Category Archives: Bar Discipline

Disbar Conway for Lying?

It’s not too early into the Trump administration to call it: this is a group that’s got very little regard for the truth. And that’s even by the low standards of political spin – we’ve got plenty of examples, already, of out-and-out gaslighting. Chief among the lying liars in the administration has been White House “Senior Counselor” Kellyanne Conway, who done everything from puff the (anemic) size of Trump’s inauguration crowds to shill for his daughter’s clothing line.

In response, a group of law professors has filed a grievance against Conway seeking professional discipline against her in Washington, D.C., where she is licensed as a lawyer. The complaint relies upon the famously broad language in Rule 8.4(c), which proscribes “conduct involving dishonesty, fraud, deceit or misrepresentation.”

Loathsome as I find Conway’s approach, I am similarly appalled at this grievance. I mean, I could see some wingnut lawyer filing a grievance against Conway, but over a dozen law professors? Who should know better?

While there are many issues with this grievance, I just want to focus on two macro-points, one legal and one practical.

The Legal Objection

Like many of the Rules of Professional Conduct, Rule 8.4(c) appears to be written by people with little understanding of the First Amendment. First there’s the bit about “conduct,” which sort of dodges the question about whether this is dealing with matters purely of speech or only “speech as conduct,” a famously messy area that was dealt with just last week by the 11th Circuit in striking down Florida’s limitation on doctors asking patients about firearms ownership.

More objectionable is the failure to tie this broad prohibition on lying to the actual practice of law.  While the outer bounds of the state’s ability to limit speech in the professional realm is uncertain, here are two propositions that clearly lie on opposite sides of that boundary:

  1. Well within the power of the state to regulate: Requiring that attorneys not lie in the course of representing clients.
  2. Well outside the power of the state to regulate: Requiring that attorneys not lie, ever.

There is a first amendment right to lie, and we attorneys don’t forfeit it just because we get licensed. This is a straightforward legal principle, and the law profs’ grievance fails on this front right out of the gate.

The Practical Objection

I was going to say “like it or hate it, we all have a right to lie.” But really, if you hate the fact that we have the right to lie, you haven’t given it enough thought. Having the right to lie doesn’t mean we have the license to do so, or that lying should be socially acceptable. It means simply this:

We are not going to let the government be the arbiter of truth.

Many of the law profs who brought the grievance would likely object “but Conway is in an important position of power and influence; she may be working as a lawyer (i.e., an active “representation”), and because of how Big of a Deal this is we need to push it forward.”

But it is for precisely this reason that we shouldn’t push edge cases. We don’t want the government calling balls and strikes in matters of public discussion. That’s a straight path to censorship. The first amendment and freedom of discourse needs a lot of breathing room, as even the implication of regulatory action will cause many to clam up.

No, not Kellyanne Conway, of course (although the social virtues of lie-shaming seem to have set in, as the cable news outlets have tired of her act). But how about everyone else? My practical objection to this grievance is that if it gets any traction, what does that mean for any other lawyer who wants to speak out on matters of public import? Or, closer to home, what if someone wants to start policing the many words – again, outside of any representation – that these law professors no doubt spill publicly on any number of subjects?

Hopefully, the D.C. Bar will do the right thing and dismiss this grievance quickly and decisively.

Minnesota’s No Good, Very Bad UPL Decision

Brian Faughnan has the details, but here’s the quick overview: A Colorado attorney agrees to help out his in-laws, who are dealing with a debt collector in their home state of Minnesota. Like a good son-in-law, he does it for free. He engages in a series of emails with the attorney for the creditor, who eventually (because shaking people down for small-time debts isn’t enough to satisfy his “I’ve gotta be an asshole” jones) files a bar grievance against the Colorado lawyer. Colorado lawyer ends up being disciplined by the Minnesota Bar authorities for the unlicensed practice of law, a decision which is subsequently upheld by the Minnesota Supreme Court.

(Read the decision: In Re Charges of Unprofessional Conduct.)

Where to begin? Brian and other ethics mavens have already focused on the troubling retrograde nature of this decision, applying antiquated notions of the practice of law to modern communications norms. But I want to focus on three other fundamental problems with this decision:

Defining “The Practice of Law:”  As I’ve noted before, lawyer regulation has some fundamental First Amendment problems.  This is particularly true with respect to “legal advice.” The prohibition on non-lawyers providing legal advice is a content-based speech restriction, and those almost never survive a constitutional challenge.

In this case, Minnesota had the multi-jurisdictional practice statute to rely on; that rule explicitly limits out-of-state lawyers, and thus provides a thin facade to conceal an otherwise-suspect rationale. But what if the son-in-law hadn’t been a lawyer?  More on that in a moment.

“Holding Out:”  Much is made, too, of the argument that the Colorado attorney was “holding out” as the lawyer on a Minnesota legal matter. But this doesn’t survive scrutiny. The “holding out” indictment is based solely on the fact that the Colorado lawyer stated that he “represented” his in-laws. Yet restrictions on “holding out” as a lawyer are intended to apply to a specific set of practices that are harmful to consumers (i.e., pretending to be licensed as an attorney when you are not, in an effort to solicit business) – not to whatever this was. 1

And again, what if the Colorado lawyer hadn’t been an attorney? Would the disciplinary authorities have been able to argue that his statement of representation evidenced “holding old?” As with the definition of the “practice of law,” the only thread holding this together is the fact that the son-in-law was a lawyer.  Had he NOT been a lawyer, the state would have been left with a difficult argument: that people can’t help each other out with informal legal advice and advocacy unless they are in-state-licensed attorneys.

Which, come to think of it, is actually what most attorneys believe anyway. But I’m pretty confident that proposition would lose if challenged on First Amendment grounds.

Antitrust:  The discipline in this case was imposed by a 6-member panel of the Minnesota Lawyers Professional Responsibility Board. The Board is  comprised primarily of Minnesota lawyers. The discipline was then affirmed by the Minnesota Supreme Court, using a “clearly erroneous” standard.

This is a problem for the Board. Imposing discipline on non-market participants to maintain a government-sanctioned monopoly is the definition of anti-competitive behavior. And while quasi-government boards made up of market participants used to receive antitrust immunity, they don’t anymore (thanks to the North Carolina Dental Board case) unless they are “actively supervised” by the state. Judicial review – especially judicial review based on a highly deferential standard like that used here – is not within shouting distance of “active supervision.” While this issue wasn’t brought up in this case, it’s something Minnesota should think about if it plans to keep having other attorneys handle disciplinary decisions – and particularly when those decisions involve excluding competition from the market for legal services.

Notes:

  1. Let’s call it pedantry: “The out-of-state lawyer stated that he represented an in-state party. In-state parties can only be represented by in-state attorneys. Ergo, he is “holding out” as an in-state attorney.”

Ethics Opinion Follies

Earlier this year, Avvo rolled out Avvo Legal Services, our fixed-price packages for consumers and small businesses, fulfilled by local attorneys. We put a lot of thought into this product, how it would meet consumer needs, and how it could comply with the Rules of Professional Conduct to which lawyers are bound.

Our guiding principle in building Avvo Legal Services? Making them as consumer-friendly as possible. Our thought was that by so doing, the RPC issues should take care of themselves. As the RPCs are all about consumer and client protection, they shouldn’t be implicated by practices that don’t harm those people – right?

Right.

But one obstacle to this approach is a pervasive mindset of “rigid” or “mechanical” compliance that persists with the RPCs. Many attorneys want “safe harbor” guidance from the Bars on what complies with the rules. To respond to this need, many state Bars provide ethics opinions upon request. Such opinions are typically non-binding, but can carry some weight in a subsequent disciplinary proceeding.

Little surprise, then, that such opinions typically take the most conservative viewpoint possible. In most cases, the bars will broadly apply the rules, with no regard whatsoever for the first amendment implications or whether their interpretation is materially advancing the interests of consumers.

Indeed, in some cases the regulators explicitly state that their opinion does not take into account any first amendment factors. See, e.g., the last line of South Carolina Ethics Opinion 09-10. 1

If the Bars are serious about expanding access to legal services and information, one change they could make right away is to get out of the ethics opinion business – at least with respect to lawyer advertising. By discouraging new legal service offerings and disseminating information about legal services, the Bars are gravely mistreating the public they are ostensibly charged with serving and protecting.

And it’s not just me railing about this. The Supreme Court addressed a very similar system – that used by the Federal Election Commission – in the landmark 2010 Citizens United case. 2  Remarkably, the words chosen by the Court in Citizens United to describe the FEC’s advisory opinion process could just as easily apply to the process used by many state attorney regulators:

“Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U.S. 51, 57-58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” [citations omitted]. Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 5885 S.Ct. 734.

Despite the approach of some Bars, there’s simply no way to interpret the rules regarding attorney speech without considering the first amendment.  Those bars that explicitly fail to do so are exacerbating the censor’s veto, hurting consumers, lawyers and the interests of free expression. There’s no question that such opinions cause many attorneys to simply abstain from providing information about the services they offer, preventing the consumers the Bar is supposed to serve from receiving information that may be vitally important to them.

Until and unless the Bars start doing away with the advisory opinion practice, attorneys who wish to really honor their commitment to serving the public should disregard these opinions. By understanding how the commercial speech doctrine works, such attorneys can confidently determine for themselves, independent of Bar input, where the rules apply and where they don’t.

Notes:

  1. And let’s keep picking on South Carolina, since they just issued an ethics opinion that seems to take aim at Avvo Legal Services: sometimes these opinions directly contradict one another. Compare the treatment of Rule 5.4 fee-sharing in South Carolina ethics opinion 11-05 vs. the new opinion 16-06
  2. Citizens United v. Federal Election Commission, 588 U.S. 310 (2010).

Oregon Bar Walks Back Bogus Ethics Charges Over Bundy Lawyers

I love Oregon. I grew up in Bend, went to college in Eugene, and go back to spend time in and on Oregon’s mountains, beaches, and forests every chance I get. It is – in my perhaps-biased-but-well-traveled opinion, the loveliest of our lovely United States of America.

But the state isn’t immune to a case of the crazies, as witnessed most recently by the anti-government wacko takeover of federal buildings in the Malheur National Wildlife Refuge. One side note of that story was a bit of craziness of interest to this blog: the inexplicable decision of the Oregon State Bar to investigate the lawyers for anti-government nutbag Ammon Bundy for attorney advertising violations.

The “ethics crime” complained of? That the lawyers, in advance of being hired, hand-delivered a letter to him offering to meet with Bundy and potentially represent him on a pro bono basis – and that doing so violated RPC 7.3, which limits certain forms of direct solicitation.

My beef with this isn’t that people shouldn’t complain. Any wingnut can file a bar complaint, and the disciplinary authorities should maintain an attitude of openness to receiving these complaints. However, the flip side of that openness is that the Bar should be quick to shut down meritless complaints. This one was dead on arrival – there’s no question that attorneys are well within their rights to solicit business in writing – yet the Bar apparently took it seriously, putting the lawyers through their paces before deciding, months later, that yeah, there’s no violation here.

Gee, thanks,  guys. Pursuing investigations, making the targets have to lawyer up and take the time to explain to the Bar why there has obviously not been a violation, is a horrible waste of everybody’s time and resources (including that of the disciplinary authorities, who could be going after stuff that actually matters).

Even worse, it makes attorneys second-guess whether they can communicate with the public about their services. Many a lawyer doesn’t remotely want to have to deal with responding to a bar complaint, no matter how off-base it is.  Every case of Bar overreach like this – where instead of sending the lawyer a cc letter dismissing the complaint the Bar sends an accusatory screed demanding explanations for alleged wrongdoing – makes it that much harder for the public to get access to information about legal services.

How is that serving the Oregon State Bar’s mission?

Sanctions for Badmouthing Judges Overturned

When it comes to attorneys speaking out about judges, there are several truths:

  • Attorneys have a first amendment right to criticize the judiciary, theoretically subject only to a New York Times v. Sullivan-like standard of maliciousness should that criticism cross the line into defamation (see the page on “Criticism of Judges“);
  • Except if the criticism involves an active case the attorney is involved with, and such criticism creates a material risk of interfering with the proceedings;
  • But judges are people, too, and some of them are remarkable thin-skinned. They may put you through your paces regardless of the two provisos above.

Which brings us to the case of William Goode. Goode – a peripherally-involved player in a criminal case involving an attorney friend of his – was suspended from federal court practice in the  Western District of Louisiana for 6 months. His crime? Publicly criticizing the government’s case after his friend, the criminal defendant, had shot and killed himself.

Goode successfully appealed this discipline, winning because the federal court rule in question was laughably overbroad, operating as a complete bar on any speech related to the trial, the parties, or the issues in the trial.

But it’s hard to muster too much happiness for Goode. He lost a friend, in one of the most painful ways imaginable. And when he publicly expressed his anguish and frustration, he was backhanded by the court for having the temerity to do so. He had to deal with the stressful, expensive process of vindicating himself.

Goode’s case is the living embodiment of the last truth about criticizing judges: your mileage may vary, and you may well be put through the wringer if you choose to exercise your rights.

(The case also illustrates how expansive the “interference with the adjudicatory process” limitation can be. The rule in Louisiana essentially operated as a gag order on anyone “associated” with a matter. Despite not being counsel of record, the 5th Circuit deemed that Goode was “associated” given that he admitted helping his friend’s counsel with trial prep.)

Does Licensing Lawyers Violate the First Amendment?

Like Chief Justice John Roberts, I don’t put a lot of stock in law review articles. But every now and then, one comes along – usually written by an honest-to-god practicing lawyer, and not a full-time academic – that’s worthy of notice. Case in point? Paul Sherman’s March 15 Commentary in the Harvard Law Review, “Occupational Speech and the First Amendment.”

I’m still digesting the argument, but at first blush it powerfully extends the case, on First Amendment grounds, for a substantial drawing-in of state regulatory power over the practice of law.

How so? Consider:

  • The core functions of the practice of law involve speech, much of it in the form of advocacy and advice.
  • Requiring an occupational license to carry out these functions is a content-based speech restriction.
  • Content-based speech restrictions must survive strict scrutiny in order to be found constitutional. 1
  • Outside of certain truly client-protective measures and limits on speech in government-created forums, the broad speech restrictions inherent in legal licensing would not survive strict scrutiny.

The result? “The practice of law” would be cut back largely to courtroom representation and advocacy.

It’s a really interesting point. As I’ve long maintained, nobody is “practicing law” when they opine generally on the law or public policy, and the bars have no business trying to regulate them for doing so.

However, I’ve always rather uncritically accepted the notion that there is something fundamentally different about offering advice to a client for a fee. That doing so means you’ve crossed a line where regulation is appropriate.

But I think I’ve been wrong about that.

Why? Because Sherman notes something that is critically important to all media legal specialists, like Mesothelioma lawyers. Something I tell lawyers when they get pissed off about Avvo’s publishing profiles of them:

The fact that otherwise-protected speech is “sold” doesn’t make it any less worthy of constitutional protection.

This is the principle that keeps the government from censoring the media, despite the fact that people used to actually pay for newspapers. It’s why rights of publicity can’t stop “unauthorized biographies.” It’s the very clear, often-repeated-by-the-Supreme-Court mantra that economic interest alone is not sufficient to convert free speech into commercial speech (to say nothing of speech wholly devoid of First Amendment protection).

So how can the states prevent – oftentimes on pain of criminal sanctions – nonlawyers from offering paid advice on things like filling out forms, complying with laws, negotiating agreements, and interacting with the government?

The answer seems to be that they can’t.

Notes:

  1. That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc).

“Past Results” Ban in Florida Tossed

Really interesting decision in the case of Rubenstein v. The Florida Bar, in which federal district judge Beth Bloom granted attorney Robert Rubenstein’s motion for summary judgment against the bar AND enjoined the Bar from further enforcing its rules banning the use of references to past results in many forms of attorney advertising.

Law Practice Advisor has the details, but in reading the decision I was struck by how completely unimpressed Judge Bloom was with the Florida Bar’s position. She absolutely eviscerated the Bar for its utter lack of empirical evidence to support its ban, as well as its failure to consider any more narrowly-tailored remedies.

And for First Amendment law junkies, there’s this: while Rubenstein positioned his case as an “as applied” challenge – which is much easier to win, but has the disadvantage of not extending beyond the particulars of the plaintiff’s case – Judge Bloom took it upon herself to style it as a facial challenge. She then went on to show how the Bar’s rules were fundamentally unconstitutional, no matter how they were applied.  BAM!!

This isn’t necessarily the end of these rules, as the state could theoretically rebuild them with proper evidentiary support and deference to their obligation to regulate in a narrowly-tailored way.

Or they could appeal, but that’s a long shot – the good Judge issued a a very complete and well-thought-out ruling.

This decision is a great step toward a simple yet elusive concept: that Bar regulators should only limit speech where it is necessary to do so, and only to the extent of that necessity.

And ultimately, what’s most damning to the Florida Bar’s position is this: the data shows, unsurprisingly and overwhelmingly, that consumers really want to know what kind of results attorneys get. The Bar should take this message, get out of the way, and let that happen.

Another Blogger Disciplined

I’m always quick to encourage blogging to those lawyers who love to write; I strongly believe it makes you a better lawyer – and one who is more professionally fulfilled to boot. It may even help generate business, but that is a long game.

But it’s not without risk to the unwary. Your blog may be overly promotional. It may reveal client confidences – even if you try to conceal them.

Or you may, as Illinois attorney Joanne Denison did, go on a rip against the local judiciary, and have sanctions recommended for abusing the judges a bit too harshly.

It’s true that attorneys have fairly wide latitude under the First Amendment to criticize judges (see my “Criticism of Judges” page for more details). But when that criticism totters over the line into defamation, the attorney making the criticism is fair game for bar action.

The facts in the Denison case are complicated, and it’s difficult to tell whether the attorney’s complaints about judicial corruption really meet the test for “public figure” defamation (meaning they must be made maliciously or with reckless disregard for the truth). But the takeaway here, as with most cases of judicial criticism, is that care and diligence are in order when taking judges to task.

Also, because I am regularly railing on attorney regulators for disregarding the free speech rights of attorneys, I must note this: the Illinois Attorney Registration and Disciplinary Commission did an exemplary job of parsing the First Amendment issues in rendering their decision. I can’t say for sure that the facts support their conclusion, but at least the IARDC fully considered the constitutional dimensions.

h/t Kevin O’Keefe

On “Defamation”

As lawyers who represent consumers know, the wave of public opinion spilling online via client reviews can be a bit, well, upsetting. Legal services are the fruit of the brow, and often tied up closely in a lawyer’s self-identity. Having someone post an online tirade hits very close to home.

Of course, there’s no reason that legal practices should be held to a different standard than other sorts of businesses, most of which have adapted to – and even improved themselves by virtue of – the world of online user reviews.

And as I tell lawyers, it’s really important to get an objective read on a negative review before flipping out and filing a defamation lawsuit. This isn’t just because there are some unique risks to filing defamation suits not found in most other causes of action. Rather, it’s that lawyers aggrieved by negative client reviews aren’t usually the best judges of whether they actually have an actionable claim.

For example, let’s say a client writes this about you:

She is the most unethical, incompetent lawyer you’ll ever come across. I wouldn’t even call her a lawyer, she’s a FRAUD.

Being on the receiving end of that would feel bad, right? But it’s not defamatory; it’s simply a hyperbolic statement of opinion. Contrary to seemingly widespread belief, “defamation” isn’t “something that someone wrote about me online that I don’t like.” It must be based on a materially false statement of fact.

Of course, since I’m writing about this, you know what happened: the attorney who received the review above – Texas immigration lawyer Sherin Thawer – sued the reviewer.

What makes this noteworthy isn’t just that a thin-skinned attorney filed a baseless defamation claim. It’s not even that she did so in Texas, where the presence of one of the nation’s strongest anti-SLAPP laws means that she’s most likely going to be paying the defendant’s attorney’s fees.

No, the irony here is that the reviewer may have, if anything, gone light on Thawer. Because according to this report, she lied to her client, allowing him to be ruled against in absentia and subjected to a deportation order. Now the Texas disciplinary authorities are going after her for additional sanctions (she is already suspended from the practice of law in Texas).

I don’t know about you, but that would rate a scathing review in my book.

Email Awkwardness

If you’ve been practicing law for more than 20 years, you will recall the hand-wringing over the advent of email. Too informal, too insecure, couldn’t be trusted with client information, etc. But the voices of lawyerly caution never had much of a chance; email was simply too effective, too widely adopted. People and businesses far and wide plowed ahead with using it, and the concerns of the lawyers were shunted to the wayside.

Since that time, the vast majority of lawyers have become adept at using email. Sure, there are still too many disclaimers, and many lawyers have retained the practice of attaching letters to an email when the email itself would do just fine. But still – as a profession, we’re good with email as a tool.

But sometimes we still can’t figure out how to use it.

Case in point – the fawning email sent by Randall Rader – the Chief Judge of the Federal Circuit Court of Appeals – to Edward Reines, a patent lawyer at Weil Gotshal & Manges who often appeared before the court.
Rader Email to ReinesThe email, as you can see, lauds Reines’ abilities, and invites him to share the judge’s praise with others. Had Reines done the usual thing – smiled, sent the judge back a personal thank you, and filed away or deleted the email – there would be nothing to see here. Instead – because even white shoe Biglaw partners have to hustle for a buck – Reines forwarded the email to dozens of clients and potential clients, using it as a platform for selling his services.

As one might expect, this didn’t go well. When news of the email surfaced back in May, Rader quickly stepped down from his role as Chief Judge.  His message came at a particularly bad time for the Federal Circuit, which has been facing increasing criticism (not to mention Supreme Court reversals) for being far too cozy with the patent bar.

And now Reines has been reprimanded by the Federal Circuit, for violating Model Rule of Professional Conduct 8.4(e), which prohibits stating or implying the ability to influence a government official.

I think, as Reines unsuccessfully argued, that this is going too far. The email reveals that at least one Federal District court judge (and several others by implication) is very impressed with the quality of Reines’ work.  And as I have written about before, praise from judges is valuable as a marketing tool precisely because of its scarcity value.  Indeed, Rader’s encouraging Reines to broadcast the email acknowledges the rarity of this kind of praise.

The court, in applying the discipline, focused on Rader’s references to his friendship with Reines, and the fact that other parts of Reines’ marketing communications referred to his stature in the court and knowledge of the judges.  The court seized on these factors as somehow being distinct from advocacy skills (because being an effective advocate is completely separate from having credibility and knowing the judges well enough to know which sorts of arguments resonate with them?), and also somehow being indicative of a nefarious intent to unduly influence the judges.

Had he to do it over, I’m sure Reines would have chosen a different approach.  But there shouldn’t be a professional discipline penalty for crowing that the head judge of the court where you do most of your work thinks you’re the cat’s pajamas.  Reines should have a first amendment right to let people – including potential clients – know how well-regarded he is by the court.  Those potential clients can then choose for themselves whether it feels like too much of “look how special I am!”