2018 Ethics update UT-Battelle - PowerPoint Presentation

2018 Ethics updateUT-BattelleLabor & Employment Training UT College of Law Professor Alex Long

Program Format & Question LineupIntroduction

Today’s ProgramQuestions (sometimes loosely) based on recent cases and items in the news. Tennessee Professional Conduct Rules will be our governing authority. Answer with Your Clicker. Discussion. Prizes. Fun!

Question Lineup Discrimination in the Practice of Law Intermission Entering into Settlement Agreements: You Are Entering The No-Spin Zone Ethics Opinions Update Bar Admission: Who Has the Character and Fitness to Practice Law?

Discrimination in the Practice of Law

Discrimination in the Practice of Law “People can be very good at lying. Women can be especially good at it because they’re the weaker sex and we, that’s what the books say, and we want to protect them and not have anybody take advantage of them. At least I do.” Statement by attorney during closing argument in a rape trial “Don’t raise your voice at me. It’s not becoming of a woman.” Opposing counsel to female lawyer during a deposition “By and large, women don’t make good litigators.” Statement by a lawyer presenting at a CLE event.

I think … Each of these statements violates the TN Rules of Prof. Conduct. Some of these statements violate the TN Rules of Prof. Conduct. None of these statements violate the TN Rules of Prof. Conduct.

Discrimination in the Practice of Law “People can be very good at lying. Women can be especially good at it because they’re the weaker sex and we, that’s what the books say, and we want to protect them and not have anybody take advantage of them. At least I do.” Statement by attorney during closing argument “Don’t raise your voice at me. It’s not becoming of a woman.” Opposing counsel to female lawyer during a deposition “By and large, women don’t make good litigators.” Statement by a lawyer presenting at a CLE event.

Tennessee RPC 8.4(d) It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice . [3] A lawyer who, in the course of representing a client, knowingly manifests, by words or conduct, bias or prejudice based on race, sex , religion, national origin, disability, age, sexual orientation, or socio-economic status violates paragraph (d) when such actions are prejudicial to the administration of justice . Legitimate advocacy respecting the forgoing factors does not violate paragraph (d).

ABA Model Rule 8.4(g) It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex , religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law . This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

TN Attorney General Opinion “conduct related to the practice of law” – too broad Covers harassment or discrimination not prohibited by state or federal law. “know or should know standard”

TN Supreme Court Rejects

I think … TN should adopt the proposed rule. TN should adopt a modified version of the rule. TN should not adopt such a rule.

Intermission

Which of the following was not a real story from the past year? ABA employee fired after embezzling over a million dollars from ABA. New Mexico lawyer censured for rummaging through trash dumpster of opposing party in a search for incriminating evidence . New Jersey lawyer sanctioned for telling judge she was out of the country when Instagram photo showed her to be in New York . Tennessee judge suspended from practice of law for planting drugs on witness against him.

You Are Entering The No-Spin ZoneEntering into Settlement Agreements:

Sexual Harassment Claim Against Bill O’Reilly Former Fox News producer settles sexual harassment claim with O’Reilly for $9 million in 2004. Producer represented by Morelli & Assocs. Terms of settlement agreement: (1) Morelli promises never to represent another sexual harassment client against O’Reilly or Fox (2) Morelli agrees to provide sexual harassment advice to O’Reilly

Is Morelli subject to discipline for the agreement not to sue? Yes. No.

Sexual Harassment Claim Against Bill O’Reilly TN RPC 5.6, Restrictions on Right to Practice A lawyer shall not participate in offering or making … (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy. Justification for the rule?

Sexual Harassment Claim Against Bill O’Reilly Former Fox News producer settles sexual harassment claim with O’Reilly for $9 million in 2004. Producer represented by Morelli & Assocs. Terms of settlement agreement: (1) Morelli promises never to represent another sexual harassment client against O’Reilly or Fox (2) Morelli agrees to provide sexual harassment advice to O’Reilly

Is Morelli subject to discipline for agreeing to provide legal advice to O’Reilly on sexual harassment matters? Yes. No.

Conflict of Interest?

Sexual Harassment Claim Against Bill O’Reilly TN RPC 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: … (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

Sexual Harassment Claim Against Bill O’Reilly (a) A lawyer shall not enter into a business transaction with a client … unless T ransaction is fair and terms are transmitted in writing Client is advised in writing of desirability of hiring an attorney Client gives informed consent in a signed writing (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; TN RPC RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES TN RPC 8.4: Misconduct

Recent ABA Formal Ethics OpinionsEthics Opinions Update

Independent Factual Research by Judges Via the Internet

Independent Factual Research by Judges Via the Internet In a proceeding before the judge in a case involving overtime pay, defendant’s counsel explains that the plaintiff could not have worked more than 40 hours per week because defendant’s restaurant is in an “industrial area” and only open for breaks and lunch during the work-week and not on weekends. The judge is familiar with the area and skeptical of counsel’s claims. The judge checks websites like Yelp and Google Maps, which list the restaurant as being open from 7 am to 10 pm, seven days each week. Does this search violate the Tennessee Code of Judicial Conduct?

A judge who judge checks websites like Yelp and Google Maps in a case to determine store hours violates the Code of Judicial Conduct. True. False.

TN Code of Judicial Conduct R. 2.9(c) “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Fed. R. Evid . 201(b)(1)(2): permits judicial notice of facts which are “not subject to reasonable dispute” because the facts are “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” ABA Ethics Op. No. 478: “This search violates Rule 2.9(C) of the Model Code of Judicial Conduct because the restaurant’s hours of operation are key to whether the plaintiff could prevail on a claim of unpaid overtime. The judge should ask the parties and their counsel to provide admissible evidence as to the restaurant’s hours of operation.

Independent Legal Research by Judges Via the Internet The judicial district in which the judge is assigned has many environmental contamination cases involving allegations that toxic chemicals have been released and have contaminated soil and groundwater. The judge is unfamiliar with this area of environmental law. Before a case is assigned to the judge, the judge reads online background information including articles. Does this action violate the Tennessee Code of Judicial Conduct?

A judge who conducts this type of legal research is subject to discipline? True. False.

TN Code of Judicial Conduct R. 2.9(c) “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” ABA Ethics Op. No. 478: Judges may educate themselves by independent research about general topics of interest, even on topics that may come before the judge. General background learning on the Internet may be analogized to attending judicial seminars or reading books, so long as there is reason to believe the source is reliable. Even general subject-area research is not permissible, however, if the judge is acquiring information to make an adjudicative decision of material fact.

Former Client Confidentiality

Former Client ConfidentialityAlice is a lawyer who runs a legal blog known as “ AliceLaw .” Alice reports on recent legal events, including trials she has been involved with. Typically, Alice only reports on cases in which her client has been on the winning side. Alice discusses the facts of cases, what transpired at trial, the outcome of the cases, and her opinions on the matters. Has Alice violated any duty of confidentiality regarding her former clients?

Has Alice violated any duty of confidentiality regarding her former clients? Yes. No, because the information is generally known because it happened in court. No, because information about what happens at trial is publicly available. No, because lawyers do not owe any duty of confidentiality toward former clients.

Has Alice violated any duty of confidentiality regarding her former clients? Yes. No, because the information is generally known because it happened in court. No, because information about what happens at trial is publicly available. No, because lawyers do not owe any duty of confidentiality toward former clients. Rule 1.9: Duties to Former Clients (c) A lawyer who has formerly represented a client in a matter … shall not thereafter reveal information relating to the representation or use such information to the disadvantage of the former client unless (1) the former client gives informed consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect to a client, or (3) the information has become generally known .

Former Client ConfidentialityABA Formal Op. 479, The “Generally Known” Exception to Former-Client Confidentiality “generally known” does not mean “publicly available” (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade.

Confidentiality Obligations for Lawyer Blogging and Other Public Commentary ABA Formal Op. 480

Confidentiality Obligations for Lawyer Blogging and Other Public Commentary As part of her “ AliceLaw ” blog, Alice recently reported on a “hypothetical” divorce case. The case is actually a real one in which Alice represents one of the parties. The case involves a local celebrity and has been the subject of several stories in the local news. In her blog post, Alice described, among other things, a “hypothetical” conversation between the “hypothetical” lawyer and a friend of the lawyer’s client. Has Alice violated any duty of confidentiality regarding her former clients?

Has Alice violated any duty of confidentiality regarding her divorce client? Yes. No, because the matter is now generally known by virtue of being in the news. No, because Alice used hypotheticals. No, because information received from a non-client about the representation is not protected by the attorney-client privilege.

Has Alice violated any duty of confidentiality regarding her divorce client? Yes. No, because the matter is now generally known by virtue of being in the news. No, because Alice used hypotheticals. No, because information received from a non-client about the representation is not protected by the attorney-client privilege. TN RPC R. 1.6: “(a) A lawyer shall not reveal information relating to the representation of a client …” No “generally known” exception. A lawyer may use hypotheticals “a lawyer's use of hypotheticals to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved . Duty applies to “to all information relating to the representation , whatever its source ”

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error Lawyer Bob made two material errors while representing a current client and a former client. Each error was reasonably likely to harm or prejudice a client or was of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. What are Bob’s ethical obligations?

Bob must notify … ? The current client. The former client. Both clients

Bob must notify …? The current client. The former client. Both clients ABA Formal Op. 481 Current client 1.4(b): requires a lawyer to explain a matter “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Former client

Who Has the Character and Fitness to Practice Law?Bar Admission

Tenn. Sup. Ct. R. 7, Sec. 1.03. Criteria for Issuance of the Certificate of Eligibility. The Board shall issue a Certificate of Eligibility pursuant to section 9.01 of this Rule only upon its determination that the applicant: (a) is at least 18 years of age; (b) has satisfied the educational requirements for admission specified by this Rule; (c) has passed the examination or examinations required by this Rule, or is eligible for admission without examination in Tennessee as hereinafter provided in section 3.05 or Article V; (d) has demonstrated the reputation and character that in the opinion of the Board indicates no reasonable basis for substantial doubts that the applicant will adhere to the standards of conduct  required of attorneys in this State ; and (e) has evidenced a commitment to serve the administration of justice in this State.

A prior bankruptcy Should disqualify a person from becoming an attorney. Should be considered in bar admission because ____ and should result in denial of bar admission if __. Is irrelevant to bar admission.

A history of illegal drug use Should disqualify a person from becoming an attorney. Should be considered in bar admission because ____ and should result in denial of bar admission if __. Is irrelevant to bar admission.

Serving a prison sentence Should disqualify a person from becoming an attorney. Should be considered in bar admission because ____ and should result in denial of bar admission if __. Is irrelevant to bar admission.

Tarra Simmons – Her History Her childhood Addiction Conviction and three years in prison Bankruptcies

Tarra Simmons – Her History 2011 - While in prison, Simmons received treatment for trauma and addiction. 2014 - Seattle University School of Law 2017 – Graduation, Skadden Fellowship, and Other Honors Bar application Reference letters

As a member of the Washington State Character & Fitness Board, I would … Say Simmons has demonstrated the character and fitness necessary to be admitted. Say Simmons has not demonstrated such character at this time. Say Simmons should never be admitted based on her lack of character.

Decision of the Washington Supreme CourtThe Vote the Day of Oral Argument The Court’s Opinion Individualized Inquiry No Bright-Line Rule and No Presumption Research on Sobriety and Relapse Sense of Entitlement Simmons is a “living example[] of a person's ability to change if he or she has the will and opportunity to do so.”

Thank YouEmail with any questions about today’s CLE. - -Alex Long (along23@utk.edu)