Author: Josh King

Cohen’s Forced Client Disclosure

Josh King

Look, I enjoy a little schadenfreude as much (if not more so) than the next guy. And it’s especially delicious when it comes at the expense of the cabal of crooks, clowns, and lickspittles currently running our democracy into the ground.

And yet. While I was delighted and amused to hear that Sean Hannity – the bombastic Trumpian water-carrier headlining State TV Fox News – was Michael Cohen’s mystery third client, something about it feels . . . off.

My friends at Davis Wright Tremaine have been justifiably crowing about their partner Rob Balin’s rising from the gallery and convincing the judge that the First Amendment interest in free speech and open trials demanded disclosure of the client’s name.

But did it? Was that REALLY the right call?

I have repeatedly taken the RPCs and authors of Bar ethics opinions to task for failing to respect the First Amendment when it comes to lawyer speech regulation. This includes, most recently, ABA Opinion 480, which interprets Rule 1.6 far beyond its constitutional limitations. But this doesn’t mean the First Amendment always trumps the obligations lawyers have to their clients – or to the protections of the attorney-client relationship built into the Rules.

Cohen did the right thing – really, the only thing he could do – in seeking consent from his clients to disclose their identifies, and resisting the efforts at disclosure when Hannity did not give such consent.

And Balin certainly did the right thing, too, in pressing his argument for openness and disclosure.

But what I can’t figure out is why this disclosure was necessary. The fact that a legal matter is proceeding in a courtroom does not mean that any-and-all facts relating to that proceeding are free game for disclosure. Immaterial facts, matters not relevant to the proceeding, trade secrets, etc, etc – there are numerous instances where facts are not disclosed in order to protect confidences.

So why here? As I understand it, the relative paucity of legal work (as opposed to “fixing” and “consulting”) performed by Cohen was important to the government’s argument about the appropriateness of raiding his office. But why would that require disclosing the identity of his legal clients? Why isn’t their numerosity (or lack thereof) sufficient? Particularly when – knowing what we do about the type of legal work he did for his other two clients – there are significant reputational harms coming from a client being linked to Cohen?

Don’t get me wrong: I think it’s hilarious that Hannity was revealed to be the third client. And this disclosure has turned out to be hugely interesting to the public, implicating as it does questions of journalistic ethics and the relationships between Trumpworld and Foxlandia.

But Judge Wood didn’t know that going in. And the real question wasn’t whether the identity of the client would be interesting, but whether that identity was relevant to the proceeding. It doesn’t seem like it was.

I may be missing some important nuance here; I wasn’t there in the courtroom to hear the arguments. But it’s deceptively easy to just go with the outcome you like. With norms and institutions under attack as they are these days, it’s never been more critical to respect and defend the rule of law.

Disclosing Public Info About Clients

Josh King1 Comment

Earlier this month, the ABA issued advisory opinion 480, which says that attorneys cannot reveal client information even if that information is in the public record. The opinion points to Model Rule 1.6, which states:

A lawyer shall not reveal information relating to the  representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

This rule is certainly a statement of good practice. Attorneys absolutely should be guarded in how they communicate about their clients’ matters. In fact, they should err on the side of caution when it comes to talking about their clients. I’ve hired a lot of lawyers over the last 20+ years, and I can say, without exception, that I would expect that each and every one of them would ask my permission before talking publicly about ANYTHING related to the representation that I might possibly have a problem with – even if that information is in the public record.

But what an attorney should do is a completely different question than that of what an attorney is compelled to do.  The distinction between best practices and legal compulsion (a distinction lawyers should do a better job of appreciating, btw) is the critical thing to keep in mind in understanding why ABA opinion 480 is wrong.

Why? Because we attorneys don’t give up our First Amendment rights when we get licensed. And while these rights leave room for appropriate regulation of professional speech (even if the exact standard for such regulation remains undetermined), there’s little reason to believe that a blanket rule of the sort adopted by the opinion would pass Constitutional scrutiny.

In reaching its conclusion, the opinion stretches to find a way around Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), the Virginia Supreme Court case that dealt directly with a state bar arguing that its rules prevented lawyers from writing about matters of public record. To do so, the opinion states  “the Committee regards Hunter as limited to its facts.”

Well, that’s nice. But is that limiting distinction appropriate? Let’s go to the opinion in Hunter:

The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.

The ABA opinion seems to find it distinguishing that there was no evidence to support the Virginia Bar’s opinion. That’s true – there wasn’t.  But the implication of this isn’t that Hunter is an outlier. Rather, it’s that any attempt to punish an attorney for disclosing public record information would need to be supported by evidence.

What’s more, that evidence – and the particular application of Rule 1.6 to punish  an attorney for such disclosure – would most likely need to meet the bar for strict scrutiny. As the Hunter decision notes:

State action that punishes the publication of truthful information can rarely survive constitutional scrutiny.

Well, yes – this is a fundamental cornerstone of free speech law. While one can imagine scenarios where this hurdle could be met, they certainly aren’t going to be the norm.

I’m sure the drafters of Opinion 480 had their hearts in the right place, and were thinking of client protection. It’s an understandable impulse, and like I wrote at the outset, this is an area where attorneys should go far beyond what the Rules require. But we can’t turn a blind eye to the First Amendment – and read that “should” as a “must” – simply because we know what the best practice is.

The Feds Weigh in on Tikd

Josh King
When the Supreme Court decided to grant cert in the North Carolina Dental Board case, many bar associations seemed concerned. Concerned enough to file an amicus brief, pointing out that a narrowing of the state action immunity doctrine could put their own self-regulatory activities at risk.

As we know, the Supreme Court went forward anyway, and the Bars ARE at risk. They interpret their rules in broad and overreaching ways. The industry claims a monopoly over any work that remotely looks “legal.” And, most fatally, the Bars are operated by groups of market participants – market participants who don’t always grasp that the purpose of regulation is to protect the public, not to preserve the incomes of lawyers.

Surprisingly, while some Bars have responded to North Carolina Dental by tightening up their processes, there’s been little examination of whether the potential for antitrust liability merits a meaningful re-look at how Bars carry out their regulatory activity. Most Bars haven’t even done the obvious stuff, which would start with disbanding ethics opinion-writing and advertising review committees. And there’s been even less action on the administrative rulemaking front, where most Bars continue to operate systems where rules changes must be voted on by market participants. Suffice it to say that is not a model for maximizing the consumer- and competition-protective aspects of the rules.

What explains this? My money would be on hubris.

From advertising (“legal services are different”) to sunshine laws (“lawyers are licensed by the judiciary, so you can’t FOIA their licensing records”) to monopolization (“if it remotely smells legal, it’s got to be done by a lawyer”), lawyer exceptionalism has been the order of the day. In the eyes of the Bar, the rules that apply to other, humdrum professions and services simply doesn’t apply to lawyers. The attitude, it seems, is that lawyer self-regulation means whatever the Bars want it to mean.

I know, I know: there are plenty of lawyers and Bar leaders who understand these problems, and are trying to do the right thing. But the inertial, institutional weight is piled powerfully in the opposite direction. And lacking the willingness to change from within, Bars may find themselves forced into change from without.

I’ve written about the antitrust lawsuit filed against the Florida Bar by Tikd, a company that helps people resolve traffic tickets. In response to that suit, the Bar has basically taken the position that North Carolina Dental doesn’t apply to it.

That’s almost certainly wrong. And you needn’t just take my word for it, as a rather influential party has just weighed in to opine on the wrongness of the Bar’s position. In a statement of interest filed in the case, the Department of Justice stepped in with a 14 page brief dismantling the theory of lawyer exceptionalism. As the DOJ notes, the Bars can’t just rely on their relationship to the judiciary to claim the state action immunity defense:

“TIKD challenges neither a Bar rule nor a state supreme court decision. TIKD alleges instead that the Bar improperly enforced its rules and abused its authority, and that its improper enforcement had anti-competitive effects.”

Uh-huh. It’s not really that complicated: unless disinterested state actors are actively supervising the Bar’s anticompetitive actions, the Bar – and its members on the committees in question – are exposed to potential antitrust liability. Now, I would HOPE that Bars would address this potential liability by being, you know, less anti-competitive (as opposed to just creating structures for greater state supervision). But in any event, the first step is acknowledging the problem. And on that front, the DOJ has just sent all lawyer regulators a powerful message.

Fake Bar Associations a Real Example of What’s Wrong With the Ad Rules

Josh King

Hey, I’ve got an awesome plan:

  1. Create bogus Bar Associations
  2. Set up lawyer referral services under their names
  3. Get those services approved by the State Bar, and
  4. PROFIT! $$$$$!

So yeah, that’s basically what this attorney in Kentucky did.

Like many states, Kentucky has a Bar rule that allows for non-profit lawyer referral services. I’ve written before about the many, many issues with these rules. But one under-appreciated problem is how susceptible these rules are to abuse via creative compliance.

So basically:

  • You’ve got a rule that prohibits a form of marketing used without incident in all other industries – paid referrals.
  • That is, unless such paid referrals are provided via bar associations (never mind the unexplored assumption that there’s something about Bar associations that makes their referrals purer or less likely to mislead the public than any other referral services)
  • And, because the Rules are applied rigidly, some asshole who creates bogus bar associations gets his “bar association referral services” approved because they’ve, you know, got “Bar Association” in their names.

It’s moronic and embarrassing. This kind of garbage is obviously misleading, and yet the Bar’s own ostensibly-consumer-protecting, overly-detailed-and-prescriptive Rules are enabling this crap.

Yet more fodder for the argument that the best thing that could be done to the Rules is to strip them down to a simple “false and misleading” standard. With that, it might be easier for the powers-that-be at the Bars to see this kind of thing for what it really is.

 

Canadian Bar Cozies Up to Compelled Speech

Josh King

Oh, Canada.

Not content with statements of principle in support of diversity – or even ethics rules, such as the hotly-contested-and-likely-unconstitutional ABA Model Rule 8.4(g) – Canada’s largest legal regulator has adopted a rule requiring that each of its members “create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public.”

The Law Society of Ontario (nee “Law Society of Upper Canada”) offers templates that presumably provide a safe harbor for attorneys who adopt them. The first template reads:

As a licensee of the Law Society of Upper Canada, I stand by the following principles:
  • A recognition that the Law Society is committed to Inclusive legal workplaces in Ontario, a reduction of barriers created by racism, unconscious bias and discrimination and better representation of Indigenous and racialized licensees in the legal professions in all legal workplaces and at all levels of seniority;
  • My special responsibility as a member of the legal profession to protect the dignity of all individuals, and to respect human rights laws in force in Ontario;
  • A commitment to advance reconciliation, acknowledging that we are collectively responsible to support improved relationships between Indigenous and non-Indigenous peoples in Ontario and Canada; and,
  • An acknowledgement of my obligation to promote equality, diversity and inclusion generally and in my behaviour towards colleagues, employees, clients and the public.

These all sound like perfectly fine principles. But there’s a big difference between principles and mandates – and that’s particularly true when when those mandates are dictating what people are supposed to say and believe.

And it doesn’t matter whether or not I agree with the subject of the mandate. It’s the compulsion that repels; a heavy-handed presumption that requiring something can make it so. We also know that principles driven into mandate encourage the worst sort of nose-counting rigidity. One needn’t look far online to see calls for fairness, equal dignity, and respect turn into demands for quotas and other specific outcomes.

It’s fine if the Law Society wants to elevate and bring attention to these goals. It’s fine if it wants to invest toward realizing them. And it’s fine if it wants to persuade its members that these are worthy goals, and that members should take active steps toward their realization. But when persuasion and aspiration turn into compelled, dogmatic recitation, the regulators of the Bar have surely lost their way.

An Opening for Ad Rule Changes?

Josh King

At last weekend’s clutch of lawyer meetings in Vancouver – the ABA midyear, NOBC, APRL, etc – I had numerous discussions about the attorney advertising rules, how they represent an obstacle for consumers and lawyers alike, and the potential for change to the rules.

A few consistent themes:

  • We’re past the point of incremental change.
  • Nobody can provide a defense for the continued existence of ABA Model Rule 7.2.
  • An increasing number of states are no longer looking to the ABA for guidance, and are setting their own course in revising their rules.

This may explain why the only voices in opposition to the ABA’s proposed changes to the advertising rules were those calling for more sweeping change:

In closing Gillers asked the about 50 attendees how many support even less restrictive rules than the working draft proposes. Overwhelmingly, a show of hands suggested more changes would be preferred.

I’ve long suggested that there is far more the ABA could do here to protect the public while radically freeing up the advertising rules. Perhaps the weight of informed opinion has finally swung over to this view.

What’s “Reasonable?”

Josh King

Let’s talk about the worst part of the most unnecessary (and harmful) rule in the ABA’s Model Rules of Professional Conduct: subsection (b)(1) of Rule 7.2.

What, you may ask is subsection (b)(1) of Rule 7.2?

It’s the begrudging caveat, added after Bates v. Arizona found that consumers and attorneys have a First Amendment right in attorney advertising, that attorneys can, in fact, advertise:

“(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;”

Why the powers-that-be didn’t just get rid of this rule entirely, I will never know – except that attorneys DO love their rules. And let’s face it: both expeditiousness and caution are going to cause us lawyers to gravitate toward incremental carveouts rather than bold rule changes.

But 40+ years post-Bates, these weasel words continue to do their damage, as attorneys and bar regulators agonize over whether a given payment for advertising is “reasonable.”

This, despite the fact that there is no class of professionals less qualified than attorneys to opine intelligently about the reasonableness of business marketing expenses. And despite the fact that it’s a vacant and empty exercise to begin with, as any “unreasonable” charges for marketing will be quickly squashed out by market forces.

But it gets worse.

For in their examination of this issue, virtually all attorneys and ethics committees make the same error out of the gate, assuming that all advertising should cost the same because all costs are the same. They know this because they’ve bought yellow pages or magazine ads, and hey, all paper and ink costs the same, right?

Not only does this logic not apply in the online world – where the cost inputs to providing advertising across different services or practice areas CAN actually vary widely – more importantly, it makes a fundamental error in assuming that the cost of advertising can only be reasonable in relation to the cost it takes to produce and serve such advertising. It’s understandable that attorneys would hold such a narrow view – we are, after all, accustomed to selling our services simply on a markup to our cost – but it is surely NOT the only, or even the best, way to determine whether the cost of advertising is “reasonable.”

Why? Because an attorney who is buying advertising doesn’t care what the costs of providing that advertising are. They don’t care what size of margin is being gleaned. That information is completely irrelevant to them. What they DO care about is the return on investment they get from that advertising. They care about the business they get, and the price they are charged to generate that business. That’s all.

This comes back to a deceptively simple concept that most businesses (except, apparently, lawyers and law firms) have to grapple with: how to price their services. The two primary means are cost-based and value-based pricing. But while it’s important that pricing ultimately cover costs, the more sophisticated and client-focused approach is to look at the value you are driving and price based on that (this hackneyed old anecdote is a useful illustration of the primacy of value over cost-based pricing).

What’s “reasonable?” It’s what someone’s willing to pay, based on the perception of the value delivered. That customer-centric perspective should be the beginning – and end – of any evaluation of the “reasonableness” of charges for attorney advertising.

Intermediate Scrutiny as a Policymaker’s Touchstone

Josh King

As I go on (and on, and on) about, speech regulation must meet a higher bar than ordinary regulation. Outside of a handful of relatively-narrow categories, content-based speech regulation must survive “strict scrutiny.” That’s the most exacting standard; most such regulation can’t get there, and is thus struck down when challenged in court.

Some content-based speech regulation – like commercial speech, and maybe professional speech – is subject to the lesser “intermediate scrutiny” standard.  Content-neutral regulation of speech (the familiar “time, place, and manner” restrictions on speech) is also subject to intermediate scrutiny. Regulation that does not impact speech? Unless another limiting principle applies (e.g., other constitutional rights; antitrust law), such regulation is subject to “rational basis” review – which means it’s going to be upheld by a court so as the regulation passed the laugh test.

While it’s understandable that courts would show deference to legislative and executive bodies in this way, policymakers shouldn’t hesitate to hold themselves to a higher standard. And the intermediate scrutiny standard, even if not legal binding on their actions, is an excellent way to discipline the policymaking process.

But before I get to that, it’s helpful to think of the ways that policymaking can fail. These fall into three broad categories:

  1. Regulating Things that Aren’t Actually Problems.

Making rules is expensive and time-consuming. Every new rule adds to the cognitive burden to those expected to comply with – and enforce – that rule. So it seems fair to expect that any proposed rule be designed to address a real problem.[ref]If the objection is that this formulation stacks the deck against rules, well, yes. Rules should have the burden of justifying their own existence. And in close cases, the rule should lose in favor of greater freedom.[/ref]

Example: Voter ID requirements

Bad Argument for the Rule: “What’s the big deal? It’s easy to comply.”

2. Collateral Damage

Many rules are well-intentioned, but end up creating so many ancillary problems that their cost – often unanticipated – greatly exceeds their benefit.

Example: HIPAA.

Bad Argument for the Rule: “We’re not worried about those other things – THIS thing is the only thing that’s important.”

3. Ineffectiveness

Some rules are all sound and fury, signifying nothing. They make claims of solving a problem, but don’t advance the cause. Often come in an emotional wrapper.

Examples: Assault weapon bans.

Bad Argument for the Rule: “Think of the children.”

And, of course, many rules display characteristics of two or even all three of these markers of policy failure.

So how can the intermediate scrutiny standard help? Easy – it provides a disciplined mental framework for evaluating the effectiveness of policy. The standard requires that rules:

  • address substantial government interests;
  • directly advance those interests; and
  • do so in a reasonably narrow fashion.

That’s actually a great way of thinking about ALL policy. Because assuming we want effective policies, and aren’t just proposing rules for short-term political gain, tribal belief, or sheer contrariness,[ref]A big assumption, I know.[/ref] we should rightly reject rules if they can’t meet this test.

Substantial government interest? That’s asking the question of whether a rule is actually addressing a real concern. Is there a serious enough problem that we need a rule, and all of the attendant costs and implications of government power that come with it?[ref]This is particularly key when dealing with Rules that carry criminal sanctions. Given the realities of how enforcement of such Rules works, some have re-styled the “substantial” element of this prong as “don’t support any criminal laws that you aren’t willing to kill to enforce.”[/ref]

Directly advancing the interest? That’s getting to whether the proposed rule actually has a chance of working. Does it actually dig away at the problem, or is it just window dressing?

Is it narrowly applied? That’s focused on collateral damage. Does our proposed rule create all sorts of other costs and externalities, quite apart from the issue the rule is trying to address?

Of course, this isn’t always easy. It may be hard to tell whether a potential rule will actually work. Ancillary consequences may not be seen until a Rule is already in place. And motivated reasoning can see advocates of a rule ignore all evidence and argument against their baby.

But assuming we want to enact rules that actually work? There’s a lot to be said for using the intermediate scrutiny standard as our analytical framework whenever evaluating policy.

Don’t Take Your Dealmaking Tips From DT

Josh King

It seems Donald Trump got the wrong takeaway from this weekend’s brief government shutdown:

This crowing boast of his own negotiating prowess gets things entirely backward. If I had to point to a single cause of the  shutdown, it would be Trump’s own ineptitude at negotiating. For despite his self-professed bargaining acumen, Trump is really just a one-trick pony: he’s got a single approach to dealmaking, one that likely worked well for him in real estate and licensing deals but which is wholly inadequate to the circumstances in which he now finds himself.

Trump’s is a chaotic approach, combining affability and relationship-stroking with mercurial changes in temperament and deal terms. He frequently re-trades or tries to change deal terms at the 11th hour – or even after the fact. That’s a crappy way to do business, and it doesn’t yield good long-term returns. It increases the risk of any given deal imploding, and it craters the dealmaker’s reputation, making future deals harder.

Unfortunately, it’s a technique that can be very effective in wringing favorable terms out of deals where you’ve got lots of leverage. And that’s certainly familiar terrain for Trump, who cut his dealmaking chops squeezing small vendors, aspiring licensees of the Trump name, and creditors fearful of yet another debt-sucking Trump bankruptcy. Those people didn’t have any good alternatives to making a deal with Trump, so they had to grit their teeth and suck it up, even as he went back on his words, changed terms mid-stream, and generally acted like a mercurial jackass.

We’ve certainly seen Trump roll this play out repeatedly in his first year in office, with predictable results: chaos, disorder, and a lack of any meaningful negotiated outcomes, despite plenty of them being within reach. And that’s because negotiation in governing is a lot different and more complex than squeezing a plumber who can’t afford to sue to accept sixty cents on the dollar for his invoice. Getting stuff done requires a mix of credibility, toughness, and the smarts to know when to stop negotiating and take a deal.

To be successful at getting deals done in this kind of environment, there are times when you need to ask counterparties to take you on faith. And for them to be willing to do so requires a reservoir of trust. If Trump had any such reservoir, his year of bald-face lying and retrading has drained it bone-dry.

“See you at the negotiating table?” Not likely. Watch as experienced pols increasingly pack up and walk from negotiations with Trump – that is, if they’re unsuccessful in sidelining him from the table in the first place.

 

The Awful, No Good, Rule 7.2

Josh King1 Comment

My last couple posts have referred to Model Rule 7.2, and the ABA Ethics Committee’s inexplicable unwillingness to consign it to the dustbin of history. But while I have complained about this benighted Rule, perhaps I haven’t gone deep enough on why it needs to unceremoniously kicked to the curb.

Rule 7.2 is the “specific restrictions on lawyer advertising” rule. And it actually has its origins in the days before lawyers COULD advertise. The core of the Rule predates Bates v. Arizona, the seminal 1977 case that found that lawyers have a First Amendment right to advertise.[ref]Equally important to the decision in Bates was that consumers have a First Amendment right to receive information about legal services. Unduly restricting the free flow of information – including information provided via advertising – compromises these rights.[/ref] And pre-Bates, it stood for the proposition that lawyers could not advertise:

A lawyer shall not give anything of value to a person for recommending the lawyer’s services.

Instead of recognizing Bates for the sea change that it was and canning this Rule, the Bars simply added a begrudging caveat to it:

A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service.

The result is predictable: endless lawyerly hand-wringing over whether a statement is a “recommendation,” whether the cost paid for an ad is “reasonable,” or whether a form of advertising is “qualified” and/or a “lawyer referral service.” Avvo has dealt with ALL of these “concerns,” via state bar ethics opinions, with respect to Avvo Legal Services alone.

And it’s all a complete waste of time. The purpose of these rules is to protect the public, not to enable academic debate about whether a rating is a recommendation. The types of activities that the vague language of the Rule are really getting at are those that are already covered by Rule 7.1: false and misleading advertising. Any marketing transgressions that could constitutionally be prohibited by Rule 7.2 are also prohibited by Rule 7.1. So Rule 7.2 doesn’t add any weapons to the Bar’s enforcement arsenal; it just drives over-compliance and makes it harder for the public to get information about legal services.

A rule that serves no purpose other than to work cross-purposes to its stated intent? That’s a rule that should be eliminated – and with haste.