Caution text and sign.

Your client has just been sentenced as a first-time DWI offender earlier this morning. Later in the afternoon, you are in another courthouse. Your same client is facing sentencing for another DWI. The driver’s abstract has not yet been updated to reflect that, based on the morning’s plea, your client is no longer a first-time offender.  You validate the factual inaccuracy to the judge and prosecutor by commenting that the abstract was just run that day.  Technically this is true, but you know it is no longer accurate. You and your client are the only ones in the courtroom that know. You believe it is your job to make sure your client gets the most favorable sentence possible, and you don’t want to be deemed “ineffective.” It works. Your affirmation misleads the court into believing that your client has never been convicted of a DWI, and he is sentenced as a first-time DWI offender – for the second time that day. Are you just zealously advocating for your client by failing to disclose the first DWI, or do your actions violate the rules of ethics? A New Jersey lawyer found himself in this situation and was censured.

Actual knowledge creates duty to correct court’s misinformation  

The lawyer did not believe at the time of the hearing that he had a duty to inform the court or the prosecutor of his client’s DWI conviction earlier that morning based on State v. Kane, 2015 N.J. Super. Unpub. LEXIS 277 (App. Div. Feb. 17, 2015). In Kane, the Appellate Division rejected the argument that a defense attorney was unethical in failing to disclose a newly enacted statute that his client’s conduct violated, in addition to the driving offense for which he was entering his plea. The court found that it was the prosecutor’s responsibility to have been aware of the statute’s potential applicability.   

New Jersey’s Disciplinary Review Board (“DRB”) found that Kane was inapplicable.  Kane dealt with constructive knowledge and legal facts, but this case addressed the lawyer’s actual knowledge and candor concerning material and operative facts. The duty of candor toward a tribunal created a duty to correct the court’s misundertsanding to avoid deceiving the court into imposing an improper sentence.

The DRB instead pointed to In re Seelig, 180 N.J. 234 (2004), where the Court found an attorney violated Rule 3.3(a)(5) by failing to reveal to the court that the person involved in his client’s automobile accident had died, hoping the court would accept his client’s plea to motor vehicle offenses and precluding the indictable changes based on double jeopardy. The DRB found that “The Court observed that RPC 3.3(a)(5) “compel[s] a lawyer to act affirmatively against his or her client’s interests even when the primary responsibility for informing the court does not (or may not) lie with the lawyer.” Seelig, 180 N.J. at 253. Moreover, RPC 3.3(a)(5) “impose[s] a duty to disclose in order to prevent errors in decision making by a tribunal that [. . .] has been misled because it lacks information about material facts.” Ibid.”

Misrepresentation is not a permissible litigation tactic

The DRB found that the lawyer’s breach of his duty of candor leading to the court’s improper sentencing and his dishonesty in responding to the court was conduct prejudicial to the administration of the justice system, violating Rules 8.4(c), 8.4(d), and 3.3(a)(5) of the Rules of Professional Conduct. The DRB further found that the lawyer failed to understand that “misrepresentation cannot serve as a permissible litigation tactic, even when carried out in the name of zealous advocacy.”

Zeal or no zeal?

Each jurisdiction has their own take on when ethical boundaries are crossed in the name of zealous representation. While ABA Model Rule 1.3, titled “Diligence,” itself imposes no duty of “zealous representation,” Comment [1] to ABA Model Rule 1.3 still, in part, provides that “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Some jurisdictions have started removing any requirement to act with zeal from their rules of professional conduct.  Ohio, for example,  removed the requirement to act “with zeal in advocacy upon the client’s behalf,” from its Comment [1], reasoning that “[z]ealous advocacy is often invoked as an excuse for unprofessional behavior.“ Likewise, New Jersey’s Rule 1.3 simply provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The word “zeal” does not appear. Conversely, Georgia’s Comment [1] still requires a lawyer to act with zeal in advocacy on the client’s behalf, although this would not suggest that Georgia lawyers may engage in conduct that is misleading to a tribunal.

Regardless of where your jurisdiction falls on the spectrum, always keep in mind that your desire to zealously represent your client should not come at the sake of violating your other ethical duties—particularly your duty of candor toward the tribunal.

Legal marriage concept

Joint representations can present a host of ethical issues for lawyers to navigate including what to do with the clients’ file upon termination of the representation. The NYSBA’s Committee on Professional Ethics recently issued Opinion 1249 which explains that in a joint representation, the presumption is that the lawyer will share confidential information received from one client with the other co-client(s).  That presumption, however, does not extend to confidential information the lawyer received from a client prior to the start of the joint representation.  In general, when the joint representation terminates, the clients are entitled to receive copies of the confidential information exchanged with the lawyer during the joint representation but are not entitled to confidential information shared by one client prior to inception of the joint representation.    

A joint engagement       

The inquiry in the Opinion came from a lawyer whose longtime client requested the lawyer then also represent his Wife in their joint estate planning matters. The lawyer agreed and had them sign a joint engagement letter that included language explaining that, because the representation was a joint representation, no communication that either co-client had with the lawyer could be kept confidential from the other co-client.

Later, amidst the couple’s then impending divorce, the Husband terminated the representation.  He requested copies of all documents in the file, which would necessarily include the lawyer’s communications the Wife, as well as documents the Wife had provided. The Wife then also requested the copies of the file—which would include the lawyer’s communications the Husband and any documents he had provided. 

Should the lawyer turn over the file as requested?

New York Rules of Professional Conduct 1.15(c)(4) and 1.16(e) require lawyers to promptly deliver any property to which the client is entitled. The Committee previously opined that a presumption exists that lawyers will share material information disclosed by one co-client to the other in joint representations. The Committee had also opined that lawyers in a joint representation must share all material information relating to the representation with the co-clients, absent the co-clients consenting to an alternative agreement. The Husband and Wife in this inquiry did consent to disclosure – in the joint engagement letter. Accordingly, the Wife’s communications and documents in the file was to be turned over to the Husband.

But as to the Husband, the file produced to the Wife should only include communications and documents from the period after the joint representation commenced.  There is no presumption of sharing regarding communications made or documents provided by the Husband prior to the joint representation. The Committee opined that the presumption should not apply retroactively to separate and discrete information obtained from one client (in this instance, the Husband), who was not a co-client at the time of the communication.  Disclosing that information would be a violation of Rule 1.6 of the New York Rules of Professional Conduct, as the Husband did not consent to the disclosure of that confidential information. This is consistent with Ethics Opinion 970, insofar as “good cause” refusal to turn over certain documents in a client file exists where the document is the confidential information of another who has not given consent to disclosure.  

Takeaway

Lawyers may wish to undertake joint representations for a host of reasons, but these types of arrangements can create a wide range of ethical questions. As the inquiry in Opinion 1249 illustrates, circumstances amongst joint clients can change and there may be confusion about what to do with the file upon termination. It is crucial to include in your joint engagement letter which types of communications will be disclosed to each co-client, including how conflicts could arise, and what would happen in the event of a dispute between the co-clients. Your client needs to know what they are signing up for before they agree to a joint engagement—and so do you.  Before agreeing to take on any type of joint representation, you must familiarize yourself with how your jurisdiction views confidentiality in the joint representation context.

Map of the United States

Anyone who takes or defends depositions in Ohio will want to be familiar with Opinion 2022-13, issued by The Ohio Board of Professional Conduct (“the Board”). The Opinion will be of particular interest to out-of-state lawyers who want to take depositions in Ohio but are concerned about engaging in the unauthorized practice of law.

Taking or defending a deposition is the practice of law – Duh!

The Opinion makes clear one thing that should have been obvious—taking or defending a deposition is the practice of law in Ohio. Handling a deposition cannot be delegated to nonlawyers (including paralegals), even if the lawyer supervises the nonlawyer during the deposition. A nonlawyer doing so engages in the unauthorized practice of law in violation of O.R.C. 4705.07 and Ohio Sup. Ct. R. Gov’t Bar VII (31)(J). Of equal significance, a lawyer who instructs a nonlawyer to take a deposition, formulates questions to be used in the deposition, or instructs the nonlawyer to represent a deponent at a deposition is assisting in the unauthorized practice of law, in violation of Prof.Cond.R. 5.5(a).

Ohio’s temporary practice exception explained

The Opinion explains the application of several temporary practice exceptions found in Ohio’s version of Prof.Cond.R. 5.5(c), which is similar to those found in most jurisdictions. Pursuant to these exceptions, lawyers licensed and regularly practicing in jurisdictions outside Ohio may take or defend Ohio depositions in certain limited circumstances.

Association with Ohio lawyer

An out-of-state lawyer can take or defend a deposition in Ohio so long as they associate with an Ohio lawyer who meaningfully participates and takes responsibility for the matter. While the Ohio lawyer does not have to attend the deposition, they should be available remotely to provide any necessary assistance.

Reasonably related to a pending or potential proceeding

Out-of-state lawyers can also take or defend depositions in Ohio in matters reasonably related to a pending or potential proceeding in a tribunal, either in Ohio or another jurisdiction, so long as they are admitted in the state where the matter is pending or have been admitted pro hac vice or reasonably expect to be so authorized. Subordinate lawyers associated with the out-of-state lawyer, who do not expect to appear before the tribunal, may also take or defend a deposition related to that pending or potential proceeding, as they are permitted by rule to assist in such matters.

Services arising out of or reasonably related to the lawyer’s practice in his or her home jurisdiction

Where services arise out of or are reasonably related to the jurisdiction in which a lawyer is licensed, an out-of-state lawyer is permitted to conduct or defend a deposition in Ohio that is related to an arbitration, mediation, or other alternative dispute resolution process, for which pro hac vice admission is not required, or alternatively is related to an investigation, negotiation, or other nonlitigation activity in Ohio.

Different state, different rules

The Board concluded that Ohio lawyers may take or defend a deposition in a state outside Ohio in which the lawyer is not licensed, if permitted by that state. The Opinion references American Bar Association, Variations of the ABA Model Rules of Professional Conduct. A quick look at the Variations serves as a strong reminder that you must look not only at what your home state has to say, but also into the requirements found in the rules and regulations of the state in which you seek to take or defend the deposition.

scales of justice 3

On Monday, the Supreme Court dismissed the writ of certiorari as improvidently granted in In re Grand Jury, a case that had potentially significant consequences for federal common law attorney-client privilege. Oral argument in the case was heard on January 9, 2023. The case hinged on which test should be used to determine whether the federal common law attorney-client privilege applied to dual purpose communications, that is, communications which contain both legal and non-legal advice. Many legal and business organizations supported a decision that would have broadened the privilege to include dual purpose topics, as long as seeking legal advice was one purpose for the communication.

The Court’s decision leaves in place a Ninth Circuit decision holding that the attorney-client privilege did not apply where the primary purpose of the documents was not legal but involved tax return preparation. The In re Grand Jury decision held that the privilege protects documents only where the primary purpose of the communication is legal, and that if the nonlegal purpose of the advice is found to outweigh the legal purpose, then the communication is not privileged and is subject to disclosure.

The Justices, who seemed skeptical at oral argument of counsel’s arguments that the Ninth Circuit’s formulation was unworkable, difficult to administer or marked a shift in the way courts currently analyze privilege claims, let the In re Grand Jury decision stand. While the legal and business organizations submitting amicus briefs hoped for clear guidance and a broader scope of the privilege, the formulation of the test to analyze attorney-client privilege claims in federal courts in the D.C. Circuit, Ninth Circuit and Seventh Circuit, which appear to differ in some respects, will continue to be the law in those courts.

Mental health

Lawyers face tremendous professional stress in the best of times between long hours, deadlines, and the adversarial nature of the work itself. The landmark 2016 report, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys[1], showed that attorneys experience problematic drinking at a rate much higher than other populations and are reluctant to seek help for substance abuse, depression, anxiety, and stress and do not seek out help because of concerns regarding privacy or confidentiality. For many, their stressors were exacerbated by the COVID-19 pandemic and the demands of remote practice. Failure to seek out that help causes many problems, including disciplinary violations when mental health impacts a lawyer’s performance.

While disciplinary authorities generally take mental health issues into account and often consider them a proper basis for mitigating sanctions, such problems are not a defense to disciplinary charges, as the West Virginia Supreme Court of Appeals recently concluded. In that matter, the court addressed complaints against a lawyer whose mental impairment was deemed to have impacted his client representation. While finding that the impairment was a mitigating factor, the court concluded that the impairment would not shield the lawyer from meaningful sanctions and imposed an active two-year suspension for the misconduct.

Lack of communication and diligence

As is typical for lawyers with impairments, the lawyer at issue failed to communicate with numerous clients regarding their cases. He was found to have committed over 50 violations. Violations of his duty to provide competent representation, communicate, and act with diligence were found in almost every instance of misconduct.

In one case, he failed to notify his clients that the opposing party had filed a counterclaim and never responded to the counterclaim. Opposing counsel requested the court dismiss the clients’ claims because of the lawyer’s repeated failure to obey court orders or rules of discovery. The lawyer never responded to the motion—and the court dismissed the claims.

Another client learned that opposing counsel filed a motion to dismiss for the lawyer’s failure to prosecute. When the client attempted to contact the lawyer, he would not respond. The court ordered the lawyer to respond, and when he failed to do so, the court dismissed the client’s lawsuit.

Yet another client retained the lawyer to defend her in a contract dispute. She asked the lawyer to file a counterclaim. He never did. He failed to present to the client the opposing party’s settlement offer prior to its expiration. The jury ended up awarding the opposing party thousands of dollars. Despite the lawyer’s promise to appeal, he never did.

Meaningful sanction

The lawyer presented evidence at the hearing that he was diagnosed with an adjustment disorder, which his mental health counselor attributed to stress and other emotional struggles. The social worker involved testified that due to the disorder, the lawyer “developed the capacity to avoid [and] became less productive.”

The Hearing Panel Subcommittee (HPS) recommended the lawyer be suspended for two years, but that the suspension be stayed. However, the Office of Disciplinary Counsel objected to the stay of the suspension. Ultimately, the court found the social worker never determined the lawyer was unable to understand the consequences of his actions and that the lawyer therefore acted knowingly when he disregarded the authority of the lower courts and his clients’ interests. The court made clear that when the Rules of Professional Conduct are violated, lawyers can inflict more than just monetary harm—of which malpractice settlements alone cannot cure.

The court found that the lawyer’s mental impairment was a substantial contributing factor in his misconduct. The court found due to that and other mitigating factors, the lawyer’s sanction was reduced to an active two-year suspension. The court found that without imposing significant consequences, this type of misconduct would not be deterred in the future nor would confidence in the profession be reestablished.

The dissent

Justice Wooten concluded that the penalty was “draconian” in his Dissenting Opinion, predicting that imposing such sanction on a solo practitioner would be the death penalty for his career. The dissent rejected the majority’s finding that the lawyer was motivated by greed—pointing to evidence that the lawyer was motivated by a depression that “caused him to ignore his duties to his clients and then stick his head in the sand as things fell apart.” The dissent would have made three months of the two-year suspension active, with the rest to be stayed on supervised probation.

Action steps

This lawyer is certainly not alone in his struggle—especially with depression rates remaining high for lawyers. When a lawyer thinks they have an issue, they should address it, as mental health issues can impact competent representation, the ability to act with diligence, and the ability to effectively communicate. Once the damage is done, it can be hard for a client to be made whole, so addressing a problem before it affects any client is key to maintaining compliance with our ethical duties. When clients are hurt and lawyers lose their ability to practice law, there are no winners. If you are showing signs of experiencing mental health issues, don’t ignore them. And undoubtedly, as we have pointed out before, lawyers should be compassionate and look for signs a colleague needs help rather than just watching from a distance. A Directory of Lawyer Assistance Programs by state can be found here. There are plenty of options for lawyers and effective treatment does not include a one-size-fits-all approach. Fortunately, strides are being made when it comes to the view of mental health in our profession.

[1] Krill PR, Johnson R, Albert L. The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys. J Addict Med. 2016 Jan-Feb;10(1):46-52.

Many of us have had the experience of opposing counsel copying their client on an email about the matter (and sometimes an email that takes us to task for some supposed transgression).  The immediate response may be to “Reply All” and tell the lawyer (and their client) that they are wrong.  Satisfying, but when you do so, are you violating the “no contact rule” found in Model Rule 4.2 (“a lawyer shall not communicate … with a person the lawyer knows to be represented by another lawyer in the matter”)?

Over the years, many lawyers have taken the position that the Reply All is permitted because the lawyer’s inclusion of the client on the original email constitutes “consent” for other recipients to contact all recipients.  The ABA Standing Committee on Ethics and Professional Responsibility now agrees.

Implied consent

Earlier this month, the Standing Committee issued Opinion 503, which addresses the great “Reply All” debate. In it, the Standing Committee opined that the nature of these types of group electronic communications (i.e., the fact that Reply All is common) means that a sending lawyer impliedly consents to receiving counsel’s “reply all” response. Because Rule 4.2 is not violated by contact the lawyer for the represented party has consented to, the receiving lawyer’s Reply All to the client does not violate the rule, despite communicating with the sending lawyer’s client. The Standing Committee likened group electronic communications (such as emails or text messages) to adding a client to a phone call with the other lawyer or bringing a client to an in-person meeting with the other lawyer. The opinion also highlights that “reply all” is the default setting in some email platforms. The sending lawyer must be mindful of this when determining whether to include his or her client on the communication, as such inclusion may appear to invite a “reply-all” answer. The Standing Committee opined that the lawyer initiating the communication bears the responsibility in deciding to include his or her client in the email or text message—and this burden should not be placed on the receiving lawyer to decipher whether the sending lawyer impliedly consents. Further, the number of recipients may be large, and in such case, the receiving lawyer may be unaware that the sending lawyer’s client happens to be one of the recipients.

As the Standing Committee noted, the better practice is to leave the client off the email or text message to the receiving lawyer—and subsequently forward the message to the client in a separate communication. Further, including a client on electronic communications to receiving counsel creates a risk that the client replies to all in his or her response—which may not be a wise move.

Presumption of implied consent is not absolute

The sending lawyer can overcome the presumption of implied consent by communicating to the receiving lawyer, verbally or in writing, that the sending lawyer does not consent to a reply all communication. The Standing Committee opines that such communication should be prominent, ideally in writing, and made in advance. Further, the presumption of implied consent is limited to group electronic communications and does not extend to other types of communications (like paper) that carry different norms and standards. Therefore, a lawyer receiving a traditional hard copy letter in which the sending lawyer’s client is copied should not infer consent to mail a response to the sending lawyer’s client as there is no prevailing custom indicating implied consent. The Standing Committee also cautions lawyers that the content of their reply is limited by other rules—for instance Model Rule 4.4(b) is implicated when the lawyer has reason to believe the email was sent inadvertently.

Other perspectives

New Jersey also finds implied consent when the sending lawyer includes their client in the communication. Virginia likewise finds implied consent.

Washington finds that consent is not implied simply because the sending lawyer copied the client on the email, but it may be implied from an assortment of circumstances beyond merely having copied the client on a particular email. California and South Carolina have issued similar opinions.

Consent is generally not considered to be implied in Illinois merely by copying the client in an email.  The act of copying a client does not provide implied consent in Alaska and the receiving lawyer must ask the sending lawyer whether their client should be included on the reply.

While ABA opinions are persuasive, they are not binding in most jurisdictions and your jurisdiction may not necessarily agree.  Before copying your client on emails to opposing counsel, or deciding to “Reply All,” think twice.

Earlier this month, the Ohio Board of Professional Conduct (“Board”) issued an Opinion which provides guidance to attorneys engaged or contemplating engaging in an office-sharing arrangement. Sharing office space has many enticing advantages for lawyers such as reducing overhead and having access to other attorneys to collaborate with, all while maintaining a sense of independence. This may be particularly appealing for lawyers seeking to work in hybrid working environments or to establish offices in multiple locations in or out of state. Whatever the driving force may be, lawyers must take special care to consider the diverse ethical issues raised by such arrangements. 

Contours of sharing nonlawyer staff

While nonlawyer staff can generally be shared, there are limitations.  The Board cites Ky. Ethics Op. E-406 and cautions that when lawyers sharing office space represent adverse clients in a matter, the same nonlawyer staff member cannot be assigned to both lawyers during the representation. The Board recommends implementing a written policy to identify conflicts when office sharing lawyers do use the same nonlawyer staff. Rule 5.3(b) requires lawyers supervising nonlawyer staff to ensure their staff understand that the confidentiality obligations under Rule 1.6 apply equally to the staff members. Accordingly, nonlawyer staff cannot divulge client information to other nonlawyer staff and lawyers sharing the same space who are not working on the same client matter. And though not addressed in the Opinion, one could certainly imagine problems, even disqualification, if steps are not implemented to ensure that documents are not segregated from staff working for adverse parties.

Maintaining confidence 

Given the logistics of shared space, the Board reminds office-sharing lawyers to act competently in protecting confidential client information from reaching unintended recipients. The Board recommends separating and safeguarding electronic and physical client files from other lawyers’ filing systems, keeping all in-person, telephonic, electronic, and written communications regarding clients in a manner to prevent unintentional disclosure; and ensuring that staff and lawyers alike refrain from communicating with or about clients in waiting and common areas. Lawyers should train nonlawyers staff on how to protect confidential client information.

Office sharing lawyers permitted to divide fees and collaborate on matters as co-counsel

Lawyers sharing office-space, but who are not in the same firm, are only allowed to divide fees pursuant to Rule 1.5(e)(2). However, lawyers under this scenario must (1) either divide the fee in proportion to the services performed by each lawyer or alternatively each lawyer assume joint responsibility and agree to be accessible to consult with the client; (2) obtain written client consent; (3) if applicable,  obtain a closing statement signed by the lawyers and client; and (4) ensure the fee is reasonable. Similarly, lawyers sharing office space may informally assist or consult each other about a case without billing the client.  This type of casual collaboration does not establish a law firm per Rule 1.0 cmt.[2]. Also, pointing to ABA Opinion 480, the Board cautions lawyers that discussing hypotheticals that disclose facts that can reveal the identity of a client won’t pass Rule 1.6 muster.

Considerations from other states

DC’s Opinion 303 reminds lawyers that office sharing arrangements by unaffiliated attorneys can create a risk of public confusion that the attorneys are affiliated, and that D.C. Rule 7.1 (prohibiting false or misleading communications about the lawyer’s services) applies to a lawyer’s professional affiliations. In Opinion 764, Illinois SBA opined that those lawyers sharing an office-space cannot use common stationary.  Virginia Opinion 874 clarifies that a lawyer may share office space with a firm located in a large building, despite the lawyer’s office only being accessible through an area used by the sharing firm. Further, it would be appropriate for the lawyer to place a sign in the lobby to clarify his status as being unaffiliated with the sharing firm.

Model Rule 4.2 is often referred to as the “no-contact” rule, prohibiting lawyers from contacting represented parties regarding the subject matter of the representation without first obtaining a court order or the consent of the other party’s lawyer.  Just last month, the ABA issued Formal Opinion 502, which warns pro se lawyers—that is, lawyers who are representing themselves as a party in the litigation—that the “no-contact” rule still applies to them despite the fact that the lawyer is also a party to the representation.

No ability to remove the lawyer hat

As written, Rule 4.2 applies to lawyers in their representation of a client.  Of course, most often lawyers represent someone else.  But what about when a lawyer is pro se, i.e. representing herself?  The “no-contact rule” generally allows the parties to a dispute to communicate directly with each other, so why can’t a lawyer who is the party talk to his opponent?   See Comment 4 to Model Rule 4.2.  While the first clause of the “no-contact rule”— “In representing a client, …” can confuse the issue, the main policies behind Rule 4.2 are still in play.  The “no-contact” rule is designed to prevent “(1) overreaching and deception; (2) interference with the integrity of the client-lawyer relationship; and (3) elicitation of uncounseled disclosures, including inappropriate acquisition of confidential lawyer-client communications.”  Direct communications between pro se lawyers and represented parties significantly jeopardizes all three policy goals. The Standing Committee accordingly reasoned that it is impossible for pro se lawyers to remove their lawyer hat to circumvent Rule 4.2. The risks are too high.

Self-representation vs. client representation; a distinction without a difference

In Opinion 502, the Standing Committee clarifies that a pro se lawyer is still “representing a client” for purposes of Rule 4.2, even if they are their own client.  Upholding the underlying policy considerations is important and serves as the basis for this determination.  These policy considerations are crucial to the functioning of the attorney-client relationship and the fact that the lawyer is representing herself does not serve as a sufficient basis to disregard them.

The Dissent

There is, however, a dissenting view. The dissent agrees that the purpose of Rule 4.2 is served by extending it to pro se lawyers, but that the language contained in the Rule does not allow for such application, notwithstanding the number of opinions that have adopted Opinion 502’s approach (“error compounded is still error”).  Even a sophisticated reader, the dissent argues, would not equate self-representation with representing a client and questions exactly what in the language of the Rule would lead a pro-se attorney to conclude that additional research is required. “The lesson here must be that nothing is clear.” The dissent questions whether the text of the Rule means what it says or what we want it to say. The dissent expresses that a trap is created by leaving this rule as is and that it should be amended to accomplish the outcome promoted in the majority opinion.

Proceed with caution

Some jurisdictions – like Texas – have not adopted the “lawyer is a client” approach and permit contact.  Other jurisdictions—such as DC and New York, appear to be in alignment with Opinion 502.  While states are clearly split on the interpretation of whether the “no-contact” rule extends to pro se lawyers, until your jurisdiction amends the wording of the rule or otherwise authorizes the conduct through an opinion, the wiser course may be avoiding the trap.

The Supreme Court of Georgia disbarred a lawyer for conduct that violated Rules 1.15(I)(a) and 1.15 (II)(b) of the Georgia Rules of Professional Conduct—the maximum sanction for such violations. After failing to respond to various attempts from the State Bar and Special Master to determine the validity of the allegations, the Court found that the lawyer’s “utter failure to participate in the disciplinary process” gave the Court no basis to impose a lesser sanction.

Seriousness of the allegations

All allegations of misconduct are taken seriously, but the Court here noted that trust account violations are extraordinarily serious. The lawyer was alleged to have paid past Bar dues with a check drawn on his trust account, made deposits to his trust account from his personal account, and made payments from his trust account that appeared to be connected to his personal expenses. Likewise, he was alleged to have made numerous cash withdrawals from his trust account. This conduct violates the requirement of Rule 1.15(I)(a) that a lawyer’s property or funds be kept separate from that of their client. It also violates Rule 1.15(II)(b) which prohibits depositing personal funds into a lawyer’s trust account and withdrawing funds from trust accounts for personal use.

Failure to participate in disciplinary process

When the investigation began, the State Bar’s investigator was unable to serve the lawyer by personal service at the address listed with the Bar’s membership department.  The State Bar ultimately resorted to perfecting service by publication.  When the lawyer did not respond, the State Bar filed a Motion for Default requesting that the Court disbar the lawyer. The Court rejected the recommendation, asserting disbarment was inappropriate given the ‘limited record before it and the allegations contained in the notice of discipline.’ The court then referred the matter to a Special Master for hearing to determine the nature and severity of the lawyer’s conduct.

More attempts at service were made and it is not clear whether the lawyer ever got notice of the proceeding.  If he did, he ignored it (including failing to respond to requests for admission).  If he did not have notice, it may have been that he’d failed to notify the Bar that his address changed – with disastrous results.

The Special Master conducted a hearing, but the lawyer did not attend or otherwise try to communicate with the Special Master or State Bar regarding the allegations. The Court found that minor violations of trust account rules may result in sanctions less severe than disbarment. However, the Court ultimately agreed with the Special Master that the lawyer’s failure to participate in the disciplinary proceedings is an aggravating factor and may constitute an admission by failure to reply that he does not acknowledge the wrongfulness of his conduct.  The Court then found that the lawyer’s failure to participate in the disciplinary process provided no basis to impose a sanction less than disbarment and Ordered the lawyer’s name be removed from the rolls of persons authorized to practice law in the State of Georgia.

Takeaway

Ignoring notice of a disciplinary charge is a dangerous business.  The failure to participate can transform a minor violation into something that costs a lawyer their license and livelihood.  In some states, disbarment is truly permanent—meaning the lawyer loses their license for life and with no opportunity to be readmitted to that state’s bar. But even in those states where it isn’t, the lawyer will be required to meet rigorous requirements for reinstatement, including waiting years before he or she is even permitted to apply for readmittance.  And even then, those efforts may be unsuccessful. Georgia requires disbarred lawyers to wait five years before applying for readmittance. Further, even if a lawyer is not disbarred, failure to respond can be independent grounds for discipline in certain jurisdictions.  While the lawyer here may have been disbarred even if participating fully in the process, he deprived himself of any shot of a less severe sanction by his total failure to engage in the process. This case serves as a lasting example of how high the stakes can be for lawyers who disregard the disciplinary process.

 

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.