipline was public censure. And you won't be shocked to hear that
- [Wach the Tell?](https://faughnanonethics.com/wach-the-tell/) - So, it is trite to say that every picture tells a story. But it is trite for a reason. Here is a simple photo of two pages of the billing entries of the Wachtell Lipton firm in their representation of Twitter against Elon Musk in the Delaware litigation to force him to honor his promise
- [Let's talk about the 3.3 of 303 Creative](https://faughnanonethics.com/lets-talk-about-the-3-3-of-303-creative/) - So, for folks of my political persuasion, the last week of the Supreme Court term was a real gut punch. Today's post is not about arguing with anyone over whether the outcome of the 303 Creative decision was or was not correct and is not even about whether the Plaintiff in 303 Creative should have
- [♫ Everybody Saudi Sun Tonight ♫](https://faughnanonethics.com/♫-everybody-saudi-sun-tonight-♫/) - I promise at some point I will write something not about a lawyer getting sanctioned by courts, but it won't be today. Today's post is prompted by a ruling of the 9th Circuit Court of Appeals dropping a (potentially more than $250,000) sanctions hammer on a lawyer and referring that lawyer to the bar for
- [Some quick sanctions updates for your reading pile](https://faughnanonethics.com/some-quick-sanctions-updates-for-your-reading-pile/) - I know from years of representing lawyers that when you are facing sanctions against you it is awful difficult to spend much time thinking about things other than what is going to happen to you. So, although there are a lot more important things going on in the world right now, today's content is just
- [Hoosier overseer?](https://faughnanonethics.com/hoosier-overseer/) - If you are a reader of legal publications or legal blogs, you've likely already read something about the nightmarish night out in Indiana that resulted in two state court judges being shot and three state court judges being disciplined. You can read all of the underlying facts if you'd like in the decision that was
- [Doubting Thomas.](https://faughnanonethics.com/doubting-thomas/) - An alternate, much longer, but likely much more salient title for this post is "What's a democracy supposed to do when a sitting United States Supreme Court Justice is okay with democracy being threatened?" That's right kids, today we are going to talk a bit about judicial ethics and remind everyone that we currently do
- [Certificate of Consternation](https://faughnanonethics.com/certificate-of-consternation/) - This post will be short (fingers crossed) and sweet bitter. I've written pretty extensively lately about the two lawyers (now 3 lawyers) getting a lot of negative publicity for misusing ChatGPT and, as a result, filing documents with courts containing imaginary legal authorities. I will not repeat my points about the failings of those lawyers.
- [Supervisory and subordinate are not like doms and subs.](https://faughnanonethics.com/supervisory-and-subordinate-are-not-like-doms-and-subs/) - Now that I've gotten you hooked with the salacious title to the post, I'll hit you with the boring content. Among all the discussion that has transpired over who folks are calling the ChatGPT lawyers, who I wrote a bit about earlier this month, there has not been any real focus on who was the
- [Use the right tool for the job.](https://faughnanonethics.com/use-the-right-tool-for-the-job/) - If you need a very short version of everything I am about to write, it would go a little something like this. Don't use a calculator to try to determine whether you have spelled a word correctly. If you do that, don't blame the calculator because you are the problem. Even though it all transpired
- [Obvious things that lawyers can't do](https://faughnanonethics.com/obvious-things-that-lawyers-cant-do/) - We here at Faughnan on Ethics are starting to become something of an online jukebox. Once again, a loyal reader has taken to Twitter and requested that something be talked about on this blog. And, once again, we are complying. Although this time with a bit of a twist because the story in question really
- [A Penny for My Thoughts](https://faughnanonethics.com/a-penny-for-my-thoughts/) - Someone last week reached out on Twitter and wanted my thoughts on the crowdfunding effort launched by a New York law firm to raise money for the legal defense of Daniel Penny. Thought #1 -- not unique to me as I've seen others say the same thing -- very few things indicate how bad things
- [Crowdfunding for attorney fees?  Yes, but no.](https://faughnanonethics.com/crowdfunding-for-attorney-fees-yes-but-no/) - So, since about early December of last year I've been trying to find a way to write about a really good, quite practical (albeit practical about a very niche situation) D.C. ethics from November 2018. The D.C. Opinion, Ethics Opinion 375, addresses the idea of using crowdfunding platforms as an ethical way for a client
- [Listeners Like You](https://faughnanonethics.com/listeners-like-you/) - The FCU (Faughnan Content Universe) has expanded. Just in case any readers are interested in knowing about this, I am taking advantage of this platform to do a little bit of promotion about a new endeavor. It is a podcast and it has nothing to do with legal ethics, so if any of the pop
- [Sauce for the goose but not for the gander](https://faughnanonethics.com/sauce-for-the-goose-but-not-for-the-gander/) - A quick and also rare weekend post because I've been tied up a bit and am about to be tied up again and unable to post for a week or so. I've sallied forth at length here about what I see to be pretty disingenuous attacks based on First Amendment arguments against adopting ABA Model
- [Two proposed TN Ethics Opinions - Part 2](https://faughnanonethics.com/two-proposed-tn-ethics-opinions-part-2/) - Like a movie sequel coming out 10 years later, here comes part two of that promised two-part post. (Can you even really call something a two-part post if the second part doesn't come along until 10 days later?) The second draft Formal Ethics Opinion put out for public comment by the Board of Professional Responsibility
- [Two proposed TN Ethics Opinions Means Another Two-Parter](https://faughnanonethics.com/two-proposed-tn-ethics-opinions-means-another-two-parter/) - It's getting a bit commonplace now, isn't it? You go years without doing a two-part blogpost and then you do another one the same week? Kind of takes all the excitement out of the idea of a two-part post, doesn't it? Sure. But in my defense, the Tennessee BPR went roughly 3 years before issuing
- ["No extensions" - Part 2](https://faughnanonethics.com/no-extensions-part-2/) - So, I know I promised part two of this two-part blog epic would come out today, but things have come up and so I'm going to have to ask you for a little patience and an extension of a few days to deliver. I'm just joking, of course. I know that you won't be granting
- [This "No extensions" Policy Won't Last Long](https://faughnanonethics.com/this-no-extensions-policy-wont-last-long/) - Let's talk about this week's big legal news. No, not that. No, also not that. Okay, in the interest of accuracy, I should say let's talk about something that was big legal news this week within some circles and has an easy hook into discussing attorney ethics rules. Yes, you've now guessed it - the
- [Bard, J. (confusing)](https://faughnanonethics.com/bard-j-confusing/) - So, writing about the advancements in AI is all the rage right now. And that isn't surprising because the developments have been coming pretty quickly in 2023 starting with (I think starting with) Open AI rolling out a Chat GPT-3 and all the discussion and the oohing and the aahing and then it within weeks
- [It's called "reciprocal" discipline but ...](https://faughnanonethics.com/its-called-reciprocal-discipline-but/) - Sometimes, not always of course, but sometimes representing a client in a disciplinary matter can become much more complicated if they hold licenses in multiple states. The problems of potential reciprocal discipline being imposed in those other states can sometimes make it difficult for a lawyer to be willing to agree to even minor discipline
- [What's a public censure when you're shameless?](https://faughnanonethics.com/whats-a-public-censure-when-youre-shameless/) - So, I've been starting and stopping a post about the most recent ABA Formal Ethics Opinion to be released. Partly, because the opinion is a bit pedestrian generally involving weighing in on a situation that is largely always an "it depends" on factors that are hard to spell out in an ethics opinion and partly
- [Kudos to the TN BPR - Giving Public Comment Its Due](https://faughnanonethics.com/kudos-to-the-tn-bpr-giving-public-comment-its-due/) - So, you can consider this my "commitment" to always writing about new Formal Ethics Opinions that get released in Tennessee when they go through the public comment process. I put commitment in quotes because, at this point, it is only the second time it has ever happened. But it's the first time where public comments
- [Secret recordings can be good.  Electing judges kind of can't.](https://faughnanonethics.com/secret-recordings-can-be-good-electing-judges-kind-of-cant/) - So, the reasons secret recordings will always happen in "one-party" recording states is that they get to the truth. Lots of people do not like them though. And judges absolutely loathe the notion of being secretly recorded. They do not like them so much that sometimes no matter what the secret recording reveals they will
- [Several scattered thoughts about advancements in AI](https://faughnanonethics.com/several-scattered-thoughts-about-advancements-in-ai/) - So, life really moves fast. Though, while it seems like advancements in AI are also really moving fast, maybe they aren't moving as fast as the hype. That is the topic for today. Now, when I say life really moves fast ... I mean that between my starting this post yesterday and today a giant
- [DoNotP(L)ay](https://faughnanonethics.com/donotplay/) - Or maybe we should title this post "Do Not Accept Payment" instead. So, a long time ago I wrote about some of the very good work that was being done by the folks associated with the "chat bot" app DoNotPay. If you do not remember any of that, you can refresh through this link. The
- [Is North Carolina's path the future of RPC 1.6?](https://faughnanonethics.com/is-north-carolinas-path-the-future-of-rpc-1-6/) - Okay, so in the interest of full transparency, what I really wanted to write about is the fact that we have a new entrant in the running for "Who is the worst of the Trump lawyers out there?" competition. Among the many things that have come out of the work of the January 6 Committee
- [Not so NFTy idea](https://faughnanonethics.com/not-so-nfty-idea/) - I've written once before in this space about the ridiculousness of NFTs. To some degree, I guess I am not surprised that I am doing so again but I kind of am ... particularly in the context in which the topic arises. As well as the timing. As to the timing, if you haven't been
- [Tennessee Topic Today](https://faughnanonethics.com/tennessee-topic-today/) - There is an old saying about how when your only tool is a hammer, then you treat everything as a nail. I'm not getting the vernacular 100% correct, but you get the gist. That is the introduction for this post today because, as a lawyer who makes a living representing other lawyers (and obviously needs
- [Just a sh***y lawyer practicing past his "sell-by" date](https://faughnanonethics.com/just-a-shy-lawyer-practicing-past-his-sell-by-date/) - We here at this blog try not to write about things just for clicks or that revolve around stuff that simply every regular lawyer would know not to do. But the world demands exceptions sometimes, so here I am today addressing a story that popped up right before Turkey Day and that might help suppress
- [Dot. Dot.Dash (3 updates)](https://faughnanonethics.com/dot-dot-dash-3-updates/) - Three updates for you on things that all managed to catch my eye at the same time and all fall into the "I've written about this before" category. First, there has now been a ruling in that MSG case where the lawyers for MSG were badly misusing RPC 4.2 to justify barring certain attorneys from
- [New York Disbarment Speedrun](https://faughnanonethics.com/new-york-disbarment-speedrun/) - Now to get the obvious first question out of the way: "speedrun" is a term that gamers use to refer to tackling a video game in a manner where the goal is to try to just complete the whole thing as quickly as possible rather than worrying about high scores. If you want to do
- [Again with the "reply all" question.](https://faughnanonethics.com/again-with-the-reply-all-question/) - Ok. The American Bar Association has now weighed in. So, let's do this. But given how thoroughly I am already on the record on the topic, let's do it quickly and hopefully efficiently. And, after we're done, I'll do some shameless self-promotion. This week the ABA issued Formal Ethics Opinion 503 which tackles a topic
- [You would have thought it would have been with Houston, but still...](https://faughnanonethics.com/you-would-have-thought-it-would-have-been-with-houston-but-still/) - Some interesting news today in the intersection of legal ethics and sports. (And technically this makes two straight posts dabbling in that space.) You might recall seemingly forever ago that I posted about a very short lived partnership between the ABA and a company called Rocket Lawyer. If you don’t remember anything about that, you
- [When the MSG doesn't agree with you.](https://faughnanonethics.com/when-the-msg-doesnt-agree-with-you/) - I've had loads of opportunities over the years to write about interpretations of ethics rules with which I disagreed. But the discussion is much less frequently prompted by a party taking a private position outside of litigation (or even a public position in litigation) about what a rule means because ... well ... that usually
- [2020 too?](https://faughnanonethics.com/2020-too/) - This past year has certainly been ... something. Other than the ongoing pandemic, this year feels like it will historically be defined (at least within the United States) by the various assaults on democracy starting with the January 6 insurrection, continuing with the efforts of one political party to choose its voters rather than vice
- [Sorry to "ghost" on everybody](https://faughnanonethics.com/sorry-to-ghost-on-everybody/) - Life remains crazy for many, and the pandemic just doesn't seem to have any intention of ending before it can have an extended Season 3 storyline. I almost hate to write these words and "jinx" it but my wife, my children, and I have continued to be able to avoid contracting Covid-19, but that doesn't
- ["In representing a client ..."](https://faughnanonethics.com/in-representing-a-client/) - I've written in this space in the past before about how there are many ethics rules that limit their application to lawyers such that they do not kick in unless a lawyer is representing a client. Perhaps, most prominently, this point has been dwelt upon when talking about the efforts to convince jurisdictions to enact
- [Just another follow-up Friday.](https://faughnanonethics.com/just-another-follow-up-friday/) - Yes, if you are about the same age as me, you can sing that title to The Bangles tune of "Just another Manic Monday ..." So, this is a weirder follow up post as it follows up on something I posted in October 2021 but involves substantive content that came into existence in July 2021
- ["It's Groundhog Day... again."](https://faughnanonethics.com/its-groundhog-day-again/) - This past week included one of our nation's most heralded fake holidays. Groundhog's Day. Silly occasion, but still a really good movie, of course. But, playing off of the theme of repeating events and disappointing outcomes, we return to the oft-discussed topic of lawyers trying to respond to online criticism. We've covered in the past
- [An ethics opinion for Valentine's Day?](https://faughnanonethics.com/an-ethics-opinion-for-valentines-day/) - Roses are red.Violets are blue. California has a new ethics opinion about what to do when your client no longer remembers you. I'm no Langston Hughes or Emily Dickinson. I'm not even at the level of say ... Spike Milligan. And since it isn't dated from what I can tell, I cannot be certain that
- [Should racists be permitted to practice law?](https://faughnanonethics.com/should-racists-be-permitted-to-practice-law/) - This is a question I’ve asked in the past. It is not instinctively an easy question to wrestle with. It can easily boil over into various slippery-slope arguments and accusations regarding risk of inviting concepts of the “thought police” and the like. But another news item invites the question back into the arena for further discussion. This ABA
- [An award-winning post.](https://faughnanonethics.com/an-award-winning-post/) - The punny title will be just about the only non-serious aspect of today's post. The ABA Center for Professional Responsibility announced the winner of the 2022 Michael Franck Professional Responsibility Award was announced by the ABA. This year's honoree is Lucian Pera of Memphis. Odds are, if you are someone who reads this blog, you
- [Another ethics opinion that wouldn't be required if all lawyers were good (or at least chaotic-neutral) lawyers.](https://faughnanonethics.com/another-ethics-opinion-that-wouldnt-be-required-if-all-lawyers-were-good-or-at-least-chaotic-neutral-lawyers/) - There has been A LOT of stuff going on this week in the world of legal ethics. I will refrain from dedicating an entire post to try to tie this plea I made in a post back in December 2020 to these two developments, here and here. Instead, I want to talk a little bit
- [Confidentiality and credit cards](https://faughnanonethics.com/confidentiality-and-credit-cards/) - I have written here in the past about a number of ways that a lawyer's obligation of confidentiality imposes limits on their ability to do certain things that others can do and even as to subject matter where it seems highly unfair. Most frequently, this issue arises when talking with lawyers about what they can
- [APRL is leading the way toward modernizing the practice of law.](https://faughnanonethics.com/aprl-is-leading-the-way-toward-modernizing-the-practice-of-law/) - Yesterday was potentially a very big day in the world of lawyers and clients. I am very pleased to report that yesterday the Association of Professional Responsibility Lawyers released a proposed overhaul of Model Rule 5.5., called on the ABA to take action to adopt it, and disseminated a very thorough and detailed Report explaining
- [Requiring lawyers only to disclose whether they have malpractice insurance can do more harm than good.](https://faughnanonethics.com/requiring-lawyers-only-to-disclose-whether-they-have-malpractice-insurance-can-do-more-harm-than-good/) - So, this is an issue that states continue to "struggle" with from time to time, and the latest I am aware of is Vermont. Michael Kennedy has alerted the public to a pending proposal in Vermont that is now out for public comment that would require Vermont lawyers to disclose on their annual registration statements
- [Things You Stone Kolb Can't Do.](https://faughnanonethics.com/things-you-stone-kolb-cant-do/) - So, today's post involves an ongoing (recently initiated in fact) disciplinary matter. Accordingly, the details available are based entirely on the one-sided positions set out in the disciplinary complaint. The ABA Journal has run a story about it, but once again, it first got on my radar screen because of discussion over at The Legal
- [500:  A Multimedia Extravaganza.](https://faughnanonethics.com/500-a-multimedia-extravaganza/) - So, in my most recent post, I ended by acknowledging that there was a milestone upcoming and that it seems like a circumstances creating odd pressure. I have now managed to do this for more than seven years and by my best guess there is roughly 500,000 words of content on legal ethics now available
- [Rare but not unprecedented.](https://faughnanonethics.com/rare-but-not-unprecedented/) - So, apologies all around. For those seeking out new content from me, I apologize for the brief hiatus. For those who hoped I'd stop at 500 posts, I apologize because for not stopping. For the first of what I hope will be at least another 500, let's talk about a recent disbarment action that involves
- [Obviously, there really is such a thing as bad publicity.](https://faughnanonethics.com/obviously-there-really-is-such-a-thing-as-bad-publicity/) - So, earlier this week I was fortunate enough to be able to participate in a seminar put together by Bloomberg Law that focused on the risks and benefits for lawyers in speaking to the press. I think it was a pretty good panel presentation, it was free of charge to attendees, and I believe you
- [RPC 8.4(g) update - "blue" states keep pushing forward.](https://faughnanonethics.com/rpc-8-4g-update-blue-states-keep-pushing-forward/) - Yesterday, June 20, 2022, was the inaugural federal Juneteenth holiday here in the United States. Far too few lawyers and law firms acknowledged it like we do other federal holidays by ... you know, closing and not requiring people to work that day. Admittedly, some federal holidays are not fully observed but given the rampant
- [New case offers rare glimpse into the black box of the Board of Law Examiners.](https://faughnanonethics.com/new-case-offers-rare-glimpse-into-the-black-box-of-the-board-of-law-examiners/) - I fairly regularly represent people in proceedings in front of the Board of Law Examiners, and as a result, I have a bit of a running list of "grievances" with aspects of how that body conducts itself. At times where I have matters pending before it, it becomes difficult to spend too much capital speaking
- [A virtual example of better, but not good enough.](https://faughnanonethics.com/a-virtual-example-of-better-but-not-good-enough/) - I know it really hasn't been that long (a little over two months ago) since I wrote on here to trumpet the APRL proposal for a new ABA Model Rule 5.5. If you missed that, it would help a lot to go read that post first. Here's a link. I'll wait right here until you
- [One good item and one bad item for your Friday](https://faughnanonethics.com/one-good-item-and-one-bad-item-for-your-friday/) - Some days the inspiration kicks in and other days it most certainly does not. If this were Instagram, I'd likely try to spout some sort of perspiration to inspiration platitude. But this isn't, so I won't. I will though write about two items that somehow caught my attention this week and even though I can't
- [You get a censure, you get a censure, everybody gets a censure!?](https://faughnanonethics.com/you-get-a-censure-you-get-a-censure-everybody-gets-a-censure/) - This is a post that will largely only speak to other lawyers who handled the defense of disciplinary matters. It is also a post that admittedly will -- based on limited available information both broadly and narrowly -- lack appropriate insight at a granular level. What it is intended to do, however, is point out
- [Louisiana remains a legal embarrassment.](https://faughnanonethics.com/louisiana-remains-a-legal-embarrassment/) - There are a lot of dumpster fire situations going on these days that have direct or indirect relationships to legal ethics. Frankly, there are too many to make it easy to decide which ones to think it makes sense to spend time writing about here. There is the seemingly evergreen issue of Donald Trump continually
- [Examples #2,145 and 2,146 of the scope of the problem.](https://faughnanonethics.com/examples-2145-and-2146-of-the-scope-of-the-problem/) - Having just scratched long unscratched itches of topics over which dust has gathered last week, let's resume talking about more recent topics. Specifically, a topic that is going to need to continue to be bellowed about until we can get it fixed: the flaws in RPC 5.5. Thankfully, we have two further recent situations --
- [Recipe for a blogpost in a pinch - two parts shameless self promotion; one part substance](https://faughnanonethics.com/recipe-for-a-blogpost-in-a-pinch-two-parts-shameless-self-promotion-one-part-substance/) - I'm fortunate enough this week to be in Austin, Texas in order to share a stage with the wonderfully-talented Lynda Shely on Friday to talk for an hour on ethics at the DRI Employment and Labor Law seminar. Working off of a hypothetical that has a "cribbed" from the headlines if not a "ripped" from
- [Friday follow up:  You can buy a lot of whistles with $8 million.](https://faughnanonethics.com/friday-follow-up-you-can-buy-a-lot-of-whistles-with-8-million/) - Two weeks ago, I wrote a little something about angles and issues when lawyers function as whistleblowers. It is now a bit late on Friday, but, by way of follow-up, it does seem worthy of note that on Monday the jury in the case of the ex-GC of Bio-Rad claiming whistleblower status awarded him almost
- [Preparing for disbarment.](https://faughnanonethics.com/preparing-for-disbarment/) - The panel I was fortunate enough to participate in at the meeting of the Association of Professional Responsibility Lawyers in Vancover earlier this month has received a very good write up appearing in a Bloomberg Law publication. You can go read it here. We talked about a number of things other than the looming GDPR deadline,
- [New Jersey takes a step in the right direction on advertising](https://faughnanonethics.com/new-jersey-takes-a-step-in-the-right-direction-on-advertising/) - With a strong tip of the metaphorical hat I never wear to Kim Ringler (a former President of APRL) who alerted many ethics lawyers to the news, I write today about a new ethics opinion from the New Jersey Committee on Attorney Advertising. In Opinion 45, issued less than a week ago, New Jersey has
- [Ohio offers advice for lawyers representing Matt Damon](https://faughnanonethics.com/ohio-offers-advice-for-lawyers-representing-matt-damon/) - And other crypto bros too, I guess. You may recall in the halcyon days before any of us ever spent any time thinking about pandemics and public health on a daily basis that I wrote about how Nebraska became the first U.S. jurisdiction to issue ethics guidance on whether lawyers could accept payment of fees
- [Meta: Two updates on topics from prior posts](https://faughnanonethics.com/meta-two-updates-on-topics-from-prior-posts/) - A couple of timely updates, both involving California events. I've quite recently written about the ethical issues associated with the trend toward de-criminalization if not outright legalization of marijuana here. As yet further proof about the rapid developments in this area, the San Francisco Bar Association put out an ethics opinion earlier this month making clear
- [TACDL's judicial disciplinary complaint and what really makes it unusual](https://faughnanonethics.com/tacdls-judicial-disciplinary-complaint-and-what-really-makes-it-unusual/) - The Tennessean has an article today about a disciplinary complaint filed by the Tennessee Association of Criminal Defense Lawyers against a General Sessions judge in Nashville. (General Sessions court in Tennessee is our small claims court, on the civil side, and on the criminal side of things tends to be a misdemeanor court.) TACDL says
- [A word about B**chslaps](https://faughnanonethics.com/a-word-about-bchslaps/) - It's a stupid and demeaning term. In both contexts, whether you replace the asterisks with the original two letters, it, or the other two letters, en. It is unfortunate that the second term was ever coined by this guy, and it is remarkable to think that this guy has included it for many years as
- [Hyperbole is the worst thing in the world - judicial ethics roundup](https://faughnanonethics.com/hyperbole-is-the-worst-thing-in-the-world-judicial-ethics-roundup/) - Earlier this month, the U.S. Supreme Court issued an important opinion on judicial recusal, Williams v. Pennsylvania. It is the first instance in which the Court has applied the standard first announced in Caperton -- that recusal is required when the risk of actual bias on the part of a judge is "too high to be
- [Friday follow up - Sixth Circuit affirms Kentucky judicial speech case](https://faughnanonethics.com/friday-follow-up-sixth-circuit-affirms-kentucky-judicial-speech-case/) - So, I've been battling a bit of a stomach bug such that over the last 45 hours or so I have ingested a cup of yogurt, a sleeve of Ritz crackers, and a small bowl of chicken noodle soup. Accordingly, this will be a short(ish) post - apologies in advance. Back in May of this
- [An inside-baseball view of judicial ethics and the media](https://faughnanonethics.com/an-inside-baseball-view-of-judicial-ethics-and-the-media/) - For today, an interesting (at least I think it is interesting) story about a judicial ethics scenario and the ability of media to "shape" a story and how that ability can transform a question of judicial ethics. About three weeks ago, I spoke with a print reporter with The Nashville Scene about questions he had
- [About last week... (and some actual content too)](https://faughnanonethics.com/about-last-week-and-some-actual-content-too/) - So, I didn't manage to post last week and this is something of an apology to those of you loyal readers who kept coming to the site last week each day looking for content. (Rest assured, there's also some substantive discussion of a live ethics issue in the post as well.) I don't have any
- [The good and bad of social media on display](https://faughnanonethics.com/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
- [Lawyers (but really judges) in a #meToo world.](https://faughnanonethics.com/lawyers-but-really-judges-in-a-metoo-world/) - I was fortunate enough to be invited to speak last week at a half-day seminar that was called a "#meToo CLE" and was focused on legal and ethical issues for lawyers in the environment that now exists after #meToo went viral. I was the only male speaker at the seminar and fully recognize that still
- [Supreme problems](https://faughnanonethics.com/supreme-problems/) - A lot of attention is focused on goings-on related to the U.S. Supreme Court - and rightly so given the stakes and given the nature of the saga that continues to unfold. But, lost in the shuffle is the fact that 2 state Supreme Courts in our nation are, at present, entirely in a state
- [Proposed revisions to the Code of Conduct for U.S. Judges](https://faughnanonethics.com/proposed-revisions-to-the-code-of-conduct-for-u-s-judges/) - So last week I was quoted a bit in a Law360 story related to Judge Kavanaugh's continued effort to ascend to the highest judicial position in our nation. If you are a subscriber, you can read the article here. It had to do with the news of the lawyer who was going to be representing
- ["Let's put our heads together and start a new country up."](https://faughnanonethics.com/lets-put-our-heads-together-and-start-a-new-country-up/) - Serial, perhaps the best known podcast of all podcasts, has recently launched its third season and like one of the REM songs off of Life's Rich Pageant it focuses on Cuyahoga - but not the river but the County in Ohio - more particularly, it focuses on what goes on inside the Justice Center in Cuyahoga County.
- [One thing that lawyers and judges have in common.](https://faughnanonethics.com/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
- [Friday Follow-Up: Florida Finds Facebook Friendship Fine](https://faughnanonethics.com/friday-follow-up-florida-finds-facebook-friendship-fine/) - You've probably heard this news by now. But, it's Friday and I wrote about this before, so ... I feel a sense of obligation to follow-up. The Florida Supreme Court ruled yesterday that the fact that a judge is Facebook friends with a lawyer appearing before her in a litigated matter is not alone sufficient to
- [Two Arkansas items involving rare procedural developments](https://faughnanonethics.com/two-arkansas-items-involving-rare-procedural-developments/) - As I attempt this week to get back into the saddle, two items - each relatively unusual and each involving Arkansas - grabbed my attention. One involves a judge and the other a lawyer. Although Fridays are usually reserved for standard "follow ups," the first item is in the nature of follow-up because I wrote
- [Really good guidance, but not good enough for some.](https://faughnanonethics.com/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
- [It's always easy to get distracted by the cat.](https://faughnanonethics.com/its-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
- [NFT = No From Tennessee](https://faughnanonethics.com/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." 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
- [It's hard to keep up with all the bad new laws Tennessee is cooking up.](https://faughnanonethics.com/its-hard-to-keep-up-with-all-the-bad-new-laws-tennessee-is-cooking-up/) - As the title indicates, Tennessee - like almost all states under a Republican stranglehold - is currently experiencing a wave of legislative efforts to roll back progress on civil rights while also trying to make it difficult to vote them out of office by ... making it more difficult for minorities to vote and have
- [Speaking of public censures ...](https://faughnanonethics.com/speaking-of-public-censures/) - Today we get the chance to write about something that truly is a rare event -- the imposition of public discipline against a sitting federal judge. And it is a story that when you reach the end of it leaves you feeling like the punishment was not really harsh enough but also very aware of
- [Blasts from the past.](https://faughnanonethics.com/blasts-from-the-past/) - First, just a heads up that there will be some design changes taking place here at Faughnan on Ethics around the beginning of October 2022 so keep an eye out for that. Second, I know I haven't written about anything recently but today is a day to knock out bunch of updates on things that
- [A brief personal announcement](https://faughnanonethics.com/a-brief-personal-announcement/) - It's a new month and, for me, a new professional era. I have been privileged to work over the last 23 years for three excellent law firms ranging in size from 50+ lawyers to more than 300 or so. From my early years with Armstrong Allen all the way through the last 8 years at
- [Two ethics rule revisions on the way ... one good, one not-so-much](https://faughnanonethics.com/faughnan-on-ethics/) - After putting proposals out for public comment in 2014, the Tennessee Supreme Court in the span of a week in February 2015 ordered changes to Tennessee’s lawyer ethics rules that will each take effect on May 1, 2015. For those lawyers who favor a robust view of lawyer speech rights, the two orders present a
- [TN's Approach to Nonrefundable Fees - A Reminder](https://faughnanonethics.com/tns-approach-to-nonrefundable-fees-a-reminder/) - Near the end of February 2015, the New York City Bar put out its Formal Opinion 2015-2 evaluating a question of propriety of a flat, nonrefundable monthly fee in a retainer agreement and reached the conclusion that a particular one that was something of a “hybrid” was problematic. Although the NYC opinion makes for a
- [More potential advertising issues (of a sort) on the horizon](https://faughnanonethics.com/more-potential-advertising-issues-of-a-sort-on-the-horizon/) - As something of a follow-up post about the expansion of the existing 30-day prohibition on certain solicitation efforts that the Tennessee Supreme Court has now ordered, it likely is worth noting that the existing 30-day restriction in the ethics rules tied to just disasters and personal injury matters has always itself been somewhat controversial among
- [Post-discharge communications with jurors](https://faughnanonethics.com/post-discharge-communications-with-jurors/) - To clarify about that forthcoming revision to the comment to RPC 3.5(c) w/r/t restrictions on communicating with discharged jurors after trial: it impacts only the ability of trial court’s to enter routine orders — such as standing orders or local rule provision — that would place jurors off-limits from lawyers after discharge. It will not
- [Board of Law Examiners – March 12, 2015 petition to overhaul Rule 7](https://faughnanonethics.com/board-of-law-examiners-march-12-2015-petition-to-overhaul-rule-7/) - Depending on what type of law practice setting you work in, you may or may not be aware of the several ways in which Tennessee’s system for licensing lawyers is a bit … I believe the technical word is “broken.” Yesterday, the Board of Law Examiners filed a petition to seek to have the Tennessee
- [A 2014 Ethics Roadshow update](https://faughnanonethics.com/a-2014-ethics-roadshow-update/) - For those of you who may have watched my 2014 Ethics Roadshow in person or online, you may recall that one of the lawyers whose plight we discussed was the former General Counsel for South Carolina State University. He had been indefinitely suspended from practice after pleading guilty to misprision of a felony arising from
- [More on the BLE’s petition for rule changes](https://faughnanonethics.com/more-on-the-bles-petition-for-rule-changes/) - This will be the first of several more in-depth entries focused on the Board of Law Examiners’ petition seeking some changes to Tenn. Sup. Ct. R. 7, which deals with a collection of licensing issues in Tennessee. (This will also be one of those less frequent posts where I may not adhere strictly to my
- [Washington and Its LLLTs](https://faughnanonethics.com/washington-and-its-lllts/) - One likely future facing the practice of law in the U.S. is now on display in the State of Washington and getting some high-profile publicity this week. This article in The Washington Post tells you almost all you need to know about the introduction of Limited License Legal Technicians (or “nurse practitioners of the legal world”
- [A recent experience speaking about legal ethics to regular people](https://faughnanonethics.com/a-recent-experience-speaking-about-legal-ethics-to-regular-people/) - I had the opportunity recently to make a legal ethics presentation to a group of regular people, i.e., people who were not lawyers. (It takes effort not to call them "nonlawyers." I admitted that to them at the outset while acknowledging how egocentric the term sounds when lawyers use it to mean anyone else. Even physicians
- [One way the "practice of law" might just be like pornography.](https://faughnanonethics.com/one-way-the-practice-of-law-might-just-be-like-pornography/) - No, not in any of the ways that would be fodder for jokes or insults directed at lawyers. This is actually another follow-up post of thoughts on an aspect of the BLE's petition for changes to Rule 7 that I first discussed here. And despite the "click-bait" nature of the title of the post, there
- [A little more insight into the issue of LLLTs - California](https://faughnanonethics.com/a-little-more-insight-into-the-issue-of-lllts-california/) - Pretty quick on the heels of this prior post, we now have a further development from the West Coast on the potential utility of limited license legal technicians, i.e. "nurse practitioners for the legal profession," in providing better access to justice. The California State Bar has now put out for public comment a number of proposals
- [Prejudicial to the administration of justice?  I'm going to say yes.](https://faughnanonethics.com/prejudicial-to-the-administration-of-justice-im-going-to-say-yes/) - I tend to think my credentials as a fan of the First Amendment are pretty solid. But I feel like I'm standing on pretty solid ground in saying that a lawyer's effort to pursue a ballot initiative that calls for the murder of people, if it were going on in Tennessee, would justify discipline against
- [Speaking of prejudicial to the administration of justice ...](https://faughnanonethics.com/speaking-of-prejudicial-to-the-administration-of-justice/) - It is not every day that a contempt case against a Tennessee lawyer gets some national coverage, but it also is not every day that a celebrity former television judge and former candidate for District Attorney has a criminal contempt ruling and sentence of 5 days in jail against him affirmed on appeal. The appellate
- [BLE Petition Now Has a Public Comment Deadline of July 31, 2015 - UPDATED](https://faughnanonethics.com/ble-petition-now-has-a-public-comment-deadline-of-july-31-2015/) - UPDATED TO ADD LINK The Tennessee Supreme Court has put out an order today soliciting public comments on that BLE petition proposing changes to Rule 7 and a few other rules. Deadline for submission of public comments is July 31, 2015. I've already written about some aspects of the petition on a number of occasions
- [New column in Memphis Lawyer now available](https://faughnanonethics.com/new-column-in-memphis-lawyer-now-available/) - It's also in the mail to subscribers, but you can access the new issue here (my column is at pp. 28-29). My piece discusses the plot of a favorite book of mine as well as relatively recent changes made to the ethics rules about conflicts rooted in lawyers' family relationships. I'd also encourage you to
- [Fixing TN's Comity Problem and Practice Pending Admission](https://faughnanonethics.com/fixing-tns-comity-problem-and-practice-pending-admission/) - In my first post on the heels of the filing of the pending BLE petition earlier this month, I made reference to Tennessee's attorney licensing system being broken. The primary problem is that language in Rule 7 makes obtaining licensing by comity (i.e. waiving in without having to take TN's bar examination) a practical impossibility. Currently,
- [Social media and advertising issues](https://faughnanonethics.com/social-media-and-advertising-issues/) - Another bar association has recently issued an ethics opinion over whether/how lawyers can make use of particular types of social media, whether such use constitutes advertising, and related issues. The particular ethics opinion in question was issued March 10, 2015 by the New York County Lawyers Association and deals with LinkedIn. Many of the questions addressed
- [A timely reminder about the importance of pro bono efforts](https://faughnanonethics.com/a-timely-reminder-about-the-importance-of-pro-bono-efforts/) - On March 31, the Tennessee Supreme Court prudently decided not to turn Tennessee's mechanism for lawyers to provide information about how much pro bono they perform each year into a mandatory obligation. Mandatory reporting could have placed lawyers at risk of the administrative suspension of their license for being unwilling to provide such information.
- [Another 2014 Ethics Roadshow update - microchip, macro suspension](https://faughnanonethics.com/another-2014-ethics-roadshow-update-microchip-macro-suspension/) - Another of the lawyers I spoke about some at last year's Ethics Roadshow is back in the news. As an example of the power of disciplinary authorities to pursue emergency suspensions on an indefinite basis when a lawyer is perceived to be a threat to the public, we highlighted the travails of a Florida lawyer
- [Drunk and disorderly is no way to attend a CLE](https://faughnanonethics.com/drunk-and-disorderly-is-no-way-to-attend-a-cle/) - The story of a Virginia lawyer who has now been suspended for 6 months as a result of apparently drinking and being drunk while in attendance at a CLE event is making the rounds. There is a part of me that is a bit surprised that something like this does not happen more often
- [Ethical issues when dealing with difficult lawyers](https://faughnanonethics.com/ethical-issues-when-dealing-with-difficult-lawyers/) - I am looking forward to the opportunity tomorrow to speak at a seminar put on for, and sponsored by, the young lawyer's division of the Tennessee Bar Association. I will get to speak about ethics issues that can arise when dealing with difficult counsel. I'm hoping I haven't been invited in order to be the
- [A lawyer's public interview that should never have happened...](https://faughnanonethics.com/a-lawyers-public-interview-that-should-never-have-happened/) - This is not a political blog, nor even a civil rights law blog. So, there would be no reason for me to write a word here that has anything to do with the Walter Scott incident. But this is a blog about legal ethics and lawyering issues, and the former lawyer for the police officer
- [Washington decides to also let LLLTs share fees and have ownership interest in law firms](https://faughnanonethics.com/washington-decides-to-also-let-lllts-share-fees-and-have-ownership-interest-in-law-firms/) - This news out of Washington state is an unfortunate development if you had hopes that the concept of Limited License Legal Technicians (LLTs) might be a more broadly adopted cure for the "justice gap" that ails the profession in many parts of the country. Washington state's decision to permit lawyers to share attorney fees with
- [The Opposite of a Role Model](https://faughnanonethics.com/the-opposite-of-a-role-model/) - I am very pleased to be one of the speakers at tomorrow's 2015 TBA Litigation Section annual seminar in Nashville. I'll be spending an hour in the afternoon providing some ethics education (hopefully with some entertainment sprinkled in) using the multitude of mistakes and misdeeds of a particular lawyer who practiced outside of Tennessee until,
- [TN Supreme Court rejects proposed resolution of disciplinary case as too lenient](https://faughnanonethics.com/tn-supreme-court-rejects-proposed-resolution-of-disciplinary-case-as-too-lenient/) - This week sees a rare instance of media publicity regarding something perceived to itself be a rare event (but for which it is difficult to prove that the perception is also reality) - the rejection of a negotiated conditional guilty plea in a lawyer discipline case that had been approved by a hearing panel, and
- [Why blog posts aren't, and shouldn't try to be, solicitations of clients.](https://faughnanonethics.com/why-blog-posts-arent-and-shouldnt-try-to-be-solicitation-of-clients/) - So this little blogpost from a Michigan bankruptcy attorney that went viral would be a perfect example to use to answer a question I get asked quite frequently: When do I have to worry about something I post online being treated as a solicitation of a client under the ethics rules? It would be a
- [A promised update about that CLEUI/CLEWI situation.](https://faughnanonethics.com/a-promised-update-about-that-cleuiclewi-situation/) - A little while back, I posted about a Virginia lawyer who had been suspended after being drunk and disruptive while attending a CLE. At the time, I speculated about what the ethics infraction might have been - making a false statement in terms of filling out the paperwork on attendance. I was in the ballpark,
- [An unsettling insurance decision if you practice in a law firm of any size.](https://faughnanonethics.com/an-unsettling-insurance-decision-if-you-practice-in-a-law-firm-of-any-size/) - The month of April 2015 brought a declaration from a legal consultant that he anticipates seeing a 10,000 lawyer law firm within five years. Trying to determine if there would ever be a law firm so big that from a conflicts perspective its operation was fundamentally unworkable might be an interesting intellectual exercise to undertake, but
- [Another wrinkle from that malpractice insurance coverage opinion](https://faughnanonethics.com/another-wrinkle-from-that-malpractice-insurance-coverage-opinion/) - Earlier this week, I wrote about the scariness that can come with understanding another way that lawyers' fates are tied together when they practice law in the same firm: one lawyer failing to disclose a known problem on a malpractice renewal application could lead to loss of coverage for all of the other lawyers in
- [Traps for the unwary - Mid-stream changes to your client's fee agreement](https://faughnanonethics.com/traps-for-the-unwary-mid-stream-changes-to-your-clients-fee-agreement/) - When lawyers think about problematic business transactions with a client, they usually think about things like loans or, perhaps, situations in which a lawyer is joining a client as an investor in a business venture. The ethics rule regarding business transactions with clients, RPC 1.8(a), is broader in its coverage than just those situations and,
- [Baby steps, but still a positive development](https://faughnanonethics.com/baby-steps-but-still-a-positive-development/) - From time to time, I have been asked questions about whether lawyers needed to be doing anything (or even could do anything) to try to better guarantee protections of client communications and maintain privilege and confidentiality in the world after the news started to come out about just how broad the NSA's surveillance operations appeared
- [NY lawyers can give clients a rebate for an Avvo rating, but Tennessee lawyers shouldn't get excited.](https://faughnanonethics.com/ny-lawyers-can-give-clients-a-rebate-for-an-avvo-rating-but-tennessee-lawyers-shouldnt-get-excited/) - For an ethics nerd who also gets to focus on something they enjoy thinking about as part of their practice, I find the proliferation of lawyer rating services to be fascinating, less for the actual availability of ratings, but more for the ancillary questions they lead people to ask. One that I've seen discussed recently
- [A cautionary tale of sorts](https://faughnanonethics.com/a-cautionary-tale-of-sorts/) - Recently, I wrote a little about the problems that can be presented in re-negotiating the terms of a fee agreement with an existing client in light of the requirements of RPC 1.8(a) governing business transactions with clients. Yesterday's big legal news in Tennessee involves something that could be flippantly described as an RPC 1.8(a) problem
- [Things I don't understand . . .](https://faughnanonethics.com/things-i-dont-understand/) - I was not born in the South but have lived here for the overwhelming majority of my life. I've never understood, however, the uniquely Southern interest in the history of the Civil War. And, I don't mean just at the role-playing levels of Civil War re-enactment events but even at the more subtle levels at
- [Traps for the Unwary - RPC 2.2: Lawyer as Intermediary](https://faughnanonethics.com/traps-for-the-unwary-rpc-2-2-lawyer-as-intermediary/) - Press releases on public discipline issued by the BPR can be something of an art form and sometimes, but not always, don't tell the whole story. So setting aside any tea-leaf reading that might otherwise go into this one involving what sounds like a situation in which a lawyer was perhaps unknowingly used by clients
- [Kicking folks when they're down](https://faughnanonethics.com/kicking-folks-when-theyre-down/) - Within the past year or two, Tennessee adopted a new rule provision to specifically require the Court to suspend lawyers who have been determined to be in default on their student loans. The Tennessee Bar Association opposed the adoption of this rule for as long as it could but, ultimately, the pressure created by the
- [Death and disbarment](https://faughnanonethics.com/death-and-disbarment/) - Returning to the office from the holiday weekend, I noticed these two sad and weird stories of lawyers doing inexcusable things that seem to have common threads of death and disbarment running through them. Many years ago I wrote a humor column for young lawyers. and you can find some of those columns still floating
- [Ethical issues surrounding audit response letters](https://faughnanonethics.com/ethical-issues-surrounding-audit-response-letters/) - Tomorrow I will be one of two speakers for a three-hour CLE in Clarksville, Tennessee sponsored by the Montgomery County Bar Association. I'll be talking about the variety of ethical issues surrounding audit response letters. Although providing them is certainly contemplated and permitted under RPC 2.3, there are other ethical issues, such as conflicts and
- [When is a phone not a phone?](https://faughnanonethics.com/when-is-a-phone-not-a-phone/) - In a world where people use their smart phones for seemingly everything, including actually talking to other people on the phone from time-to-time, an interesting ethics issue has been percolating in the world of attorney advertising. Namely, for purposes of the ethics rules that exist to restrict how lawyers can go out about actively soliciting
- [Disputes with clients ...](https://faughnanonethics.com/disputes-with-clients/) - I find it interesting that very few of my posts over the last few months have involved situations where lawyers acted poorly in connection with disputes with their clients. In fact, it appears that really only one has involved such a situation, this one. I don't quite know what to make of that fact given
- [Washington state likely to start out with 7 LLLTs](https://faughnanonethics.com/washington-state-likely-to-start-out-with-7-lllts/) - Another post keeping up with the ongoing effort in the State of Washington to try to close the access-to-justice gap through an outside-the-mainstream effort of authorizing certain types of legal services to be provided to the public by those not licensed to practice law. I've previously written about this here and here. Now the news, reported first
- [More attorney adventures with Avvo and a reminder about The Streisand Effect](https://faughnanonethics.com/more-attorney-adventures-with-avvo-and-a-reminder-about-the-streisand-effect/) - During my teleseminar presentation for the Clear Law Institute, I talked at some length about a situation dating back to January 2014 when a Chicago lawyer ended up agreeing to discipline over how she responded to a former client's negative review of her on the Avvo service. You can read a bit about that story here, but
- [Ethics Roadshow 2014 update ... in-house counsel edition](https://faughnanonethics.com/ethics-roadshow-2014-update-in-house-counsel-edition/) - This week a former in-house counsel whose travails were discussed at last years Ethics Roadshow finds himself back in the news this week as he is testifying at his boss's trial. At the Roadshow we discussed that the former GC for PetroTiger Ltd. had been disbarred in late November of last year as a result
- [Not all bar associations are created equal](https://faughnanonethics.com/not-all-bar-associations-are-created-equal/) - One interesting difference among jurisdictions in the U.S. as to the regulation of lawyers involves whether a particular state has an unified bar association structure or not. A state like North Carolina operates under such a structure. Every lawyer that obtains a license to practice in North Carolina is a member of the state bar
- [Local counsel arrangements, RPC 1.2(c), and trying to avoid the wrath of court](https://faughnanonethics.com/local-counsel-arrangements-rpc-1-2c-and-trying-to-avoid-the-wrath-of-court/) - This month the New York City Bar Association has issued an interesting formal ethics opinion on what is, in some respects, a surprisingly little discussed ethical situation: What it can mean for a lawyer's ethical obligations to simply be serving in a matter as "local counsel." When I first saw some of the media coverage
- [Professional death penalty meted out to former DA over death penalty case misconduct](https://faughnanonethics.com/professional-death-penalty-meted-out-to-former-da-over-death-penalty-case-misconduct/) - During my 2013 Ethics Roadshow, I had a rare opportunity to highlight three instances of former government prosecutors receiving public discipline over past misconduct. Such events are so rare that for three high-profile ones to happen in the same year seemed quite remarkable. One of those three involved a Texas prosecutor who was disbarred for
- [Seems a little soon for this new specialty bar association to exist, but the issues really are growing](https://faughnanonethics.com/seems-a-little-soon-for-this-new-specialty-bar-association-to-exist-but-the-issues-really-are-growing/) - There is no question that there continue to be rapid developments arising in the law resulting from the steady trend among states toward reevaluating the legality of marijuana use under their state's law. Several states have made it outright legal for recreational use under their state law, while others have legalized only medicinal uses, and
- ["Licensed to bill?" or "When a fee award won't hold its worth"](https://faughnanonethics.com/licensed-to-bill-or-when-a-fee-award-wont-hold-its-worth/) - Practicing in the part of the world that I do, I gape with both amazement and jealousy at the hourly rates lawyers are able to charge in much larger metropolitan areas. I try not to think about the difference in a way that is demeaning; instead, I try (perhaps just for more own sanity) to
- [Hopefully this will be the first step in streamlining the regulation of lawyer advertising](https://faughnanonethics.com/hopefully-this-will-be-the-first-step-in-streamlining-the-regulation-of-lawyer-advertising/) - I commend to your reading a very well done, thorough, and I think (hope) persuasive report from the Association of Professional Responsibility Lawyers regarding the subject of lawyer advertising. Although none of us were on the Lawyer Advertising Committee that put this together, several of us on the committee are members of APRL. You can
- [Problems of UPL are nothing new, but UPC?](https://faughnanonethics.com/problems-of-upl-are-nothing-new-but-upc/) - I've written a good bit over the last few months about a variety of issues related to problems involving unauthorized practice of law issues for lawyers licensed in at least one jurisdiction. Tennessee still has the pending petition filed by the Board of Law Examiners that should result in some form of practice pending admission rule that will
- [New ABA Formal Ethics Opinion Avoids As Many (or More) Questions Than It Answers Actually](https://faughnanonethics.com/new-aba-formal-ethics-opinion-avoids-as-many-or-more-questions-than-it-answers-actually/) - Several years ago, we attempted in Tennessee to have our Court adopt an ethics rule that would specifically address what constituted client file materials. The effort was unsuccessful despite the fact that the rule we proposed was a strong, well-written rule. The primary reason we were unsuccessful was (as you'll decipher from pages 24-25 of the
- [TN's Simple Rule > NYC's Lengthy Ethics Opinion on Same Subject](https://faughnanonethics.com/tns-simple-rule-nycs-lengthy-ethics-opinion-on-same-subject/) - Last month, the Association of the Bar of the City of New York Committee on Professional Ethics put out a thorough Formal Opinion addressing when it is unethical for an attorney to threaten to file a disciplinary complaint against another lawyer. While Formal Opinion 2015-5 is a well-written opinion overall, it is a sprawling one
- [A couple of updates, both involving Florida attorneys](https://faughnanonethics.com/a-couple-of-updates-both-involving-florida-attorneys/) - Just about a month ago, I wrote a bit about an effort by a Florida attorney to get a Washington state court to unmask the identity of someone who posted an anonymous Avvo review claiming to be the Florida attorney’s unhappy former client. This week the news has come out that the Washington Court of
- [A verein-teresting thought experiment?  Part 1.](https://faughnanonethics.com/a-verein-teresting-thought-experiment-part-1/) - In preparation for a panel presentation coming up at the end of this month, I have been delving back into the complicated and contradictory world of disqualification rulings from around the country. While the lay of the land is highly inconsistent to a large degree, there are some common themes that can be teased out
- [A verein-teresting thought experiment?  Part 2](https://faughnanonethics.com/a-verein-teresting-thought-experiment-part-2/) - So, if you missed Part 1 you can get up to speed here. Now I indicated I'd get the underlying documents (plural) this weekend and finish this little thought experiment today, but I don't actually practice in the International Trade Commission (shocking to hear I bet) so beyond getting to the order of disqualification itself,
- [Can I get a witness (to talk to me)?](https://faughnanonethics.com/can-i-get-a-witness-to-talk-to-me/) - Later today (noon central), I will be doing a live webcast, through the Tennessee Bar Association, focused on RPC 4.2 and other ethical issues associated with communications with employees (and former employees) of represented organizations. My co-presenter is a friend and former colleague (we practiced together as associates at a defense firm in the late
- [Words Are Supposed to Mean Things:  My latest print column in the Memphis Lawyer is out](https://faughnanonethics.com/words-are-supposed-to-mean-things-my-latest-print-column-in-the-memphis-lawyer-is-out/) - You can read it starting at page 23 of this link. By delving back into a topic that I first wrote about in an article for ABA/BNA that was itself a preview of a portion of a chapter of the book I was fortunate enough to co-author, the column is admittedly pretty self-referential. (And thus
- [Plaintiffs' personal injury firm is to investment banker as . . . ?](https://faughnanonethics.com/plaintiffs-personal-injury-firm-is-to-investment-banker-as/) - A major issue that has dogged the legal profession in the past, and looks likely to dog it again in the near future (if you don't happen to think it already does), is the debate over the restriction imposed under the ethics rules that prevents non-lawyers from having any ownership stake in a law firm.
- [Some arbitrary thoughts related to attorney-client arbitration agreements](https://faughnanonethics.com/some-arbitrary-thoughts-related-to-attorney-client-arbitration-agreements/) - It is undeniable that the American judicial system long ago embraced arbitration as a valid form of alternative dispute resolution. As a result, it is also hornbook law at this point that agreements to arbitrate disputes are to be enforced just like any other contract. As a practical matter, there isn't anything empirically wrong with
- [Mindless Pedantry](https://faughnanonethics.com/mindless-pedantry/) - First, yes, "Mindless Pedantry" would make a good band name. Other than that though, it is never a good thing. In the practice of law, attention to detail is a valuable quality, but mindless pedantry certainly is not. You are probably not an experienced litigator if you cannot remember a time when, faced with responding
- [APRL Advertising Revision Proposal and the NOBC Meeting](https://faughnanonethics.com/aprl-advertising-revision-proposal-and-the-nobc-meeting/) - I had the opportunity last Friday to attend the joint APRL/NOBC program put on during the National Organization of Bar Counsel meeting in Chicago (which also happens at the same time as APRL's annual meeting, which happens to run at the same time as the ABA Annual Meeting). The joint program focused on APRL's white
- [The TBA's Filed Comment to the Board of Law Examiners Proposed Rule Changes](https://faughnanonethics.com/the-tbas-filed-comment-to-the-board-of-law-examiners-proposed-rule-changes/) - Over the last few months, I have posted on several occasions about the petition pending before the Tennessee Supreme Court seeking some significant changes to the rules in Tennessee regarding admission of attorneys to practice in a variety of contexts. If you are new to the blog, you can get up to speed on this
- ["Were you aware of it?" - Friday edition (A tale of two AGs)](https://faughnanonethics.com/were-you-aware-of-it-friday-edition-a-tale-of-two-ags/) - Were you aware that 4% of the state attorneys general (attorney generals?) in the United States have been indicted already in August 2015? Well, they were. First, Texas' Attorney General was indicted as we learned when his indictment was unsealed on August 3, 2015. Then, Pennsylvania's Attorney General was indicted on August 6, 2015. For
- [A rose may be a rose but UPL does not always mean the same thing as UPL.](https://faughnanonethics.com/a-rose-may-be-a-rose-but-upl-does-not-always-mean-the-same-thing-as-upl/) - So, you likely have read about or stumbled into something on the web about the remarks offered by the founder of Avvo at the ABA Meeting. If you somehow missed having that hit your radar screen at all, you can read about it (and snippets of the remarks of the other folks who gave similar
- [I give you sprinkles today in hopes you will help me make it rain tomorrow?](https://faughnanonethics.com/i-give-you-sprinkles-today-in-hopes-you-will-help-me-make-it-rain-tomorrow/) - About three months ago, I wrote about a New York ethics opinion that blessed a marketing effort that I stressed would likely be unethical in Tennessee. That situation involved a lawyer giving client's a rebate if they agreed to post a review of the lawyer's work at an online site. In a fairly decent sign
- ["Damn near never..."](https://faughnanonethics.com/damn-near-never/) - I mentioned back near the end of July 2015 that I would be participating on a panel at the Association of Professional Responsibility Lawyers' Annual Meeting in Chicago. It is always an honor to get to speak at an APRL meeting, and it was particularly an honor to share the stage with Eliza Rodrigues of
- [Kickstarter worked for the potato salad guy, but it is more like a nonstarter for fledgling lawyers.](https://faughnanonethics.com/kickstarter-worked-for-the-potato-salad-guy-but-it-is-a-more-like-a-nonstarter-for-fledgling-lawyers/) - It was about two years ago when a man from Ohio put up a Kickstarter to raise $10 to make potato salad and ended up receiving tens of thousands of dollars in donations. I'm sure there were many people who were familiar with this concept before then, but for me that was the first I'd
- [2015 Ethics Roadshow = The Answers to Life, the Universe & the Ethics Rules](https://faughnanonethics.com/2015-ethics-roadshow-the-answers-to-life-the-universe-the-ethics-rules/) - I am excited to formally announce that I will be doing the Ethics Roadshow for the Tennessee Bar Association again in 2015. I am also really excited about this year's theme and the prospect of putting together an entire 3-hour presentation that offers up answers to actual questions on the minds of those in the
- [A reminder (for you) about the importance of coverage issues and (for me) that there is a second side to most stories.](https://faughnanonethics.com/a-reminder-for-you-about-the-importance-of-coverage-issues-and-for-me-that-there-is-a-second-side-to-most-stories/) - This is an update on the California lawyer who successfully compelled arbitration of a client's salacious claims that he treated her as essentially a "sex slave" that I wrote about here. While I talked about that case as an example of the growing power of arbitration provisions in the arena of attorney-client contracts, I did
- [South Carolina adopts first of its kind* rule on cognitive impairment.](https://faughnanonethics.com/south-carolina-adopts-first-of-its-kind-rule-on-cognitive-impairment/) - My paternal grandfather succumbed to Alzheimer's disease. As someone who makes a living (such as it is) using his mind (and is pretty certain that he could not feed his family if forced to use his hands for a living), the loss of my mental faculties is one of my greatest fears. In that regard,
- [Bad ethics opinion or the worst ethics opinion? - Ohio 2015-2 edition](https://faughnanonethics.com/bad-ethics-opinion-or-the-worst-ethics-opinion-ohio-2015-2-edition/) - Let's play a little game called: Bad ethics opinion or the worst ethics opinion? Earlier this month, the Supreme Court of Ohio Board of Professional Conduct issued Opinion 2015-2 about whether/how a lawyer presenting at a legal seminar can distribute brochures to prospective clients and whether the lawyer can answer legal questions posed by the
- [When online: cat and dog shaming pictures = funny.  Client shaming efforts = foolish](https://faughnanonethics.com/when-online-cat-and-dog-shaming-pictures-funny-client-shaming-efforts-foolish/) - Today, we spend a few more minutes addressing a topic that will likely be a rich vein of discussion for years to come or for at least for as long as lawyers continue to be human beings whichever is shorter. (Even with this news, you figure we have a few years left before we have
- [Two updates and a (hidden) microphone.](https://faughnanonethics.com/two-updates-and-a-hidden-microphone/) - A few items for your consideration over this coming long, Labor Day weekend. The first is an update on a proposed ethics opinion made the subject of an earlier post. The Florida Bar's Board of Governors has now ultimately decided to reject the approach that had been recommended by its advertising subcommittee, which proposed that
- [Your IT pro is your best friend, but can't always protect you from fraud.](https://faughnanonethics.com/your-it-pro-is-your-best-friend-but-cant-always-protect-you-from-fraud/) - Last week I was confronted with another example of how valuable excellent IT professionals can be for practicing lawyers. As routinely happens, our firm's spam filter trapped a significant number of emails last Wednesday. Because legitimate email sometimes gets wrongly blocked or filtered, our IT folks also review what gets caught in the filters. Last
- ["Does this require a response?"](https://faughnanonethics.com/does-this-require-a-response/) - "Does this require a response?" Print those words out and tape them to the top of your monitor or laptop screen. They are words to live by. Practicing law is stressful and always has been. Lawyers have always known that they can make mistakes that destroy their client's life or financial situation and potentially their
- [You Don't Always Get What You Pay For, But Free Advice Can Be Costly.](https://faughnanonethics.com/you-dont-always-get-what-you-pay-for-but-free-advice-can-be-costly/) - In Tennessee, we have a version of RPC 1.6(b)(4) patterned after the ABA Model Rule that permits a lawyer to disclose confidential client information for the purpose of getting advice about how to comply with his/her ethical obligations. The last sentence of Comment [9] to that rule stresses that this disclosure can only be made, however, if
- [Stacked decks, standards of review, and the RPC 8.1 duty to cooperate](https://faughnanonethics.com/stacked-decks-standards-of-review-and-the-rpc-8-1-duty-to-cooperate/) - In many jurisdictions, disciplinary proceedings against lawyers are referred to as being “quasi-criminal” in nature. If you ask lawyers who defend lawyers in disciplinary proceedings, you will often hear them agree that the nature of the work can feel a good bit like criminal defense work, but with two pretty universal exceptions that make the
- [Protecting client confidentiality - how Fargo?](https://faughnanonethics.com/protecting-client-confidentiality-how-fargo/) - So sorry for the title if you are not a fan of a syntactically-challenged play on words. But this news item out of Kentucky sounds like the kind of plot that would make for good fodder for a future season of the TV show Fargo. (Which, yes if you are unfamiliar with it, is spun
- [The purpose of lawyer regulation?  Events in Colorado and Florida present starkly contrasting perspectives](https://faughnanonethics.com/the-purpose-of-lawyer-regulation-events-in-colorado-and-florida-present-starkly-contrasting-perspectives/) - When people talk about the future of legal ethics in the United States, it is always helpful to engage them in a dialogue about what purpose they think the regulation of lawyers is meant to serve. If you and the other person do not agree on what the purposes to be served are supposed to
- [Some days you just don't feel it.](https://faughnanonethics.com/some-days-you-just-dont-feel-it/) - I am not telling anyone who has any experience with this medium anything they do not already know when I say that blogging is a very time-consuming activity. Blogging demands content, but some days you just aren't feeling it. This is particularly problematic when you are only attempting to do 2 to 3 posts a
- [Bad ethics opinion or the worst ethics opinion?  Iowa 15-03 edition](https://faughnanonethics.com/bad-ethics-opinion-or-the-worst-ethics-opinion-iowa-15-03-edition/) - Inspiration, like corn, comes from Iowa today. It's time again for a little game called, is this a bad ethics opinion or the worst ethics opinion? The Iowa State Bar Association Committee on Ethics and Practice Guidelines self-nominated by issuing Op. 15-03. Before I make enemies of a few Iowa lawyers that I have no doubt
- [Coming to praise rather than to bury (Part 1 of 2)](https://faughnanonethics.com/coming-to-praise-rather-than-to-bury-part-1-of-2/) - For a change of pace, I write today about a very well constructed ethics opinion out of New York. (To keep this positivity train chugging along for at least one more day, my plan for tomorrow is to discuss a federal court decision out of Florida impacting attorney ethics that is also praiseworthy and that
- [Coming to praise rather than to bury (Part 2 of 2)](https://faughnanonethics.com/coming-to-praise-rather-than-to-bury-part-2-of-2/) - Yesterday, I offered a positive review of a recent ethics opinion from the New York City Bar. Today, I want to talk through this Order on the Merits striking down Florida's restriction in its ethics rules on the ability of lawyers to refer to themselves as a specialist in the absence of a board certification from
- [Don't be an ass.](https://faughnanonethics.com/dont-be-an-ass/) - Quite a few years ago now, I did a seminar titled something like "The Golden Rule of Litigation" or "Litigation and the Golden Rule." One of the fun aspects of putting it together was finding confirmation that some version of The Golden Rule - the "do unto others as you would have them do unto
- [Things not to do in court.](https://faughnanonethics.com/things-not-to-do-in-court/) - A couple of weeks ago, I read a little about two instances of lawyers, both involving murder cases, getting in a bit of a pinch based on what was portrayed as bad behavior in the courtroom. One lawyer ended up being escorted from the courtroom for attempting to make a citizen's arrest of someone. I think
- [Bad ethics opinion or worst ethics opinion?  Tennessee 2014-F-158 edition](https://faughnanonethics.com/bad-ethics-opinion-or-worst-ethics-opinion-tennessee-2014-f-158-edition/) - Actually, unlike some other posts in this category, this title's not even close to reflecting a serious question being asked. Slapping that tile on this post is more of a crutch. The ethics opinion I want to discuss here is miles away from even being in the conversation among the worst ethics opinions. It really isn't
- [Update - Caveat requestor is where we will stay in TN.](https://faughnanonethics.com/update-caveat-requestor-is-where-we-will-stay-in-tn/) - I've previously written about a pending rule revision in Tennessee that the BPR initiated and to which the TBA responded here. Last week the Tennessee Supreme Court entered this order and adopted essentially the language that the BPR was seeking and did not incorporate the suggestions the TBA made that would have actually provided the
- [Florida chooses protectionism, and I choose to share a Friedmanesque public transportation anecdote](https://faughnanonethics.com/florida-chooses-protectionism-and-i-choose-to-share-a-friedmanesque-public-transportation-anecdote/) - By way of any update on a recent post you can read here, and in something that should come as no surprise at all, the Florida Bar's Board of Governors rejected the proposed change to its rules that would have created a mechanism for comity admission. Everything about the way the matter was handled in Florida
- [Back to the Future ... of Legal Services](https://faughnanonethics.com/back-to-the-future-of-legal-services/) - So, yesterday was Back to the Future day. And that was fun. But today I want to go back to the future of legal services... as a topic for discussion. I’m on record as being a fan of The Law for Lawyers Today blog, but the way they close out a recent piece exploring whether
- [Official dishonesty and the consequences for lawyers - 3 of the latest examples](https://faughnanonethics.com/official-dishonesty-and-the-consequences-for-lawyers-3-of-the-latest-examples/) - A common theme in many disciplinary proceedings brought against lawyers involves dishonesty. This should not really be a surprise given that lawyers are human beings and human beings have a tendency toward being dishonest when they can get away with it. Although there is an ethics rule that, on its face, makes it unethical for
- [Coming to praise rather than to bury - West Virginia edition](https://faughnanonethics.com/coming-to-praise-rather-than-to-bury-west-virginia-edition/) - Some, including possibly me, will argue that the greatest thing to come out of West Virginia is the My Brother, My Brother, and Me podcast. But today, I write about another very positive contribution out of West Virginia, a very good, very thorough ethics opinion that overflows with common-sense with respect to social media issues for
- [Some lawyers fail to see conflicts of interest, but they aren't the only ones.](https://faughnanonethics.com/some-lawyers-fail-to-see-conflicts-of-interest-but-they-arent-the-only-ones/) - Conflicts are a big issue for lawyers, and a significant issue in the world of legal ethics. (If you are a lawyer and do not already have his site bookmarked, you really need to add Bill Freivogel's website to your list of bookmarks.) Relatively speaking, however, conflicts of interest (other than ones involving inappropriate sexual
- [This probably is (but maybe shouldn't be) the least discussed ethics rule.](https://faughnanonethics.com/this-probably-is-but-maybe-shouldnt-be-the-least-discussed-ethics-rule/) - I remain surprised that RPC 2.1 is so rarely discussed when it comes to ethics rules. It's not really a scientific or fair way of justifying my point, but if you were to go search the website of the Tennessee Board of Professional Responsibility for "2.1," it will inform you "There were no results found.
- [Ethics School tomorrow](https://faughnanonethics.com/ethics-school-tomorrow/) - Tomorrow (which somehow is now being called "Love Your Lawyer Day"?) I'll be part of a panel presentation with Tennessee's Chief Disciplinary Counsel and Deputy Chief Disciplinary Counsel at the annual Ethics School hosted by the Board of Professional Responsibility of the Supreme Court of Tennessee at the Nashville School of Law. The three of
- [2 out of 3 ain't bad - NC releases a threesome of ethics opinions on the same day](https://faughnanonethics.com/2-out-of-3-aint-bad-nc-releases-a-threesome-of-ethics-opinions-on-the-same-day/) - In a lot of jurisdictions, mine included, formal ethics opinions from the governing disciplinary body are issued, if not rarely, then on a "few and far between" kind of time frame. In North Carolina, on October 23, 2015, 3 were released in one day. Two of them provide overall good advice. One of those two
- [New "Brick and Mortar" column out this week (+ 2 other things you should read)](https://faughnanonethics.com/new-brick-and-mortar-column-out-this-week-2-other-things-you-should-read/) - Unfortunately, it does not appear to be up and online as of yet at The Memphis Bar's website, but the latest issue of The Memphis Lawyer is out, and I have a column in it. The column -- The Revised RPC 7.3(b)(3): The Road to Constitutional Infirmity is Paved With Good Intentions -- talks about a revision
- [Verbal attacks on judges - "possibly" the worst approach to advocacy](https://faughnanonethics.com/verbal-attacks-on-judges-possibly-the-worst-approach-to-advocacy/) - I have written in the past on this blog, and in other publications, about instances of lawyers getting into disciplinary trouble over their treatment of judges presiding over their clients' cases. To the extent bullying and insulting a judge is a purposeful approach to advocacy for a client, it's a flawed approach. This behavior isn't unique
- [A tale of two AGs - update on developments](https://faughnanonethics.com/a-tale-of-two-ags-update-on-developments/) - So, in honor of this my 100th post to the blog, you'll see that the site has been spruced up a bit with a new logo and look. While the blog may now be more aesthetically-pleasing, the quality of the content isn't likely to change (for better or worse). You may recall a few months
- [Lawyer ethics rules are public policy statements.  Of course they are.](https://faughnanonethics.com/lawyer-ethics-rules-are-public-policy-statements-of-course-they-are/) - There is a lot of activity that can take place at the intersection of the lawyer ethics rules and public policy. There can be issues that aren’t addressed by lawyer ethics rules (or at least not fully addressed) but that are addressed as a matter of state public policy. What there really can’t be though
- [A little something to be thankful for](https://faughnanonethics.com/a-little-something-to-be-thankful-for/) - If you're a lawyer, then many days you may find yourself either complaining that you are too busy or that you aren't busy enough. Rare is the time for lawyers (in my experience) when they think their workload lands in a "just right" kind of spot. There actually can be such a thing as too
- [A duty to ask: Another of the unintended consequences of unbundling](https://faughnanonethics.com/a-duty-to-ask-another-of-the-unintended-consequences-of-unbundling/) - Yesterday, the ABA Standing Committee on Ethics and Professional Responsibility issued its latest ethics opinion, Formal Opinion 472, "Communication with Person Receiving Limited-Scope Legal Services." On the whole, it isn't a bad opinion. It is well-constructed, addresses multiple topics that seem ripe for discussion, and clearly is the product of a lot of thought and
- [Remember my conversation with the SuperShuttle driver?](https://faughnanonethics.com/remember-my-conversation-with-the-supershuttle-driver/) - A while back I wrote a piece about a relatively deep conversation I had about right and wrong and why lawyers do some really bad things with a SuperShuttle driver in Phoenix. If you missed it, you can read it here. But one of the things I didn't say during that conversation was that there
- [Rambling and bordering on incoherent is no way to do anything much less make a constitutional challenge.](https://faughnanonethics.com/rambling-and-bordering-on-incoherent-is-no-way-to-do-anything-much-less-make-a-constitutional-challenge/) - I have made reference in the past on this blog about the problems that can come from the fact that Tennessee is one of a very few states that still use the "preponderance of the evidence" standard in disciplinary proceedings against lawyers. Fewer than a dozen jurisdictions including Tennessee still use that standard. Around forty U.S.
- [Revisiting things not to do in court - Friday edition](https://faughnanonethics.com/revisiting-things-not-to-do-in-court-friday-edition/) - Being in between stops for the Roadshow until next week, but still having two more to do (Wednesday in Chattanooga and Thursday in Knoxville), this will again be a bit more of a short(ish), punchy offering. A few months ago I wrote a post about things not to do in court that discussed two incidents.
- [First, trust but verify.  Second, trust until verified.](https://faughnanonethics.com/first-trust-but-verify-second-trust-until-verified-i-guess/) - Lawyers need to be able to trust some people to do their jobs. These people might be support staff, colleagues, or sometimes even opposing counsel. When it comes to trust accounting though, situation after situation demonstrates that no matter how much a lawyer trusts an employee with access to or some control over trust account
- [TN issues formal ethics opinion on client files that's bad in a very sneaky way.](https://faughnanonethics.com/tn-issues-formal-ethics-opinion-on-client-files-thats-bad-in-a-very-sneaky-way/) - Many moons ago at this point, I wrote a post here with some criticism about ABA Formal Ethics Opinion 471 and the various questions important to client file issues on which it punted. Back then I also wrote about how our effort in Tennessee to get an ethics rule adopted (it would have RPC 1.19 in
- [Tennessee Supreme Court takes long-awaited action to smooth admissions problems](https://faughnanonethics.com/tennessee-supreme-court-takes-long-awaited-action-on-to-smooth-admissions-problems/) - Yesterday, the Tennessee Supreme Court entered an order that addresses a variety of issues I have written about on a number of prior occasions. You can take in the entire order setting out all of the new provisions here. In addition to making a spot change to Tennessee Supreme Court Rule 6 and a revision to
- [A proposed ABA Model Rule 8.4(g) has been put out for public comment.](https://faughnanonethics.com/a-proposed-aba-model-rule-8-4g-has-been-put-out-for-public-comment/) - The ABA Standing Committee on Ethics and Professional Responsibility ("SCEPR") has put out a proposed new RPC 8.4(g) for public comment with a March 11, 2016 deadline for any written comments. The proposed rule revision would add to the list of types of prohibited conduct in RPC 8.4 the following: (g) in conduct related to the
- [Traps for the Unwary - nonrefundable fees and retainers](https://faughnanonethics.com/traps-for-the-unwary-nonrefundable-fees-and-retainers/) - For my last post of 2015, some thoughts on a frequent source of trouble for lawyers in certain practice areas where efforts are often made to charge nonrefundable fees. In Tennessee, back in 2011, our rules were revised to specifically acknowledge the legitimacy of the concept of a nonrefundable fee but also to impose certain
- [More on contingent fees and the overall requirement of "reasonableness"](https://faughnanonethics.com/more-on-contingent-fees-and-the-overall-requirement-of-reasonableness/) - In my last post of 2015, in the context of a discussion of a slightly different fee topic (nonrefundable fees), I made reference to the overarching "reasonableness" requirement under the ethics rules for attorney fees of any flavor, including contingency fees. The example I grabbed for at the time was how a 60% contingency fee
- [Legal Ethics Issues in "Making a Murderer" - Part 1 of ?](https://faughnanonethics.com/legal-ethics-issues-in-making-a-murderer-part-1-of/) - So, the latest rage in Netflix binge-watching is the documentary "Making a Murderer." If you haven't been engaged in a digital detox program over the last month or so, then you are likely aware of its existence. My wife and I just finished it up last evening. If you haven't watched it, you really
- [Variations on two unfortunate, recurring situations.](https://faughnanonethics.com/variations-on-two-unfortunate-recurring-situations/) - Much has been written over the last few years about the risks for lawyers of increasingly sophisticated financial scams targeting them. I've even written about the issue some in the past. Within the last 30 days or so, a "new" financial scam has gotten some publicity that should help real estate lawyers in particular to
- [An update regarding TN's opinion on client files](https://faughnanonethics.com/an-update-regarding-tns-opinion-on-client-files/) - Am pleased to report that I was given an opportunity by the fine folks with the ABA/BNA Lawyers' Manual on Professional Conduct to expand on my thoughts about the problem with Tennessee Formal Ethics Opinion 2015-F-160. Even if you are not a subscriber to the publication, you can read the article at this link on the Lewis
- [Avvo Legal Services won't work in Tennessee without RPC 7.6 compliance, but should it be so?](https://faughnanonethics.com/avvo-legal-services-wont-work-in-tennessee-without-rpc-7-6-compliance-but-should-it-be-so/) - The evolution of Avvo from its origins as a lawyer-rating service to something with a much, much more extensive impact in the legal marketplace continued this week with the news of the launch of Avvo Legal Services. Robert Ambrogi was, as often is the case, the first to break the news online about the development,
- [Pursuing a popular cause? Crowdsourcing payment of your fees may be an option for your client.](https://faughnanonethics.com/pursuing-a-popular-cause-crowdsourcing-payment-of-your-fees-may-be-an-option-for-your-client/) - Some time ago, I wrote a bit about how existing ethics rules make attempting to use Kickstarter to launch a law firm not a viable option. The primary problem with using crowdsourcing to raise funds to start a law practice is the prohibition in the ethics rules on nonlawyer ownership or investment in law firms.
- [A Rorschach test in two parts](https://faughnanonethics.com/a-rorschach-test-in-two-parts/) - To pass the time during Snowmageddon (Snowpocalypse?), here's a blogpost equivalent of an ink blot test. Do you think either of these situations (or both) (or neither) involve situations where disciplinary authorities should be allocating resources to go after lawyers under the ethics rules? The first inkblot: An attorney runs advertisements for his bankrutpcy practice
- [A Texas two-step of January ethics opinions](https://faughnanonethics.com/a-texas-two-step-of-january-ethics-opinions/) - So far this month, the Professional Ethics Committee for the State Bar of Texas has put out two ethics opinions worthy of some discussion given the issues tackled and the outcomes of each opinion. The more recent of the two, Opinion No. 653, evaluates whether a lawyer acting pro se in a matter has to
- [Legal Ethics Issues in "Making A Murderer"-- Part 2 of ?](https://faughnanonethics.com/legal-ethics-issues-in-making-a-murderer-part-2-of/) - Two recent events have brought me back around to wanting to talk about ethics issues raised by this fascinating documentary. One event is public and absurd. The other event was semi-private and surprising (at least to me). As neither of the recent events are actually the thing I wanted to talk about a couple of
- [Airing the profession's dirty laundry](https://faughnanonethics.com/airing-the-professions-dirty-laundry/) - Ok, let's talk about the 60 Minutes piece that aired this past Sunday. If you haven't watched it, by all means you should -- it is worth the 20-30 minutes of your time. You can watch it here. As always, I'll wait until you get done and come back. Now, it seems beyond dispute that the
- [I'll never understand why athletes hire non-lawyer agents.](https://faughnanonethics.com/ill-never-understand-why-athletes-hire-non-lawyer-agents/) - Thanks to ESPN I've long known more about Johnny Manziel than I care to. But, this past week, I learned something I really should never know -- why his agent decided to fire Manziel as his client. Up until this past week, Erik Burkhardt was Manziel's agent. Burkhardt is a law school graduate, but from
- [The Wisdom of Ferris Bueller.  The reality of Machiavelli.](https://faughnanonethics.com/the-wisdom-of-ferris-bueller-the-reality-of-machiavelli/) - Life moves pretty fast. If you don't stop and look around once in a while, you could miss it. - Ferris Bueller Back in December 2015, during my Ethics Roadshow I talked a little bit about one of the items that had been rolled out for public comment by the ABA Commission on the Future
- [Three updates for you on this election-year President's Day.](https://faughnanonethics.com/three-updates-for-you-on-this-election-year-presidents-day/) - Given that there isn't a lot going on in the news that relates to legal issues, I feel obligated to offer lawyers something to read. (I don't think I've ever gone on record here about how badly I wish someone would create and implement a sarcasm font upon which all users could agree. Maybe it
- [Who are these people that ask these questions?](https://faughnanonethics.com/who-are-these-people-that-ask-these-questions/) - I like a well written, helpful ethics opinion as much as the next guy. Probably more so, given the statistically low likelihood that anyone standing near me at a given time is also a male lawyer who commits a significant part of their practice to legal ethics and professional responsibility matters. I think I've also
- [ABA Law Connect post-mortem.  ♫ Five.  Five dollar.  Five dollar not long. ♫](https://faughnanonethics.com/aba-law-connect-post-mortem-♫-five-five-dollar-five-dollar-not-long-♫/) - This is going to be a short update offered on a Friday for any weekend reading needs you may be facing. A bit back (on Back to the Future day actually) I mentioned (almost as only an aside) the pilot project that the ABA was launching in cooperation with Rocket Lawyer to offer a limited-scope
- [ABA Formal Opinion 473 - mostly good advice all the way around](https://faughnanonethics.com/aba-formal-opinion-473-mostly-good-advice-all-the-way-around/) - A few months ago, I wrote a post about a frustrating Tennessee Ethics Opinion that offered guidance on lawyers' obligations when responding to a subpoena for client information by, in part, treating a subpoena as if it were a court order. Last week, the ABA issued Formal Opinion 473, Obligations Upon Receiving a Subpoena or Other Compulsory
- [Legal Ethics Issues in "Making a Murderer" - Part 3 of 3](https://faughnanonethics.com/legal-ethics-issues-in-making-a-murderer-part-3-of-3/) - It has been a while since I last wrote about this topic. And, getting around to finally writing this piece has been so frustrating and depressing for reasons that ought to be clear by the end of this post, that I am confident that I have no plans to return to it. When I last
- [Digital assets and ethical issues - good news from the Tennessee legislature](https://faughnanonethics.com/digital-assets-and-ethical-issues-good-news-from-the-tennessee-legislature/) - Last week the Chattanooga Estate Planning Council was kind enough to have me come to speak to them about ethical issues arising from the uncertain world of the law regarding digital assets. They were gracious hosts and, to the extent there were important ethics issues to really discuss, we managed to cover that most, if
- [Happy Blogiversary to Me.](https://faughnanonethics.com/happy-blogiversary-to-me/) - So, today is the one-year anniversary of my first post. Today's entry is the 130th blogpost at Faughnan On Ethics.com, which looking back at the original concept I had in my head -- having my blogposts be more concise takes on issues of interest to me, rather than the longer-form pieces I had previously done
- [Today - Ethical Issues When Changing Law Firms.](https://faughnanonethics.com/today-ethical-issues-when-changing-law-firms/) - There probably has been news this week about a set of departures of lawyers from one prominent firm to another or efforts that firms are taking to disincentivize their lawyers from taking their clients and moving on to a new destinaton. As I indicated on Monday, I'm not actually around at the moment so this
- [Friday reading recommendations.](https://faughnanonethics.com/friday-reading-recommendations/) - So, at this point, my refreshing and relaxing time with family and friends in tropical destinations is starting to wind down. Lovely Internet provides the ability for me to write wistfully in advance about the end of a vacation that hasn't even yet happened. So much progress. As a salve to my soul for this
- ["Sleeping," sleeping, and Cronic sleeping.](https://faughnanonethics.com/sleeping-sleeping-and-cronic-sleeping/) - Three recent cases involving lawyers alleged to have been sleeping during trial (actually only two about sleeping lawyers, one about a lawyer pretending to sleep) leave me feeling like there has to be the germ of a worthwhile point to be made in there somewhere, but after drafting and redrafting this post in spare moments
- [Fixing a bad ethics opinion - Kudos to the TN BPR!](https://faughnanonethics.com/fixing-a-bad-ethics-opinion-kudos-to-the-tn-bpr/) - Late in 2015, the Tennessee Board of Professional Responsibility issued Formal Ethics Opinion 2015-F-160 addressing issues regarding retention of client files. I wrote here about a significant problem with the part of the opinion that indicated that our RPC 1.15(b) required retention of all client files for a five-year period. The problem, to me, was
- [Stress, drinks, and folderol](https://faughnanonethics.com/stress-drinks-and-folderol/) - Over the last several months there have been various iterations of stories and reports making the rounds about the susceptibility of our profession to depression and substance abuse, reports of 1 in 5 lawyers being problem drinkers, etc. There are also always folks out there writing variations of pieces about the problems that are created
- [Lawyering vicariously.](https://faughnanonethics.com/lawyering-vicariously/) - Lawyers in private practice work in a variety of settings ranging from solo practice to law firms with thousands of lawyers in scores of offices. Lawyers also practice in a variety of business structures ranging from d/b/a arrangements on one end to Swiss Verein models. My rough guess would be that the majority of United
- ["Other law" is always changing - the DOL's new Final "Persuader" Rule - Part 1 of 2](https://faughnanonethics.com/other-law-is-always-changing-the-dols-new-final-persuader-rule-part-1-of-2/) - The scope of confidentiality lawyers owe to their clients has long been a subject that I find fascinating. Over the last few years, I've mulled how its broad scope will continue to play out with current and future generations of both lawyers and clients who routinely, almost even instinctively, share seemingly every detail of their
- [The Department of Labor's Final "Persuader" Rule - Part 2 of 2](https://faughnanonethics.com/the-department-of-labors-final-persuader-rule-part-2-of-2/) - So, yesterday, I started writing about the potential ramifications for lawyers of the adoption by the Department of Labor of its final "persuader" rule which will become effective on April 25, 2016, but will only be applicable to agreements entered into on and after July 1, 2016. You can catch up on part 1 here.
- [Panama Papers - a worst case scenario for the development of cyber liability law for law firms?](https://faughnanonethics.com/panama-papers-a-worst-case-scenario-for-the-development-of-cyber-liability-law-for-law-firms/) - It's an old adage that bad facts make bad law. In the last few weeks, a good number of pieces were written focusing heightened attention on an issue that many lawyers were already stewing about . . . technological vulnerabilities arising from how lawyers and law firms use (and don't use) technology. Most of these
- [Speaking of bad facts making bad law...](https://faughnanonethics.com/speaking-of-bad-facts-making-bad-law/) - I've seen a number of short pieces around the Internet about the 70-year old Missouri lawyer who has gotten himself suspended for at least six months over a number of acts of misconduct, including (the thing most prominently mentioned) using information that his client improperly obtained by guessing someone else''s password. There is no question
- [Three updates for the Thursday before Tax Day](https://faughnanonethics.com/three-updates-for-the-thursday-before-tax-day/) - Back in September, I wrote a bit about some different perspectives on the purpose of lawyer regulation and commented on a story that discussed a proposal that Colorado had in the works. On April 7, 2016, The Colorado Supreme Court took action to adopt a new "Preamble" that serves as the introduction to its rules
- [Three short technology stories for a Tuesday](https://faughnanonethics.com/three-short-technology-stories-for-a-tuesday/) - Throwback Thursday is definitely a thing all over the World Wide Web it seems, but maybe Tech Tuesday ought to be a thing? Though, I guess, for lawyers focusing on technology has to be an every day affair. Like multitudes of others, I wrote a little bit recently about the Panama Papers and the Mossack
- [An exception to "Fool me once, shame on you; fool me twice, shame on me" in Ohio](https://faughnanonethics.com/an-exception-to-fool-me-once-shame-on-you-fool-me-twice-shame-on-me-in-ohio/) - Lawyers who frequently represent other lawyers in disciplinary proceedings are well aware that the ethics rules in their state offer up an inherent 2-for-1 construction for bar prosecutors because states with versions of RPC 8.4(a) patterned on the Model Rules establish that a lawyer also violates RPC 8.4(a) by violating any other ethics rule. That
- [ABA Formal Opinion 16-474: half (or more) of a pretty good opinion](https://faughnanonethics.com/aba-formal-opinion-16-474-half-or-more-of-a-pretty-good-opinion/) - Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued its latest formal opinion - Opinion No. 16-474 addressing the topic of "referral" fees under the ABA Model Rules and, specifically, the intersection of Model Rule 1.5(e) and conflicts requirements under Model Rule 1.7. Along the way, the opinion also stakes out
- [Redefining what it means to be a "nonlawyer."](https://faughnanonethics.com/redefining-what-it-means-to-be-a-nonlawyer/) - I've written (quite a long time ago now it seems, but it was only just last Spring) about the unfortunate nature of lawyers calling people who aren't lawyers "nonlawyers" - rather than referring to them in a less condescending fashion such as "regular people," for example. But, I still do it all the time, so
- [Independence of professional judgment, and other thoughts spurred by the ABA Commission on the Future of Legal Services](https://faughnanonethics.com/independence-of-professional-judgment-and-other-thoughts-spurred-by-the-aba-commission-on-the-future-of-legal-services/) - April 2016 has brought another iteration of a seemingly, endless, (yet kind of potentially pointless unless you think the politics of the situation will somehow play out differently from the past) debate: whether some entity within the ABA is attempting to usher into reality a world in which people other than lawyers will be allowed
- [Algorithms, Artificial Intelligence, and Seeing If I Can Put a Dent In Figuring Out What Is Next for Law.](https://faughnanonethics.com/algorithms-artificial-intelligence-and-seeing-if-can-put-a-dent-in-figuring-out-what-is-next-for-law/) - When you allow yourself to ponder just how quickly technological advances have changed the daily life of a lawyer, it becomes pretty easy to speculate about just how foreign the daily life of a lawyer 10 years from now will be when compared to what it is today. When I stop to think about the
- [Judicial elections are expensive in more ways than one.](https://faughnanonethics.com/judicial-elections-are-expensive-in-more-ways-than-one/) - There are lots of sources and stories about the escalation of dollars poured into, and spent in, judicial elections in various states. Here's an April 2016 article about Wisconsin; and here's an October 2015 press release from a special-interest group made of folks including The Brennan Center. But that isn't the only thing that makes
- [If it ever will come to pass, the states will have to serve as the laboratories.](https://faughnanonethics.com/if-it-ever-will-come-to-pass-the-states-will-have-to-serve-as-the-laboratories/) - Two weeks ago, I offered some thoughts on the latest flare-up in the long-running off-and-on ABA exploration of the third-rail of the practice of law: potential non-lawyer ownership/investment in law firms. This time around, before I could even manage to finish reading all of the comments and try to write some thoughts about the comments,
- [APRL's supplemental advertising overhaul proposal](https://faughnanonethics.com/aprls-supplemental-advertising-overhaul-proposal/) - Back in June 2015, I dedicated a post here to praising APRL's proposal to streamline ethics rules imposing outdated restrictions on lawyer advertising. A proposal that recognizes that lots of states currently have advertising restrictions on the books that could not survive a constitutional challenge and that aren't really even being sought to be enforced and
- [Dishonesty in settlement negotiations](https://faughnanonethics.com/dishonesty-in-settlement-negotiations/) - This is a topic I've spoken about on a number of times over the years as it can make for a pretty decent CLE presentation. Any such presentation almost always involves use of a hypothetical to explore issues that seem (or at least can sound) academic to a large extent. The usual jumping off point
- ["En" to the . . . ah . . . to the no, no, no!](https://faughnanonethics.com/en-to-the-ah-to-the-no-no-no/) - So, blame my children for the Meghan Trainor reference, but it is a catchy tune and, actually, not the worst of messages of female empowerment. Nevertheless, it fits my ramblings today too well for me to resist. A blurb about a trademark infringement suit involving an Atlanta law firm that operates under a trade name
- [Radiolab does the "buried bodies" case](https://faughnanonethics.com/radiolab-does-the-buried-bodies-case/) - Over the last couple of years, like a lot of other people, I have gotten very into listening to podcasts on my way to and from work and on car trips. Most of what I spend my time listening to is in the comedic vein (MBMBAM, Judge John Hodgman, You Talking U2 to Me), but
- ["Cases Without Counsel" study confirms the obvious but also raises more subtle dilemmas](https://faughnanonethics.com/cases-without-counsel-study-confirms-the-obvious-but-also-raises-more-subtle-dilemmas/) - If all you manage to do was read the headline from the ABA Journal online story today -- "Self-represented litigants perceive bias and disadvantage in court process, report finds," your reaction will likely be limited to "Duh." But, there is much more that can be gleaned from this "Cases Without Counsel" study and report that the Institute for
- [Bad blogger - please accept this potpourri like sprinkling of items](https://faughnanonethics.com/bad-blogger-please-accept-this-potpourri-like-sprinkling-of-items/) - The week feels like it is getting away from me, some travel, some work, some personal life, but may be able to write about something more substantive I've been meaning to tackle for later this week. For today, here is a scattershot of stories all of which involve something previously found to be worthwhile enough
- [Revisiting the question of whether the ethics rules need revamping as to discrimination & harassment](https://faughnanonethics.com/revisiting-the-question-of-whether-the-ethics-rules-need-revamping-as-to-discrimination-harassment/) - So, quite a few months ago, I wrote about what (I think) was the first iteration of the proposed revision to RPC 8.4 to add a black-letter rule addressing discrimination and harassment. My verdict at the time was one of skepticism that it made any sense at all to move workplace and employment discrimination issues
- [Friday follow up: In-house counsel amnesty deadline just a week away](https://faughnanonethics.com/friday-follow-up-in-house-counsel-amnesty-deadline-just-a-week-away/) - In the very early days of this aspiring little blog, I wrote repeatedly about a number of proposed, and ultimately adopted, changes to Tennessee's admissions and licensing rule, Tenn. Sup. Ct. R. 7. Included among the implemented changes was one last chance at amnesty for lawyers working in Tennessee as in-house counsel but who were
- [Two updates - one persuasive, one not so much](https://faughnanonethics.com/two-updates-one-persuasive-one-not-so-much/) - An important development for labor lawyers that I delved into a bit recently here has now been put on hold. I managed to point out that there would be significant efforts aimed through litigation at stopping the rule from ever going into effect. Yesterday, a Texas federal district court has stayed the Department of Labor's new
- [Thoughts only partly relevant to California's roll out for public comment of rules revisions.](https://faughnanonethics.com/thoughts-only-partly-relevant-to-californias-roll-out-for-public-comment-of-rules-revisions/) - One mistake. What should be the price of one mistake? To some extent, the answer to those questions for lawyers and lawyer discipline matters ought to be foreordained in two consecutive paragraphs of the Scope portion of the ABA Model Rules: [19] ....the rules presuppose that whether or not discipline should be imposed for a
- [Astonished and admonished.](https://faughnanonethics.com/astonished-and-admonished/) - So, on days like today, it is very difficult to have a forum (even one as small as this one) and not talk about truly important problems plaguing society, but no one comes here for my thoughts on those things so I'll refrain. Staying in my lane, here is another example of a problem lawyers
- [Shameless self promotion - 2016 Ethics Roadshow update](https://faughnanonethics.com/shameless-self-promotion-2016-ethics-roadshow-update/) - Big news ... well, the size of the news may be subject to differing opinions, but news. Believe it or not, this year will be the 12th year that I have had the opportunity to do the Ethics Roadshow for lawyers throughout Tennessee. Since this is my 12th go round at doing three hours of
- [Traps for the Unwary - Avvo Legal Services Comes to Tennessee](https://faughnanonethics.com/traps-for-the-unwary-avvo-legal-services-comes-to-tennessee/) - I've written previously about the maelstrom of issues presented by Avvo's expansion from its original core business as a lawyer rating service into new things such as Avvo Legal Services -- an arrangement where it makes clients, who will have already paid Avvo for the legal services they want, available directly to lawyers to perform
- [You either die a hero or live long enough to be the villain](https://faughnanonethics.com/you-either-die-a-hero-or-live-long-enough-to-be-the-villain/) - So this intrepid blogger is on vacation and this post and perhaps one other this week will have been pre-written and scheduled for publication. So here's hoping nothing has transpired in the world to make this seem tone-deaf. Samson Habte, an excellent reporter with the ABA/BNA Lawyers' Manual on Professional Conduct, was kind enough to
- [Here today, gone tomorrow.  But also there tomorrow.](https://faughnanonethics.com/here-today-gone-tomorrow-but-also-there-tomorrow/) - So, tomorrow, I am speaking as part of a seminar put on by the Solo and Small Firm section of the Memphis Bar Association focusing on aspects of buying or selling a law practice. I'll be doing the second hour -- “What to Do When (not) Everything Must Go? The Ethics of Buying or Selling a
- [More on that Persuader Rule decision out of Texas](https://faughnanonethics.com/more-on-that-persuader-rule-decision-out-of-texas/) - I've written a good bit here about the problems that the Department of Labor's proposed new Persuader Rule interpretations present and, most recently, wrote a little bit about a Texas federal judge's ruling issuing a preliminary injunction about the rule going into effect. My discussion of that ruling back at the end of June 2016
- [Another development on impaired lawyers, Virginia drafts an ethics opinion](https://faughnanonethics.com/another-development-on-impaired-lawyers-virginia-drafts-an-ethics-opinion/) - Almost a year ago, I wrote a little bit about what was a first-of-its-kind rule adopted by South Carolina to address the obligations of lawyers in a law firm when a lawyer within their midst was becoming impaired as a result of aging. South Carolina's adoption of a new RPC 5.1(d) aimed at that specific
- [A former lawyer of Donald Trump speaks ... but shouldn't have](https://faughnanonethics.com/a-former-lawyer-of-donald-trump-speaks-but-shouldnt-have/) - A long while ago I wrote about a lawyer's public interview that should never have happened. Here is a lawyer's op-ed piece that should never happened, you can read the op-ed if you haven't already at this link at The Huffington Post. Now, because such a disclaimer seems to be in order and beneficial to some extent,
- [South Carolina ethics opinion on RPC 8.3(a) - right answer but not the best articulation of the rationale](https://faughnanonethics.com/south-carolina-ethics-opinion-on-rpc-8-3a-right-answer-but-not-the-best-articulation-of-the-rationale/) - In July, a new ethics advisory opinion was issued out of South Carolina to address a question related to the obligation to report the misconduct of another lawyer, specifically what sort of timing is required. South Carolina Ethics Advisory Opinion 16-04 addresses an inquiry from a lawyer (Lawyer A) who believes he has knowledge of a
- [Two developments from the ABA Annual Meeting - which one will have the bigger impact?](https://faughnanonethics.com/two-developments-from-the-aba-annual-meeting-which-one-will-have-the-bigger-impact/) - The 2016 ABA Annual Meeting continues today and tomorrow but the two actions for which it likely will be most remembered have already transpired. One happened Monday when, after much public discussion and multiple revisions to the proposal along the way, a final set of proposed revisions to ABA Model Rule 8.4 was approved in
- [Friday follow-up - more proof that it's risky for lawyers to work with Avvo Legal Services](https://faughnanonethics.com/friday-follow-up-more-proof-that-its-risky-for-lawyers-to-work-with-avvo-legal-services/) - I've written about this topic several times (some might say probably too many times) now, but here is the first example of people who -- unlike me -- actually matter reaching a very familiar sounding set of conclusions about something that quite obviously is the Avvo Legal Services program. South Carolina put out an advisory
- [I know I said I wouldn't write any more about it but...](https://faughnanonethics.com/i-know-i-said-i-wouldnt-write-any-more-about-it-but/) - Here I am, because it is hard not to write something about the news last week that Brendan Dassey's conviction was overturned. Dassey, for those of who you did not watch Netflix documentary Making a Murderer and are willing to take me at my word as to what you would have concluded if you did watch
- [Ohio ethics opinion is concrete example of "Tis better to ask forgiveness than permission."](https://faughnanonethics.com/ohio-ethics-opinion-is-concrete-example-of-tis-better-to-ask-forgiveness-than-permission/) - "It's easier to ask for forgiveness rather than permission." Those words, or words of similar effect, make up a pretty widely recognized adage. Depending on the details of any situation, the adage can serve as a proxy for pretty decent advice for a lawyer to give a client, but often less so if the lawyer's
- [Proposal to adopt Ethics 20/20 Revisions in Tennessee Put Out For Public Comment](https://faughnanonethics.com/proposal-to-adopt-ethics-2020-revisions-in-tennessee-put-out-for-public-comment/) - Back in August 2012, the ABA House of Delegates approved revisions to the ABA Model Rules proposed by the ABA Ethics 20/20 Commission. Very few of the proposed revisions included in the ABA Ethics 20/20 package are earth-shaking revisions, as many of them only involve change to language in the Comment accompanying certain rules. The
- [Both the java fight and the nut dispute are kind of bananas.](https://faughnanonethics.com/both-the-java-fight-and-the-nut-dispute-are-kind-of-bananas/) - If you spend any time on social media these days, you may have noticed how irritable folks are. There are lots of reasons for it, of course. We live in stressful times. Practicing law has always been a high-stress endeavor as far as professions go; thus, cries for more civility in the practice of law
- [Another for the annals of ethics opinions of questionable origin](https://faughnanonethics.com/another-for-the-annals-of-ethics-opinions-of-questionable-origin/) - I want to quickly discuss an ethics opinion out of New York state. No, not that one. I'm not going to delve into the brouhaha over the one from March 2016 that only got publicity in August 2016 that involves saying it is ethical for a firm to charge clients for work performed by unpaid
- ["Troubling and counterproductive" - yep](https://faughnanonethics.com/troubling-and-counterproductive-yep/) - One of the more archaic aspects of lawyer regulation is the heavy-handed approach to UPL. And, I'm not referring to UPL in the sense of something done that involves the practice of law by a person who isn't a lawyer anywhere. I'm referring to regulatory efforts involving UPL that are brandished against someone who is
- [Yet another lawyer marketing network joins the fray.](https://faughnanonethics.com/yet-another-lawyer-marketing-network-joins-the-fray/) - It is often jokingly said that "you learn something new every day." I kind of like to think that I learn more than one new thing every day, but results fluctuate. Last week, in connection with reading about the launch of a new legal marketing network that combines Martindale-Hubbell (which is also behind www.lawyers.com) and
- [Lawyers and client confidentiality.  Death does not part us.](https://faughnanonethics.com/lawyers-and-client-confidentiality-death-does-not-part-us/) - It has been a while since I've written about a good ethics opinion. There is a Maine opinion from a few months ago that fits the bill (and interestingly was actually posed by bar counsel in Maine apparently) but before I spend a little bit of time discussing it, I want to give context behind
- [Violence should never be the answer.](https://faughnanonethics.com/violence-should-never-be-the-answer/) - Back almost twenty years ago, the New Jersey Supreme Court warned New Jersey lawyers that "any act of violence committed by an attorney will not be tolerated" and to expect that the likely consequence for engaging in violent behavior would be "[n]othing less than a suspension." They issued that warning in a case, In re Viggiano,
- [Friday follow-up: Puff, puff, PA's overreach](https://faughnanonethics.com/friday-follow-up-puff-puff-pas-overreach/) - Couple of quick hits (pun wasn't really intended but just sort of happened) for this Friday. A little more than a month ago, I wrote about an ethics opinion out of Ohio that created a real dilemma for lawyers looking to advise businesses related to the medical marijuana industry that was going to become legal
- [Following up on that follow up](https://faughnanonethics.com/following-up-on-that-follow-up/) - I probably should have taken the opportunity to say so in my last post - by way of contrast if not context -- but one very obvious reason that the Ohio Supreme Court was able to move so quickly to adopt a revision to its RPC 1.2(d) to address its medical marijuana situation for lawyers
- [Bad ethics opinion or the worst ethics opinion?  Tenn. FEO 2016-F-161 edition](https://faughnanonethics.com/bad-ethics-opinion-or-the-worst-ethics-opinion-tenn-feo-2016-f-161-edition/) - I haven't rolled a post out with this title in a while, but the more truthful title when it comes to an ethics opinion, issued here in Tennessee on September 9, 2016 would be: "More bad than worthless or more worthless than bad?" First, the good news. Tenn. Formal Ethics Op. 2016-F-161 is short. It won't
- [Everything's bigger in Texas, including rule problems sometimes.](https://faughnanonethics.com/everythings-bigger-in-texas-including-rule-problems-sometimes/) - First, no argument from me that I've been a bad blogger this week. I'd offer excuses, but no one likes to hear excuses. Second, how about some actual substantive content ... I've written in the past about ethical issues surrounding the verein structure of some of the largest law firms in the world. Those prior
- [The "Now You Know" ad - quite savvy or absolutely horrible?](https://faughnanonethics.com/the-now-you-know-ad-quite-savvy-or-absolutely-horrible/) - I had been hoping I could wait a bit to write about this topic but it's making news via the ABA Journal online today, so I'll just plow in with this rush job of a post because I've already heard discussions in Tennessee about this same ad and before someone more articulate than me blogs
- [Administrative suspensions -another far too often route to UPL problems.](https://faughnanonethics.com/administrative-suspensions-another-far-too-often-route-to-upl-problems/) - I've long been torn about lawyers losing their license and ability to practice law through administrative suspensions. In Tennessee, for example, this can happen to a lawyer through failing to get your required CLE hours (TN requires 15 annually), or failing to pay your registration fees, or failing to turn in the necessary forms about
- [A very Tennessee-specific discussion for this Friday.](https://faughnanonethics.com/a-very-tennessee-specific-discussion-for-this-friday/) - Later today I will have the honor of speaking as part of a panel at the TBA Health Law Forum. The other panelists are Sheree Wright, the Senior Associate General Counsel with Vanderbilt University and Bill Hannah a lawyer in Chattanooga with the Chambliss Bahner firm. I'm fortunate enough to have both Sheree and Bill as
- [Texas Ethics Opinion Offers Stellar Example of Why You Ought to Have a Rule About This.](https://faughnanonethics.com/texas-ethics-opinion-offers-stellar-example-of-why-you-ought-to-have-a-rule-about-this/) - I've mentioned in the past the fact that Tennessee has a version of RPC 4.4(b) that directly addresses, and provides what I happen to think is the correct outcome, for what a lawyer is supposed to do about the receipt of someone else's confidential information either inadvertently or via someone who isn't authorized to have
- [Go read some things written by, or about, very smart lawyers.](https://faughnanonethics.com/go-read-some-things-written-by-or-about-very-smart-lawyers/) - For this last Friday of October, I offer a few suggestions if you have some spare time. You can never read too many things that are written by, or about, smart people. Lawyers are people, so by some sort of magical property of transcendence (or at least basic principles of logic) that would mean you
- [Maybe the weirdest proof of the old adage about "a lawyer who represents himself..."](https://faughnanonethics.com/maybe-the-weirdest-proof-of-the-old-adage-about-a-lawyer-who-represents-himself/) - Over the last year or so, I have repeatedly said in a number of contexts that with the rapid changes occurring in the modern practice of law, the lawyers who will survive and thrive will be those who can demonstrate that the value that they bring is that of the "trusted advisor." The lawyers who
- [Going from "easiest" to "most difficult" in three weeks.](https://faughnanonethics.com/going-from-easiest-to-most-difficult-in-three-weeks/) - It is Election Day, but neither the title nor the subject-matter of this post have anything to do with that. Later this week, November 11, I will be fortunate enough to present at the annual meeting of the Tennessee Association of Construction Counsel in Nashville and have billed my topic as "The Easiest Hour of
- [Alaska you a question about read receipts.](https://faughnanonethics.com/alaska-you-a-question-about-read-receipts/) - Sorry, bad and lazy pun for a title. As loyal readers of the site know, I like to write from time-to-time about formal ethics opinions issued by state regulatory bodies. A recent one caught my attention at first for its -- "I cannot believe someone even had to ask feel." But, ultimately after I read
- [Yet another decision coming out of Washington that complicates life.](https://faughnanonethics.com/yet-another-decision-coming-out-of-washington-that-complicates-life/) - Nope. This too is not a post having anything to do with the recent election. The Washington in the title is the State of Washington, and the decision is the controversial 5-4 decision issued by the Washington Supreme Court in Newman v. Highland Sch. Dist. back on October 20, 2016. The Washington court, over a strenuous
- [DC Ethics Opinion 370 - Y'all knew I wouldn't be able to resist](https://faughnanonethics.com/dc-ethics-opinion-370-yall-knew-i-wouldnt-be-able-to-resist/) - So, the D.C. Bar has come out with a far-reaching, sort of two-part ethics opinion addressing lawyers and social media usage. Opinion 370 (Part 1) can be grabbed here. Opinion 371 (Part 2) from here. Opinion 370 has lots of really good parts, but much of the publicity it has received to date revolves around
- [California offers opportunity for a word (or 1,000) on the topic of sex with clients.](https://faughnanonethics.com/california-offers-opportunity-for-a-word-or-1000-on-the-topic-of-sex-with-clients/) - So, many moons ago I wrote a post about the fact that California was working through the process of trying to overhaul its ethics rules. I said I'd get back to that topic, but never really did. So, today, I am. Kind of. But not really. In the news within the last 24-36 hours are
- [ABA Ethics 20/20 revisions.  New York adopts some; Tennessee proposal still pending.](https://faughnanonethics.com/aba-ethics-2020-revisions-new-york-adopts-some-tennessee-proposal-still-pending/) - Roy Simon, the Chair of the NY State Bar Association Committee on Standards on Attorney Conduct, was kind enough to include me on an email last week and, as a result, I learned that New York's proposed adoption of certain aspects of the ABA Ethics 20/20 revisions was approved, effective January 1, 2017. Back in
- [My 200th post:  Living in a "post-fact" world?](https://faughnanonethics.com/my-200th-post-living-in-a-post-fact-world/) - So, not a milestone for some, but, for me, it feels like an achievement to have made it to my 200th post. And because I'm a sucker for wordplay, I'll use a "post" milestone to talk about an issue I've written about a good bit before but with a twist that also involves the word
- [Glitch in the TN disciplinary procedural rules?](https://faughnanonethics.com/glitch-in-the-tn-disciplinary-procedural-rules/) - I got a call a week or two ago from another Tennessee lawyer trying to noodle through a situation. The caller was curious to see if I could offer any insight about why a situation that seemed a bit broken was not. I couldn't. Instead, I was able to sort of confirm for the lawyer
- [Friday installment of "I beg to differ."](https://faughnanonethics.com/friday-installment-of-i-beg-to-differ/) - It has been a long time since I have had reason to strongly disagree with the insights offered by Karen Rubin and company over at their excellent blog - The Law for Lawyers Today - but here we are again. Karen has written a thought-provoking piece about a criminal defense lawyer with a parody Twitter account and
- [Two smart, practical ABA Ethics Opinions in a row.  (And a bonus "beg to differ".)](https://faughnanonethics.com/two-smart-practical-aba-ethics-opinions-in-a-row-and-a-bonus-beg-to-differ/) - So, this week the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Op. 476 addressing the need to protect client confidentiality when a lawyer seeks to withdraw for reasons involving the client's failure to pay. As explained below, it is a solid, practical opinion touching on a subject often overlooked by lawyers who
- [Pre-holidays Friday installment of "I beg to differ."](https://faughnanonethics.com/pre-holidays-friday-installment-of-i-beg-to-differ/) - So, it seems like I am begging to differ all over the place during the last week or so, but here comes another instance. About a month ago, the Tennessee Supreme Court granted permission to appeal in a legal malpractice case, Story v. Bunstein, in which the plaintiff(s) suit against their lawyer was dismissed based on
- [Last post of 2016 - Why lawyers need lawyers.](https://faughnanonethics.com/last-post-of-2016-why-lawyers-need-lawyers/) - 2016 was a year marked with quite a number of unexpected (at least to me) developments. 2017 likely will have its share of unexpected events as well. To wrap up the year, I wanted to use what little platform I have to pursue something that is both driven by blatant self-interest and is in the
- [Bad blogger doubles up on topics.](https://faughnanonethics.com/bad-blogger-doubles-up-on-topics/) - I had every intention of posting twice this week, but events, including being under the weather with general ick much of the week, undermined my intent. So, this mediocre post will briefly hit two items. And, with any luck, tie the two together in a way that makes this seem, in hindsight, the correct way
- [Two quick technology takes - texting and more on email "bugs"](https://faughnanonethics.com/two-quick-technology-takes-texting-and-more-on-email-bugs/) - Not too long ago, I weighed in on an Alaska Ethics Opinion about the ethics of lawyers using email "bugs" that surreptitiously track what happens to an email after it has been sent. There is a new, interesting read on the "legal or not" aspect of this technology in the ABA/BNA Lawyers Manual on Professional
- [Crossing the Line in Maine](https://faughnanonethics.com/crossing-the-line-in-maine/) - No, the title is not a veiled attempt to publicly-shame Maine's Governor for his latest act of public ridiculousness... or is it? This is instead a short post discussing conduct that I posit is a lot more common than you might think and that resulted recently in a very low-level of discipline against a Maine
- [The need for speed is always in conflict with the need to run conflicts.  Choose speed and you might pay the price.](https://faughnanonethics.com/the-need-for-speed-is-always-in-conflict-with-the-need-to-run-conflicts-choose-speed-and-you-might-pay-the-price/) - Even the largest and the most prominent of law firms can get themselves crosswise with clients over conflicts. In fact, at some level, it is the largest and most prominent law firms that are most at risk of the negative ramifications that can come from conflicts of interest. Last week, the world's largest law firm
- [Whistling about where you work.](https://faughnanonethics.com/whistling-about-where-you-work/) - We appear to be living now in an era in which whistle blowers are going to be in the news (and perhaps be the news) more than ever. Many who know me, know that I hold a pretty controversial opinion -- Arrested Development is potentially the greatest television show in history. For many years when I
- [Harmonizing practice pending and pro hac vice provisions in Tennessee](https://faughnanonethics.com/harmonizing-practice-pending-and-pro-hac-vice-provisions-in-tennessee/) - The Tennessee Supreme Court issued an order last week implementing a helpful change to our rules on pro hac vice admission so that lawyers who are taking advantage of recent rule changes in Tennessee to permit practice pending admission can also be admitted pro hac vice in a lawsuit on behalf of a client. You
- [About last night.](https://faughnanonethics.com/about-last-night/) - Things are moving so fast, the new administration has made it to one of the worst moments of the Nixon Administration in fewer than 11 days. Now, in addition to being a constitutional crisis, America's political drama involves an honest-to-goodness legal ethics issue so... To recap, yesterday Sally Yates, a career federal prosecutor who was
- [Lying about everything is an awful way to go about life.](https://faughnanonethics.com/lying-about-everything-is-an-awful-way-to-go-about-life/) - No, stop, this is not a post about politics. Not sure why you'd think that just from the title... It's Groundhog Day here in the United States. As a person of a certain age, Groundhog Day makes me think of the Bill Murray movie more than the actual parlor trick with a rodent that happens
- [Arkansas and Wisconsin weigh in on client files in different ways and on different sides.](https://faughnanonethics.com/arkansas-and-wisconsin-weigh-in-on-client-files-in-different-ways-and-on-different-sides/) - The need for clarity with respect to what makes up the "client file" has been an issue I have tried to stay up to date on dating back to our unsuccessful efforts back in 2009 to convince the Tennessee Supreme Court to adopt a rule - what would have been RPC 1.19 -- to address
- [Bad ethics opinion or the worst ethics opinion? New York State Bar Ethics Opinion 1110 edition](https://faughnanonethics.com/bad-ethics-opinion-or-the-worst-ethics-opinion-new-york-state-bar-ethics-opinion-1110-edition/) - Again, not fair actually. This NY ethics opinion isn't in the running for being the worst ethics opinion and isn't even truly bad and actually, I guess, not even wrong. But it does point out a really bad flaw with respect to the language of the particular NY rule it applies. What seems like an
- [Friday follow up: DC Bar counsel's weird priorities](https://faughnanonethics.com/friday-follow-up-dc-bar-counsels-weird-priorities/) - So (finally) I've made myself read a bit more into the DC situation -- that for many people is now ancient history but was news to me -- about what seems like something that definitely got some play in the news but ought to be a more nationally discussed scandal. The weird penchant that DC
- [Learn something new every day.  Or two things.  Or three things.  I'm not your boss.](https://faughnanonethics.com/learn-something-new-every-day-or-two-things-or-three-things-im-not-your-boss/) - About a week or so ago, I learned something new about South Carolina's ethics rules - thanks to the law-student-powered blog of the University of Miami (FL) School of Law, Legal Ethics in Motion. They wrote about a South Carolina federal court case in which a motion to disqualify premised on South Carolina Rule 1.18 was
- [Dear ABA - Embrace reform of the lawyer advertising rules.  Please.](https://faughnanonethics.com/dear-aba-embrace-reform-of-the-lawyer-advertising-rules-please/) - I have written in the past about the APRL white papers providing the rationale for, and data supporting the need to, reform the way lawyer advertising is regulated in the United States by state bar entities. You can read those prior posts here and here if you are so inclined. Jayne Reardon, the Executive Director
- [Can lawyers learn anything from the ending of the Academy Awards?](https://faughnanonethics.com/can-lawyers-learn-anything-from-the-ending-of-the-academy-awards/) - Well, of course, they can. Or at least that is the conceit I'm going to stick to in order to write this post about a lawyer's obligation to talk to their client about mistakes and make it seem topical and culturally relevant. By now, unless you live a very, very cloistered life you've at least
- [That's not a Rule 8.4(c) violation.  THAT's a Rule 8.4(c) violation.](https://faughnanonethics.com/thats-not-a-rule-8-4c-violation-thats-a-rule-8-4c-violation/) - In February 2017, more than a dozen law professors filed an ethics complaint against Kellyanne Conway, Counselor to the President, alleging that she violated the attorney ethics rules applicable in D.C. through several false public statement she made -- most notably, her repetitive statements about a terrorist incident that never actually occurred - the "Bowling
- [Tennessee has adopted the Ethics 20/20 changes effective immediately.](https://faughnanonethics.com/tennessee-has-adopted-the-ethics-2020-changes-effective-immediately/) - I've written a couple of times in the past about the status of the Tennessee Bar Association's petition seeking to have the Tennessee Supreme Court adopt essentially all of the ABA Ethics 20/20 changes. Yesterday, the Tennessee Supreme Court entered an order doing just that - effective immediately -- which now adds Tennessee to the
- [Theater of the absurd.](https://faughnanonethics.com/theater-of-the-absurd/) - This is something of a stretch from what I normally write about, but sometimes you simply have to write about something and simply ask for forgiveness rather than permission. Recently, an article made the rounds written by Adam Gopnik of The New Yorker who posited that two recent events were the clearest sign yet that we
- [Lateral moves can be hard.  One type in particular is harder than the rest.](https://faughnanonethics.com/lateral-moves-can-be-hard-one-type-in-particular-is-harder-than-the-rest/) - In 2017, a lawyer moving from one law firm to another is a pretty common place occurrence. Anyone who has been through the process knows how personally difficult and stressful the ordeal can be no matter how excited you are about your next destination. The emotional and personal components alone can be trying, but the
- [A weird-ish ethics opinion out of New York.](https://faughnanonethics.com/a-weird-ish-ethics-opinion-out-of-new-york/) - I have written a few times about the ABA's adoption of a new Model Rule 8.4(g). One point that was brought up in the run-up to that rule actually finally being adopted was that some more than 20 jurisdictions already had an anti-discrimination rule in place in the black letter of their rules in one
- [A weird-ish court opinion here in Tennessee.](https://faughnanonethics.com/a-weird-ish-court-opinion-out-of-tennessee/) - On the heels of my criticism of an ethics opinion out of New York as weird-ish, let me turn my attention closer to home to discuss a Court of Appeals opinion this week here in Tennessee that is fortunate for the law firm involved but unfortunate for lawyers in Tennessee in general. In Guo v. Woods
- [Another Tennessee-centric offering.](https://faughnanonethics.com/another-tennessee-centric-offering/) - Using the term "Tennesentric" would probably be more efficient, but two items involving potential rule revisions relating to ethics and lawyering in Tennessee are worth briefly discussing. One of the two has gone out for public comment and has a deadline, while the other has just been filed with the Court and does not. I've
- [It doesn't all even out in the Walsh.](https://faughnanonethics.com/it-doesnt-all-even-out-in-the-walsh/) - Selecting just the right item to write about is not easy. This is not going to be an instance of accomplishing it. This is going to be an instance of writing something just because I truly find the outcome astounding (or at least I found the outcome astounding when I first read a blurb about
- [Friday Flashback - Folks still forgetting The Streisand Effect](https://faughnanonethics.com/friday-flashback-folks-still-forgetting-the-streisand-effect/) - In my early days (If a blog that has only been around for just a smidge over 2 years can be characterized as having early days.), I wrote a post with a reference to "The Streisand Effect" and the need for lawyers and law firms who are thinking about trying to take actions to shut
- [North Carolina - Good intentions leading to a pretty seemingly bad rule.](https://faughnanonethics.com/north-carolina-good-intentions-leading-to-a-pretty-seemingly-bad-rule/) - So North Carolina has got quite a bit going on these days. Last night UNC won the NCAA Men's Basketball championship. A few days ago, its general assembly kind of, sort of, repealed the bathroom bill that brought it much negative publicity and cost it some sporting events. And, in March 2017, it adopted a
- [(In)Famous Attorney Violates the First Rule of Holes](https://faughnanonethics.com/infamous-attorney-violates-the-first-rule-of-holes/) - Rules of Holes. Rule the First. When you are in one, stop digging. Now two things worth saying by way of preface, I guess, before further explanation. First, I've dealt with my share of problematic lawyers over the years (so too probably have you), including the type that doesn't know when to say when, so
- [Traps for the Unwary - Employer email systems](https://faughnanonethics.com/traps-for-the-unwary-employer-email-systems/) - I like to think I am "warier" than the average attorney. But a recent attorney-client privilege opinion out of New York was a good reminder that being "wary" can be much like being "woke." Even if you think you are, you probably aren't as much as you think you are, and you can always be
- [A glimpse into the world of consumer-facing legal services providers](https://faughnanonethics.com/a-glimpse-into-the-world-of-consumer-facing-legal-services-providers/) - Yesterday, I had the pleasure of serving as a moderator at a CLE event in Nashville focused on developments in the world of consumer-facing legal services providers. There are a world of companies - predominantly existing only online -- that have an increasing presence in the lives of people in need of legal services and
- [Ohio Opinion 2017-1:  Too much and too little at the same time](https://faughnanonethics.com/ohio-opinion-2017-1-too-much-and-too-little-at-the-same-time/) - An opinion worthy of discussion was issued in Ohio back in February 2017 but I didn't stumble across it until this past week. (A tweet by ALAS got it onto my radar screen.) Advisory Opinion 2017-1 from the Ohio Board of Professional Conduct addresses advertisement of contingent fee arrangements and, in particular, it addresses the
- [Virginia's revised lawyer advertising rules - big win for APRL's effort to streamline the advertising rules](https://faughnanonethics.com/virginias-revised-lawyer-advertising-rules-big-win-for-aprls-effort-to-streamline-the-advertising-rules/) - [In the interest of full disclosure for those who might be new here, I am presently a member of the Board of Directors of the Association of Professional Responsibility Lawyers (APRL).] For those who aren't new here, you know full well my personal opinion on lawyer advertising and what the ethics rules should and should
- [A tale as old as time.](https://faughnanonethics.com/a-tale-as-old-as-time/) - Stop me if you've heard this one ... it's about a lawyer getting into trouble for overbilling ... where there are examples of the lawyer even trying to claim to have billed more than 24 hours in a day. You probably stopped me somewhere in there because you have heard it before. The legal profession
- [As a matter of fact, yes, this potato is still hot.  Why do you ask?](https://faughnanonethics.com/as-a-matter-of-fact-yes-this-potato-is-still-hot-why-do-you-ask/) - In October of this year, I'll have the honor of again getting to serve as a moderator for a panel discussion at Aon's Law Firm Symposium. This year's event will take place in D.C. The topic of the panel I get to be a part of will be something of a DQ motion boot camp.
- [Bad ethics opinion or the worst ethics opinion?  Rhode Island 2017-02](https://faughnanonethics.com/bad-ethics-opinion-or-the-worst-ethics-opinion-rhode-island-2017-02/) - I have perused a lot of ethics opinions over the years. Whether a kind of scenario presents a conflict is a frequent subject of ethics opinions. I don't think I've read many that address whether a particular conflict of interest is fairly treated as a consentable conflict, however. Having now read Rhode Island Ethics Advisory
- [Wisconsin rightly says no to name dropping without consent.](https://faughnanonethics.com/wisconsin-rightly-says-no-to-name-dropping-without-consent/) - Earlier this week I criticized what I consider to be a pretty bad ethics opinion that was issued by Rhode Island. To balance things out a bit, I want to write about an ethics opinion out of Wisconsin that gives the correct answer to its query - Wisconsin Formal Ethics Opinion EF-17-02. That opinion correctly
- [Two short updates for a Tuesday](https://faughnanonethics.com/two-short-updates-for-a-tuesday/) - Late last month, I focused a post on a West Virginia lawyer who ended up staring down a 2-year suspension over chronic over-billing. If you missed that post, you can read it here. If you read it, you will recall that one of the items discussed was that the Executive Director of the West Virginia
- [Something to chew on during your holiday weekend.](https://faughnanonethics.com/something-to-chew-on-during-your-holiday-weekend/) - I am nowhere near the most plugged in when it comes to lawyers on the forefront of tracking the ways in which rapid developments in technology are changing the practice of law. I'm a bit more aware than likely most lawyers, in part because I'm constantly looking for things worth writing about here, but also
- [Monday memories](https://faughnanonethics.com/monday-memories/) - Now, I admit, you may be of the opinion that a blog that has only existed for just a bit longer than 2 years probably has no business trying to recycle past posts as flashbacks or memories or what-have-yous. But, I'll make you a deal: you start your own blog and you get to do
- [What's in a name?](https://faughnanonethics.com/whats-in-a-name/) - For example, the folks behind the popular Radiolab podcast also launched a spin-off podcast last year about the U.S. Supreme Court called "More Perfect." The reason for naming it that, of course, is that it almost assuredly a reference to the famous line in the Preamble to the U.S. Constitution But today it seems a
- [Go read this other stuff.](https://faughnanonethics.com/go-read-this-other-stuff/) - In a little over 2 years and out of 244 prior posts, this is only the second time I have done this, so I don't feel incredibly bad. Though I admittedly do feel somewhat bad. But try as I have to find something this week that I had to say that was worth writing about and
- [Coming to praise rather than bury - Colorado Formal Op. 129](https://faughnanonethics.com/coming-to-praise-rather-than-bury-colorado-formal-op-129/) - It is almost three months old now, but I wanted to right a word or two about a really well-constructed ethics opinion issued in Colorado, not just because it is an opinion that deserves to be read, but also because it raises a not-quite-academic question about the phenomenon of captive law firms. The opinion put
- [The Future of Legal Services - Oregon weighs in](https://faughnanonethics.com/the-future-of-legal-services-oregon-weighs-in/) - I was given an opportunity to provide a Legislative Update piece in the Spring 2017 issue of TortSource a publication of the ABA Tort Trial & Insurance Practice Section. The focus of the Spring 2017 issue is "Evolving Legal Markets" and, although the authorship is Tennessee-heavy, I think you will find all the articles to be
- [More of me weighing in on Oregon weighing in on the future](https://faughnanonethics.com/more-of-me-weighing-in-on-oregon-weighing-in-on-the-future/) - For those that missed my post earlier this week on the release of the Oregon State Bar Futures Task Force report, you can read that post here and get caught up. Today, I want to offer some thoughts on one of the three Recommendations made by the Regulatory Committee of the Futures Task Force. It
- [New Jersey weighs in as well, reminding us the difference between "is" and "ought."](https://faughnanonethics.com/new-jersey-weighs-in-as-well-reminding-us-the-difference-between-is-and-ought/) - My last two posts have focused on the pretty wide-ranging and very thought-provoking work (and work product) of the Oregon State Bar Futures Task Force. I do plan to return to the topics because there is more in that report worth discussion, but we are taking a break from that with this post. Let's move
- [Final thoughts for now on the Oregon report](https://faughnanonethics.com/final-thoughts-for-now-on-the-oregon-report/) - For this last, at least for now, of the three posts I envisioned to talk about the important aspects of the Oregon State Bar Futures Task Force, I want to talk about the piece I've not really said anything about to date - the recommendations of the Innovations Committee of that Futures Task Force. As
- [Here's something you don't see every day: Brave Law Firm sues a competitor.](https://faughnanonethics.com/heres-something-you-dont-see-every-day-brave-law-firm-sues-a-competitor/) - I've written here pretty frequently about issues of lawyer advertising. I am too lazy today to try and go find links to other posts of mine in which I have stated that the overwhelming majority of disciplinary complaints filed over lawyer advertisements are filed by other lawyers. Not always competitors, sometimes lawyers on the other
- [Robot roll call ...](https://faughnanonethics.com/robot-roll-call/) - If I had any faith that the Venn diagram showing overlap between readers of this blog and fans of Mystery Science Theater 3000 had broad, heavy shading in the overlapping areas of the circles, then I would take this joke all the way with some clever effort at following up the title with a first
- [Practicing law like it's espionage.  NYC Bar Formal Op. 2017-5](https://faughnanonethics.com/practicing-law-like-its-espionage-nyc-bar-formal-op-2017-5/) - This week the New York City Bar has put out a very important, and I think very helpful, ethics opinion to address a real, practical concern for lawyers: what, if anything, can be done to protect confidential client information when traveling and crossing the border into the U.S.? NY City Bar Formal Op. 2017-5 lays
- [Hey Genis!  Don't do that.](https://faughnanonethics.com/hey-genis-dont-do-that/) - I've represented a lot of lawyers over the years in disciplinary proceedings in Tennessee. It is certainly fair to say that the process is slow when you want it to be fast and sometimes vice versa. I noticed a story that the ABA/BNA Lawyers' Manual on Professional Conduct ran with that made me realize that the
- [It's been a while.](https://faughnanonethics.com/its-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.)
- [Speaking again of rarer occurrences](https://faughnanonethics.com/speaking-again-of-rarer-occurrences/) - Last week I dedicated a post to highlighting some topics of note that I hadn't written about in a while. This is another such post as the Tennessee Supreme Court has again taken action on its own initiative to increase discipline against an attorney beyond a result that both the accused attorney and the prosecuting
- [Does Avvo provide a bona fide lawyer rating?](https://faughnanonethics.com/does-avvo-provide-a-bona-fide-lawyer-rating/) - A number of folks have already written about how New York has dealt another setback for Avvo Legal Services in the form of NY State Bar Ethics Op. 1132 which found that New York lawyers could not participate in Avvo Legal Services because payment of Avvo's marketing fee amounts to payment for recommendation of services
- [More fuel for the advertising rule reform fire.](https://faughnanonethics.com/more-fuel-for-the-advertising-rule-reform-fire/) - So, I'm getting a very wonderful opportunity to participate in a debate about lawyer advertising in November in Nashville at The Advocates' Society annual meeting. A throng of lovely Canadian attorneys will be traveling to our state capital for a two-day meeting. I say all of this for two reasons: Reason the first - today
- [On second thought, "this" is the least discussed ethics rule.](https://faughnanonethics.com/on-second-thought-this-is-the-least-discussed-ethics-rule/) - Many moons ago (look at me and my topical thinly-veiled 8/21/17 Eclipse reference), I wrote a post about Model Rule 2.1 being perhaps the least discussed ethics rule and why maybe it shouldn't be. But, a recent news item about a relatively humdrum topic, a relatively large multi-state law firm (Husch Blackwell) announcing that it
- [A kind note from a satisfied client](https://faughnanonethics.com/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
- [A three-part discussion of LA County Bar Op. 528](https://faughnanonethics.com/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
- [A rare example of the perfect application of RPC 8.4(c)](https://faughnanonethics.com/a-rare-example-of-the-perfect-application-of-rpc-8-4c/) - I've written in the past about issues associated with RPC 8.4(c) and how its potential application to any act of dishonesty on the part of a lawyer -- no matter how trivial or unrelated to the practice of law it might be -- makes it a problematic ethics rule. A disciplinary proceeding presently being pursued
- ["DoNotPay" Becomes HelpYouSue](https://faughnanonethics.com/donotpay-becomes-helpyousue/) - I had another idea for a blogpost in mind at this stage of the week, but between travel and this story, this was the thing that had to be acknowledged today. Yesterday's big technology news for lawyers (sort of lost in the Apple event revealing a brand new version of what will likely become Ted
- [A patchwork post for your Friday](https://faughnanonethics.com/a-patchwork-post-for-your-friday/) - Today's content will be an original recipe of (1) part shameless self-promotion; (2) two parts serious recommendations to read the writings of others; and (3) pop culture recommendations for your downtime this weekend. First, the shameless. I am pleased to announce the plan for this year's Ethics Roadshow. Here's the promotional piece you will soon
- [Things I don't understand... Atrium LLP](https://faughnanonethics.com/things-i-dont-understand-atrium-llp/) - You may, by now, have read an article or two about the launch of a "technology-focused law firm" by the name of Atrium LLP. Its headquarters are in California. Having now read several articles about it - and how it has come to be and how it will operate - I simply don't understand it.
- [Perfect timing.](https://faughnanonethics.com/perfect-timing/) - (Edited - Dec. 8, 2017 to fix very embarrassing mistakes as to the company name of Atrium.) On the heels of my posting earlier this week about my failure to understand how the Atrium law firm backed by the Atrium tech company is something that complies with California's ethics rules (much less ethics rules in
- [An ethics opinion from the Coinhusker state](https://faughnanonethics.com/an-ethics-opinion-from-the-coinhusker-state/) - Answering the question that was undoubtedly on the minds of every lawyer practicing in that state, the Lawyer's Advisory Committee of the Nebraska Supreme Court issued Ethics Advisory Opinion for Lawyers No. 17-03 making clear that, yes, lawyers can accept payment from clients in the form of Bitcoin or other similar digital currencies. I don't
- [Coming to praise rather than bury: NYC Bar Op. 2017-6](https://faughnanonethics.com/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
- [This Florida lawyer should not have "Went for It"](https://faughnanonethics.com/this-florida-lawyer-should-not-have-went-for-it/) - I had it in mind that I might write a little something about the Pennsylvania lawsuit against the Morgan & Morgan firm over lawyer advertising issues, but Karen Rubin and the fine folks at The Law for Lawyers Today beat me to that punch with a nice piece at their site that you can read at
- [Disturbing development in a recent disciplinary case](https://faughnanonethics.com/disturbing-development-in-a-recent-disciplinary-case/) - Late this Summer, the Tennessee Supreme Court issued an opinion, over a dissent, that imposed a public censure against a lawyer for what were, pretty clearly, a series of failures on the part of the lawyer's staff in the handling of a client's matter. What makes the case, Garland v. BPR, interesting, and worthy of that
- [Frustrations with Formal Ethics Opinion 2017-F-164](https://faughnanonethics.com/frustrations-with-formal-ethics-opinion-2017-f-164/) - Recently (and one of the frustrations I have with this opinion I am now writing about is, that "recently" is about as specific as I can pin things down in terms of the date of issuance), the Board of Professional Responsibility in Tennessee issued a Formal Ethics Opinion giving some guidance on the ability of
- [An open letter to Avvo](https://faughnanonethics.com/an-open-letter-to-avvo/) - Dear Mark or Josh or Dan (or others at Avvo): I am a lawyer of little relative influence but I know you are likely familiar with me because I have, time and time again here on my small platform written about the travails your business model is enduring as state after state issues ethics opinions warning
- [Advocating for attorney advertising.](https://faughnanonethics.com/advocating-for-attorney-advertising/) - So, back in August, I mentioned that I was going to have the opportunity to debate issues of lawyer advertising before an audience of top-notch Canadian lawyers in November. This post is something of a coda to that post as I want to, very briefly, say a word or two about that talk. It was,
- ["Boies will be boys was never a good response" or "Advance waivers are still better than unwanted advances"](https://faughnanonethics.com/boies-will-be-boys-was-never-a-good-response-or-advance-waivers-are-still-better-than-unwanted-advances/) - (I've apologized once before for a Bullwinkle-style title and here I am doing it again. The underlying societal issues are not funny in the least but it's been a hard week for many folks and a little bit of levity can help you make it through.) If you are inclined to read this blog from
- [Something TIKD this way comes.](https://faughnanonethics.com/something-tikd-this-way-comes/) - So, about a week ago, the Florida Bar and The Ticket Clinic (a Florida law firm that somehow can manage to keep the lights on by specializing in representing people regarding traffic tickets) were sued in federal district court by something called TIKD. TIKD is, at heart, an app for your smart phone. The lawsuit
- [RPC 8.4(g) - Tennessee is in play](https://faughnanonethics.com/rpc-8-4g-tennessee-is-in-play/) - I'm pleased to report that, yesterday, a joint petition was filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility asking the Tennessee Supreme Court to adopt an RPC 8.4(g) patterned after the ABA Model Rule. As I've written here in the past, I've long been hopeful (not necessarily optimistic but certainly
- [A short update on Avvo ratings](https://faughnanonethics.com/a-short-update-on-avvo-ratings/) - You may recall, a while back, that I kvetched a bit here about my belief that Avvo's rating system was less than a bona fide system. The primary focus of my argument centered on Avvo's decision to assign numerical ratings to some lawyers even though those lawyers have never claimed their profiles. I then spent
- [Three-For-Tuesday.](https://faughnanonethics.com/three-for-tuesday/) - Any old radio station in your town (most probably one playing "Classic Rock") can provide you with a Two-For-Tuesday, but where else will you find a Three-For approach to this otherwise underrated day of the week? First, I recently let you know that Tennessee was in play with a proposed version of RPC 8.4(g) to
- [I Dowd that very much.](https://faughnanonethics.com/i-dowd-that-very-much/) - Last week was a pretty eventful week in the area where politics and the law overlaps, and an initially bizarre turn of events that was made more bizarre by subsequent claims injected some questions of legal ethics into events on the national stage again. What I’m talking about is all stuff you've likely already read
- [2017 Ethics Roadshow - here's the playlist](https://faughnanonethics.com/2017-ethics-roadshow-heres-the-playlist/) - If you aren't in attendance at any of the Ethics Roadshow events, then this post won't really make much sense. So, apologies. But maybe you should make an effort to attend next year? Just saying...
- [Friday follow up - TIKD off by a DQ motion and the Supremes won't stop suspending the wrong lawyers.](https://faughnanonethics.com/friday-follow-up-tikd-off-by-a-dq-motion-and-the-supremes-wont-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
- [Status quo prevails. A Tennessee update](https://faughnanonethics.com/not-all-lists-are-hot-status-quo-prevails-a-tennessee-update/) - I am still Roadshowing this week, among other things, so I will again offer some content but with a caveat about its brevity. (And, again, if you are sitting in a highly-entertained crowd looking for the embedded Spotify playlist just keep scrolling and you'll find it.) In the before time, the long, long-ago at this
- [Friday follow up, follow up:  Sick of TIKD yet?  If so, a promise of something new for next week](https://faughnanonethics.com/friday-follow-up-follow-up-sick-of-tikd-yet-if-so-a-promise-of-something-new-for-next-week/) - I know they warn people about going to wells too often, but though the Roadshow has now wrapped up your intrepid blogger is a bit exhausted. So this is the well where we find ourselves today ... a further mention of the ongoing TIKD situation. It is both a selfish and an altruistic offering. The
- [Where are we when even ABA Ethics Opinions are marketed with a "clickbait" approach?](https://faughnanonethics.com/where-are-we-when-even-aba-ethics-opinions-are-marketed-with-a-clickbait-approach/) - So, as promised (and even though there have been even further developments down in Florida), today I am writing about the latest ABA Ethics Opinion and whether it might provide any solace and protection for a lawyer who is being dragged by a former client online and wanting to defend herself by responding online to
- [A very good start.](https://faughnanonethics.com/a-very-good-start/) - My last post was filled with criticisms related to the roll out of a new ABA Ethics Opinion. Today I'm offering a different tone and message for the ABA Standing Committee on Ethics and Professional Responsibility - a positive message offering kudos for the working draft that has now been circulated to revise the ABA
- [So what does 2018 hold in store for us?](https://faughnanonethics.com/so-what-does-2018-hold-in-store-for-us/) - It's a new year and, of course, for many that means a time of reflection and goal-setting and much talk of how the new year will be different from the prior year. I will spare you much of that because you can find that all over the Internet. I am prompted to post today (in
- [Change is hard.  Even where it appears to be wanted.](https://faughnanonethics.com/change-is-hard-even-where-it-appears-to-be-wanted/) - I have been meaning to do this and am long overdue in getting to it, but you might recall back in the summer of 2017 when I wrote pretty extensively about the contents of the Oregon Futures Task Force Report, and its positive proposed changes to the ethics rules. If you don't, you can read
- ["No.  No you're not."](https://faughnanonethics.com/no-no-youre-not/) - So, you may recall back in October 2017 I had an itch and intended to write about a lawsuit in Pennsylvania that would fit in with the recent (seemingly) increased willingness of lawyers to sue other lawyers over their ads, but since I was beaten to the punch, instead I gave you a pointer to
- [Safeguarding confidential information, border searches, and your devices](https://faughnanonethics.com/safeguarding-confidential-information-border-searches-and-your-devices/) - In February, I will have the opportunity to be part of a panel discussion in Vancouver, Canada at the mid-year meeting of the Association of Professional Responsibility Lawyers focused on privacy and client confidentiality issues. We will discuss quite a few interesting topics, including something that likely isn't on the radar of as many U.S.
- [If racism is disqualifying for a juror, why not for an aspiring lawyer?](https://faughnanonethics.com/if-racism-is-disqualifying-for-a-juror-why-not-for-an-aspiring-lawyer/) - Nothing like the day after a holiday weekend to pose a difficult, potentially controversial, question, right? But when the holiday weekend in question is one to celebrate the life and legacy of Dr. Martin Luther King, Jr., this particular question is certainly topical. This is a post I have had rattling around inside of my
- [Husband can't control his wife, gets disciplined.](https://faughnanonethics.com/husband-cant-control-his-wife-gets-disciplined/) - Sometimes titles for posts are tough to come up with, sometimes they are far too easy. This is one of the latter and is offered both with a spirit of tongue-in-cheek silliness and because it is a truly perfect seven-word summary of a recent disciplinary case of note. It is, of note, at least for
- [Friday follow up:  This week flu by.](https://faughnanonethics.com/friday-follow-up-this-week-flu-by/) - Apologies for the lack of content this week, been down with the flu since Monday afternoon. Two short items by way of follow up today worth highlighting with a hope of resuming this blog's normal, sub-par output next week. First, word has come out that the former Florida Bar President made the subject of the
- [TIKD off my list.](https://faughnanonethics.com/tikd-off-my-list/) - Some day I'm going to get tired of having pun with TIKD titles, and you've probably already gotten tired of me doing it, but today is not that day for me. I was looking to find something to be able to easily write about today before scrambling out of town for some speaking engagements and
- [EVA(n) good things are complicated by ethical obligations.](https://faughnanonethics.com/evan-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
- [Idaho why lawyers are so often tripped up on this.](https://faughnanonethics.com/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
- [Friday follow up.  Good news and bad news.](https://faughnanonethics.com/friday-follow-up-good-news-and-bad-news/) - I seem to be trending toward this model of one new/fresh substantive post early in the week and one of these "FFU" posts at the end of the week, but I'm not sure if this is a rut or my script going forward. A very intelligent and thoughtful lawyer asked me while I was in
- [Idaho why I insist on punny titles.](https://faughnanonethics.com/idaho-why-i-insist-on-punny-titles/) - So, those familiar with this space may remember I have written a bit from time-to-time about Tennessee's proposed rule revision to adopt a modified version of ABA Model Rule 8.4(g). The future of the proposal is still up in the air and the public comment period continues to run until March 21, 2018. If you
- [My 300th Post.  The shady "Stormy" story gets shadier.](https://faughnanonethics.com/my-300th-post-the-shady-stormy-story-gets-shadier/) - If you had told me back in March 2015 when I started this blog that my 300th blogpost would struggle with trying to decide which angle of a statement to The New York Times made by a personal attorney for the 45th President of the United States about paying $130,000 to a porn star to apparently buy
- [An incredibly unhelpful ethics opinion from Colorado](https://faughnanonethics.com/an-incredibly-unhelpful-ethics-opinion-from-colorado/) - Were you looking for something that is very well-written but entirely unhelpful to your needs as a lawyer? Well, you've come to the right place today. Wait, I now see how that paragraph could be misconstrued in an entirely unflattering way and as an inadvertent passing of judgment on this whole blog. Obviously, I didn't
- [That escalated ... but not all that quickly.](https://faughnanonethics.com/that-escalated-but-not-all-that-quickly/) - You've likely already read something this week about the Florida lawyer who was disbarred last month as the culmination of his "cumulative and escalating misconduct," so I don't know that I have anything truly unique to offer about the situation. But because I so clearly remember talking about the first event in his series of
- [Another good opinion from the ABA SCEPR](https://faughnanonethics.com/another-good-opinion-from-the-aba-scepr/) - This was not what I originally planned to write about today, but ... here we are all the same. Today, the ABA Standing Committee on Ethics and Professional Responsibility released a new opinion and, because it relates to social media, it is generating a good deal of discussion online. It is being rolled out and
- [An object lesson about "staying in your lane."](https://faughnanonethics.com/an-object-lesson-about-staying-in-your-lane/) - Prominent technology blogger, Robert Ambrogi, has taken to Above the Law to criticize the latest ABA Formal Ethics Opinion. In addition to attempting to savage it over being somehow untimely since lawyers have been blogging for almost 20 years, his primary substantive criticism of the opinion is that it makes no sense for an ethics rule
- [A sad day in the world of legal ethics](https://faughnanonethics.com/a-sad-day-in-the-world-of-legal-ethics/) - Professor Ronald Rotunda, a legend in the field of legal ethics, has passed away at the age of 73 from complications of pneumonia. You can read a bit about the man here. I disagreed strongly with Professor Rotunda's politivcal views, but when it came to the world of legal ethics he was amazingly influential, highly
- [Outside counsel guidelines and term limits](https://faughnanonethics.com/outside-counsel-guidelines-and-term-limits/) - While I am on something of a short streak of writing about people much more famous and influential than I am, it seems as good a time as any to offer my thoughts about the article that two very fine lawyers with Hinshaw & Culbertson wrote for The Professional Lawyer in 2017 about even more aspects of
- [The intersection of the First Amendment and the Ethics Rules](https://faughnanonethics.com/the-intersection-of-the-first-amendment-and-the-ethics-rules/) - So, I don't know if any of you have ever played HQ Trivia. In any session, they have between 500,000 and almost 2 million players, so statistically speaking, I guess there is a chance you have. While it has nothing to do with legal ethics, in order to understand the context of what follows, let
- [They got away with it, but that doesn't make it worth trying.](https://faughnanonethics.com/they-got-away-with-it-but-that-doesnt-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
- [Awesome post.  Except for the part that isn't.](https://faughnanonethics.com/awesome-post-except-for-the-part-that-isnt/) - 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
- [Client Number Three -  Seven lessons learned](https://faughnanonethics.com/client-number-three-seven-lessons-learned/) - I can't believe I'm doing this as neither of these people deserve any benefit of the doubt or serious treatment afforded for their contentions. But, based on spending time on the web reading comments (despite the always-spot-on advice "don't read the comments"), there are so incredibly many people who do not understand these concepts and,
- [A short post-mortem for Tennessee's proposed RPC 8.4(g)](https://faughnanonethics.com/a-short-post-mortem-for-tennessees-proposed-rpc-8-4g/) - With the flood of comments in opposition, and particularly the fact that the Attorney General of our state felt the need to file not just one but two comments in opposition, the unsuccessful end of the effort to convince the Tennessee Supreme Court to adopt a version of RPC 8.4(g) has felt inevitable for the
- [TN BPR releases two more "stealth" ethics opinions](https://faughnanonethics.com/tn-bpr-releases-two-more-stealth-ethics-opinions/) - Earlier this month, and again in a fashion that seems a bit more in keeping with NOT wanting people to know they've been released rather than to give advice and guidance intended to be disseminated far and wide, the Board of Professional Responsibility here in Tennessee issued two new Formal Ethics Opinions. The only way
- [Throwback Thursday on Cinco de Cuatro Eve](https://faughnanonethics.com/throwback-thursday-on-cinco-de-cuatro-eve/) - Usually the concept of Throwback Thursday should reach back farther than merely months ago, but I can't resist given yesterday's news. So, I throw you back to this February 15, 2018 post. And I do so to point out something about which I was right and something about which I was quite wrong but with
- [On wellness: An indirect explanation of last week's lack of content](https://faughnanonethics.com/on-wellness-an-indirect-explanation-of-last-weeks-lack-of-content/) - Content is a hungry beast. I starved it last week. Apologies. It was really a bit of a rough week to let things get away from me and not be able to write anything because there were actually quite a few things worth delving into that happened. Perhaps the biggest piece of news actually came
- [A tale of two ethics opinions.](https://faughnanonethics.com/a-tale-of-two-ethics-opinions/) - So, I've made something of a habit of writing about ethics opinions. Bad ones and good ones. Mostly bad ones though. As the trite - almost hackish - title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from
- [Things former judges can and can't do.](https://faughnanonethics.com/things-former-judges-can-and-cant-do/) - (Edited on June 4 to fix very embarrassing mistaken reference to the wrong RPC. Twice. Thanks to Roy Simon for pointing out the mistake.) There are some pieces of the attorney ethics rules that it almost seems like there is never an organic opportunity to write about them. RPC 1.12(a) regarding restrictions imposed on someone
- [Time to choose: are you Illinois or New Jersey?](https://faughnanonethics.com/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
- [Far too often anger begets violence both by, and against, lawyers.](https://faughnanonethics.com/far-too-often-anger-begets-violence-both-by-and-against-lawyers/) - I failed again as a blogger last week and do not have anything resembling a good excuse. There is a lot going on in the world that is troubling and last week was simply a week where it felt like writing anything that was not about how our country has become okay with putting children
- [RPC 5.6 and settlement agreements:  The TN BPR messes up another ethics opinion.](https://faughnanonethics.com/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
- [When the job requires you to do the impossible.](https://faughnanonethics.com/when-the-job-requires-you-to-do-the-impossible/) - I'd long thought that the ethical issues associated with representing clients held in Guantanamo would be the most flagrant example in my lifetime of our government purposefully making it impossible for lawyers to fulfill obligations to their clients. Sad to say that I may just have been wrong about that. (P.S. I only started this
- [The end of Avvo Legal Services should not be the end of the discussion.](https://faughnanonethics.com/the-end-of-avvo-legal-services-should-not-be-the-end-of-the-discussion/) - A lot of the time, saying something seemed "inevitable," only makes sense to say when you've had the benefit of hindsight. At some level, every outcome can be justified as having been inevitable when you are doing the justifying after the event has already happened. I say that to make clear that I understand the
- [Ridiculous from up close and far away.](https://faughnanonethics.com/ridiculous-from-up-close-and-far-away/) - I have some real-world experience in trying to help lawyers already admitted in at least one jurisdiction obtain admission to practice here in Tennessee. My state's system now is still less than ideal but not necessarily in a way that makes it strikingly more problematic than is the case in many other states. (In the
- [Traps for the Unwary - Married lawyers edition.](https://faughnanonethics.com/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's still a good ethics opinion, even if the rule itself may need rethinking](https://faughnanonethics.com/its-still-a-good-ethics-opinion-even-if-the-rule-itself-may-need-rethinking/) - Not quite 5 months ago, I wrote a bit of a shorter post about my view as to why ABA Formal Ethics Opinion 480 counted as a good ethics opinion. For those that may not be remembering the opinion off the top of the head, it was the one that reminded lawyers - primarily in
- [ABA adopts new, more modern advertising rules!  So, of course, Eeyores assemble.](https://faughnanonethics.com/aba-adopts-new-more-modern-advertising-rules-so-of-course-eeyores-assemble/) - Earlier this week, the ABA House of Delegates, on a voice vote, passed some much needed improvements to the Seven Series of the Model Rules in order to modernize certain aspects of the regulation of lawyer advertising. I've written in the past about how the proposal before the ABA came about as a result of
- [The ethics of putting together an unenforceable contract.](https://faughnanonethics.com/the-ethics-of-putting-together-an-unenforceable-contract/) - It is still astounding (as well as deeply dispiriting) that the context of the discussion I'm about to launch is the work of White House Counsel but this is the world we currently occupy. You may very well have read this fascinating The Washington Post article by now released in connection with the ongoing news story
- [Information overload; summer struggles.](https://faughnanonethics.com/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
- [Making it up as you go (but for a good cause):  Texas State Bar Op. 673](https://faughnanonethics.com/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
- [Can't stop, won't stop.  Now ... full stop.](https://faughnanonethics.com/cant-stop-wont-stop-now-full-stop/) - I'm really, truly not trying to fall into the habit of only managing one post a week. As proof, here's a post about a Tennessee lawyer who couldn't/wouldn't follow the rules. It is a fascinating case study for at least two reasons. One is that discipline for conflicts of interest is, all things considered, relatively
- [Nebraska demonstrating less patience than Tennessee](https://faughnanonethics.com/nebraska-demonstrating-less-patience-than-tennessee/) - Although I live in SEC country, I am a Chelsea FC fan rather than a follower of college football. So this is not a sly college football reference in my title. (I am aware that apparently UT lost its first game of the season but have literally no idea whether the Cornhuskers have even played
- [Neither a stalker nor a burglar be.](https://faughnanonethics.com/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
- [Withdrawing a guilty plea is notary-ly easy thing to do.](https://faughnanonethics.com/withdrawing-a-guilty-plea-is-notary-ly-easy-thing-to-do/) - The pun was, of course, inevitable. It was also fully intended. In fact, it is, at least for me, repetitive as back in 2013 I was asked to do a seminar on the ethics of being a notary public -- they have their own ethics code -- and I called it "Notary-ly Common Topic: The
- [Yet another reason for change.  Pretty much the most serious reason.](https://faughnanonethics.com/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
- [Utahlking Ethics Opinions to Me? (Also Texas)](https://faughnanonethics.com/utahlking-ethics-opinions-to-me-also-texas/) - I'm interested in writing today about two recent ethics opinions that manage to go together quite nicely. Utah Ethics Adv. Op. 18-04 and Texas Professional Ethics Committee Op. 679. Both involve RPC 1.8 (or at least both should). And, not only does neither opinion do a very good job with the subject matter it tackles
- [Friday Follow Up: Ohio Gets to the Right Outcome on UPL](https://faughnanonethics.com/friday-follow-up-ohios-gets-to-the-right-outcome-on-upl/) - Almost exactly three months ago, I wrote about what I considered to be a very disturbing ruling in a lawyer admissions case in Ohio. If you missed that post, you can read it here. I'm pleased to write, in follow-up today, that the Ohio Supreme Court has ultimately gotten to the correct outcome - it
- [ABA Confirms that Model Rule 1.15 Should Solve What Model Rule 4.4 Doesn't](https://faughnanonethics.com/aba-confirms-that-model-rule-1-15-should-solve-what-model-rule-4-4-doesnt/) - 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
- [The intersection of the ethics rules and the GDPR "right to be forgotten"](https://faughnanonethics.com/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
- [Nevada provides lawyers yet another reason not to blow their own horn online.](https://faughnanonethics.com/nevada-provides-lawyers-yet-another-reason-not-to-blow-their-own-horn-online/) - I have beaten the drum for many, many years now about lawyers not understanding the true scope of their obligation of confidentiality under rules patterned after ABA Model Rule 1.6. The ability to quickly share information far and wide online has not been helpful to lawyers who lack that understanding. I remain astounded at how
- [Litigating your own work product - a tricky (at best) topic.](https://faughnanonethics.com/litigating-your-own-work-product-a-tricky-at-best-topic/) - So, first things first, I am thoroughly surprised and incredibly honored to have made it into the ABA Journal's 2018 Web 100. If you are here for the first time because this happened, thanks for reading and feel free to look around as there is 3+ years of content you can read while you are
- [Asking for a conflict waiver is a step that is hard to take back.](https://faughnanonethics.com/asking-for-a-conflict-waiver-is-a-step-that-is-hard-to-take-back/) - Look, I understand too little too late I realize there are things you say and do You can never take back But what would you be if you didn't even try You have to try So after a lot of thought I'd like to reconsider Please If it's not too late Make it a cheeseburger -
- [Threats to the legal profession include threats by members of the profession](https://faughnanonethics.com/threats-to-the-legal-profession-include-threats-by-members-of-the-profession/) - This post is coming late in the week because this week marked the first two stops on the Ethics Roadshow for 2018. (If you are in or near Memphis and Nashville you can still register to come attend next week's stops and hear about a potential recipe for ethical lawyering involving the 5 Cs of
- [Not all who wear capes are heroes.](https://faughnanonethics.com/not-all-who-wear-capes-are-heroes/) - This really is just too absurd not to write about. The absurd story commanding my fingers to tap these keys today involves a lawyer who managed to blow some significant aspects of the fundamentals of being an ethical lawyer. You may have seen the ABA Journal online story about the now-disbarred lawyer whose absurd story is commanding
- [Friday Follow Up: TIKD off at the Wisconsin judicial system](https://faughnanonethics.com/friday-follow-up-tikd-off-at-the-wisconsin-judicial-system/) - Just two short items by way of follow up from pieces I've written about in the past here. First, I've written several different posts about the saga down in Florida that appeared to be one of the first big disputes - post the U.S. Supreme Court decision in the North Carolina Board of Dentistry case
- [A recipe for ethical lawyering?](https://faughnanonethics.com/a-recipe-for-ethical-lawyering/) - Now that the Ethics Roadshow is complete in all of the cities where it was staged, I want to repackage the main idea from this year into a post and make a similar ask of my readers that I made of the attendees as to feedback on the point. The title of the Roadshow this
- [My favorite post of 2018](https://faughnanonethics.com/my-favorite-post-of-2018/) - This post (which is not the post referred to in the title) is inspired entirely by something that is done by Nate DiMeo, the wonderful and talented force behind The Memory Palace podcast. (If you've never heard it, you are missing out and should grab a few episodes from wherever you download podcasts.) At the
- [Friday Follow Up: Despite "Full Stop," lawyer still might not stop.](https://faughnanonethics.com/friday-follow-up-despite-full-stop-lawyer-still-might-not-stop/) - Last year, I wrote about the curious case of a Tennessee lawyer who demonstrated that while it is difficult to get disbarred over a conflict, it is not impossible. You do have to try really, really hard though. Perhaps not surprisingly, the lawyer's Quixotic continuing violation of the First Rule of Holes had at least
- [In a New York (out-of) state of mind...](https://faughnanonethics.com/in-a-new-york-out-of-state-of-mind/) - It has been a minute or two since I've stumbled upon an ethics opinion that provides a quick and easy example of how to take an issue, makes it overly complex and in so doing highlight several ongoing problem areas in the regulation of the profession, but ultimately still get to the correct result as
- [Friday follow up: Yesterday's post](https://faughnanonethics.com/friday-follow-up-yesterdays-post/) - Well, this may be the most rapid Friday follow up in this blog's history. A wise and well-connected reader has been in touch to let me know why my analysis yesterday of NYSBA Op. 1160 was all wet. He was, of course, right as I somehow managed to blow past a very important piece of
- [Texas Two Steps Forward...One BIG Step Back](https://faughnanonethics.com/texas-two-steps-forward-one-big-step-back/) - I have written in the past about the fact that I am fortunate to be the Chair of the Tennessee Bar Association's Standing Committee on Ethics and Professional Responsibility. Because our committee is currently beginning a process of chewing over whether to try to recommend changes to the advertising rules in Tennessee, I've been trying
- [What's happening in Vegas this week?](https://faughnanonethics.com/whats-happening-in-vegas-this-week/) - So glad you asked. Let me tell you, and tell you why, despite the tried and true adage, it needs to not stay in Vegas. Later this week the Association of Professional Responsibility Lawyers is having its mid-year meeting in Las Vegas, and we are dedicating our entire programming to a theme: The Future of
- [More UPL Madness From Ohio](https://faughnanonethics.com/more-upl-madness-from-ohio/) - You may recall some past discussion here of the prolonged saga of the Dinsmore lawyer who moved from one of its offices in Kentucky to its Cincinnati, Ohio office and nearly was denied comity admission in Ohio over accusations of the unauthorized practice of law. While that story ended happily -- she was ultimately determined
- [Inflation is likely more widespread than you'd like to believe.](https://faughnanonethics.com/inflation-is-likely-more-widespread-than-youd-like-to-believe/) - Time inflation that is. I'm certainly not an economist. In the past, I have written about issues associated with overbilling by lawyers in a number of different respects. Today’s post involves a rare public situation involving the admission of overbilling by a lawyer - one that comes out of Illinois and involves a lawyer who
- [New Lunar Year, New Lunar Rule?](https://faughnanonethics.com/new-lunar-year-new-lunar-rule/) - Okay, the title is something of a stretch to acknowledge that today marks the beginning of a new lunar year, the Year of the Pig. Nothing about what I have to say relates to the moon or anything Lunar. But I did want to continue one part of the discussion begun in Las Vegas last
- [Lying about everything is an awful way to go about life.](https://faughnanonethics.com/lying-about-everything-is-an-awful-way-to-go-about-life-2/) - So, I am rapidly approach the 4th anniversary of this blog and this is the very first time I have had a post sharing exactly the same title as an earlier post. Interestingly (at least to me), that earlier post with that title was written on Groundhog's Day 2 years ago. The title for this
- [Discipline for entities? Not the answer to any relevant future questions.](https://faughnanonethics.com/discipline-for-entities-not-the-answer-to-any-relevant-future-questions/) - It appears somehow that life and practice left me with nothing to post for more than a week now. If I have any readers left, today's post will be a relatively quick one. I managed to write a couple ofposts now about one topic that was covered at the APRL mid-year meeting in Las Vegas
- [A teachable moment to make your eyes water.](https://faughnanonethics.com/a-teachable-moment-to-make-your-eyes-water/) - When you spend a lot of time consulting with and advising lawyers, finding teachable moments from examples of things that happen in real life are extremely helpful. The world can be filled with teachable moments. On a non-ethics front, here is one: If you don't pay attention to when a credit card has a new
- [You take the good, you take the bad...](https://faughnanonethics.com/you-take-the-good-you-take-the-bad/) - You take them both and there you have ... the news about Tenn. Formal Ethics Opinion 2019-F-167 (draft). First, the good. I cannot give sincere and strong enough kudos to the Tennessee BPR for implementing a new policy to release draft Formal Ethics Opinions to the public for comment before deciding to actually adopt and
- [Not breaking: Dentons didn't have to say "aloha" to Hawai'i](https://faughnanonethics.com/not-breaking-dentons-didnt-have-to-say-aloha-to-hawaii/) - Well, at least not the goodbye, "aloha." They can still say the other one as much as they want. So, you probably have seen a headline somewhere in your online surfing about this wacky issue litigated before the Hawai'i Supreme Court. But, just in case you didn't, here's all that I think you need to
- [Fine lines and not so fine lines](https://faughnanonethics.com/fine-lines-and-not-so-fine-lines/) - About six weeks ago, The Law For Lawyers Today published a good post about a problem for lawyers that sometimes lurks around efforts to make demands in order to settle legal disputes for clients -- the risk of being accused of extortionate conduct. You can read that post here. That post was prompted by what
- [Two For Tuesday For Tennessee](https://faughnanonethics.com/two-for-tuesday-for-tennessee/) - From time to time I feel a real obligation to write about things that are primarily (if not exclusively) only of interest to Tennessee lawyers. Today is one of those days so apologies in advance if this is not your cup of tea. (On the upside for you, this will be relatively short so you
- [Things you might not know (for a Thursday)](https://faughnanonethics.com/things-you-might-not-know-for-a-thursday/) - Am I about to write about this just for the click-bait possibilities? Probably. Does that make the underlying topic less worth discussing? I hope not. So there used to be a time when people could become lawyers without ever having to go to law school. You could effectively apprentice in the law where you could
- [Rarer than rare](https://faughnanonethics.com/rarer-than-rare/) - I could try to open this post with references to song lyrics from either Toad the Wet Sprocket or Arctic Monkeys, but, either way, I'd likely lose most of you from the jump. (I could also try to claim knowledge of the Glenn Miller song that uses the exact phrase but while I may look
- [Lawyers engaging in criminal conduct.  Big love for immunity in Texas.](https://faughnanonethics.com/lawyers-engaging-in-criminal-conduct-big-love-for-immunity-in-texas/) - Let me offer a word or two or probably 1,000 about two recent items of interest having the issue of lawyers involved in crimes as their common thread. One comes from the Fifth Circuit and the other comes from an ABA Journal article about a situation in Utah. First, the Fifth Circuit's ruling in Troice
- [Friday follow up:  undo the good and just leave the bad.](https://faughnanonethics.com/friday-follow-up-undo-the-good-and-just-leave-the-bad/) - So, not quite six weeks ago, I wrote about a development from Tennessee that was something of a mixed bag. Our Board of Professional Responsibility put out a proposed Formal Ethics Opinion for public comment that, in my opinion, was not a good opinion fraught with quite a number of significant flaws. (If you missed
- [Disbarrment time in D.C.?](https://faughnanonethics.com/disbarrment-time-in-d-c/) - Today's a pretty big day for the future of democracy in the United States. Not just because it is Law Day, but because Law Day is being commemorated pretty ironically as the man with a very checkered past currently serving as the Attorney General of the United States testifies to Congress about why he didn't
- [When you're right, you're right.  Even when you're Right.](https://faughnanonethics.com/when-youre-right-youre-right-even-when-youre-right/) - I've written a bit in the past about the differences between unified bars, like what exists in North Carolina, and voluntary state bar associations such as what we have in Tennessee. (If you are uninterested in clicking on either of those links, as a refresher, the fundamental difference is that unified bars require that anyone
- [Overreaching on attorney fees.  Plaintiff's lawyers do it too.](https://faughnanonethics.com/overreaching-on-attorney-fees-plaintiffs-lawyers-do-it-too/) - There are always a variety of ways that examples of overreaching by attorneys on fees manage to push into the legal news. Recently, I wrote about one example involving hourly billing. More often than not, overreaching under that system is what makes the news. It is not the only way that attorneys overreach on fees
- [A lawsuit about a lawsuit that touches on everything about 2019?](https://faughnanonethics.com/a-lawsuit-about-a-lawsuit-that-touches-on-everything-about-2019/) - If time capsules were still a thing (are they still a thing?), and someone wanted to capture issues facing the legal profession in 2019 for a time capsule to be buried... what sort of topics would you choose to include? Outside of the legal dynamics at play in the political landscape of the nation (which
- [Nearly four years later... and I'm making that James Bond reference this time.](https://faughnanonethics.com/nearly-four-years-later-and-im-making-that-james-bond-reference-this-time/) - So, if any of you are still around these parts after I've gone some 12 days without writing any content, then you are in for me dredging someone up that I previously wrote about on June 30, 2015. An attorney named Rodger Moore. Rodger Moore. And he was suspended for the practice of law for
- [New good, but not perfect, guidance from the ABA](https://faughnanonethics.com/new-good-but-not-perfect-guidance-from-the-aba/) - The Standing Committee on Ethics and Professional Responsibility of the ABA has been on something of a bit of a "spree" when it comes to the issuance of ethics opinions. (At least, it feels like it.) In the last 18 months, it has issued 10 opinions. The most recent one is ABA Formal Op. 487
- [Tennessee transparency update](https://faughnanonethics.com/tennessee-transparency-update/) - Recently I wrote a bit about the latest Formal Ethics Opinion adopted in Tennessee including a bit of additional content focused on the enactment of this opinion as the maiden voyage of the new process involving the seeking of public comment on the FEO in draft form. If you missed those, you might want to
- [Loosing a big (maybe?) idea into the world.](https://faughnanonethics.com/loosing-a-big-maybe-idea-into-the-world/) - I had originally promised myself that the articulation of this thought would debut here at my blog. I almost managed it but I raised this notion in the real world lately among some very bright lawyers. So, before I do it again somewhere other than the Internet, I'm following through to put this idea out
- [Asking in South Carolina and definitely not receiving.](https://faughnanonethics.com/asking-in-south-carolina-and-definitely-not-receiving/) - This development in South Carolina happened last month and I saw some folks getting a little worked up about it but am only getting around to writing a little about it now. (In fairness, last month only became last month around 80 hours or so ago.) But for some people getting worked up about it,
- [Tales of typos and punctuation problems.](https://faughnanonethics.com/tales-of-typos-and-punctuation-problems/) - I've written once or twice in the past about how questions of punctuation and typographical error can be unimportant when the issue amounts only to pedantry. Of course, punctuation can be very important. The stage phenomenon Hamilton has a good line or two about this involving "My dearest Angelica. With a comma after dearest, you've
- [A modest proposal (about NYC Bar Op. 2019-5)](https://faughnanonethics.com/a-modest-proposal-about-nyc-bar-op-2019-5/) - I have made a living (well not actually a living since no one compensates me in any form of currency, whether crypto or otherwise, for my writings here) writing about problematic ethics opinions. July 11, 2019 brings what might be the most practically useless ethics opinion ever released. If it were only just practically useless,
- [Really big goings on in California.](https://faughnanonethics.com/really-big-goings-on-in-california/) - And, no, in the title I'm not referring to the leak of information about the California Bar essay topics before the bar exam. Although that story is certainly bananas. You've likely by now read at least something somewhere online about the most recent product coming out of the California State Bar Task Force on Access
- [Shimkonicity (shim-ko-nis-a-tee)](https://faughnanonethics.com/shimkonicity-shim-ko-nis-a-tee/) - When I first read some reporting about this decision from Ohio involving the indefinite suspension of a lawyer, I expected it to come across very much as an obvious case of a lawyer's third strike leading to a steep punishment. But, the coming together of so many things with respect to this lawyer's situation actually
- [California dreaming.](https://faughnanonethics.com/california-dreaming/) - As promised, I'm not done writing about the ATILS initial recommendations that have been put out for public comment in California. In fact, I'm here in San Francisco for the next few days at the APRL meeting where there will also be a public forum about the recommendations on August 10. The public comment period
- [Don't sleep on Arizona](https://faughnanonethics.com/dont-sleep-on-arizona/) - We've (in that creepy royal "we" sort of way) now dedicated two posts to discussing the ATILS proposal coming out of California, but California is certainly not the only state working on reform. In fact, while it may be the biggest, it is not the state offering the boldest reforms, and it also isn't the
- [TN Supreme Court Vacates Formal Ethics Opinion.](https://faughnanonethics.com/tn-supreme-court-vacates-formal-ethics-opinion/) - I wrote a little bit about Formal Ethics Opinion 2017-F-163 a couple of years ago when it was first issued. I haven't said anything here about it since then because I ended up being retained by the Tennessee District Attorneys General Conference to challenge the opinion. Having obtained permission from my client to do so,
- [Can Utahp Arizona?](https://faughnanonethics.com/can-utahp-arizona/) - I know. I'm either: (a) such a sucker for Utah-centric wordplay; (b) a lame, repetitive sort of humorist; or (c) both a and b. But nevertheless today's post is really important - at least the subject matter of it is - and so it is being designed to try to be short and sweet and
- [One possible answer: Radical transparency in design for legal services?](https://faughnanonethics.com/one-possible-answer-radical-transparency-in-design-for-legal-services/) - So, this post isn't exactly about legal ethics. Of course, it isn't exactly not about legal ethics. I've written a bit here recently about various jurisdictions launching increasingly bolder initiatives to try to reform the regulatory landscape when it comes to the delivery of legal services. Many critical voices of these initiatives demand evidence that
- [I always knew I'd be headlining music festivals one day.](https://faughnanonethics.com/i-always-knew-id-be-headlining-music-festivals-one-day/) - That's not true at all. I never even imagined I'd be the headliner at a music festival. After this year's AmericanaFest in Nashville though, everything has changed. Well, that's actually still pretty misleading as I was not the headliner at AmericanaFest. I did, however, get to be a speaker during AmericanaFest, as part of a
- [But why though?](https://faughnanonethics.com/but-why-though/) - This past week the Tennessee Supreme Court proposed revisions to the rules of disciplinary enforcement that would transform disbarment into an irrevocable form of discipline in Tennessee and that would extend the potential length of a suspension from 5 years maximum to 10 years maximum. Which leads me to the highly-technical title of this post:
- [Fettered is almost always better for lawyers.](https://faughnanonethics.com/fettered-is-almost-always-better-for-lawyers/) - Fettered is a fun word on a number of levels. It is a word lawyers are usually familiar with when it has a prefix attached to it and gets used when we talk about disclosures or access as being "unfettered." But, it is also a word that literally means "to be restrained with chains," so
- [You've probably already read this letter...](https://faughnanonethics.com/youve-probably-already-read-this-letter/) - It's Tuesday night, October 8, 2019. What are you going to do with your evening? Want to read a letter written by someone who seems pretty clearly like someone who should not be permitted to be a lawyer at all but certainly who fails to understand that being White House Counsel is not the same
- [A companion piece.](https://faughnanonethics.com/a-companion-piece/) - As I inch ever closer to my 400th blogpost here, today's offering is something of a companion piece to a post I wrote almost exactly 13 months ago that demonstrates what should be an obvious point, what is a very important point in the world of disciplinary defense but much less obvious, and at least
- [Why can't we (both) be friends (of the Court)?](https://faughnanonethics.com/why-cant-we-both-be-friends-of-the-court/) - So within the last few days the New York State Bar Association has issued an interesting new ethics opinion addressing a variation of an issue that is straightforward nearly everywhere. Lawyers tend to know that conflicts questions can often be complicated but that there is at least one that is pretty straightforward: different lawyers in
- [What happens when it Gaetz worse?](https://faughnanonethics.com/what-happens-when-it-gaetz-worse/) - So, I’m doing everything I can to only write about this stuff occasionally, but the latest stunt in connection with the ongoing investigations into the current administration requires at least some discussion – not just because of the brazen hypocrisy (after all the ethics rules do not prohibit lawyers from being hypocrites) but because the
- [Then I went and slept on Arizona](https://faughnanonethics.com/then-i-went-and-slept-on-arizona/) - So ... as far as 400th posts go ... this should be my best 400th post at this blog. A while back I warned everyone not to sleep on Arizona when it comes to movement toward radically reshaping the regulatory landscape for lawyers. Apparently, I should practice what I preach because Arizona's Task Force on
- [Rule revision roundup.](https://faughnanonethics.com/rule-revision-roundup/) - That title is probably a thing somewhere else on the interwebs already, but I'm just lazy enough to not look it up at the moment. So, it's been a minute since I have written anything about the progress (or lack thereof) of jurisdictions adopting ABA Model Rule 8.4(g) and since I have written anything (other
- [For attorney's eyes only.](https://faughnanonethics.com/for-attorneys-eyes-only/) - Okay. It helps to get into my mindset while writing this if you hear the title in the voice of the musical snippet "For British Eyes Only" from Arrested Development. If you can't make the frame of reference, then so be it. We'll have to work to find common ground all the same. (Actually, for
- [Two updates: Ruff[alo]ed feathers in Georgia & Piercing personal jurisdiction in California](https://faughnanonethics.com/two-updates-ruffaloed-feathers-in-georgia-piercing-personal-jurisdiction-in-california/) - Apologies for the drought in content over the last little bit as I've been traveling my state for my Ethics Roadshow doing a three-hour presentation in four cities about what I think the future looks like for those who will still be practicing in 2025. For today, two updates of note that involve important, ongoing
- [The perils of letting your clients speak for themselves.](https://faughnanonethics.com/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
- [My favorite post of 2019](https://faughnanonethics.com/my-favorite-post-of-2019/) - For the second straight year, I'm ending the year with an homage to a concept (ripping off an idea) pursued by Nate DiMeo the writer and performer of The Memory Palace podcast. I'm going to re-post what was my favorite post from the past year. Deciding what to put out there again this year was fairly
- [Two more ethics opinions explore restrictions on lawyers' ability to enter (or even offer) certain contracts.](https://faughnanonethics.com/two-more-ethics-opinions-explore-restrictions-on-lawyers-ability-to-enter-or-even-offer-certain-contracts/) - First, this is not being titled as a "Friday Follow Up" post because, like the rest of you, I have no idea what day of the week it is at this point. Second, there is way much more important events afoot in the world and if you want to know my thoughts about those you
- [WhatsApp at Atrium?  A lot, but also WhatsApp with you?](https://faughnanonethics.com/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,
- [PDA: If you're going to get disbarred in TN, get it done before July 1, 2020.](https://faughnanonethics.com/pda-if-youre-going-to-get-disbarred-in-tn-get-it-done-before-july-1-2020/) - Because if you can get it finalized by June 30, then you might still have the chance to be reinstated starting July 1, 2025. In this instance, PDA is short for "public disservice announcement," not "public display of affection." You might remember back last year I wrote about a proposed revision to the rules of
- [The future of legal ethics?](https://faughnanonethics.com/the-future-of-legal-ethics/) - What I'd like to write about is a series of stories that have been piling up on pretty important developments on various fronts touching on the efforts to re-regulate the legal profession and debates about whether and how to do that ... and all of those things would seem to be very important. But I'm
- [ABA favors innovation but really stresses the "no" part.](https://faughnanonethics.com/aba-favors-innovation-but-really-stresses-the-no-part/) - Okay. Now that all of the problems with the erosion of the rule of law in our country have been solved, I can write that post about the onslaught of developments in the last little bit related to potential efforts to "re-regulate" the legal profession. Just kidding. Rule of law is still ENTIRELY in jeopardy
- [Lawyers continue to struggle with tackling online negative reviews.](https://faughnanonethics.com/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
- [Late to the podcast party.](https://faughnanonethics.com/late-to-the-podcast-party/) - As a white male in my mid-forties, it was probably inevitable that I’d end up with an appearance on a podcast since an unfathomably high number of podcasts are showcases for my demographic to espouse their views on things. While I’m a bit late to the party (46), my turn has come around. More seriously,
- [A tale of two signature issues.](https://faughnanonethics.com/a-tale-of-two-signature-issues/) - There are certain things that ought to be ingrained in lawyers that they know they cannot do. Maybe we could reach agreement on all of what should be on that list of things, but that task is far too ambitious for any Friday, much less this Friday. I would hope we could agree that an
- [Change seems like it never comes ... right up until it does.](https://faughnanonethics.com/change-seems-like-it-never-comes-right-up-until-it-does/) - So, I'm not a public health expert and I try to pride myself on not talking too much about conversations to which I am unable to meaningfully contribute. Thus, I'm not going to purport to speak directly to how to be dealing with the pandemic looming over everything. I've been doing what little I can
- [There will be content.](https://faughnanonethics.com/there-will-be-content/) - So, it is March 20, 2020. We don't know much about much in terms of what comes next. Stress and anxiety are most folks constant companions at the moment I'm certain. (And I bet a lot of you weren't expecting the need to tech competence under the ethics rules to come at you quite this
- [Essential?  It depends.](https://faughnanonethics.com/essential-it-depends/) - So, I have now been exclusively working from home for . . . a number of days that ... who am I kidding? Just like you, I barely can keep track of time at this point. March seems to have been 3 years long so far. It's definitely been a while. And, importantly for context
- [Cute story? No. Chance for Cutestory reference? Yes.](https://faughnanonethics.com/cute-story-no-chance-for-cutestory-reference-yes/) - ♫ You’re a crook, Captain Hook / / Judge, won’t you throw the book at the pirate... ♫ For me, much as I'm certain it likely is for you, it is now "Day Something" (I've lost track) of surviving a pandemic. I hope that you are doing all that you need to do to both
- [There will be discontent.](https://faughnanonethics.com/there-will-be-discontent/) - The title of today's post is an inside joke in that it makes reference to this post from what feels like years ago now. As these are not particularly humorous times at the moment, it will be the only attempt at humor. Professionally, I've had a pretty good week. I didn't get what I wanted
- [Pennsylvania wins the race to be first with COVID-19 ethics guidance.](https://faughnanonethics.com/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
- [Utahlking real reform?  Yes, Utah absolutely is.](https://faughnanonethics.com/utahlking-real-reform-yes-utah-absolutely-is/) - Infrequent readers will know this pun structure is one that I have no shame in running into the ground every time it is relevant. Frequent readers will know I am far too willing to break the fourth wall here. So just for background I had resigned myself to writing a post on Friday about the
- [Panzerotti ≠ calzone : NY confidentiality ≠ TN confidentiality](https://faughnanonethics.com/panzerotti-≠-calzone-ny-confidentiality-≠-tn-confidentiality/) - It's been a while. I know. But I saw a blurb about a story that caught my attention in the before-times and then a second story about the same case more recently that hooked me enough to write about. Primarily, it hooked me because it provides a compelling opportunity to discuss two important points about
- [Abuse of "Iowa nice" leads to rare Dubuque rebuke.](https://faughnanonethics.com/abuse-of-iowa-nice-leads-to-rare-dubuque-rebuke/) - Readers of this space know that a large part of my practice involves representing lawyers in disciplinary proceedings. Disciplinary proceedings are difficult for all that are involved, but rarely can anyone involved question that they don't know the stakes. They are what they are and they have their own rules and procedures. Today's post involves
- [Lawyers out there losing their goddamn minds.](https://faughnanonethics.com/lawyers-out-there-losing-their-goddamn-minds/) - Apologies in advance for the fact that today's content is going to be something of a mishmash or stream-of-consciousness type of presentation, but it's where the brain is at based on the events of the last 48-72 hours. (Loyal readers will likely wonder why I think a mishmash is any different than the normal presentation.)
- [For Juneteenth.](https://faughnanonethics.com/for-juneteenth/) - There have been a lot of developments in legal ethics both nationally and in Tennessee over the last few weeks, and I hope to be catching up on discussing those in posts over the coming weeks. But not today. Tennessee like most jurisdictions has a version of RPC 6.1 about pro bono service and calls
- [Two for Thursday.](https://faughnanonethics.com/two-for-thursday/) - It is Thursday, right? In a "recent" effort, I mentioned that there were recent developments I was planning to eventually write about. Today presents an effort at checking two of them off the list that have only Tennessee in common. Neither of which likely provides fodder for a full post, so they will be covered
- [Ethics opinion about a business conflict goes wrong.](https://faughnanonethics.com/ethics-opinion-about-a-business-conflict-goes-wrong/) - It is very tempting to stay on the topic of bar examinations today, given recent absurdist developments. Arkansas has declared it simply has to have its in-person bar exam in July 2020 because things are likely to get worse as the year goes on. Oklahoma has attempted to reassure everyone about the safety of their
- [Three for Thursday?](https://faughnanonethics.com/three-for-thursday/) - Can that be a thing? I've fallen down on the job of being a reliable blogger and I'm not sure I'm getting up any time soon. I think I've continued to manage to be a decent lawyer, pretty good expert witness, okay husband, mediocre father, and generally non-evil human being. But I'm failing as a
- [Opposite ends but still the same spectrum (mostly).](https://faughnanonethics.com/opposite-ends-but-still-the-same-spectrum-mostly/) - Lawyers can get into significant amounts of ethical trouble over money issues. They can put their licenses at real risk by messing up their trust accounting obligations, they can get in trouble for overbilling clients, and, often, if they end up suing a client for failure to pay bills that are appropriately due, they will
- [Two ethics opinions: one good, one bad, but both reveal systemic problems.](https://faughnanonethics.com/two-ethics-opinions-one-good-one-bad-but-both-reveal-systemic-problems/) - So, New York and Florida. Interestingly, those states have been bookends of our nation's problems with COVID-19 and with fighting it. New York got hit very badly early, given the concentrated nature of its population centers, but then engaged in a very serious effort of taking the virus very seriously and managed to significantly flatten
- [Three developments presented in decreasing order of importance.](https://faughnanonethics.com/three-developments-presented-in-decreasing-order-of-importance/) - Last week, the Utah Supreme Court officially approved the most "radical" change in any state's ethics rules since DC adopted a limited approval for law firms to have partners who are not lawyers several decades ago. The Utah Supreme Court announced its adoption of a package of reforms aimed at improving the access to justice
- [Gambling with RPC 1.8(a) is always risky.](https://faughnanonethics.com/gambling-with-rpc-1-8a-is-always-risky/) - It is not often that you get decisions out of any of the second highest courts in the land that turn on application of an attorney ethics rule, so it can be important to highlight when such events occur. Given how many lawyers and law firms overlook the interrelationship between RPC 1.5 and RPC 1.8(a),
- [The thing about the re-regulation of the practice of law ...](https://faughnanonethics.com/the-thing-about-the-re-regulation-of-the-practice-of-law/) - . . . is it really could go either way. It could make things better or it could make things worse. It truly depends on who ends up doing the re-regulation and what motivates them along the way. What is prompting the need to say this sentiment out loud today exactly? Well, cynical types might
- [The era of permanent disbarment in TN has begun.](https://faughnanonethics.com/the-era-of-permanent-disbarment-in-tn-has-begun/) - What now seems like an eternity ago, because it was written in the before-times, I wrote about Tennessee's change to its disciplinary procedural rules resulting in implementation of permanent disbarment. I questioned exactly why the change was needed and what it would mean given that it was being paired with changes to extend the maximum
- [Truth is stranger than fiction.](https://faughnanonethics.com/truth-is-stranger-than-fiction/) - This is not a post about politics in the United States, though the title of the post might make it seem like it could be. This is instead a post that has to be written because I saw a headline and thought, "well that has to be fodder for a post," and then it turned
- [The ABA comes through with another quality ethics opinion.](https://faughnanonethics.com/the-aba-comes-through-with-another-quality-ethics-opinion/) - So, nearly everything is awful these days. Finding something interesting enough to avoid highlighting the awfulness around us is not altogether easy. This is pretty much too traumatic and damning to write about. Dwelling on this would just be petty at this point. Coming through as a light at the end of the tunnel today
- [Rotting from the top down.](https://faughnanonethics.com/rotting-from-the-top-down/) - Being a lawyer is hard. It is certainly not the hardest thing in the world to be, but it is hard. Lawyers have lots of obligations and lots of stress. Again, there are many who have things worse, of course. Among those "lots of obligations" are obligations to supervise those who work for them that
- [Conflicts in large law firms.](https://faughnanonethics.com/conflicts-in-large-law-firms/) - The title of this post is extremely boring. No getting around that fact. The topic though is not boring at all. Managing conflict issues in large law firms can be described in a number of different ways, but the adjective "boring" never fits the bill. The topic is front of mind for me this week
- [Increasing access to information about legal services - TN Edition](https://faughnanonethics.com/increasing-access-to-information-about-legal-services-tn-edition/) - This will be a mostly short entry for this week because the most important item to put into your reading pile is what I'm writing about rather than the post itself. (Admittedly, I'm certain many of you are thinking ... "well, that's kind of always true Einstein.") I have written over the years here about
- [Nebraska brings us ... this.](https://faughnanonethics.com/nebraska-brings-us-this/) - It's been something of a big month for Nebraska. First, thanks to its divided approach to providing electoral votes, it is contributing one of the electors totaling up to President-Elect Joe Biden's 306 electoral votes. Second, like everywhere else in the United States (my state is doing just as bad if not worse) unfortunately, it
- [Just the normal scrutiny.](https://faughnanonethics.com/just-the-normal-scrutiny/) - I need something fun in my life at the moment to help deal with some of the insanity that is all around us all. So, let's tell something of a non-linear story about how haphazardly the disciplinary rules can be enforced as against lawyers. (Okay, so maybe you and I see "fun" differently.) Typically, many
- [Three short burst updates](https://faughnanonethics.com/three-short-burst-updates/) - In case you haven't yet "checked out" for the week to have what I hope is a makeshift, stay-at-home Thanksgiving banquet to kick-off your holiday weekend, here are four very short but, mostly timely, updates on topics of prior posts. First, the Tennessee Supreme Court has put the TBA advertising rule revisions proposal out for
- [Following up after shouting into a void.](https://faughnanonethics.com/following-up-after-shouting-into-a-void/) - This is not really a "new content" post. With luck, I will have one of those later this week. This, however, is a follow up about something from last month. It is the best sort of follow up because it is prompted by the process of sifting back through the past year to prepare for
- [An open letter to State Bar of Texas](https://faughnanonethics.com/an-open-letter-to-the-texas-state-bar/) - Dear Sir or Ma'am: It's been a tough year, but I hope this email finds you staying safe. I'm writing to urge you to give some real thought to whether your rule on the ability to impose an "interim" suspension on a Texas lawyer goes as far as it needs to in order to be
- [Protecting lawyers and law firms from themselves.](https://faughnanonethics.com/protecting-lawyers-and-law-firms-from-themselves/) - Let's talk about something coming out of D.C. but entirely unrelated to politics for a change. If you know, you know. And, if you know, then based on the post title you've guessed we are going to talk about the D.C. Bar Rules of Professional Conduct Review Committee's draft Report on proposing changes to the
- [Terror in Tennessee.](https://faughnanonethics.com/terror-in-tennessee/) - So somehow, given the time of year and the absolute flood of horrific news we all get exposed to on a daily basis, you might not have heard the news that a suicide bomber detonated a large bomb in the middle of downtown Nashville, Tennessee on Christmas morning. The bomb detonated from the inside of
- [Two Tennessee updates that aren't really just Tennessee updates.](https://faughnanonethics.com/two-tennessee-updates-that-arent-really-just-tennessee-updates/) - Welcome to 2021 or, as some astute observers are calling it, 2020 goes to extra time. In an effort to feel a marginal amount of normality, I wanted to weave together two topics that might ostensibly be treated only as updates relevant to Tennessee lawyers but that actually involve developments of as much, if not
- [ABA SCEPR Increases Lifetime Batting Average.](https://faughnanonethics.com/aba-scepr-increases-lifetime-batting-average/) - Look at me with the super seasonally timely sports reference. Baseball. In January. I have written on quite a few occasions in the past about the perils for lawyers in responding to criticism posted about them online. Well, the ABA has issued its latest ethics opinion to address the same topic. Behold ABA Formal Ethics
- [Bad judgment leads to bad judgment.](https://faughnanonethics.com/bad-judgment-leads-to-bad-judgment/) - A Tennessee disciplinary matter has made some national news this past week, so what I am writing about might be something you've heard about already. It involves a Tennessee lawyer who has been given a 4-year suspension from practice, with one-year of active suspension for providing advice over Facebook to a woman about how she
- [Everything is arbitrable in New Jersey.  (Sort of)](https://faughnanonethics.com/everything-is-arbitrable-in-new-jersey-sort-of/) - Lawyers and law firms have long struggled - at least during the length of my career - with whether they can, or should, include a provision in their contracts with clients that would require arbitration of some, or all, kinds of disputes. In situations where a local or state bar association offers a free, voluntary
- [Lawyers and publicity.  Two related but unrelated stories.](https://faughnanonethics.com/lawyers-and-publicity-two-related-but-unrelated-stories/) - This space has focused on a number of occasions on the difficulties for lawyers in dealing with certain forms of negative publicity. I won't link to all of those past stories for a variety of reasons. (If you are stuck at home both because of the pandemic and winter weather and are looking for things
- ["Here's a new post." (cleaned up)](https://faughnanonethics.com/heres-a-new-post-cleaned-up/) - I have tried for the better part of a week to convince myself that I needed to write something about the most recent ABA Formal Ethics Opinion which was released in February 2021 and which attempts to explain what "materially adverse" means in the context of ABA Model Rule 1.9 (and Model Rule 1.18). I
- [What decade is it again?](https://faughnanonethics.com/what-decade-is-it-again/) - So, the experience of the last year of pandemic life has messed with a lot of people's ability to remember when certain things happened. For some people, remembering events of the last year are not the problem as much as remembering when certain things happened in the before times. For others, short term memory of
- [Brooding about ethics.](https://faughnanonethics.com/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,
- [California proposes an ethics opinion that needs further workshopping.](https://faughnanonethics.com/california-proposes-an-ethics-opinion-that-needs-further-workshopping/) - Let's talk for a bit today about a proposed California ethics opinion for which public comment is being accepted until June 8, 2021. The general topic when you hear about the proposed opinion is immediately of interest -- can a lawyer help a client obtain a contractual agreement including a provision that is against the
- [Update on racial insensitivity within the practice of law.](https://faughnanonethics.com/update-on-racial-insensitivity-within-the-practice-of-law/) - It still exists, of course. No real surprises there. In just the last two weeks, there have been multiple stories that drive that point home. One such story, while admittedly actually involving a sitting judge rather than a practicing lawyer, is this one out of Colorado. Another such story involves a New York lawyer who
- [Main(e)ly an excuse for book promotion.](https://faughnanonethics.com/mainely-an-excuse-for-book-promotion/) - So, before offering up the actual ethics content, if like me you know you're not quite hitting on all cylinders but you are functional and you haven't already read that New York Times article that made the rounds about "languishing." I'd recommend it. You can still get to the article at this link. You might
- [The world needs a "healthy dose" of lots of things.](https://faughnanonethics.com/the-world-needs-a-healthy-dose-of-lots-of-things/) - Frankly, civil behavior by lawyers toward other lawyers certainly is on the list of things the world needs a healthy dose of, but, well, let's just say maybe it's not a top-10 item on the list. So, the point of today's post is not to be the guy who claims that lawyers shouldn't have to
- [Third Time's a Charm?](https://faughnanonethics.com/third-times-a-charm/) - Do you have a lawyer in your life who has everything, and you don't know what to get them for a Memorial Day present? (What, you say this isn't a gift giving holiday weekend? Instead, it's a solemn occasion and not really something to be celebrated in the sense of gift giving? Fair point.) I'll
- [Honestly, transparency is all that we need.](https://faughnanonethics.com/honestly-transparency-is-all-that-we-need/) - This week I was fortunate enough to be included as part of a presentation on debating issues of regulatory reform in a Plenary at the ABA National Conference on Professional Responsibility I recorded my 3-minute presentation a couple of months ago and spent a lot of time looking forward to how it would be received.
- [An ode (of sorts) to RPC 1.18 (but only as an example)](https://faughnanonethics.com/an-ode-of-sorts-to-rpc-1-18-but-only-as-an-example/) - Today's entry is something of a dodge in a way (I sort of wanted to pile on about this and make the point that it is a much sounder development than this was) and something of knocking down a hastily-created strawman in another respect. But what it mostly amounts to is pursuing a not-yet-fully-formed thesis
- [It is, very often, anti-social media.](https://faughnanonethics.com/it-is-very-often-anti-social-media/) - You may recall that not too long ago I wrote a bit about a Tennessee Supreme Court opinion that I thought was a bit wrongly-framed from its opening sentence. It was the one that was really about why lawyers shouldn't help people try to plan and cover up crimes but started: "This case is a
- [Someone finally faces consequences for gaslighting all of us.](https://faughnanonethics.com/someone-finally-faces-consequences-for-gaslighting-all-of-us/) - So, if you're here at any point today or tomorrow, you are likely someone who has already heard the news of Rudy Giuliani, attorney for the former POTUS, being suspended from the practice of law in New York. A copy of the 30+ page opinion imposing an interim suspension on Mr. Giuliani is available at
- [10 Things I Thought I Would Write About This July, But Didn't.](https://faughnanonethics.com/10-things-i-thought-i-would-write-about-this-july-but-didnt/) - So, anyone I might have hooked into caring about this site in May and June 2021 likely stopped checking for July content 1 or 2 weeks ago. Longer-term, repeatedly neglected, readers are likely still hanging in there (and forever earning my esteem). There have been a bunch of times that I thought I was going
- [The Greening of New York](https://faughnanonethics.com/the-greening-of-new-york/) - As promised, though just under the wire, I am following up to write more about one of the stories I didn't write about in July, the issuance of N.Y. State Bar Ass'n Committee on Prof'l Ethics Op. 1225. One of the downsides of publicly announcing you will write about something in the future is the
- [A cautionary tale of sorts for solos](https://faughnanonethics.com/a-cautionary-tale-of-sorts-for-solos/) - It was many, many years ago (almost exactly 5 years ago) that I wrote a bit about how important it can be for lawyers who have solo practices to have contingency plans in place in case something suddenly happens to them in order to provide a way for their clients to be protected. As we
- [Labors of love.](https://faughnanonethics.com/labors-of-love/) - Today has been a very weird sort of day. My morning was consumed by handling a reinstatement proceeding where my client was someone who is inarguably a better human being, spouse, parent, and member of the community than I am. This person's contributions to the community while they have been suspended from the practice of
- [Foundations of a ... misunderstanding about what an ethics opinion is supposed to be?](https://faughnanonethics.com/foundations-of-a-misunderstanding-about-what-an-ethics-opinion-is-supposed-to-be/) - So, I will admit from the jump that I am seriously torn about this post. I am a strident believer that the best ethics opinions are practical in a number of respects and that they have to be to be realistic in terms of helpfulness. An ethics opinion that does little more than offer a
- [Federal court releases crackin' sanctions ruling](https://faughnanonethics.com/federal-court-releases-crackin-sanctions-ruling/) - I will not seek pardon for the pun. I will also try not to prolong the nature of this post because the opinion that is the subject matter for today is a very good read, worthy of the limelight. I have written on several occasions about the problematic efforts of two particular members of my
- [TN Adopts Revisions to Lawyer Advertising Rules](https://faughnanonethics.com/tn-adopts-revisions-to-lawyer-advertising-rules/) - This site has not historically been a "breaking" news sort of site. Today will be an exception with very pithy editorial content. I am very happy to report that the Tennessee Supreme Court today adopted proposed revisions to the lawyer advertising rules which I have written about in the past. You can download today's order
- [Following up despite it not being Friday - Tennessee advertising changes](https://faughnanonethics.com/following-up-despite-it-not-being-friday-tennessee-advertising-changes/) - So, sort of as promised, or at least in substantial compliance with a prior promise, I wanted to elaborate a bit more on the news out of Tennessee that we have adopted revisions to our lawyer advertising rules and talk a bit about what is now a new, pending proposal put out directly by the
- [ABA Formal Op. 499: A consumer review](https://faughnanonethics.com/aba-formal-op-499-a-consumer-review/) - So, are you a lawyer in the market for an ethics opinion that largely gets to the right answer but has to do so in such a convoluted fashion that it makes you question just how badly your profession has lost the plot on what we should be doing when it comes to regulation and
- [They knew he wasn't covered.  That was the original problem.](https://faughnanonethics.com/they-knew-he-wasnt-covered-that-was-the-original-problem/) - Some lighter fare for today but you are stuck with the cringeworthy title. I have a stack of important potential topics to write about, but the ABA Journal online today reeled me in with their headline on this story ("Litigants claiming GEICO auto policy covers STD from car sex can't proceed anonymously, judge rules.") and
- [Florida is a hopeless place.](https://faughnanonethics.com/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
- [I Take No Joy in Writing This.](https://faughnanonethics.com/i-take-no-joy-in-writing-this/) - So, a relatively quick post for this week in terms of content as I'm thrilled to be somewhere else and to be presiding over the first in-person meeting of APRL in two years. A lawyer in Tennessee brought my attention to an article in a recent ABA publication where two academics, Professor Peter Joy and
- [The scams evolve.  So too must lawyers.](https://faughnanonethics.com/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
- [It's another fine day to abolish the bar exam.](https://faughnanonethics.com/its-another-fine-day-to-abolish-the-bar-exam/) - Now is another of the various times of year throughout the nation when law school graduates finish waiting anxiously for bar results and find out whether they passed and get the opportunity to start digging their way out of the debt they amassed in law school or failed and, thus, have to wrestle with the
- [Florida again.  Sigh.](https://faughnanonethics.com/florida-again-sigh/) - It has only been a little over a month at this point since I wrote about how Florida was a hopeless place. Well, here we are again. The Florida Bar Board of Governors has unanimously rejected a few proposals aimed toward progress in the re-regulation of the practice of law in the last week or
- [The thing about doing bad things on purpose...](https://faughnanonethics.com/the-thing-about-doing-bad-things-on-purpose/) - Is that you have to be perfect about it pretty much all of the time. I'm not going to tell you that there are only two kinds of people in the world because I know that kind of thing is only used as the set up to really good jokes. But among the various kinds
- [Second chance to play Peril!](https://faughnanonethics.com/second-chance-to-play-peril/) - Allow me a short promotional post that can (almost) be justified as a public service to lawyers (at least some Tennessee ones). This past Tuesday I did the first of two presentations of the 2021 Ethics Homeshow. We go again next Tuesday at 11:30 central. If you still need an hour of CLE credit, you
- [This for Thursday.](https://faughnanonethics.com/this-for-thursday/) - Originally, I had plans to do another of those three-in-one posts for today, but we have some news from Tennessee, so we are pivoting to just focus on that development. I've written previously about the Court's proposal to improve upon the approach to intermediary organizations in Tennessee. Well, yesterday, the Court entered an order adopting
- [Some different COVID news.](https://faughnanonethics.com/some-different-covid-news/) - It is safe to say, at this point, that most of the United States, and particularly southern states such as mine, are treating the pandemic as being over. Whether it actually is or is not remains to be seen. If it is over, its lasting effects will certainly live on. This post isn't exactly about
- ["In representing a client" ... again](https://faughnanonethics.com/in-representing-a-client-again/) - We've trod this path before, but the issuance of the most recent ABA Formal Ethics Opinion justifies renewed discussion of the topic. Particularly when the opinion in question is of the rare variety where there is a dissent included in the opinion. The path (our topic): Does Model Rule 4.2 apply to a lawyer when

## Pages

- [Speaking Engagements](https://faughnanonethics.com/seminars/) - I speak frequently in Tennessee and beyond on issues that matter to lawyers and their clients. Information on my upcoming seminars and most recent presentations are below. Upcoming Presentations Stay tuned Recent Presentations May 21, 2026, "Legal Ethics Relevant to Law Firm Administrators," Middle Tennessee Association of Legal Administrators, online platform March 18, 2026, "Nonlawyer
- [Publications](https://faughnanonethics.com/publications/) - For several years, I wrote a recurring column for The Memphis Lawyer published by the Memphis Bar Association. Several years ago, I ceased that endeavor and fully transitioned to using this site as my opportunity to offer thoughts in a more timely fashion and more directly. Although my offerings over the years have often exceeded
- [Faughnan Law, PLLC](https://faughnanonethics.com/faughnan-law-pllc/) - BRIAN S. FAUGHNAN I am a sole practitioner and owner of Faughnan Law, PLLC, located in Memphis, Tennessee. Prior to founding my firm, I practiced law for twenty-three years in large and mid-sized full-service law firms. In addition to handling business litigation and appellate litigation, my practice focuses heavily on solving problems for lawyers. Over
- [Media mentions](https://faughnanonethics.com/media-mentions/) - 2023 https://www.law360.com/pulse/articles/1701386/fla-bar-cta-program-could-be-win-for-solos-across-the-us All AI Isn't Generative AI: Lawyers See Court AI Disclosure Rules as Too Broad | Legaltech News Tennessee attorney general steers energy toward pregnancy center fundraising | Chattanooga Times Free Press How GCs Can Handle Internal Pressure To Hire A Certain Firm - Law360 Pulse
- [Contact](https://faughnanonethics.com/location/) - Brian S. Faughnan Faughnan Law, PLLC 5865 Ridgeway Center Parkway, Suite 300 Memphis, Tennessee 38120 Phone: 901-820-4556 brian@faughnanonethics.com

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