Just last month, Ohio issued Opinion 2022-07, which allows lawyers to hold cryptocurrency in escrow, under certain conditions. It is no secret that technology tends to outpace the law, so the clarity is certainly welcomed. While this opinion sheds light on murky territory, lawyers still must proceed carefully as many ethical concerns remain.

Property vs. monetary funds

Lawyers must keep client and third party property separate from their own, per Ohio Rule 1.15 (also see Model Rule 1.15). When that type of property is in the form of monetary funds, the rules require it be kept in a separate interest-bearing account, designated with a fiduciary title (such as IOLTA), and must be in an Ohio financial institution. Only monetary funds can be placed into an interest-bearing fund, and therefore, unless cryptocurrency is converted to funds upon receipt by the lawyer, it cannot be put into an IOLTA. Cryptocurrency is not considered a monetary fund but is treated as property. The Board concluded that since cryptocurrency is “property,” lawyers are permitted to hold it for clients or third persons in connection with a representation or law related business.

Technological Competence

This Opinion reminds us that in order to maintain the  knowledge and skill required by Ohio Rule 1.1, a lawyer should keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology. Cryptocurrency is now part of the mainstream lexicon. What seemed like a far-off concept to many appears to be here to stay. If you plan to hold cryptocurrency in escrow, you must become knowledgeable about how to appropriately safeguard it in a suitable place. Recommendations on methods to safeguard cryptocurrency held in escrow are found in the opinion and include cold storage wallets, encryption and back up of private keys, and multi-signature accounts.

Illegal activity  

Because of the anonymity of cryptocurrency transactions, lawyer escrow services may be a potential target of persons seeking to engage in money laundering or other fraud. Counseling a client to engage in illegal conduct or assisting a client in conduct that the lawyer knows is illegal or fraudulent is a violation of  Ohio Rule 1.2(d)(1) .  To avoid unknowingly assisting in illegal activity, the opinion instructs lawyers to have a detailed escrow agreement identifying the parties to the transaction and the underlying transaction for which the escrow account will be used.

What others are saying  

Several other states have issued opinions on the use of cryptocurrency.  Nebraska allows lawyers to hold bitcoins and other digital currencies in escrow or trust for clients or third parties.  DC allows lawyers to accept cryptocurrency instead of more traditional forms of payment if the fee is reasonable and does not violate Rule 1.8(a). North Carolina also allows lawyers to accept virtual currency from clients as a flat fee in exchange for legal services so long as the fee is not clearly excessive and the lawyer complies with the requirements in Rule 1.8(a). Yet, that opinion also concluded that methods in which virtual currency are held are not yet suitable places of safekeeping for the purpose of protecting entrusted client property under Rule 1.15-2(d).  As for other states, we will have to see what the future holds.

 

Gift giving can be complicated, but especially so for lawyers if they are the intended recipient. A ruling handed down by the Vermont Supreme Court last month increased a lawyer’s suspension from three months to five months because the legal documents he drafted conveyed his client’s real and personal property to himself. While the lawyer did not view the transaction as a gift, the Court refused to deviate from the plain language of the rule.

A bit of an “unusual” arrangement  

The client’s deteriorating health and desire remain in her home prompted the lawyer to recommend an “enhanced life estate.” An ELE deed would allow the client to convey real estate to a third-party while reserving a life estate. Further, the lawyer advised his client that she could bequeath her real and personal property via a trust agreement. This arrangement was alleged to have contemplated the client conveying her real property through an ELE deed to an individual serving as a trustee of the trust, and upon the client’s death, the trustee would sell the property and distribute the proceeds to the beneficiaries. A new will was also to be prepared which would name the trustee as the sole beneficiary and executor of the client’s estate—with the intention that any funds from the probated property would go to the trust beneficiaries.

The lawyer here knew his client for several years—living in the same community, attending the same church. He even considered his client to be a family friend. The lawyer asserted that when the client requested the lawyer fill these contemplated roles, he drafted the documents accordingly. The lawyer acknowledged that the arrangement was “a little unusual,” but he thought it was lawful and proper. The Court disagreed.

No gifts allowed

The Court found the lawyer violated Rule 1.8(c) by “prepar[ing] on behalf of a client an instrument giving the lawyer . . . any substantial gift”. The lawyer’s argument that he was acting as a trustee with intent to distribute the property was swiftly rejected by the Court as not excusing the violation of the ‘plain prohibition’ contained in the rule. The Court found that the lawyer prepared a document that gave his client’s property to himself without restriction and that the lawyer is still responsible even if he did not think the documents constituted a gift. The Court found that these types of transactions undermine public confidence in the legal profession.

Concurrent conflict

The Court further found that by drafting and presenting legal documents that gave him interests in his client’s property and estate, the lawyer violated Rule 1.7, which provides that a “lawyer shall not represent a client if the representation involves a concurrent conflict of interest unless, among other things, “each affected client gives informed consent.” The lawyer claimed to have advised his client that someone else should be used as the trustee and grantee and that the client should consult with another lawyer, but the client refused. No waiver detailing the conflict or inherent risks involved was ever signed. The Court rejected the argument that such violation is acceptable because of the client’s insistence.

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Lesson for the day

Not every gift is one worth receiving. Many jurisdictions allow for an exception Rule 1.8(c) if the client and lawyer are related—see examples in Ohio and  DC. But this case serves as important reminder to check your home state’s view on the matter. While you may not view yourself as reviewing a gift, think about how the court would view it.

Maybe you were lucky and opposing counsel was able to delete the inadvertent email you sent her before she read what would have inevitably blown your whole case. But what about for those lawyers who were not so fortunate? Did you commit malpractice? Do you anticipate hearing from disciplinary counsel? Certain mistakes can be damaging to your career. Others just serve as a warning to be more careful. How you react to your mistake can prevent the bad from becoming worse. What not to do…

Hold your breath and hope the mistake goes away

It won’t, and you need to examine if the mistake is simple and can be fixed or has jumped over the line into legal malpractice territory.  That’s going to be done on a case-by-case basis but ignoring the situation will only make matters worse.  It could even appear that you are trying to conceal the mistake.

Talk to your supervisor, a trusted colleague, or if your firm has an Office of General Counsel, talk to one of its members. Talking the situation through can help you determine if you need to disclose the mistake to the client, if you are able to still represent the client,  and whether you may need to get separate counsel. If something more serious does come of the mistake, doing nothing will reflect poorly upon you should disciplinary counsel launch an investigation or file a complaint—especially if you fail to respond.

Shift the blame

Blaming your clients or colleagues for your mistakes will not alleviate the concern and may cause you more issues down the line.  Perhaps your assistant truly was the one who failed to timely make the filing or put the hearing date in your calendar, but blaming that assistant is not going to be a satisfactory explanation to your client and could even make you look dishonest or careless. You are allowed to delegate tasks to nonlawyers, but ultimately you are still responsible for the error.

Procrastinate

Maybe you lost your cool with opposing counsel and are putting off your apology. Maybe you just completely forgot about a hearing, and you are dreading calling the court to explain. Waiting to right your wrong can make you appear less than sincere and may even serve to dissuade opposing counsel or the judge from excusing your misstep and allowing you to get that continuance that you so desperately need.

On a final note, make sure you’re covered if the mistake is serious in nature. Generally, you must notify your liability insurance carrier once a claim has been asserted against you. But it may be wise to notify your malpractice carrier if circumstances arise that lead you to believe a claim will be made. You don’t want to wait so long that you jeopardize your coverage.

Word to the wise  

You didn’t spend this much time to get where you are in your legal career just to sit on the sidelines, so focus on preventing future mistakes.

  • Don’t dabble in areas of law that you are not familiar with—competence is key.
  • Communicate with your clients. Emotions are often involved and you don’t want to be on the receiving end of a grievance, because your client is left in the dark about the status of their case.
  • Pay attention to the recipient list before you hit send. Pay attention to where you are and who is listening when you are talking about your client’s case. Watch what you say on social media. Confidentiality is crucial to your representation.
  • Do your homework before agreeing to take on the representation. Before you start on anything, check for conflicts.
  • Act with diligence. If it can be done today, don’t wait until tomorrow.
  • Extend professional courtesy to your colleagues and opposing counsel when they make mistakes. You may need them in the future.

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.