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 spot anything about them that involve any significant commonality we’ll discuss them together.
First, the good item. Within the last month or so, the New Hampshire Bar Association has published a pretty good ethics opinion to provide guidance to lawyers that find themselves representing clients who end up seeking out crowdsourcing to help pay their legal fees in connection with matters. You can read the full opinion — and in my opinion it is worth the time to do so — at this link. If you lack the time (or just generally are inclined to do the opposite of what I suggest in most circumstances), then I would offer that the two best portions are the guidance on having to be wary about (and make sure you fully counsel your client about) providing any sort of informational updates to those who provide funds whether as a “perk” or “reward” for participation or otherwise and the reminder that funds raised explicitly for the purpose of paying for legal fees and legal expenses cannot then be used to provide the client with financial assistance for living expenses if the lawyer essentially appears to be the one raising the funds or so involved in the effort to raise the funds publicly because of the prohibition in RPC 1.8(e) on lawyers offering that kind of financial assistance.
The opinion does not take the next step though of offering the relatively obvious practical advice that the most flexible way to crowdsource would always be to seek funds for a client to allow them to financially survive their circumstances without promising that all or even any of the funds would go to attorney fees. Once raised and available to the client, the client could then use them for whatever purpose they wish, including paying their lawyer.
Now, the bad item. Being a lawyer, particularly practicing certain types of law, can lead to getting into bad binds and sticky situations. When the lawyer ends up somehow coming into possession of something that is a crime to have under any circumstances, the options are highly limited often to there being only one correct approach and what that is can be counterintuitive.
Matter of Bickman out of New York (but really out of Indiana as it is just a reciprocal discipline case in New York) demonstrates one way in which a lawyer in such circumstances can get themselves into trouble by not threading the needle. The opinion succinctly lays out the gist:
On December 14, 2015, respondent, as outside counsel for a private high school, along with the school’s headmaster, met with the father of a 15-year-old student who informed them of inappropriate communication made by a teacher to his daughter. At respondent’s request, the father gave respondent his daughter’s laptop computer containing sexually explicit images and messages sent by the teacher. The teacher was later fired and eventually sentenced to 14 years in prison on federal criminal charges.
After advising the school’s headmaster that the Department of Child Services (DCS) should be notified, respondent discussed a potential settlement agreement with the attorney for the family which included, in relevant part, a confidentiality provision prohibiting disclosure of the agreement or information regarding the matter to anyone other than their attorney. Pertinently, the agreement was never executed but it would have prohibited cooperation with law enforcement. At one point, when the family was contacted by DCS, respondent told the family that any cooperation with the agency would violate the confidentiality clause. Although he later retracted that position, the family had cancelled its appointment with DCS.
Additionally, respondent instructed a computer specialist at his law firm to make copies of the offending content on the victim’s computer and place them on a thumb drive. Respondent, who believed he was preserving evidence that could have been considered child pornography (and that there was a possibility that the evidence would be deleted from the computer as other images had been deleted), placed the thumb drive in a sealed envelope in a cabinet in his office and returned the laptop computer to the school (which in turn returned it to the father).
Indiana publicly censured the lawyer some time in 2020 for violations of RPC 1.1 and RPC 8.4(d), and the same discipline was imposed by New York on a reciprocal basis in 2022. Interestingly, all of the focus in the opinion in terms of the unethical conduct is upon the concept that the settlement agreement would have stopped the clients from cooperating with law enforcement. The opinion lays out, however, facts that the lawyer repeatedly was less than truthful with law enforcement during interviews about the fact that he possessed a copy of the illicit material. Though the lawyer likely doesn’t feel like it, he appears to be fortunate that the proceedings did not spin out into ones for potential direct criminal liability or, if not that, then additional violations premised upon RPC 8.4(b).