Daniel Q. Harrington wrote the article, “ABA Formal Opinion 502 on Pro Se Lawyers: Molding Verbiage to Fit Policy” for the American Bar Association Litigation Section’s website. The article discusses ABA Formal Opinion 502. This Opinion clarifies that the prohibition against lawyers contacting an opposing party represented by counsel applies even to lawyers in the role of a pro se party.
To read the full article, click here.
The recent litigation surrounding Alex Jones and Infowars Podcast, relating to defamatory statements Jones made about the Sandy Hook Elementary shooting victims and their families, focused on an issue that was not supposed to be the center of this defamation trial. During the trial, Plaintiff’s counsel confronted Jones on cross-examination with the fact that Jones’ legal team had inadvertently turned over two years’ worth of Jones’ text messages relating to his baseless claims that the Sandy Hook shooting never took place. The inadvertent production was bad for Jones, however, how it was revealed was even worse. Plaintiff’s lawyer, Mark Bankston, had the following exchange with Jones:
Continue ReadingMr. Jones, did you know that 12 days ago, your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you’ve sent for the past two years? And when informed, did not take any steps to identify it as privileged or protect it any way, and as of two days ago, it fell free and clear into my possession and that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook. Did you know that?
Lawyers who assume that the arbitration provisions within their carefully drafted agreements will be enforced may have to re-examine these assumptions. Within the space of less than one month, the Justices waded into three civil matters that dealt with the constant re-arrangement of the deck chairs and fine tuning of the parties’ rights and obligations relating to the application of the Federal Arbitration Act leaving those who practice with less than crystal clear guidance about how to proceed.
On May 23, 2022, in Morgan v. Sundance, Inc., SCOTUS, in a unanimous decision, ruled, contrary to the current positions of 9 of the 11 Circuits, that the requirement by the 8th Circuit that a showing that the other side has been prejudiced by a delay is not required for a party that has proceeded with litigation to be deemed to have waived its contractual right to arbitrate. Although the Opinion was only nine (9) pages, the beginning, middle and end focused on one seeming objective of lesser ultimate important; that Courts may not establish law relating to the enforcement of arbitration agreements solely in order to protect the sanctity of arbitration agreements under the FAA. To quote: “… federal courts may not create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s ‘policy favoring arbitration.’ If an ordinary procedural rule – whether of waiver or forfeiture or what-have you – would counsel against enforcement of an arbitration contract, then so be it. The federal policy is about treating arbitration contracts like others, not about fostering arbitration.”
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The recent arrest of an armed man who planned to kill Supreme Court Justice Brett Kavanaugh has brought renewed attention to the issues surrounding the personal security of federal judges and their families. The suspect told investigators that he found Justice Kavanaugh’s home address online.
On June 3, a retired Wisconsin circuit court judge, John Roemer, was shot and killed at his New Lisbon home in what the state attorney general described as a “targeted act” against the judicial system.
There were over 4,500 threats against judges in 2021, according to the U.S. Marshals Service.[1] Credible security incidents and threats against federal judges and court officials quadrupled from 2015 to 2019.
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In mid-April, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 501 clarifying the meaning of “solicitation” within the Rules of Professional Conduct. More specifically, the new opinion addressed the interplay of the general prohibition against in-person solicitation with the rules relating to misconduct and supervision of non-lawyers. While the new Formal Opinion does not represent a sea change in guidance, it provides crucial reminders about careful management of marketing practices for lawyers seeking paying clients, i.e., most of us.
Model Rule 7.3 on Solicitation prohibits live in-person solicitation of clients for the lawyer’s pecuniary gain, unless the client is another lawyer, a person the lawyer already knows or a person who routinely uses the type of legal services that the lawyer offers. There is significant jurisdictional variation from the Model Rule, with almost every state adopting a somewhat modified version. (See, ABA Jurisdictional Rules Comparison Charts) According to Comment [2], the rule is designed to prevent overreaching by lawyers particularly when potential clients are most vulnerable. The Committee found that there is continuing ambiguity about in-person solicitation by non-lawyers and whether the lawyers benefitting from the solicitation should be ethically responsible for their actions. The Committee examined these issues by way of the following four hypotheticals.
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The Supreme Court of New Jersey recently issued its ruling and opinion in the closely watched case of Delaney v. Trent S. Dickey and Sills Cummins & Gross, P.C. (Dec. 21, 2020)(“Sills”), relating to enforcement of a mandatory arbitration agreement in the Sills engagement letter. The Court refused to compel arbitration in that case because Sills had not adequately communicated with its client about the risks and benefits of agreeing to mandatory arbitration in order to make an informed decision. The Court did not go so far as to declare all mandatory arbitration provisions in engagement letters unenforceable, as some feared it might, but it requested additional guidance from the New Jersey Advisory Committee on Professional Ethics on the scope of an attorney’s disclosure requirements in this context.
On January 18, 2022, the Advisory Committee did that and more. The Committee expanded the scope of its mandate by asking the Court to reconsider its decision in Delaney and pronounce that New Jersey lawyers are prohibited from including mandatory arbitration provisions in their engagement agreements, even with appropriate disclosures and counseling. The Committee further proposed uniform guidelines for a separate rider addressing arbitration provisions and stressed the need for oral discussion with a client and recommendation to seek review by independent counsel.
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A federal district court in Pittsburgh recently ruled that counsel were not permitted to advance the cost of discovery sanctions imposed by the court against their clients. In a case challenging Pittsburgh-based grocery chain Giant Eagle’s mandatory mask policy, Senior Judge Nora Barry Fischer was faced with the question whether two plaintiffs, Vidovich and Zytnick, should pay Giant Eagle’s attorney’s fees and costs related to pursuing the plaintiffs’ Facebook posts about their interactions with the grocery chain. A court-appointed special master had recommended that plaintiffs be sanctioned, but their counsel at Thomson Rhodes and Anderson, contended that members of the firm were ultimately responsible for the delays and sought permission to pay the sanctions on their clients’ behalf. Giant Eagle urged that the sanctions be paid by the plaintiffs personally.
Judge Fischer examined whether the plaintiffs’ fee agreement made any provision for advancing attorney’s fees and costs ordered as discovery sanctions and, not surprisingly, found no specific language providing that counsel were free to advance such fees and costs and secure reimbursement from the clients later. The court also reviewed Rule of Professional Conduct 1.8(e) and the supporting comment concerning the provision of financial assistance to clients in connection with litigation, and found that the rule did not directly address whether court ordered sanctions could be funded by counsel consistent with the rule.
The court found no Pennsylvania cases or ethics opinions directly addressing whether the firm’s proposal was inappropriate, but was “unpersuaded that the appropriate approach to this unsettled ethical issue is for plaintiffs’ counsel to note the lack of controlling authority and to forge ahead to advance such sanctions on behalf of his clients without first utilizing the available resources to obtain an opinion from ethics counsel, the Bar Association or the Disciplinary Board.” The court noted that bar association ethics opinions in Florida and Oklahoma had both said that firms could not ethically advance their clients’ attorney’s fees imposed as a sanction, while an Alaska ethics opinion had concluded that such fees could be considered part of the “expenses” a firm was permitted to advance. The court’s research did not reveal a consensus on the question, and none of the opinions directly “addressed the facts and circumstances at issue here involving court ordered sanctions imposed against certain of the plaintiffs for proven discovery violations.”
The court declined to accept the law firm’s contention that advancing court costs and expenses for a client may be part of a firm’s efforts to maximize access to the courts for those who might not otherwise be able to afford it, as plaintiffs’ had not provided any evidence that Vidovich or Zytnick could not afford to fund the fees.
In a somewhat different context, a U.S. District Judge in Oregon recently imposed a $40,000 sanction on counsel of record and their law firm for failing to mention “long-standing, settled caselaw” that prevented the judge from issuing an injunction that was sought by the law firm in an attempt to prevent a strike by medical technicians and therapists at a health system. The court’s opinion rejected as “meritless” an argument that the attorneys’ actions were not sanctionable because they were merely arguing for an “extension” of existing case law and were unable to identify any case directly on point with the underlying facts. The December 16, 2021 Court Order is here: https://s3.documentcloud.org/documents/21164070/mcshanesanctionslawyerfirmliable.pdf
Takeaways:
The case is Kimberly Pletcher, et al. v. Giant Eagle Inc., et al., C.A. 2:20-cv-00754 (W.D. PA), and the link to the opinion follows: http://lawyersrepresentinglawyers.com/wp-content/uploads/sites/36/2021/12/Kimberly-Fletcher-v.-Giant-Eagle-Inc.-Order-of-Court-12_15_2021.pdf
What happens when a Pennsylvania lawyer desires to invest in a law firm in D.C. where some of the owners are not lawyers? Under the Pennsylvania Rules of Professional Conduct, the lawyer is not permitted to make that investment, but the D.C. Rules would allow it for a D.C. lawyer.
ABA Formal Opinion 499 resolves this question and provides guidance on key considerations for lawyers in states, like Pennsylvania, whose rules do not permit non-lawyer ownership in law firms. Lawyers may invest passively in a law firm that includes nonlawyer owners in jurisdictions that permit such alternative business structures, according to the new ABA ethics opinion. The lawyer may passively invest, even though the lawyer practices law in a jurisdiction that does not permit such nonlawyer ownership.
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Virtual practice and remote work are seemingly here to stay, in some capacity. The ABA’s Standing Committee on Ethics and Professional Responsibility recently issued a formal ethics opinion addressing virtual practice to help guide practitioners. The ABA’s Formal Opinion tracks similar guidance issued from state bar associations, such as the Pennsylvania Bar Association’s Formal Opinion 2020-300 (Ethical Obligations for Lawyers Working Remotely).
We spent the past year uncertain what our post-pandemic lives will look like, but we are slowly gaining clarity. Firms are preparing to reopen but are doing so with the understanding that work-from-home flexibility will likely remain, to some degree. The way that we practice and interact with colleagues, clients, adversaries, judges, and witnesses has forever changed. ABA Formal Opinion 498 (March 10, 2021) helps navigate the relevant ethical considerations for lawyers when practicing virtually.
Undoubtedly professional responsibilities and obligations bind an attorney regardless of their location, but certain Model Rules are of particular importance when practicing virtually. Key considerations addressed by Formal Opinion 498 are confidentiality, competence, and supervision. The Opinion goes beyond security concerns that have been expressed repeatedly in years past, such as secure wifi connections and two-factor authentications, and addresses issues that arise when our family homes are now our offices—and also our significant other’s office and children’s classrooms. The Opinion also comes on the heels of Formal Opinion 495, issued in December, which addresses lawyers working remotely from jurisdictions in which they not licensed to practice—a common scenario during the pandemic.
When Family Homes Become Family Offices. During the last year many attorneys, and other professionals, have been working in tight corners and shared spaces making concealing confidential documents and guarding confidential communications particularly important. Attorneys must make reasonable efforts to avoid inadvertently disclosing or granting unauthorized access to confidential client information. Working from home where others are present should involve keeping work surfaces free of confidential papers and computer desktops free from confidential documents and communications. For those who routinely print hard copies of documents, it is important to remember to shred them when finished and not to merely drop them in the kitchen trash bin. Computer screens should be locked when the attorney is a way to avoid confidential information being left displayed. Phone calls and virtual meetings are best taken using headphones to avoid unintended listeners from overhearing privileged conversations. Lastly, the Formal Opinion reminds attorneys to turn off listening enabled devices, like Alexa and Siri, in their workspaces.
Learning the Ins and Outs of New Technology. We all quickly adapted to a half dozen video conferencing platforms that a year ago many of us couldn’t even name. Today, we click a link, turn cameras on, and hopefully remember to mute when not speaking. But are attorneys closely looking at the service providers’ terms and conditions and knowledgeable of the privacy settings? They need to be. Formal Opinion 498 urges practitioners to be familiar to such terms and also updates and changes to any terms, which can be made frequently.
Supervising Colleagues from a Distance. Much has been said and written about the impact of remote work environments on the younger generations of employees—within the legal profession and other workplaces. Lawyers with managerial authority, unlike other professionals, have an ethical obligation to establish policies to ensure compliance with ethical obligations and supervising attorneys have a duty to ensure that their subordinates comply with the rules of professional conduct. This, for obvious reasons, is significantly more difficult to oversee when colleagues are working in their own separate spaces, but the ethical obligations remain. The Formal Opinion advises managing and supervising attorneys to check-in with their subordinates—both lawyers and non-lawyers—frequently and routinely. Regular interaction and communication is more critical than ever. This also provides an opportunity for attorneys to check in on each other’s mental health and well-being during these difficult times.
While things are looking up and plans coming together to return to our offices in the coming months, the ABA’s Formal Opinion 498 prepares us for the reality that the days of being in a traditional brick-and-mortar office full-time may never return, and adequate measures must be in place to adjust accordingly.
Leigh Ann Benson is a member of Cozen O’Connor’s Legal Professionals Practice Group, and a member of the PBA Bar Leaders Institute class.
The ABA Standing Committee on Ethics and Professional Responsibility (the “Committee”) recently issued Formal Opinion 492 (the “Opinion”), in which the Committee offers helpful guidance on navigating the duties to prospective clients under Model Rule 1.18. Attorneys and conflict-avoidance software alike tend to focus on conflicts of interest with current and former clients, and may disregard the risks associated with prospective clients with whom an attorney-client relationship is ultimately never formed. The Opinion serves as an important reminder to attorneys that prospective clients are indeed owed certain duties – and that even a short consultation that does not lead to a retention could disqualify the lawyer – and even the lawyer’s entire firm – from undertaking a future representation of a different person or entity.
The duties described in Rule 1.18 apply to prospective clients. A prospective client is a “person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.” The comments clarify what does – and what does not – constitute a consultation. Comment [2] explains that “a consultation is likely to have occurred if a lawyer … specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.” On the other hand, a consultation has not occurred within the meaning of the Rule if a person unilaterally provides information to an attorney, such as through an unsolicited email seeking legal help.1 To be accorded prospective client status, a person must have consulted with the attorney in good faith about the possibility of forming an attorney-client relationship.2 So under the current Model Rule, Tony Soprano’s efforts to conflict out every high-powered divorce attorney in the community by disclosing information during multiple consultations would have fallen short. Tony was not consulting with the attorneys in good faith.3
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