Here’s a newsflash:  you can’t defend yourself against a client’s bad online review by revealing client confidential information, as the ABA Ethics Committee reminded us in an opinion last week.

We’ve recently reported on the Oklahoma lawyer who was disciplined for his rogue consultant’s conduct in connection with an online review; a New Jersey lawyer who was disciplined for responding to a client’s online review by posting a bad Yelp review of his own, which revealed client information; and a Massachusetts lawyer who was disciplined for disclosing client information on Facebook.

No “self-defense”

If these cautionary tales were not enough, the ABA now has removed all doubt, with its guidance that the “self-defense” exception to the duty of confidentiality does not support revealing client information in response to an online review.

Model Rule 1.6(a), adopted in some form in all U.S. jurisdictions, bars disclosing “information relating to the representation of a client.”  That’s a very broad prohibition, and of course covers much more territory than just information that would come under the attorney-client privilege.

What the ABA has now made crystal clear is its view that the confidentiality exception expressed in Model Rule 1.6(b)(5) does not apply here.  The “self-defense” exception covers three situations that can entitle you to disclose otherwise-confidential information:

  • establishing a claim or defense in a lawyer-client controversy;
  • establishing a defense to a criminal or civil charge based on conduct in which the client was involved; and
  • responding to allegations in “any proceeding concerning the lawyer’s representation of the client.”

In its latest Opinion 496, however, the ABA flatly rules out applying these exceptions to permit any degree of confidential information disclosure in response to online reviews:  “A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule.”

The ABA specifically shot down any notion that the world of online reviews would fall into the third, catch-all exception for “any proceeding concerning” representing a client, saying that “online criticism is not a ‘proceeding,’ in any sense of that word, to allow disclosure under [that] exception…”

What’s a lawyer to do?

Instead of firing  back and risking your license, the ABA has several good recommendations on what you can do:

  • consider not responding — after all, doing so “may draw more attention to [the bad review] and invite further response from an already unhappy critic.”
  • ask the website or search engine to take down the adverse information;
  • if you do choose to respond online, don’t disclose “information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another.”
  • post an invitation for your critic to contact you privately to resolve the matter;
  • post a response saying that “professional considerations preclude a response.”

Any of these would be a better alternative than responding in the numerous ways that have gotten lawyers into trouble.

Commentators such as Prof. Alberto Bernabe, over at the Professional Responsibility Blog, have noted that the latest opinion does not break any new ground.  Nonetheless, it is a valuable reminder about avoiding risky online behavior, with some good how-tos.

The scope of the “no-contact rule” — barring a lawyer from communicating with represented persons — is spotlighted in a disqualification ruling that a Florida district court handed down earlier this month.  The opinion is a reminder that the prohibition against contact (without permission of the person’s counsel) extends only to “the subject of the representation.”

“Did not discuss Plaintiff’s case…”

The plaintiff sued the defendant collection agency in the Middle District of Florida for allegedly violating the federal Fair Debt Collection Practices Act; she was represented by the Agruss Law Firm.  In early November, according to the collection agency, Agruss employees contacted it twice, even though the firm knew that the collection agency was represented by counsel in the plaintiff’s case.

Based on Florida’s version of Model Rule 4.2, “Communication with Person Represented by Counsel,” the collection agency demanded that plaintiff’s counsel be disqualified based on the phone contacts.

Not so fast, responded the Agruss firm.  The law firm explained in its brief in opposition to disqualification that it frequently represents plaintiffs in FDCPA actions.  It acknowledged that on one of the dates in question a paralegal of the firm had phoned the collection agency — but it submitted unrebutted affidavit evidence that the call did not relate to the plaintiff’s case in the Florida action.  Rather, said the law firm, its paralegal had called the collection agency in order to investigate a potential FDCPA claim against the collection agency by a completely different person.  The law firm later filed a separate complaint in the Northern District of Texas against the collection agency on that person’s behalf.

A second call to the collection agency was made a few days later by a principal of the Agruss firm, who simply listened to the agency’s outgoing voicemail message, and who never spoke to anyone at the agency, according to a second affidavit.

Based on this evidence, the district court denied the plaintiff’s motion to disqualify the Agruss firm, holding that there had been no violation of the “no-contact” rule.

Must be “about the subject of the representation”

Florida’s Rule 4-4.2, like its Model Rule counterpart, provides that in representing a client, a lawyer “must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter,” without the consent of the other lawyer.

Although the evidence showed that the Agruss firm had contacted the defendant collection agency directly, the court said, it was about a completely different case.  Therefore, the contact was not “about the subject of the representation,” as would be necessary in order to demonstrate a violation of the rule, according to the court.

Some “no-contact rule” basics

The law firm in this case was on the right side of the no-contact rule.  As comment [4] notes, it does not bar “communication with a represented person, …  concerning matters outside the representation. ”  But  there are some fine points about Rule 4.2 (set out in the comments) that you should keep in mind, including:

  • The rule applies even though the represented person initiates or consents to the communication.
  • You may not make a communication prohibited by the no-contact rule through the acts of another. (See Model Rule 8.4(a).)
  • “Parties to a matter” may always communicate directly with each other, even though they are represented by counsel.

What about business entities?  There is a large body of cases and ethics opinions regarding contacts with current and former employees of entities.  In general, under the Model Rules’ approach, counsel for an entity can’t assert blanket representation of all the employees so as to bring them within the scope of the no-contact rule and keep opposing counsel from contact with them.  (See ABA Formal Eth. Op. 396 (July 28, 1995).)  On the other hand, contact is improper with “a constituent of the organization” who “regularly consults with the organization’s lawyer concerning the matter or … whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”  In contrast, as comment [7] notes, former employees of an organization are generally fair game (unless represented by their own counsel).

Seek advice if you have a no-contact rule issue.  And as we frequently say, this is an area where you need to pay attention to the relevant jurisdiction’s rules and opinions.

An Oklahoma lawyer was suspended last month for two years based on misconduct involving an unlawful response to a bad on-line review of the lawyer’s services.  The disciplinary case is a lesson in being careful about who you’re dealing with when you hire a consultant, and also about not doubling down when confronted with a potential problem.

Social media consultant goes rogue

According to the Oklahoma Supreme Court’s opinion, after the contentious breakup of his prior firm, the lawyer started his own firm and needed a new website.  He hired a tech consultant to advise him on the website and “online reputation management.”  The consultant advised the lawyer to search for his own name online to see what results appeared.  After finding an article on RipoffReport.com that described the lawyer as “a criminal,” he asked the consultant “how we can get rid of it.”  The consultant replied that such negative articles could be “de-indexed.”  The lawyer exchanged another email with the consultant, asking for the IP address of the “Ripoff page.”  According to the court’s opinion, Ripoff Report publishes online consumer reviews of businesses.

Six days later, the consultant emailed extortionate threats and initiated a flood of emails to the computer servers of Ripoff Report and its Arizona counsel.  The inundation impaired the servers of the company and its lawyers so badly that their data became inaccessible.  The consultant threatened that if the page criticizing the lawyer was not removed within four hours, “we will begin targeting your advertisers” to get them to “pull their ads.”

Faced with the imminent crash of the servers, Ripoff Report’s lawyers reached out to the lawyer and in a tape-recorded call asked him if he knew who was responsible for the threats regarding the negative content about him.  The lawyer denied all knowledge, even when Ripoff  Report’s lawyers suggested exactly what happened — that he had hired someone innocently to help him, not knowing that their way of “helping” would be unlawful.  As the court wrote, instead of taking the opportunity to confirm the truth, the lawyer “doubled down.”

The lawyer paid the consultant even after the consultant described his methods and touted the success of the extortion, the court said.

Months later — spoiler alert — the lawyer learned who had placed the derogatory review on Ripoff Report:  the consultant himself.  The lawyer went to the FBI and reported the consultant, but portrayed himself as a victim, and failed to provide the FBI with two incriminating emails.  The court said that the lawyer “accepted and helped conceal the fraud when he believed it was carried out to his benefit and then reported it only after learning the scheme was against him as well.”

Following the FBI investigation, the lawyer eventually pled guilty to three federal criminal misdemeanor charges, paying more than $425,000 in fines and restitution but avoiding jail time.

Protection of interests “to the detriment of others”

Model Rule 8.4(b) as adopted in the Sooner State makes it professional misconduct to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.  Model Rule 8.4(c) bars engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.  The panel hearing the disciplinary complaint against the lawyer for these violations recommended a one-year suspension, but the supreme court imposed a two-year-and-a-day suspension with no automatic reinstatement, finding that the lawyer paid the consultant after “fully appreciating the criminal nature of his conduct” and that his misrepresentations were made to protect his own interests “to the detriment of others.”

Take-aways

Responding to unfavorable on-line reviews continues to be a source of grief to unwary lawyers.  Here, an innocent situation — trying to manage his on-line image — spun out of control for a lawyer who was taken in by a consultant who essentially conned him.  But like Mom always said, things only get worse when you don’t face them, and here, the lawyer made things worse when he doubled-down and lied when initially confronted with the havoc the consultant had wrecked.  Good lessons for us all.

In a narrow ruling last month by a sharply-divided West Virginia high court, a law firm escaped liability for failing to prevent a phishing/spoofing scheme that resulted in more than $266,000 in closing funds being wired to scammers, after they impersonated plaintiffs’ real estate agent.  The opinion is part of the developing law on lawyer liability for cyber-scams.

Diverted e-mails spell trouble

Plaintiffs wanted to relocate to West Virginia and contracted with a real estate agent, who worked for a broker.  A cash deal was made for a house, and Catrow Law was retained to handle the closing.

Leading up to the closing, Catrow sent settlement fund wiring instructions to the real estate agent via encrypted email, identifying the account name where the purchase money was to be transferred as “Catrow Law Real Estate Trust Account,” with account and routing numbers for an account at a West Virginia bank.

The agent printed out the wiring instructions, scanned them, and sent them to the plaintiffs via unencrypted email.  After that, things went seriously wrong.

An email purportedly from the real estate agent to plaintiffs started a series of emails that actually went back and forth between the plaintiffs and scammers.  The plaintiffs didn’t notice that every time they replied to the emails, their replies went to lfrurn@gmail.com rather than lfrum@cbimove.com.

It was undisputed that Catrow wasn’t part of the fraudulent email chain; in fact, the firm only communicated with the plaintiffs through the real estate agent.

The day before the closing, the scammers sent new wiring instructions to plaintiffs, directing the funds to a bank in Albany, New York and a different account name, account number and routing number (rather than the Catrow firm’s).

The plaintiffs obediently wired the cash to the scammers’ account.  Next day, at the closing, a Catrow lawyer notified the parties that the funds hadn’t been received in the Catrow escrow account, and it became apparent that plaintiffs had been victimized.  The scammers were never identified, and the funds were never recovered.

Sympathy for plaintiffs… but no breach of duty

Plaintiffs sued everyone involved, and after the real estate agent and broker settled, only the Catrow firm was left in the suit.  The trial court granted the firm’s motion for summary judgment, holding that plaintiffs failed to raise any material fact issue on the issue of duty.

On a narrow 3-2 vote, the justices of West Virginia’s high court agreed.  (The Mountain State does not have an intermediate court of appeals.)  While the majority said it sympathized with the plaintiffs, it ruled that they “were unable to establish that [the law firm] breached any duty owed to them.”

Plaintiffs had proffered a Maryland lawyer as an expert witness to testify that the law firm departed from the standard of care by not making personal contact with the plaintiffs to confirm the closing instructions, and by not ensuring that the emails between the real estate agent and the plaintiffs were secure.  The court, however, upheld the exclusion of plaintiffs’ expert because he disclaimed any ability to opine based on West Virginia law.

The plaintiffs also argued that the firm had a duty to warn them about the prevalence of wire fraud schemes and to caution them to not take any action before confirming that wiring instructions were legitimate.  This duty arose, plaintiffs asserted, because the firm was a title agency and knew of the danger of phishing scams based on alert bulletins that its title company had sent to the firm.

The court’s majority rejected this argument, pointing to plaintiffs’ failure to adduce in opposition to summary judgment any evidence that the Catrow firm had actually received any such warning bulletins.  Without such evidence, the court ruled, plaintiffs failed to raise an issue of material fact.

In a footnote, however, the court cautioned that it was not determining whether receiving the scam warning bulletins would have raised the duty that plaintiffs were arguing for.  And the court did not consider whether there could be any other source of duty that could give rise to liability on the law firm’s part.

Watch out

While the law firm here escaped liability, scams that bump up against your legal work are dangerous.  On different facts or different reasoning, malpractice theories of recovery can’t be ruled out.  As a 2015 New York City Bar Association ethics opinion has noted,  banks have also sued lawyers for lost funds caused by counterfeit checks, and some insurers have refused to indemnify scammed lawyers.

We’ve posted before here and here about the ethical duty of competence as it relates to technology.  Model Rule 1.1 includes a comment pointing to a duty of technological competence; three-quarters of U.S. jurisdictions have now incorporated that comment into their rules.  And of course, the ethics rules can be considered by courts as defining the standard of care in a malpractice suit.  (Model Rules, Scope, § 20.)

All this gives plenty of reasons to redouble your efforts to avoid cyber-scams.  Here are some tips on protecting yourself, including the need to watch for phishing.

With the coronavirus pandemic surging across the US and around the world, my family, along with millions of other Americans, will be sacrificing our usual Thanksgiving celebration in order to stay safe and to help prevent the spread of COVID-19.  If you’re a lawyer who’s in the same boat, I hope that, like me, you still can find things to be thankful for, including your membership in our profession.

I don’t want to sound too much like a Pollyanna, but I continue to find many things about the legal community that make me proud and grateful.  In my own Buckeye State, for instance, more than a thousand lawyers served as poll workers on Election Day.  Nationwide, when the pandemic hit, nurse-attorneys left their offices and helped with front-line care-giving.  And some law-firm competitors teamed up to deliver innovative client service in areas hit hard by the virus.

In past Thanksgiving messages, we’ve pointed out what a privilege it is to be a lawyer and the gratitude that should go along with our status:  for our skill and training; the opportunity to do work with purpose; our ability to change society; the chance to help others and to grow ourselves.

All that continues to be true — and even more so, as our nation has been tested in recent months.  Whatever our political persuasion, we can be grateful that we live in a nation where the rule of law has maintained its grip.

Let’s give thanks for the rule of law and our role as lawyers in upholding it.  And let’s hope that next Thanksgiving we can gather with all our dear ones again.

Needing to adjust the basis of your legal fee mid-stream is a fairly common occurrence.  When a matter becomes more complicated than you originally contemplated,  or for other reasons, the fee agreement you entered into with the client at the beginning may become unworkable before the matter is over.

But renegotiating fees with an existing client is not the same as reaching terms on the original arrangement.  Such adjustments can be considered a “business transaction” with a client — requiring written informed consent under state versions of Model Rule 1.8(a) — and determining when the rule applies is not always straightforward.  A recent opinion from the Fifth Circuit in Wiener, Weiss & Madison v. Fox sheds some light, and warns that failure to comply with Rule 1.8 when required can void a fee agreement.

Show me the money

Rule 1.8(a) prohibits “enter[ing] into a business transaction with a client or knowingly acquir[ing] an ownership, possessory, security or other pecuniary interest adverse to a client” without fulfilling three requirements:

  • the transaction must be fair and reasonable to the client and fully disclosed to the client in writing;
  • the client must be advised in writing that it would be desirable to seek advice on the transaction from “independent legal counsel,” and given a reasonable opportunity to do so;
  • the client must give informed consent, “in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.”

The client in Wiener was in the midst of a messy divorce in Louisiana when a receiver was appointed over the couple’s significant assets, consisting of “state-licensed gaming enterprises.”  After her husband declared bankruptcy, the client hired the Wiener firm, which originally agreed to represent her on an hourly basis, payable from the bankruptcy estate.  A year later, the bankruptcy court approved over $1.2 million in fees to the firm.

With more work to be done, the firm and the client agreed on a contingency fee for the firm’s ongoing representation:  up to a 35 percent interest in the gross proceeds the client might receive for claims against the estate and as an equity owner of the estate.

Three years after that, the bankruptcy court approved a reorganization plan, and the firm informed the client that if she “wanted them to stay on,” she had to “increase the contingency percentage.”  The client signed a new agreement in 2013 upping the contingency fee to 40 percent.

Finally, in 2016, the client received full ownership of the gaming enterprise out of the bankruptcy, and the firm proposed revising the fee arrangement once again — apparently sweetening the deal for the firm and making its fee come solely from distributions of cash or property to the client.

For the first time, the firm recommended that the client seek independent legal advice about whether to execute the new, eleven-page contingency agreement.  The client took that advice, and independent counsel advised against signing the agreement.

The firm eventually sued the client to enforce the contingent fee agreement.  In response, the client asserted that the firm’s claims were barred because the later agreements violated Rule 1.8(a).

The district court disagreed, reasoning that the revised fee agreement was not a “business transaction” under Rule 1.8 because it conveyed only a contingent claim to proceeds of the bankruptcy estate.

Business transaction — or not?

Reversing the district court, the Fifth Circuit agreed with the client, voiding the contingent fee agreements.

The reason for the the business-transaction rule, wrote the court, is to prevent conflicts between the client’s interests and the lawyer’s own financial interests.  “[S]uch potential conflicts are rarely more present than during a contingency fee relationship where the attorney seeks to gain a property interest in the client’s business at the end of the representation.”  It matters not, the court said, that a contingency agreement by its nature provides for a future interest.

The court cited other cases in jurisdictions “from sea to shining sea” to support its decision, as well as the ABA’s Formal Opinion 00-418 (July 7, 2000) (advising that lawyers can invest in clients, including stock in lieu of fees, but must comply with Rule 1.8(a)).

Bottom line for the law firm:  both of its executed fee agreements with the client were void and unenforceable for failure to advise the client to get independent counsel before entering into them.  The court remanded and the firm is now likely consigned to a quantum meruit recovery.  (A motion for rehearing was denied.)

Takeaways and unanswered questions

  • Before renegotiating fees with an existing client, you must consider whether Rule 1.8(a) applies.
  • If a new fee arrangement might advantage you or your firm — either increasing the amount of the potential fee or the certainty of receiving it — you risk having the arrangement voided if Rule 1.8 is not followed.
  • As always, local conditions count.  Consult case law, rules and ethics opinions in the jurisdiction at issue.

This case deals with specific circumstances – an unsophisticated client and substantial economic advantage to the firm from the new agreement.  But the opinion suggests that any new agreement with an existing client can be a “business transaction.”  If so, then:

  • Does Rule 1.8 apply to new matters for existing clients?
  • Does Rule 1.8 apply to fee increases on existing matters?
  • Does it make a difference who the client is?

Again, these answers may vary greatly based upon local rule and precedent.  No matter what, it is important to consider these issues and address them before moving forward.

The plaintiff’s lawyer in a slip-and-fall case got a pandemic-based pass from the Sixth Circuit Court of Appeals last week, avoiding sanctions that the defendant requested after the lawyer misstated the record.  The lawyer had based the plaintiff’s appeal argument on an unsigned interrogatory answer that appeared only in a draft.

But the court in its opinion said that although the conduct was improper, it would exercise its discretion and not impose sanctions.  The conduct was “concerning,” said the court, but it would give the lawyer the “benefit of the doubt” absent bad faith, because Michigan’s COVID-19 stay-at-home order was in effect when the lawyer filed the appeal on behalf of the plaintiff, “which may have limited her attorney’s access to the record.”  (The court did not recommend its opinion for publication.)

Evidence “not part of the record at all”

The district court had granted summary judgment in favor of the defendant department store on the plaintiff’s injury claim.  On appeal, her lawyer’s central argument was that the court  below ignored evidence that the store had posted “Wet Floor” warning signs near where the plaintiff had fallen.

However, the argument was based solely on an unsigned draft interrogatory answer that mentioned the signs — but that never became part of the record below.  The only evidence of record was the signed final version of the interrogatory answers, which did not mention the warning signs.

The lawyer was aware of the discrepancy because the defendant’s counsel brought it to his attention during a deposition.  Nonetheless, the lawyer “quoted the unsigned, draft version” in the plaintiff’s briefing in the district court and “perpetuated that error on appeal,” although the unsigned draft “was nowhere else to be found in the record.”

After the department store brought the mistake to light again on appeal, the lawyer “doubled down,” wrote the court, “insisting that [the court] should now expand the record and reverse based on an unsigned interrogatory that the district court had no authority to consider.”

Exercise of judicial discretion in a pandemic

Despite this conduct, the court declined to sanction the lawyer under Federal Appellate Rule 38 (“Frivolous Appeal”) or 28 U.S.C. § 1912 (“Damages and costs on affirmance”).   While sanctions are appropriate under 28 U.S.C. §1927 for lawyer conduct that “falls short” of the obligations owed to the court and causes expense to the opposing party, the court wrote, “We appreciate that these are trying times.”

The imposition of sanctions for frivolous conduct on appeal is discretionary, and although the lawyer’s actions “might have been unprofessional and serous enough to meet the standard for imposing sanctions,” the court chose not to do so, citing the lack of bad faith and the Michigan stay-at-home order that in the court’s view could have limited the lawyer’s access to the record.  Under the circumstances, the lawyer did not present the kind of “truly egregious” misconduct that would justify sanctions, the court wrote.

Don’t try this at (stay-at) home

We recently posted about a New York ethics opinion permitting lawyers to withdraw from representation based on their fear of COVID-19 infection.  Courts are likewise grappling with lawyer-conduct issues raised or affected by the corona virus, and we are sure to see more such instances.  While the lawyer here avoided sanctions, the court noted that the lawyer’s “obstinance makes the case … close.”  It goes without saying that the evidence you cite on appeal must actually be in the record.  The court here truly extended a COVID-19 lifeline.

Hat tip to Prof. Doron Kalir, of Cleveland-Marshall College of Law, who called this opinion to my attention.

Legal malpractice plaintiffs fended off motions to dismiss for lack of personal jurisdiction in two separate cases, in two different jurisdictions, under opinions that happened to be filed on the same day last week.  The opinions, from a New Jersey state appeals court and a North Carolina federal district court, stand as a warning to lawyers:  in a later malpractice suit against you, your conduct in the underlying case can be viewed as “purposeful availment,” potentially creating personal jurisdiction over you and forcing you to defend yourself away from your home court.

Mississippi lawyer haled into New Jersey court

The New Jersey case involved a Mississippi lawyer who was engaged in the underlying medical-license revocation case by a New Jersey physician.  The Mississippi lawyer was admitted pro hac vice in New Jersey federal district court and prepared numerous pleadings that were filed in the underlying case there by New Jersey-admitted local counsel.  Although the lawyer never physically came to the Garden State in connection with the underlying case, he participated in at least one telephone conference with the district court judge.

The totality of these circumstances, the state court of appeals held, was sufficient to constitute purposeful availment of the privilege of conducting activities in New Jersey, thus meeting the minimum-contacts requirement necessary for the court to exercise jurisdiction over the lawyer.

The lawyer argued, among other things, that the malpractice plaintiff failed to establish purposeful availment because the plaintiff solicited the lawyer’s representation, not vice versa.  In affirming the trial court’s denial of the malpractice plaintiff’s motion to dismiss for lack of personal jurisdiction, the appeals court rejected that argument, writing that “while solicitation in the forum state may demonstrate purposeful availment, the lack of solicitation is but one factor to consider in deciding whether an out-of-state attorney purposely availed himself of the forum state’s jurisdiction.”

New Jersey lawyer haled into North Carolina court 

In North Carolina, the district court came to the same basic conclusion as the New Jersey appeals court, under some different facts.  There, a North Carolina client retained a firm with offices in Pennsylvania, New York and New Jersey to defend against claims asserted against the client in the underlying trade secrets case in Pennsylvania district court.  The lawyer who handled the case day to day lived and was licensed in New Jersey.  After a four-year long battle, the client lost at a bench trial, and later sued for malpractice in North Carolina.

Accepting a magistrate judge’s recommendation, and noting a split in the Fourth Circuit, the district court denied the lawyer’s motion to dismiss for lack of personal jurisdiction.  Like the New Jersey state court of appeals, the North Carolina district court considered the purposeful availment factor and found it satisfied, including based on counsel’s four years of “extensive” communications with the North Carolina client, and the fact that the representation included hiring local North Carolina counsel, who provided “substantial and ongoing assistance in the [underlying] litigation.”

Although representing an out-of-state client is not alone sufficient to establish purposeful availment of the privilege of conducting activities in the forum state, the court wrote, the entire course of dealing satisfied the requirement.  Especially salient was the action of engaging North Carolina local counsel:  in doing so, the lawyer and his firm “plainly reached into North Carolina to conduct their business.”  They also defended numerous depositions in the underlying case in North Carolina, the court noted.

Spotlight on jurisdiction

These two opinions, coincidentally released on the same day, spotlight the purposeful availment requirement and how your conduct in underlying litigation away from your home turf or simply in representing out-of-state clients in your home court can meet it.

One noteworthy aspect of both opinions is that each gave at least a nod to the due-process requirement that being compelled to defend in a foreign jurisdiction be consistent with “fair play.”  But as the New Jersey appeals court put it, “Having to defend oneself in a foreign jurisdiction will almost always entail some measure of inconvenience, and the burden only becomes meaningful where defendants can demonstrate some special or unusual burden.”

A good ALR article collects the cases, including some that, based on particular facts and factors, hold differently from the two issued last week.  See Marjorie Shields, Annot., In Personam Jurisdiction, under Long-Arm Statute, over Nonresident Attorney in Legal Malpractice Action, 78 ALR 6th 151 (2012).

Can you ethically withdraw from representing a client if you fear contracting COVID-19 as a result of some aspect of the representation?  Earlier this month, the New York State Bar Association issued an ethics opinion that said “Yes,” provided that the lawyer gets any necessary permission from a tribunal.  While advisory for New York lawyers only, the brief opinion has a straightforward analysis that other jurisdictions could adopt.

“Mental or physical condition”

The inquiry that the NYSBA committee considered came from a lawyer representing a client in immigration court proceedings, where the court did not yet have any COVID-19 safety protocols in place, but was nonetheless scheduling in-person appearances.  The lawyer was “concerned that appearing in person presents a substantial health risk for the inquirer and, by extension, the inquirer’s family.”

New York’s Rule 1.16(c)(9), on withdrawal, differs from the ABA Model Rule.  The New York Rule permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.”  In contrast, Model Rule 1.16(a)(2) mandates withdrawal when ” the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client,” but contains no permissive off-ramp that is similar to New York’s.

The NYSBA committee, applying the Empire State’s more flexible rule, identified several examples of how the inquirer’s fear of iinfection could possibly undermine the effectiveness of the representation:

  • reluctance to spend time in person with the client sufficient to understand the case and communicate the client’s options;
  • willingness to “consent prematurely” to some outcome in order to end the proceeding faster;
  • hastening to complete the tribunal’s required in-person hearing in order to limit potential viral exposure, perhaps without calling witnesses or maybe waiving cross-examination.

Any of these influences to which the inquirer would be susceptible, said the committee, would satisfy the standard for permissive withdrawal.  As always, the committee emphasized, if a tribunal requires permission for withdrawal, the lawyer must seek it.

Realistic concern

How realistic is the concern expressed by the inquirer in this ethics opinion?  Commentary out of New Jersey last week reported on a 68-year-old lawyer who attended a then-required in-person immigration hearing in June, contracted COVID-19 and died — and the lawyer’s successor counsel, who was required to be together with the client at a subsequent virtual proceeding, also contracted COVID, along with the lawyer’s spouse.

Unlike the situation presented by the NYSBA inquirer, many hearings are now virtual, and it would seem exceptional at this point for a courthouse not to have COVID-protection protocols in place.  But concerns clearly remain.

ABA, others, also weigh in

In April, as the first U.S. wave of COVID-19 was making itself felt, the ABA pointed to its previous 2018 opinion on lawyering in a “disaster,” and particularly the requirement that a lawyer withdraw if a mental or physical health concern “materially impairs” the ability to represent the client.  (We also commented on the “disaster-lawyering” opinion.)

Other jurisdictions (e.g., Florida, Indiana, Oregon,, Utah) have also at least considered the withdrawal issue in light of the pandemic (particularly if the lawyer should become ill), though without putting out ethics opinions.

And at least one other jurisdiction — California — has a variation on the “difficult representation” language that, effective June 1, 2020, actually mandates withdrawal if a California “lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively.”

In addition, of course, Model Rule 1.16(b)(7) (and analogous rules in in other jurisdictions), is a catch-all provision permitting withdrawal if “other good cause for withdrawal exists.”

Take-aways

Would the NYSBA committee have decided the same way if the court involved would have had good COVID-protection protocols at the time of the inquiry?  Perhaps, but not necessarily.  The situation is fluid, and as a “third wave” of infections appears to be gripping the U.S., this could be a developing area.

As always, your own jurisdiction’s rules and ethics opinions control, but you should keep the withdrawal principles in mind if you find yourself in fear of infection.

Are you a snow bird?  Do you or one of your partners have a second home in Florida?  Many do, and it’s long been a source of anxiety that working remotely from that home might be a problem.  After all, many of those doing client work while in the Sunshine State are not licensed to practice there, and the unauthorized practice of law is a criminal offense in Florida.

As technology (not to mention the pandemic) has made remote work easier and far more common (even for those without a second home), concerns over unauthorized practice have increased.  (See our past discussion here.)  Now comes some good news for those who were worried (if they were even thinking about it).

Last week the Florida State Bar Standing Committee on the Unlicensed Practice of Law released an advisory opinion on the issue.  The opinion is a preliminary interpretation and isn’t a final court action, but if finalized will provide some comfort.

Work from your bedroom?

The Committee examined a question from an IP attorney licensed in and practicing at a New Jersey firm, who wanted to know if he was permitted to do work for his clients while in the bedroom of his Florida house.  The answer could well have been skewed by his work being limited to IP, given that Florida (and the U.S, Supreme Court) recognizes an exception to unauthorized practice rules for IP attorneys because it deals exclusively with federal law.

However, the opinion appears to endorse practice by most anyone.  It said that the facts “quite simply, do not implicate the unlicensed practice of law in Florida.  Petitioner is not practicing Florida law or providing legal services for Florida residents.  Nor is he or his law firm holding out to the public as having a Florida presence.”  “All indicia point to Petitioner’s practice of law as being in New Jersey, not in Florida. …[S]ince there is no attempt by Petitioner or his firm to create a public presence in Florida, Petitioner does not have a presence in Florida for the practice of law.  … Because Petitioner is not providing legal services to Florida clients, no Floridians are being harmed by Petitioner’s activity and there are no interests of Floridians that need to be protected by this Court.”

The Committee also found the testimony of a Florida-licensed attorney “to be particularly persuasive.”  She said that, “the future, if not the present, will involve more and more attorneys … working remotely, whether from second homes or a primary residence.  Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance.  It is not a practice to discourage.”

No unlicensed practice

Relying on the testimony and the rationale of a recent opinion from Utah, the Committee concluded that an attorney who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from a private Florida residence under these circumstances “does not establish a regular presence in Florida for the practice of law.  Consequently, … it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.”

Sleep well.