The “no contact rule” set out in Model Rule 4.2 can be a source of confusion for many lawyers.  The rule prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of the other lawyer. We have discussed the rule before in the  corporate context, but what about in the government context? Ohio Advisory Opinion 2022-03  provides precise guidance on the issue.

The “no-contact group”

Opinion 2022-03 provides that per Ohio Rule 4.2, a lawyer is prohibited “from directly communicating with employees and public officials who supervise direct, or regularly communicate with the government’s lawyer concerning a matter, or who have the authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization”. These individuals are said to be included in the “no-contact group”; hence direct contact is generally impermissible. (The flipside is that direct contact with a person who does not fall into the “no-contact group” is generally permissible.)

Limitations on Rule 4.2 based the Constitutional right to petition government for redress of grievances

What about when the represented party is a government official, or employee deemed to be in the no contact group?  May the Rules prohibit contact that infringes on their client’s “constitutional right to petition the government for the redress of grievances”? After looking to other jurisdictions for guidance, see Virginia’s Legal Ethics Opinion 1891,  the Ohio opinion finds that lawyers may have contact with represented governmental clients.  That exception is not unlimited however.  It does not permit discussions of claims, for example.  Contact is only permissible upon three conditions being met:  (1) the communication must be based solely on a policy issue—not a claim; (2) the official or employee must possess the authority to take or recommend action concerning the policy matter; and (3) the lawyer is required to put the government counsel on notice of the intent to directly contact the government official. If all conditions are fulfilled, there is no requirement to obtain consent from government counsel.

Public Meetings

The opinion concludes that lawyers are permitted to directly communicate with government officials or employees on behalf of a client during formal public meetings—though the topic must be on policy issues concerning the client. Consent is not required, and government counsel need not be present. Lawyers are nevertheless advised to identify themselves as representing their client, if possible, in advance of the meeting to allow for adequate time for the official or employee to consult with or ask counsel to attend.

Settlement negotiations

On the opposite end of the spectrum, lawyers must obtain the consent of government counsel prior to any direct communication with government officers or employees regarding settlement negotiations. The recipient of any settlement offer is presumed to be in the “no-contact group.” Rather the lawyer is instructed to only propose the settlement (whether it be written or oral) to government counsel.

General Guidance

  • As we mentioned before, the “no-contact” rule extends only to the subject of the representation.
  • If the topic is off limits, don’t try to circumvent the rule by making the prohibited communication through the acts of another—a Rule 8.4(a)
  • Don’t assume consent is implied—always ask. Simply hitting “reply all” to an email could land you in hot water even if opposing counsel had cc’d their client on the email directed to you first—see South Carolina’s Ethics Advisory Opinion 18-04 which concludes implied consent cannot be found in such scenario.
  • Communication initiated by a represented party does not create an exception to the rule.
  • Be careful not to overstep when advising your client how to communicate with other unrepresented parties involved in the matter.

Marketing is an integral part of the private practice of law.  But where is the line between permissible advertising tactics and impermissible solicitation?  Often it is hard to find guidance to tell you on which side of that line your marketing strategies fall.  The recent ABA Opinion 501 may help. It sets forth several hypotheticals which give additional guidance if your state ethics rules don’t address strategies you are contemplating.  Opinion 501 also serves as an important reminder to lawyers that the limitations on solicitation apply not only to their own solicitation of clients, but also to nonlawyers they employ or supervise, including marketing firms hired by the lawyer.

Domino effect

As outlined in Opinion 501, ethics rules on solicitation generally prohibit live person-to-person contact when the substantial motive is for pecuniary gain for the lawyer or the lawyer’s firm. Model Rule of Professional Conduct 7.3 provides 3 main exceptions. But even then, there are exceptions to those exceptions. Additionally, some states (e.g., New York) have significant additions to their rules. Failure to pay attention to the intricacies of Rule 7.3 can set off a chain of ethical violations for other rules—like  5.3, and potentially 8.4(a), depending on whether the questionable conduct was done by a nonlawyer employee and whether the lawyer had knowledge of that conduct.

Out of sight, out of mind  

Lawyers with managerial or direct supervisory authority have the duty to make reasonable efforts to ensure the conduct of the nonlawyers they employ or retain is compatible with the lawyer’s obligations. Model Rule of Professional Conduct 5.3 extends the responsibility to the lawyer if the lawyer knew of, ratified or ordered the conduct—and for partners or lawyers with comparable managerial authority, if they know about the conduct but fail to stop or mitigate it when they have a chance.

It is all too easy to delegate certain marketing tasks to nonlawyer employees and not consider whether what they do might violate the ethical rules on soliciting clients.  As noted in Opinion 501, a lawyer with supervisory authority must discuss the ethics rules with nonlawyer employees to ensure they refrain from improper solicitation on behalf of the lawyer.   It is difficult for even the most attentive supervising attorney to monitor their nonlawyer employees 100% of the time, so these discussions are a must. Out of sight, out of mind doesn’t sell to many disciplinary counsel, so lawyers must draw clear boundaries of permissible conduct for their subordinates to follow. Keep in mind Model Rule 8.4(a) holds lawyers responsible for knowingly assisting or inducing another to violate the Rules of Professional Conduct.  Lawyers cannot avoid the limitation on solicitation restrictions by pointing the finger at nonlawyers and have subordinate nonlawyers do it for them.

A few ABA hypotheticals to consider

  • Hypothetical 1: A lawyer supervising the firm’s marketing department hires a professional lead generator to obtain client leads, without explaining the limitations on how leads should be obtained to stay within the bounds of ethics rules. Unbeknownst to the lawyer, the lead generator’s employees go into online chat rooms designated for family and survivors of mass torts, calling those family members, and inquiring as to their desire for representation. The lead generator is very successful —telling the lawyer that they just call the people online discussing accidents. The lawyer does not inquire further and tells the lead generator to keep the leads coming.
    • The lawyer in this scenario violates 7.3(b) as the lead generator’s phone calls are deemed live person to person contact, 8.4(a) by accepting clients knowing they were obtained in violation of the rules, and 5.3(b) for failing to train the lead generator on the confines of solicitation rules.
  • Hypothetical 2: A lawyer ask his friend, who works at a bank, to provide the lawyer’s name and contact information to customers or employees that the banker thinks may want an estate plan.
    • The lawyer in this scenario does not violate 7.3(b), because these actions do not meet the definition of solicitation. The lawyer has no authority to control the banker’s conduct and this type of “word-of-mouth referral” is allowed under the model rules.

In sum

If you can’t do something, then neither can your nonlawyer employee. Don’t just assume that even the savviest employee knows all of the ethics rules—it is your responsibility to ensure that they know the ethical bounds of the actions they will employ in completing their assigned tasks.

What’s trending

The rapid evolution of technology over 2 years of COVID not only allows for a remote practice, but in many regards encourages it.  So much so that some firms are now hiring attorneys who will work primarily – if not exclusively – remotely.

The focus of regulators’ concerns is shifting less on where the lawyer is physically located when practicing, and more so on what they are doing once they get there. Some states are now articulating greater tolerance for lawyers licensed in other jurisdictions to work remotely within their borders.  Change can be a wonderful thing, but lawyers must still be cognizant of when and how authorized remote practice intersects with (or violates) rules against the unauthorized practice of law.  Lawyers must remember that, even if we are permitted to work in another state, we do not have free rein to operate however we would like within that remote location.  Generally, physical presence is permissible, but a legal presence is not.

Common ground

UPL rules were created to protect the public, and protection of clients in a state is still the issue with which new rules are concerned as demonstrated by the examples below.  Each example analyzes the permissibility of remote practice by how the lawyer is held out to the public.  When contemplating whether your conduct is crossing the line into UPL territory, this is a guiding principle to bear in mind.

As we pointed out before, a 2021 Florida advisory opinion gave the green light to lawyers who want to work there remotely.  And earlier this year the Florida Supreme Court amended the comment to its Rule 4-5.5, which now clarifies that an out-of-state lawyer may work remotely in Florida for an extended time, as long as he or she is only working on non-Florida matters and not holding herself out publicly as having a Florida presence.

The Buckeye State expanded the exceptions to its Rule to permit lawyers admitted and in good standing in another U.S. jurisdiction to have a systematic and continuous presence in Ohio, so long as the lawyer does not solicit or accept clients in Ohio, hold herself out as being an Ohio lawyer, or violate certain other rules.

New Jersey’s joint advisory opinion issued in 2021 drives home the distinction between holding yourself out to the public as being a lawyer versus mere presence as a private citizen. Citing ABA Formal Opinion 495 in support, the opinion clarified that lawyers are not holding themselves out to the public when they are invisible as a lawyer. The opinion provided helpful examples of conduct that would not be permitted, such as maintaining a New Jersey law office, advertising that the lawyer practices in New Jersey or is available to practice in New Jersey, or identifying a New Jersey address for mail.

Stay tuned  

While clarifying and expanding the permissibility of remote work is a trend to be celebrated, do not forget that each jurisdiction’s rules can vary, and sometimes in very material ways. Only time will help shape what conduct is deemed to have crossed the line into a lawyer holding herself out as being licensed in a jurisdiction where the lawyer is not. In the meantime, it is not enough to simply refrain from “hanging out a shingle.” Here are some pointers:

  • Consider how your presence might be perceived by the public in the remote state
  • Be careful not to suggest that you are licensed or can otherwise serve people in that state
  • Don’t focus solely on one state’s UPL laws – you must understand and consider the UPL laws in both your state of licensure and the remote state
  • Absent a specific statute or rule authorizing your practice, only handle matters for clients or before tribunals in states where you are licensed, no matter where you are located

A Special Master has ordered Google to turn over supposedly “privileged” documents at issue in an NLRB dispute with former employees.  Whether it is upheld in this high-profile litigation or not, the ruling points out some significant misconceptions about privilege (and work product) held by many clients and some attorneys.

Anti-union campaign advice does not equal legal advice

One key aspect of the ruling was its conclusion that the attorney-client privilege does not typically protect unionization campaign communications because campaign messaging advice is not legal advice. Many of the documents reviewed were connected to Google’s work with a consultant hired to help craft anti-union campaign messaging. The Special Master found that Google did not establish that such materials were communications in connection with obtaining legal advice, as required for the privilege to apply.

Third Party Communications are not confidential

Generally, communications made in the presence of a third party lack protection unless the third party is an agent of the attorney or client. The Special Master also found that the communications were not confidential communications between Google and its legal counsel—rather, by involving the consultant, they fell outside the attorney-client relationship. Moreover, many of the anti-union training materials that the consultant provided were broadly disseminated—which waives the privilege.

“Washing” a communication through counsel does not create privilege

In an attempt to cloak the unionization campaign communications with privilege, Google instructed the consultant to send materials to Google’s outside counsel, so that outside counsel could then send them to Google. The Special Master held that “This effort at creating the impression of legal advice is not only disingenuous, but fails under established precedent holding that a party cannot cloak otherwise unprivileged material in attorney-client privilege simply by sharing it with legal counsel.” The Special Master deemed this an “attempt to conjure a privilege by detouring [the consultant’s] material through outside legal counsel.”

The Special Master was also unpersuaded by other arguments to shield documents, such as adding “privileged” labels on documents or language in the consultant’s contract stating that their communications were intended to be covered by privilege and work product.

Pointers

Privilege is construed differently in different jurisdictions, narrowly construed in most, and only applies to communications made for the purpose of obtaining legal advice.  Privilege and work product disputes are always fact intensive, and no client or attorney should assume either will apply to just any communication.  Here are a few important points to remember:

  • Simply copying an attorney (in-house or outside) does not make a communication privileged.
  • Merely marking “Privileged” on the face of a document does not make it so.
  • The privilege is for legal advice, not business advice (including campaign messaging). (For example, the Minnesota Supreme Court recently upheld rejecting privilege for a report prepared by counsel, where its predominant purpose was business advice, not legal advice.)
  • As we’ve cautioned before, routinely marking “CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE” on communications may undermine the legitimacy of a privilege assertion.
  • Even if advice is deemed legal advice, if it is broadly disseminated outside the circle of privileged parties, it will likely lose its privileged character.

2021 was a whirlwind! Lawyers have had to be more flexible and resourceful than ever. It is the year that the ups and downs of the pandemic made it abundantly clear that this is more of a marathon than a sprint. While resilience can be invigorating, the challenges are ongoing. The stress of keeping up with the technology needed to facilitate a remote working environment alone can be downright daunting. While the methods of practice are constantly evolving, the standards of ethical and professional behavior are not. The five highlighted stories below illustrate some of the most popular and prevalent issues 2021 had to offer.

Cannabis continues to be a hot trend. We examined some different ways the states were dealing with the ethics issues:

Lawyers beware: NY and GA issue conflicting ethics decisions on representing cannabis clients | The Law for Lawyers Today

Working from home was a major theme in 2021, and it looks like it will be again as we enter the second year of the corona virus pandemic. Many states examined their rules or issued ethics opinions in light of the new demands of remote work.

For lawyers, work-from-anywhere might be the new model: NY and FL developments | The Law for Lawyers Today

Remote work certainly brought new challenges, as lawyers grappled with the necessary technology. A spectacular “cat-astrophe” highlighted the ethical need for competence in this area.

Of cats and competence: legal ethics lesson from the trenches | The Law for Lawyers Today

Social media has forever changed the way lawyers communicate about their legal services, and online reviews will continue to be a minefield. We looked at the issue of responding to negative reviews.

Negative online client reviews: ABA gives some tips for responding | The Law for Lawyers Today

Finally, being professional – with all its various meanings – is a watchword for lawyers always. We highlighted some “don’t let this happen to you” moments in 2021.

“Pervasive incivility” and rule violations spell disbarment for D.C.-area lawyer | The Law for Lawyers Today

Here’s hoping that 2022 brings a year of ethical legal practice plus all good things to you and yours.

A Florida lawyer violated the ethics rules by texting his witness during a deposition, the Florida Supreme Court recently held.  The court imposed an even stiffer penalty than recommended.

Just the facts, ma’am  

In January 2020, the Florida Bar filed its Complaint against the lawyer for conduct during a telephone deposition in a worker’s compensation case.  The Complaint alleged that the lawyer secretly texted his witness (a claims adjuster for the employer), telling her how to respond to questions. During the deposition, claimant’s counsel stated on record that she could hear typing sounds and asked the lawyer if he and the witness were texting. The lawyer denied this, stated he was just receiving a text from his daughter, and indicated he would put his phone away.

Despite the exchange, after questioning resumed, he accidentally sent text messages intended for his witness to claimant’s counsel. Consequently, claimant’s counsel filed a motion for production and in-camera inspection of all texts sent during the deposition. Upon the court’s order, he produced two pages of text messages—none were with his daughter.

Referee’s recommendations

The Bar asserted that the lawyer’s conduct violated the Sunshine State’s versions of Model Rules 3.4 (Fairness to Opposing Party) and 8.4(d) (conduct prejudicial to the administration of justice).  The Referee’s Report reflects that the testimony of the lawyer’s witness was unsworn, because the court reporter refused to swear the witness in due to the deposition being held telephonically rather than by video. The lawyer testified that he reasoned since the testimony was unsworn and opposing counsel did not agree to the identity of the witness throughout most of the deposition, the proceedings would need to be re-done or that the witness would have to testify at trial. The lawyer testified that he incorrectly believed that communicating with the witness during the deposition was not improper, and that in addition, worker’s compensation matters are typically more relaxed than civil litigation when it comes to applying the rules of procedure.

The referee, however, found that the lawyer’s conduct (including his representation that he was just responding to a text message from his daughter) was “misleading and a matter contrary to honesty,” rejected the charge of conduct prejudicial to the administration of justice, and recommended a 30-day suspension.

Dishonesty is “clear from the record”

The Florida Bar sought review of the referee’s light sentence, and the rejection of the charge of engaging in conduct prejudicial to the administration of justice.   The state supreme court found that the lawyer’s dishonesty was ”clear from the record,” and reasoned that the conduct was intended to defeat opposing counsel’s lawful attempts to obtain evidence, including making misrepresentations to hide the conduct.   The court said the conduct in fact was prejudicial to the administration of justice, in addition to being unfair to the opposing party, and boosted the sanction to a 91-day suspension.

Bottom line

The lawyer here alleged to have mistakenly thought that the deposition was an informal proceeding, and that the normal rules did not apply, justifying his texts to his witness.  He then misrepresented the facts when his conduct was noticed.  We are all susceptible to having an incorrect understanding of the law from time to time, but there really is never a good time to relax your ethical standards or your good judgement.  And while each jurisdiction will vary on its rules, no matter where you practice, nothing makes a bad situation worse than being dishonest about alleged misconduct.

Can violating a legal ethics rule qualify as an unfair trade practice under a state’s consumer protection statute?  A Florida district court recently said “Yes.” The question arose in motion practice over the admissibility of expert testimony in a timeshare-exit case.

And then there was one

A group of entities connected to Wyndham Vacation Resorts sued several defendants for inducing and assisting timeshare owners to get out of their contracts with Wyndham – including the lawyer the defendants used to review documents and send letters on behalf of timeshare owners who wanted out of their obligations.  All the claims settled except the ones against the lawyer, including claims that he had conspired to interfere with the timeshare owners’ contracts with Wyndham, and that he violated the Sunshine State’s unfair trade practices Act.  According to the court’s opinion, the lawyer was licensed in California, not Florida.

Wyndham sought to have a legal ethics expert testify on issues supporting its unfair trade practices claim—specifically that the lawyer’s violation of several ethics rules met the definition of unfair and deceptive trade practices under Florida law. The expert’s opinion centered on the lawyer’s noncompliance with the rules of professional conduct, including Florida’s versions of the Model Rules on fee sharing practices, interference by non-lawyers with the professional judgment of lawyers, supervision of non-lawyers and the unauthorized practice of law.

The lawyer moved to exclude Wyndham’s expert’s opinions, arguing that any supposed violation of Florida’s professional conduct rules was irrelevant to the claims against him, particularly the unfair trade practices act claim, and that ethical misconduct could not support such a claim.

Ethics and trade practices

The district court rejected the lawyer’s motion to exclude the expert’s opinions and held that “a violation of a legal ethics rule can potentially qualify as a deceptive act or unfair trade practice” under Florida’s act.  The court noted the statute’s liberal construction, and that under it a claim could be based on any rule or regulation that “proscribes … deceptive or unconscionable acts or practices.”

Further, the court said, while the preamble to the Florida rules notes that they don’t give rise to an independent cause of action against a lawyer, they do establish “standards of conduct by lawyers [; therefore] a lawyer’s violation of a rule may be evidence of a breach of the applicable standard of conduct.”  The Model Rules of Professional Conduct express the same idea in the Preamble at [20].

Here, said the court, Wyndham was not trying to assert a claim for violating the ethics rules, but to use evidence that the lawyer had committed ethical misconduct to support the unfair trade practices claim.  That was legitimate, the court held.

Time to share

While the court cited a Connecticut supreme court case as support for its holding, commentators have noted that the states have taken a variety of positions on whether and how deceptive trade practice and consumer protection acts apply to lawyer conduct.   Ultimately, the court dismissed the case with prejudice on November 23, following a settlement.  However, the take-home here is that the ethics rules can supply the standard of conduct for tort and statutory claims even outside the lawyer discipline rubric.  All jurisdictions now have some version of the Model Rules of Professional Conduct, and therefore your rules likely contain language to this effect.  Thus, your future noncompliance with the Rules of Professional Conduct may not only be scrutinized by discipline authorities, but by a jury as well.

Can a lawyer use an advice-of-counsel defense in a disciplinary case?  The Florida Supreme Court last month accepted the defense, adopting a referee’s report in a case spotlighting the issue.

The lawyer in the case personally guaranteed a loan for his own business venture. Unable to repay the loan, and facing hard-hitting collection methods from his creditor, he filed a Chapter 7 bankruptcy petition.   His failure to disclose a potential bonus from his law firm, arising from nearly $10 million dollars in legal fees, cost the seasoned lawyer years of litigation before he was finally exonerated of ethical misconduct.

Disclose or not? 

The lawyer was required to submit certain bankruptcy schedules to the bankruptcy court prior to discharge.  While his salary and past bonuses were sure predictors of future income, he was unsure of the exact amount that he would receive from the nearly $10 million dollars in fees he generated for his firm and whether the bonus should be disclosed on the schedules.

The lawyer relied on his bankruptcy attorney’s advice and did not disclose the discretionary bonus.  The bankruptcy court denied the discharge based on the failure to disclose the bonus.  The Florida district court later affirmed and referred the matter to the Florida Bar.

Disbarment recommendation

The formal disciplinary complaint alleged that the lawyer purposely failed to disclose the bonus in the sworn schedules, in violation of Florida’s version of Model Rule 3.3(a) (“Candor Toward the Tribunal”) and 8.4(c) (barring dishonesty, fraud, deceit and misrepresentation), among other rule violations, and sought his disbarment.

The lawyer’s defenses included his reliance on his bankruptcy attorney’s advice that he was not required to disclose the potential discretionary bonus.  The initial disciplinary panel recommended an 18-month suspension, but the Florida Supreme Court remanded and ordered reconsideration of the advice of counsel defense.

At the rehearing, the lawyer provided evidence that he did not have even a basic understanding of bankruptcy law and completely relied on his bankruptcy attorney.  His bankruptcy attorney likewise testified that “although Respondent is an experienced civil litigation attorney, he was a bab[e] in the woods when it came to bankruptcy law.”  Evidence showed his bankruptcy attorney’s advice was unambiguous— that the lawyer did not have to disclose the discretionary bonus on the sworn schedules as the bonus would have been the property of the law firm until the firm awarded him the bonus.

Exoneration based on advice of counsel

Ultimately, the Florida Supreme Court exonerated the lawyer of ethical misconduct, adopting the hearing referee’s finding that there was no clear and convincing evidence that the lawyer submitted the schedules with the intent to mislead the trustee and creditors, and no evidence that he did not act in good faith reliance on his attorney’s advice.  Rather, the lawyer was found to have reasonably relied on his attorney’s advice.

Takeaways

We have considered the advice of counsel defense before, when an Illinois attorney asserted the defense after he failed to disclose to a court the fact that his client had died 8 months before the start of settlement negotiations.  There, the court rejected the defense where the lawyer asserted that his law partners had advised him that his ethical duty of confidentiality barred him from disclosing the death, although the court gave the circumstances mitigating weight.

The difference is that the Florida lawyer was held to have reasonably relied on advice of counsel in a substantive area of law he was totally ignorant of, while lawyers (like the Illinois lawyer above) are presumed to know the legal ethics rules. Thus, the Florida lawyer’s defense was exonerating, rather than mitigating. You cannot simply pass on the responsibility of knowing your ethical duties by seeking the advice of counsel; however, reliance on that advice could certainly be a mitigating factor.

Although the distinction may seem small, it could be the difference between being found guilty of misconduct or avoiding being disciplined altogether.

“Pervasive incivility” was part of a package of wrongdoing that resulted in disbarment for a D.C.-area lawyer last month.  The case sheds light on the potential, and very real, downsides when lawyers depart from professional conduct ideals.

Client authority lacking

The lawyer was admitted in Maryland and D.C., as well as Virginia, and his troubles arose from representing a plaintiff in a Fair Debt Collections Practices Act action in Virginia federal district court.  According to the Maryland grievance commission’s petition, the lawyer entered into an agreed disposition in which his Virginia license was revoked; the Maryland Court of Appeals then imposed the same discipline in August.  Law.com recently had the story here (subs. req.).

What got the lawyer into such hot water that he was disbarred in both jurisdictions?  Litigation misconduct with an add-on of unprofessionalism.

According to the lawyer’s stipulations in the Virginia disciplinary case, he filed the FDCPA suit on behalf of the client against two lawyers for American Express, who were trying to collect the client’s past-due AmEx account.  The lawyer later stipulated that he had prepared the FDCPA complaint without consulting with his client.  He also admitted that he failed to convey an offer to the client that would have settled the case because “it did not include sufficient attorneys’ fees for [the lawyer’s] benefit.”

After rejecting the offer without the client’s authority, the lawyer then made a counter-demand — also without authority — that he characterized as his “standard demand,” since he “simply had no time to do customized demands in such cases.”

The client later testified at his deposition in the FDCPA case that he had no further interest in pursuing the litigation against the AmEx lawyers, and admitted that the suit was unjustified, since he had no legal injury.  At the conclusion of the deposition, he fired his lawyer and settled with the defendant-AmEx lawyers.

The misconduct formed the primary basis for stipulations that the lawyer had violated Virginia’s versions of Model Rules 1.2 (scope of authority between client and lawyer); 1.4 (communication), 3.1 (meritorious claims and defenses) and 4.1 (truthfulness in statements to others).  The Maryland court of appeals identified its own versions of the same rules.

“Unreasonable, bordering on the malicious”

Against this background, the Maryland and Virginia authorities also noted the lawyer’s lack of professionalism.  The parties stipulated that in his pursuit of the client’s FDCPA action, the lawyer threatened to bring bar complaints against both the defendant-AmEx lawyers, and their counsel.  He also  opposed counsel’s pro hac vice admission without a good faith basis.

In addition, the lawyer engaged in “pervasive incivility” in the Virginia disciplinary case itself, said the disciplinary board, including “disrespectful conduct toward the tribunal” and “threatening outbursts both inside and outside the courtroom.”  The district court magistrate judge in the underlying FDCPA case said that the lawyer’s conduct toward the defendant-AmEx lawyers and their counsel was “unreasonable, bordering on the malicious,” and that his “apparent distaste for his opponents spawned a host of unnecessary motions” that increased the litigation’s cost and wasted the court’s time.

The district  court, adopting the magistrate’s recommendation, ordered the lawyer to pay more than $84,000 in attorneys’ fees and costs incurred by the AmEx lawyers — this on top of the license revocations in the two jurisdictions.

Professionalism pointers

The Rules of Professional Conduct in your jurisdiction constitute a “floor.”  That is, if you conform your conduct to those Rules, you should not be disciplined for ethical misconduct.  But in addition, there is the matter of acting professionally.  Here, the outcome involved both rule violations and a lack of professionalism.  Even if you have “distaste” for your opposing counsel, as the lawyer here apparently did, if you let it affect your judgment to the extent of making threats, filing frivolous motions, disrespecting the court and having “outbursts,” your license and your pocketbook might both be at risk.

Ethics authorities in New York and Georgia recently issued opposing opinions on whether lawyers can represent clients in navigating what Justice Clarence Thomas last month called the “half-in, half-out regime” related to both recreational and medical marijuana, “a contradictory and unstable state of affairs” that “conceals traps for the unwary.” The issue, which we have commented on before here and here, is of course that cannabis remains illegal under federal law, while numerous states have liberalized their approaches to the drug.

Expanding counseling opportunities in NY

On July 8, 2021, following New York’s enactment of legislation legalizing recreational cannabis for adults, the New York State Bar Association gave attorneys the green light to counsel clients in the recreational marijuana industry. Similar to its prior opinions in 2014 and 2019 (post here) approving of attorneys counseling clients in the medical cannabis industry, the NYSBA focused on the federal government’s almost non-existent enforcement of marijuana laws in states that have legalized either medical or general adult-use marijuana.

Rule 1.2(d) of the New York Rules of Professional Conduct, like the analogous Model Rule, prohibits lawyers from assisting clients in illegal conduct. The NYSBA found that the federal enforcement policy created a “highly unusual and unique circumstance” and that the prohibition in Rule 1.2 was not intended to “preclude lawyers from counseling or assisting conduct that is legal under state law or to provide assistance that is necessary to implement state law and to effectuate current federal policy.”

The NYSBA further opined that lawyers may use state-legal marijuana and, so long as they otherwise comply with Rules 1.7 (conflicts) and 1.8(a) (business transactions with clients), they may accept equity ownership in a cannabis business as payment for legal services.

Not peachy in the Peach State?

The NYSBA’s opinion comes on the heels of the Supreme Court of Georgia taking the exact opposite position in its June 21, 2021 order denying a motion to amend Rule 1.2(d) of the Georgia Rules of Professional Conduct. The State Bar of Georgia had sought to amend Rule 1.2 to allow lawyers to assist clients in state-legal cannabis business, including the growth, manufacture, and sale of low-THC oil, which Georgia legalized in 2015.

In denying the motion, the Supreme Court of Georgia relied on the federal illegality of cannabis and held that passage of state laws permitting and regulating conduct that is still a federal crime does not change the long-standing prohibition against “counseling and assisting clients in the commission of criminal acts.” The court also noted that the requested amendment to Rule 1.2 would not necessarily be limited to state-legal low-THC oil, but “might well apply to a wide range of conduct constituting a crime under federal law that simply has no corollary state criminal sanctions,” perhaps hinting that it might leave the door open to a more-focused amendment.

Balancing act for lawyers

While Georgia’s position appears to be in the minority, the opposing opinions demonstrate the cannabis balancing act that state ethics authorities have tried to perform. While a few states, including Oklahoma, South Dakota, and Mississippi, have not allowed an exception to Rule 1.2 to enable attorneys to advise cannabis clients, others have taken positions similar to New York’s, either through advisory ethics opinions or formal amendments to their state ethics rules. For example, Alaska, Colorado, Hawaii, Pennsylvania, Ohio, Oregon and others have amended Rule 1.2 to allow attorneys to counsel clients in state-legal conduct, including state-legal marijuana business. (The International Cannabis Bar Association has a chart with an overview of jurisdictions and their approaches here.)

If you are considering counseling a cannabis client, you should be familiar with the relevant jurisdiction’s position on cannabis and Rule 1.2. Unsurprisingly, many commentators note that lawyers are simply ignoring ethics opinions that prohibit advising cannabis clients and some expect that will be the case in Georgia as well. That seems risky. While it is unclear whether lawyers have yet faced disciplinary consequences for violating state ethics rules related to cannabis clients or will in the future, this is a continually developing area that requires caution.