State Bar Complaints about Political Speech

Florida Congressman and lawyer Matt Gaetz is the latest public figure slash lawyer to be targeted over something incredibly stupid that he or she said or did. In Representative Gaetz’s case, the stupid was tweeting a comment that appeared to be aimed at dissuading a witness from testifying before a congressional committee.  The Florida Bar has properly acknowledged receipt of this complaint and that an investigation of Gaetz is underway.

State Bar complaints  (or grievances, as they are known is some states) have also been filed against Kellyanne Conway and Jeff Sessions, based largely on the theory that their alleged public misrepresentations violated their duty of honesty as lawyers. More than one ethics lawyer has found the Conway complaint ill-founded, notably Steven Lubet, and the law professors who filed apparently acknowledged that bar complaints targeting public speech could lead to “mischief or worse.” While enforcing ethics rules, the discipline systems are not the ethics police; they are consumer protection agencies charged with protecting against unfit practitioners who are or might harm clients.  Policing political speech is far removed from their priority list. Complaints based on dishonest political speech are not likely to gain traction with the State Bar of California, except as noted below.

Representative Gaetz presents a different case.  When speech can be a crime, as in speech intended to dissuade a witness from testifying, or extortion, the regulatory agencies take notice.  The public’s confidence in the legal profession requires that criminal conduct by attorneys be sanctioned, reflected in Rule of Professional Conduct 8.4(b).  Thus, the extremely prompt response from the Florida Bar that merited scorn from the Congressman’s chief of staff. Did Representative Gaetz believe that he was just throwing out some partisan red meat? Because he is a lawyer, his intent should be scrutinized closely.

The Perils of Rule 9.20

One of the most dreaded consequences of disciplinary action is the requirement that the disciplined attorney comply with California Rule of Court 9.20.

Rule 9.20 requires  the disciplined  lawyer to do a number of things, including giving notice by certified mail of the suspension to all clients, opposing counsel, and filing this notice in every court where the attorney has pending matters.  Often overlooked are the other requirements in the role they require the disciplined attorney to return all unearned fees and return all client papers and property, as required by Rule of Professional Conduc1.6(e). Finally, the rule requires that a declaration be filed attesting to the attorney’s compliance with the rule.

Compliance with rule 9.20 is typically ordered where the attorneys placed on interim suspension pursuant to a criminal conviction or is going to be actually suspended for a period of 90 days or longer, although it has sometimes been ordered where the actual suspension is less than 90 days.

This rule strikes fear in the heart of lawyers for two very good reasons.  First, the notification the clients is can be a practice killer in a solo or small from practice. Once the clients have been notified and found other attorneys, they are not likely to ever come back to the disciplined attorney, who essentially has to build the practice from scratch after the suspension ends. Second, the sanction for failing to comply with real 9.20 is harsh; subsection  (d) of the rule provides that

A disbarred or resigned licensee’s willful failure to comply with the provisions of this rule is a ground for denying his or her application for reinstatement or readmission. A suspended licensee’s willful failure to comply with the provisions of this rule is a cause for disbarment or suspension and for revocation of any pending probation. Additionally, such failure may be punished as a contempt or a crime.

A complete failure to comply with the role is generally going to result in disbarment. Bercovich v. State Bar (1990) 50 Cal. 3d 116, 131. Lesser failures will still result in substantial discipline including a period of actual suspension.

An example is a recent unpublished* Review Department decision In the Matter of Smith (State Bar Court case no. 17-O-00668, filed February 12, 2019.)  Smith was ordered to comply as a result of being placed on interim suspension following a felony criminal conviction (see Bus. & Prof. Code section 6102(a)). Smith was incarcerated at the time the State Bar court issued the interim suspension order in February 2016 and did not comply with the rule until July 2016, although Smith knew that he has been placed on interim suspension.  Unfortunately, his compliance declaration was rejected for filing because it did not bear an original signature. Another rule 9.20 declaration bearing an original signature was filed in October 2016 was filed in October 2016.   Both of these declarations stated that Smith had contacted all of his clients within 30 days of his release from jail in April 2016. This statement turned out to be inaccurate because two clients were notified after the 30 day period.

Rule 9.20 (a) prescribes tight deadlines for compliance.  Clients, opposing counsel, and courts must be notified within 30 days of the date of the order. The compliance declaration must be filed within 40 days of the effective date of the order  in court.  There has been some confusion in the past with Rule 9.20 orders that required compliance within 30 days of the  “effective date”  of the order, given that California Rule of Court 9.18 states that discipline orders are effective 30 days after they’re filed. Case law makes it clear that rule 9.20 dates run from the day the orders filed , not any subsequent date, despite the language of Rule 9.18. Athearn v. State Bar (1982) 32 Cal.3d 38, 45. This is a trap for the unwary that has snared more than one disciplined lawyer.

Smith unsuccessfully tried to argue in his brief to the Review Department that only the Supreme Court could issue an order requiring rule 9.20.  He dropped that argument at oral argument, apparently after reading California Rule of Court 9.10(a), which delegates the statutory powers in section 6102 to the State Bar court  Supreme Court.

The Review Department ultimately upheld the hearing judge’s recommendation of six months actual suspension, finding that Smith violated Bus. & Prof. Code section 6103 in failing to timely comply with the interim suspension order.  It also recommended that he be ordered to comply with Rule 9.20 again as part of that discipline.  And just for good measure, it included this additional condition of probation:

For a minimum of one year after the effective date of discipline, Smith is directed to maintain proof of his compliance with the Supreme Court’s order that he comply with the requirements of California Rules of Court, rule 9.20(a) and (c).  Such proof must include the names and addresses of all individuals and entities to which notification was sent pursuant to rule 9.20; copies of the notification letter sent to each such intended recipient; the original receipt and tracking information provided by the postal authority for each such notification; and the originals of all returned receipts and notifications of non-delivery.  Smith is required to present such proof upon request by OCTC, the Office of Probation, and/or the State Bar Court.

As if there was any doubt, the State Bar Court views Rule 9.20 compliance so seriously that it is willing to go beyond the requirements of the Rule itself and make it a probation condition.

* Unpublished cases are not citeable precedent in State Bar Court (State Bar Rule of Procedure 5.159).

New Ethics Opinion: Technology Assisted Review

The San Diego County Bar Association has published an ethics opinion relevant to electronic discovery issues.  San Diego County Bar Association Formal Ethics Opinion 2018-3 poses the question:

To what extent may lawyers use technology assisted review to identify documents to be produced in response to demands for production requiring analysis of voluminous documents?

The opinion concludes that:

Whereas lawyers may use technology assisted review products to identify responsive documents for productions, they should communicate with their clients about such use, must take care to understand the products they use, and may not cede their independent judgment.

The opinon’s scenario describes the use of so-call TAR – technology assisted review, a system that uses artificial intelligence to identify responsive documents, a process that is described as entailing continuous active learning. “Lawyer has used the particular technology before. After Lawyer provides the recommended amount of seed sets appropriately identifying documents as responsive or not responsive, the software uses the information to analyze the remaining documents. Lawyer next conducts a random review of the documents identified, provides some additional seed set samples to eliminate some documents erroneously identified as being responsive, and runs the results again. Lawyer then produces the several hundred thousand documents identified as being responsive.”

The opinion offers useful guidance to lawyers about the ethical parameters of using cutting edge techology.  The full opinion is available here.

Florida Bar Seeks Discipline for Social Media Blitz Against Opposing Counsel — ABA Journal

The Florida Bar is seeking discipline against a lawyer for a “social media blitz” against opposing counsel. The ABA Journal has the story:

https://www.law.com/dailybusinessreview/2019/02/22/florida-bar-wants-broward-lawyer-suspended-over-social-media-blitz-against-opposing-counsel/

Helpfully included is the actual petition filed by the Florida Bar seeking an emergency suspension. The petition is bottomed on Florida specific rules, including their very specific Rule 4-8.4:

A lawyer shall not (d)engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.

While California has adopted to more vanilla version of Rule 8.4(d) that refers only to conduct prejudicial to the administration of justice, it is not inconceivable that our new rule might give discipline prosecutors a vehicle to reach similar certain types of conduct that up to now have seemed beyond reach of the California discipline system since the demise of the “offensive personality” statute in 1997 after it was found unconstitutional vague in United States v. Wunsch.


New California Rules: Where Will They Change?

The new California Rules of Professional Conduct are just over three months old. Aside from scattered murmurings of discontent, there is surprisingly little uproar.  A large number of lawyers seem blissfully unaware that there’s been any change at all in the landscape of their professional obligations.  That bliss will come to an abrupt end for some of them. There is a lot of new material to absorb; the new Rules with discussion are roughly three times longer than the former Rules.  There will undoubtedly revisions in the next few years, as with every edition of the Rules.

Three areas are the subject of some early dissatisfaction, one a sin of commision and two others by omission.

New Rule 3.3 – Candor to the Tribunal

There has apparently been some indignation about the application of new Rule 3.3 concerning candor to the tribunal in the context of ex parte applications. Enough such that it is rumored that The Supreme Court will be asked to change the rule. The new Rule 3.3(d) requires:

In an ex parte proceeding where notice to the opposing party in the proceeding is not required or given and the opposing party is not present, a lawyer shall inform the tribunal* of all material facts known* to the lawyer that will enable the tribunal* to make an informed decision, whether or not the facts are adverse to the position of the client.

That seems like longest of long shots at this point. If the new rules and be summarized in a phrase, it is that Rambo lawyering is long out of style in California, if it ever was. Coming of age in the courts of Los Angeles in the freewheeling 1980s certainly influences my view of this, which is that it is a very good thing. As a young habitué of law and motion departments in those freewheeling 1980s, the potential for abuse in the ex parte motion was not hard to see. And I think the California Supreme Court heartily agrees, as best as I can read their tea leaves.

No California Version of Model Rule 1.14 – Impaired Client

Some are more concerned with what was left out. California has no version of the American Bar Association (ABA) Model Rule 1.14, which address his clients with disabilities. It also has no version of ABA model rule 5.7, dealing with another hot topic, ancillary business activities conducted by lawyers.

Part of the reason that Model Rule 1.14 did not make the cut is that it touches the third rail of California ethical jurisprudence, confidentiality, in its section (c):

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

No matter their intentions, the Second Rules Revision Commission could not push beyond the envelope of the statutory sections that remain in the Business and Professions Code including California’s romantically uncompromising vision of client confidentiality in section 6068 (e) (“At every peril…an attorney shall maintain the confidences of the client…”) The archaic 19th century Field Code language that pervades the B&P Code shows no sign of being retired anytime soon, despite the fact that what were  “members” are now “licensees.”  The new California Rules have most of the moving parts to replace much of it, including Rule 8.4, which at this point seems largely useless in light of the statutes.

California’s approach to confidentiality is romantic but hardly realistic.  The Model Rules contain many common-sense exceptions to confidentiality that should be on the table, such as the compassionate and nuanced exception in Rule 1.4. But they are not and do not appear likely to be anytime soon.  But having witnessed at least two impossible things in my lifetime, I will not give up hope of seeing a third.

No California Version of Model Rule 5.7 – Law-Related Services

Model Rule 5.7 addresses the application of the Rules of professional conduct to the lawyer’s operation of a business that provides law-related services. the previous 2 commissions did undertake to revise California’s rules of professional conduct considered California versions of role 5.7 but ultimately chose not to recommend a rule. The Second Rules Revision Commission concluded that the nuances of the topic were already adequately addressed in California case law and other authorities. The model role provides that a lawyer providing law-related services, defined as services that could reasonably be performed in conjunction with legal services and that non-lawyers can perform, is subject to the rules when

(1) performed by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or (2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

California case law and ethics opinions state subtly different definition than Model Rule 5.7, defining “non-legal” services  as “services that are not performed as part of the practice of law and which may be performed by non-lawyers without constituting the practice of law.”  Cal. State Bar Formal Ethics Opinion 1995-141. A subsequent State Bar opinion defined “non-legal” services “functional” terms: “is the lawyer performing a service that is performed as part of the practice of law and would constitute the [unauthorized] practice of law if performed by a non-lawyer? Cal. State Bar Formal Ethics Opinion1999-154. California discipline cases have uniformly held that a lawyer is subject to the rules whenever the lawyer performs any professional services of a fiduciary nature.  No California case law or ethics opinion has outlined the parameters of when a lawyer providing law-related services will not be subject to the Rules of Professional Conduct.

But things have changed even in a short time since the Second Rules  Revision Commission completed its work in 2017. The California State Bar has de-unified, spinning off many of its trade Association functions to the new California lawyers Association. The remaining entity is focused on protecting the public, but also focused on enhancing the delivery of legal services. The State Bar Board of trustees has created Task Force on Access Through Innovation of Legal Services (ATILS) in service of that second task, charged with “identifying possible regulatory changes to enhance the delivery of, and access to, legal services through the use of technology, including artificial intelligence and online legal service delivery models.”  ATILS is notable for being composed mostly of non-lawyers, with the explicit purpose “that the recommendations of the Task Force are focused on protecting the interests of the public.” ATILS mission statement includes evaluation of the extent to which non-lawyer ownership or investment in the entities providing legal services should be permitted by changing the current regulatory structure (e.g., California Rule 5.4, which prohibits non-attorney ownership.)  A similar re-evaluation on a national level is occurring with respect to ABA Model Rule 5.4, which is very similar, the so-called “fixing the fives” project which is being scrutinized by the Association of Professional Responsibility Lawyers (APRL) Alternative Business Structures/Multidisciplinary Practice/RPC 5.4 Subcommittee.  Although it might seem to be outside ATILS’s mission (encouraging lawyers to provide law-related services, as opposed to permitting non-lawyers to be more involved in providing legal and law-related services) the task force has expressed interest in the possibility of a California version of Model Rule 5.7 that might enhance the delivery of both to legal consumers, a topic to be discussed at their next meeting on February 28.

Every edition of the California Rules of Professional Conduct has been subject to some revision after a few years of life. These rules will be no exception. It is likely that the biggest changes will be forced by the accelerating transformation of the legal services marketplace. The anti-competitive aspects of some of the rules have been no secret for a long time. Recent developments make it apparent the lawyers are no longer in a position to successfully resist these changes.

Welcome to California Legal Ethics!

Welcome to California Legal Ethics! My aim to provide timely and relevant information about California legal ethics to the California lawyers, law students and other legal professionals.  The legal profession is undergoing rapid and disorienting change.  Many of those changes  and traditional legal newspapers, web sites and other sources of information often fail to cover legal ethics issues with comprehensiveness and accuracy.  My aim is to remedy this with a  blog entirely devoted to Califoria legal ethics that will focus on the practical information, news and analysis that lawyers and other legal professionals need to know about, and, hopefully, want to know about.  This blog will draw on my 30 years of experience with legal ethics and the discipline system (more about me) and my current full time practice as an ethics lawyer.  I hope you find the effort worthwhile and I look forward to your comments.