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What Regular People Don’t Know About the Lawyer Ethics Rules and What That Means for Lawyers

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What Regular People Don’t Know About the Lawyer Ethics Rules and What That Means for Lawyers

This presentation will provide an overview of multiple aspects of the attorney ethics rules that – may or may not be second nature to practicing attorneys – but are things about which regular people are largely unaware. And, as to some of the topics, even when someone who isn’t a lawyer knows of the rule, the reasons for it can be extremely confusing.

Presenters

Brian Faughnan
Sole Practitioner and Owner
Faughnan Law, PLLC

Transcript

- Greetings, my name is Brian Faughnan. I have spent the last two decades or so, in addition to doing business litigation and appellate litigation, focusing my practice on solving problems for lawyers. I am now, as of October 1st, a sole practitioner and the owner of Faughnan Law PLLC, which is located in Memphis, Tennessee. Prior to starting my own firm this year, I practiced law with three different, large to mid-sized, full service law firms in Memphis, ranging from 50 lawyers to as many as 300 lawyers. And over the years, I've represented hundreds of lawyers in disciplinary matters, represented law firms and lawyers in litigation and other professional liability matters, represented applicants for admission to the practice in Tennessee. And I've also been fortunate enough to serve as an expert witness in a variety of matters in federal and state courts in Tennessee. I, for the last seven years, have shared my thoughts on legal ethics, professional responsibility, and other aspects of the law of lawyering at my blog, which is located at www.faughnanonethics.com. I am currently serving a term as the immediate past President of the Association of Professional Responsibility Lawyers. And for many years, I was the Chair of the TBA Standing Committee on Ethics and Professional Responsibility. What am I doing here today? Today I wanna talk to you about aspects of the legal ethics rules that regular people don't know about. Specifically walk you through a list of 20 items that constitute things that regular people do not know about the lawyer ethics rules and what lawyers can learn from that. This is a presentation I originally designed a few years ago for non-lawyers. Well, no, let's not call 'em non-lawyers, let's call them regular people. People don't like being referred to as non-lawyers anymore than people would like to be referred to as non-doctors. So I'll try to talk about them as regular people. This presentation focuses on the ABA Model Rules, when talking about specific ethics rule provisions, and that's for reasons that ought to be obvious to lawyers. Along the way though, we will specifically talk about why that fact focusing on the ABA Model Rules shouldn't be obvious to regular people. This will be presented in list format because, well, everything we consume online these days involves listicals. So I guess it's all my brain can really comprehend. If you're not a lawyer and you are watching this, I will pause it that if you already knew seven or more of the tidbits we talk about today, then you probably used to be a lawyer or you are or were married to one. Also I just wanna make clear, there's absolutely no truth to the rumor that the real purpose of this presentation is to find a non-insulting way to remind lawyers about what the ethics rules actually say under the guise of talking about plain old regular people, and what they do or don't know. Let's launch right into it. Item number one on our list, the source of our rules. While the ABA Model Rules are something of a source for our ethical obligations as lawyers, unless you're a lawyer in a very small number of jurisdictions, they aren't the actual rules that govern your conduct. The ABA Model Rules are not enforceable in any real sense in the overwhelming number of states. The rules in each state, which are the source of our obligations are promulgated by that state's highest court. And those rules can vary to a large degree from state to state. What does this mean? Well, this means that lawyers ought to be mindful that the regular people they deal with may have no idea how estate's ethics rules might be different than what they think they know is the rule relevant to their situation. Item number two, the question of who is in charge of disciplining us as lawyers. The identity of the regulator varies depending on the state as well. In states like mine, here in Tennessee, the bar association is just a voluntary membership organization and it has no authority to do anything to enforce rules against lawyers. Instead in Tennessee, we have a separate entity called the Board of Professional Responsibility. It's an arm of the Tennessee Supreme Court, and it is it that investigates and disciplines lawyers. In other states where there is a unified bar, every lawyer has to be a member of the bar organization, and it is that bar organization, that bar association that does the job of investigating and disciplining lawyers in those states. Item number three, we'll call this one, tell me about your day. No, I can't. Our ethics rules lodged in ABA Model Rule 1.6 really do require us to treat all, large caps, bolded, A-L-L, all information related to the representation of a client as confidential. This concept extends even to information that has already been put into the public record. This concept of confidentiality is distinct from, and it is much broader than the attorney-client privilege. ABA Model Rule 1.18 largely extends this requirement of confidentiality imposed on lawyers also as to people who we talk to about representation, but who do not end up actually becoming our clients. Also, unlike attorney-client privilege, lawyers have no built in concept of waiver of confidentiality in our ethical rules rising from a client speaking out about the representation. So one thing lawyers can learn and bear in mind is that regular people might presume that we as lawyers can share information with people when we simply can't do so under our ethical obligations. This also means that regular people who think they understand attorney-client privilege might think that that doctrine, that concept is the only level of secrecy required of us. And one area where this disparity of knowledge about what's what can really impact lawyers is online criticism of lawyers by clients. Regular people often won't understand why a lawyer is ethically prohibited from responding with details about a client's case when they see a disgruntled client having posted online about the lawyers. And this can be really confusing for regular people because our attorney ethics rules do provide certain exceptions that let lawyers disclose information. Those are laid out in ABA Model Rule 1.6 , but none of those exceptions allows a lawyer simply in an online dispute, somewhere on social media or otherwise to disclose confidential information, to respond to an unfavorable review or unfair criticism. Item number four in our list, we'll call it rock, paper, scissors, dagger, cloak, and in the framework of the rock, paper, scissors game, in rock, paper, scissors, dagger, cloak, dagger beats cloak if the lawyer wants it to, that is. One of the exceptions in ABA Model Rule 1.6, it's found in that allows a lawyer to disclose confidential information is the discretion to disclose such information if the lawyer reasonably believes that disclosure is necessary to prevent reasonably certain death or substantial bodily harm from happening to someone. Paradoxically, this exception means that regular people also sometimes may think they can tell some things to their lawyer confidentiality, because they are the lawyer's client when they actually cannot, because it may trigger the lawyer's discretion, believing the client might be seeking to cause reasonably certain death to themselves or substantially bodily harm to themselves or to others. And lawyers should understand and particularly because there are even some ethics opinions that are out there about this, that when talking to a client, particularly at the outset of a representation, and even as it goes on, that it will entirely be up to the lawyer to make sure that at any given time in the representation, the client knows the ground rules for both the scope of confidentiality and when a lawyer might disclose information being provided to them. Item number five on our list, let's call it, everyone has opinions. But our attorney ethics rules prevent us as lawyers from expressing those opinions about some things. And those restrictions might not make some sense, might not make much sense to regular people. Model Rule 3.4 , for example, prohibits lawyers while they are in trial from stating personal opinions about certain things, restricts them from stating personal opinions with respect to things like the justness of a cause, the credibility of a witness or the culpability of a party in a civil matter or the guilt or innocence of the accused in a criminal matter. Model Rule 8.2 also limits lawyer's ability to express their opinions because it imposes some not insignificant limits on lawyer's ability to state their opinions about judges or judicial candidates, which can be a pretty big deal in states that have their judicial candidates stand for election. And what 8.2 says is that a lawyer shall not make a statement that the lawyer knows to be false or that they make with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, a judicatory officer or a public legal officer as well, or of a candidate for election or appointment to judicial or legal office. This restriction can oftentimes leave the people who are most in tune, perhaps with whether a judicial candidate would be a good fit for the office from feeling free to speak out on their opinion for fear that if it is viewed as being about their qualifications or integrity that they could get held to this reckless disregard or knowing falsity standard. Another rule restricting lawyers from offering up certain opinions is Model Rule 3.6, which imposes a variety of limits on the lawyer's ability to talk to the press about a pending lawsuit. An important exception to that laundry list of restrictions or limitations on what you can say is a curative approach, which is that if the other side launches outside the box of 3.6 first, in terms of talking about things, then a lawyer is allowed to go take to the airwaves, "To protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client," but only if that lawyer keeps it limited to what is necessary to mitigate the recent adverse publicity. So it's still even then in trying to stop bad publicity imposes some further handcuffs on what a lawyer can publicly say about a pending lawsuit. Let's go to item six in our list. I call this one, lawyers have superpowers. We are treated as a profession, like we have limitless power to persuade, which would be a nice thing if true, although certainly usable for great harm. But for example, if we as a lawyer know that someone is represented by a lawyer, we can't talk to them about that matter without their lawyer's permission. Now, this is true if we are representing a client and it is often true, even if we are representing ourselves, but not nearly as often as one might think, given the premise of our limitless power to persuade. But as a concept, no matter that person's age, no matter their level of education, that person cannot give us permission to talk to them. Only their lawyer can do that. And that requirement is set out in our ABA Model Rule 4.2. Also interesting wrinkle on this dynamic that regular people often aren't aware of is that clients of course, are always free to reach out and talk to the client on the other side if they want to, and lawyers do have the right to counsel clients about such decisions. What we cannot do though, is do something indirectly that we can't do directly. So while we can counsel a client about their right to talk to the other client directly, we are expected not to stir up that dust by planting the seed in the client's mind to do so. So if that person really wants to talk to us directly and their lawyer won't give consent for them to do so, then their only option other than not talking to us would be to fire their lawyer. Now, that isn't true though, if the other person in this situation is also a lawyer. So if they are a lawyer represented by another lawyer, they are not offered the same level of protection in lots of circumstances. And to be cynical, that's because they have the same superpower that we do. As a lawyer, they also have the power of limitless persuasion. So we will let those lawyers speak with each other, because this rule exists to protect regular people from saying or agreeing to do something that they wouldn't, if their lawyer was present for the conversation. And that's an important policy goal, even though I have treated it a bit playfully with the superpowers argument. Item number seven in our list for today, I call, we can't "Just follow orders." Lawyers who get into trouble under the ethics rules, do not, despite what some people might think or have thought they learned, have anything like a Nuremberg defense, a just following orders defense is not sufficient to protects one's license. ABA Model Rule 5.2 dictates that lawyers are still bound by the ethics rules, even if they're acting at the direction of another lawyer. ABA Model Rule 5.2 only protects a lawyer in that kind of circumstance if they are truly operating in a gray area and the other lawyer, their superior, in that situation comes up with a reasonable approach that the lawyer then ends up following to navigate that gray area. The language that the rule uses rather than gray area is arguable question of professional duty. Speaking of not being able to just follow orders, there's also circumstances where lawyers have to refuse orders they receive even from their own clients. ABA Model Rule 1.2 prohibits lawyers from doing anything to assist their clients with criminal or fraudulent activity. So if the order involves doing something like that, the client has to disregard and countermand the order. And along those lines, ABA Model Rule 1.16 requires us as lawyers to quit representing a client if continuing to do so would cause us to violate our own ethical obligations. That rule also allows us to withdraw in situations that are even more directly related to clients having used our services for the accomplishment of wrongful ends. Item number eight in our list for today, let's call it, not in writing, probably still okay. Generally speaking, the rules don't require a written engagement agreement or a contract between a lawyer and a client. In fact, under the ABA Model Rules, there are actually only two kinds of attorney fee arrangements that trigger a requirement of a written contract. The first is under ABA Model Rule 1.5 and involves contingent fee agreements. And the second arises under ABA Model Rule 1.5 and involves agreements where lawyers who work in different law firms are going to be sharing fees for that client's matter. Beyond those two situations under the ABA Model Rules, those rules simply encourage lawyers to have written agreements with clients that will address fees and other issues. Lawyers though ought to give some thought to the fact that their clients might simply expect to receive a written agreement from their lawyer and that having one is a good first start at meeting expectations with respect to the regular people that lawyers often represent. Item number nine on our list, I'm stealing from the old adage, neither a borrower nor a lender be. Lawyers generally cannot loan their clients money to make ends meet. That is established under ABA Model Rule 1.8 . But they can do a little bit of that if they are representing the client for free, but that's only under ABA Model Rule 1.8 , a rule that has not existed for very long and that has not been adopted in many, many states. Now, while a lawyer cannot loan their clients' money to help them make ends meet, lawyers can advance litigation expenses for their clients. And they can even make repayment of those litigation expenses contingent upon whether the case is ultimately successful. And that's laid out in ABA Model Rule 1.8 . Lawyers also, just like they cannot loan money to their clients, lawyers also cannot get a loan from their clients as a general rule. That general rule is in place unless the lawyer's client happens to be in the banking industry or otherwise is someone who makes loans in the normal course of their business. Or if the client is not someone like that, the only way a lawyer can get a loan from their clients is if the lawyer complies with all of the bells and whistles that the ethics rule regarding business transactions between lawyers and clients calls for. That rule is ABA Model Rule 1.8 , and you might be asking yourself, what exactly are those bells and whistles? So the bells and whistles that are set out in 1.8 , if a lawyer wanted to borrow money from a client are these, the transaction and the terms have to be fair and reasonable to the client. They have to be fully disclosed and they have to be in writing. The client has to be advised in writing of the opportunity to go get independent legal advice about the terms of the transaction. And the client has to give informed consent to the entire transaction, and that has to be in a signed writing, a writing signed by that client. And the writing signed by the client containing that informed consent to the entire transaction also must include something that addresses whether the lawyer who is obtaining the money from the client as a loan is also actually representing the client as their lawyer with respect to the loan transaction between lawyer and client, a detail which if true, likely of course, is a very bad idea, probably an idea even worse than the original idea of borrowing money from clients, unless your client happens to be a bank. Item number 10 on our list, I'll call it, non-competes are non-starters. So ABA Model Rule 5.6 prohibits lawyers from agreeing to restrictions on their future right to practice law. It does it in two different circumstances. The first is in connection with an employment agreement of any sort with a firm. And it does it in the second instance in connection with the settling of a client's matter. So the 5.6 restriction means that unlike other industries, if we're talking about the law and hiring lawyers, an employer cannot make a lawyer sign a contract in which the lawyer agrees not to compete with their employer if they leave to go practice law at another firm. And get this, lawyers justify that restriction on the basis of protecting regular people's right to choose a lawyer. We are a very selfless bunch. At the same time, that 5.6 restriction I touched on also makes it so that we cannot participate in certain settlements for our clients if the terms of the settlement would work to prevent us from representing other clients in the future. That in particular can get very difficult to comprehend for the regular people we represent sometimes. If they are trying to resolve a matter and don't particularly care about the terms. But one of the terms of the proposed agreement is something that if we agreed to it, would restrict our ability to represent other clients in the future. And it is a provision that can be very significant in terms of risk for all of the lawyers involved, because it doesn't just make it unethical to agree to that type of restriction, it makes actually even proposing it an ethical problem under ABA Model Rule 5.6. Item 11 on our list today, I call it, it's not ours, but perhaps it isn't yours. Now, even regular people tend to be pretty well informed about the basic fact that lawyers have to keep our money separate from their money. And if we're holding it, hold their money safely for them at all times. And that duty can be found in ABA Model Rule 1.15. But, and particularly true when the regular people are the clients of a lawyer, they don't necessarily understand that if there is some sort of dispute about whether something is their money or isn't their money, we can't just take their side when it comes to that question, even though we are their lawyer. And that can be found in ABA Model Rule 1.15, subsection E. And it lays out that when there is a legitimate dispute over who owns the funds that we are holding, we have to keep that money separate until that dispute is resolved. We do have to distribute any part of it that isn't disputed, and we can't resolve the claims unilaterally. We can only either wait it out and see how the dispute gets resolved by those who are competing with their claims, or we can file a lawsuit ourselves to deposit the money into a court, and then hope to get dismissed from the case, and simply let the court figure out whose money that is, all the while, keeping it separate in our trust account or some sort of escrow account and not touching it until you get a court order that says to whom the money must be distributed. Item number 12 on our list, let's call it, some conflicts can't be waived. Now, regular people definitely understand at some basic level that lawyers can't take on certain things because of conflicts of interest. And many of those same people have an understanding that they have the ability to waive certain conflicts if they are asked by their lawyer to waive them. But what a lot of regular people likely don't know is that before the lawyer can even ask them to waive a conflict of interest, the lawyer has to have determined that they can reasonably believe that they can provide that person with competent and diligent representation despite the existence of the conflict. If the lawyer couldn't do that, then under the ethics rules, it's wrong to even have asked in the first place. And that concept is set out in ABA Model Rule 1.7 . And so there are lots of instances of regular people who feel like they can simply waive any conflict and hire the lawyer of their choosing. And that is simply not correct because there are certain types of conflicts by law that are not waivable. Like for example, you cannot be on both sides of the V in a piece of litigation, but then also if you, as a lawyer, do not reasonably believe that with a conflict waiver you could provide competent and diligent representation, then you are ethically prohibited from seeking that waiver out in the first instance. Lucky or unlucky, number 13, depending on where you sit I guess, we'll call, lawyers still can't chase ambulances, but if they're chasing them down in order to talk to the person who runs the ambulance company about representing the ambulance company in its contract negotiations, they actually can chase that ambulance. The ABA Model Rules have been very recently revised to broaden the situations in which lawyers can directly solicit, even on an in person basis, legal work from a potential client. Lots of regular folks know a little bit about some of the sillier restrictions on advertising that exist in our rules and know a good bit about some of the not so silly restrictions. But a good number of regular folks, if you quiz them, would know that lawyers can't come up to complete strangers and ask them directly to hire them. And ambulance chasing is often the most pejorative way that that concept is thought about. But one of the new revisions in the ABA Model Rules that allows direct face to face in person solicitation of legal work from someone, even if you've never met them before, is the category of people who routinely use for business purposes the type of legal services offered by the lawyer. Now under ABA Model Rule 7.3 , and any jurisdictions that have adopted that provision, those people are fair game. Those people can be solicited directly for work, despite the lack of a relationship. And if you will harken back to our discussion about the concept of lawyers with superpowers, and then the unlimited ability to persuade, this is a provision that helps poke a little bit of air out of that balloon by recognizing that there are certain categories of people that the rules will deem sufficiently sophisticated, that we aren't too concerned that a lawyer will engage in any sort of overreaching or otherwise convince someone to hire them who wouldn't otherwise be convincible. Item 14 in our list, we'll call it, all lawyers are officers of the court, but lawyers who work as prosecutors in the criminal court system, not only have obligations under the ethics rules just like all other lawyers do, many of the rules that we talked about today, for example, even if some of those rules don't apply to their day to day situations. But they also have special ethical obligations that other kinds of lawyers simply do not. Those include certain obligations to disclose information that's exculpatory in nature without the other side in the criminal case even knowing to ask for it or asking for it at all. And that can be found under ABA Model Rule 3.8 . They also have special obligations to take actions to remedy certain wrongful convictions, that provision can be found under ABA Model Rule 3.8 . And they also have a special obligation to take actions to cause an investigation to happen if there's some new evidence that turns up that says there may have been a wrongful conviction. And you can find that under ABA Model Rule 3.8 . That takes us to item 15 on our list, and we call this one, lawyers are lawyers all of the time. And this piece of information that regular people might not immediately have an understanding for is that lawyers can be disciplined and they can even be disciplined so far as to lose their law license for things they do, even when they are not at all engaged in the practice of law. Now at the base level, the thing that most regular people would understand or immediately think of if presented with this particular sub-part of the topic is that criminal conduct, things like murder, illegal drug use, or even driving while intoxicated, those are grounds where a lawyer could get into disciplinary trouble, even though none of those things were being done in connection with, or as part of their law practice or representation of a client. And that can be found in Model Rule 8.4 . But there's more, lawyers can also get disciplined just for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. And that provision is located in ABA Model Rule 8.4 . Now the most interesting part about 8.4 as a rule of professional conduct and governing ethics is that inherently though the rule can't actually mean what it says. This rule does not mean that all lies by someone who happens to be a lawyer can cause discipline to happen against their license. For example, if someone who happens to be a lawyer lies to their spouse about where they were all night, that's not the stuff of ABA Model Rule 8.4 . Another example, if someone who happens to be a lawyer bluffs in a non-legal game of poker, obviously let's not get into if it is criminal conduct in a jurisdiction to gamble at all, but in a non-legal game of poker, that's not the stuff of ABA Model Rule 8.4 . If someone who happens to be a lawyer lies and defrauds someone who buys their house, lies and defrauds them about say, the condition the house was in, that might be the stuff of ABA Model Rule 8.4 , even if the lawyer wasn't representing anyone in that transaction. And another example, but in a different direction, if someone who happens to be a lawyer and say, the dean of a law school, lies about the law school's admission statistics or lies about the law school's graduate placement rates to keep their law school more competitive on various year-end lists and statistical compilations, that's definitely the stuff of ABA Model Rule 8.4 , even if that law school dean is not practicing law in their employment and certainly not representing clients. And the application of this very broad, lawyers can never lie rule, turns very much on whether the conduct also reflects on fitness to practice law. The best placeholder for trying to figure out where various personal life deceptive conduct matters lie is whether they are the type of lie or deceit that reflects on the fitness to practice law, like the example of the law school dean, or whether they are one that society does not think it reflects on professional ability as a lawyer, say the unfortunate lie to the spouse about the spouse's whereabouts. Item 16 on our list, we call it, we are loyal, but only to a point, or at least that's what I'm calling it for our topic. And we have discussed today earlier about how lawyers owe very strong duties of confidentiality to their clients. Lawyers as to current clients also owe very strong duties of loyalty to those folks. But that duty of loyalty is limited though to an extent that often isn't thought about, and that is we can actively participate in organizations that seek to reform the law, even if those efforts would be against the interests of one of our clients, and that's under ABA Model Rule 6.4. So even if we or our firm represent a client who very much have very vested interests in a certain type of law continuing to be on the books and be enforced, we are allowed under ABA Model Rule 6.4 to participate in an organization that might be seeking to change the law in a way that would be very adverse to the interest of that client. Now, when it comes to the duty of loyalty, the dynamic also shifts as to former clients. As to former clients, it can be said that we really don't owe any duty of loyalty to them at all. Now that statement can be a little more controversial than it sounds, if you put a large enough group of ethics folks like me together, but most of those arguments still boil down to recognizing that while lawyers owe duties of loyalty and confidentiality to their current clients, when it comes to former clients, what we have is a continuing duty of confidentiality. And that duty of confidentiality is subject to some exceptions. But beyond that duty of confidentiality, the limit we have on being adverse to people who are our former clients in future matters is only that we cannot be adverse to them in the same matter on which we represented them in the past or a matter that is substantially related to that matter in the future. And that is all laid out in ABA Model Rule 1.9. And when you focus on how broad that duty of loyalty is for current clients and compare it to the duties owed to former clients, that's why it seems easy to say that we really don't owe any duty at the level of the ethics rules of loyalty to former clients at all. And that takes us to the next to last item in our list, which we call, I'm going to call other lawyers mistakes can make us very uncomfortable. Now, regular people might have learned a lot about, for example, Texas law, when it comes to the inadvertent transmission of client stuff, as a result of the Alex Jones trial, that took place earlier in 2022. Under the ABA Model Rules though, things are not nearly as clear for lawyers who receive something they think they weren't supposed to get. Under the ABA Model Rules, Model Rule 4.4 to be crystal clear, it only ethically requires a lawyer who receives something they think they weren't supposed to get to give notice to the person who sent it. It does not go further to address what in the world happens next after that, makes it different than the Texas law, for example, that folks might have learned about through the high publicity trial and the delivery of apparently the entire contents of the client's smartphone by accident to the other side. Instead, ABA Model Rule 4.4 largely tries to just leave it up to the professional judgment of the lawyer about whether you have to give that information back or whether you can try to use it. And as a result, it is completely silent on lots of topics that can flow from those decisions, like do you get to tell your client about what you have given back? Do you run the risk of sanctions for trying to use what you have received? Do you have to first get a court order to deal with any of it and can the mere fact that it's been transmitted to you and even sent back, provide a basis for seeking to have you disqualified from the litigation altogether? And now we get to 18, I guess similar in a way to a golf course, we're gonna conclude with an 18th item on the list. And I call that one, just because you pay the bills, doesn't mean you get to call the shots. Regular people are largely familiar with the concept of you get what you pay for, or at least they're familiar with it at the level of oftentimes they will question whether that is at all a true statement. But while our ethics rules do let lawyers be paid by someone other than their client, our rules don't let the person paying the bills tell us what to do for the client or how to go about doing it. In fact, our ethics rules demand that we can only be paid by someone else, not our client if we don't let that person interfere with our independent professional judgment. And our ethics rules require us to make certain that that person paying for the client's representation, neither directs nor regulates our independent professional judgment. That concept can be found in two different places in the ABA Model Rules. The first is ABA Model Rule 1.8, the second is ABA Model Rule 5.4 . Now regular people who may only have dealt with lawyers because their insurance company, for example, hired the lawyer to defend them under an insurance policy, may particularly not be aware that the ethics rules have this requirement for not directing or regulating the independent professional judgment of lawyers. So continuing with our list and having our worst pun of the day by far, we're gonna keep and expand on the analogy about golf courses. But now we've got a 19th hole of sorts, which is number 19 for our list, which I'm calling much to my embarrassment, our clients may or may not be fun guys, but they are not fungible. While regular people may hear all the time about one firm merging with another firm to create some significantly larger firm, or may even, though much less likely, notice clips in their local media about a lawyer jumping from one firm to another, whether a lawyer can sell a law firm or law practice to another lawyer is not something they've likely ever even thought about. Our rules make it much more difficult for a lawyer to sell their law practice than it is for others to sell their own businesses. Our PC or well, Model Rule 1.17 imposes a number of requirements that are designed to protect clients and to remember the importance of client choice in our system. But also to kind of make sure that selling a law practice isn't used as a kind of end around the restrictions of any other rules. Rule 1.17 first makes clear that you have to either be selling your entire law practice or the entirety of an area of your law practice to do it at all. For example, in terms of area of your law practice, think like your entire probate law practice or all of your employment law practice, but you would be retaining some other practice area. And regarding that, the rule imposes a requirement that might seem a little bit at odds with the fact that as we discussed earlier, our rules also prohibit non-competes, because in order to be able to ethically sell your law practice to another lawyer, you have to stop engaging, either the practice of law altogether in your geographic area, if you're selling the whole thing, or you have to cease to practice the entire practice area of your firm that you are selling, if again, you are just selling a piece of that. The rule also makes clear that the sale cannot result in any increase in the fees that will be charged to the clients of the selling lawyer. And then the rest of the restrictions in the rule are focused on making sure that clients can decide whether or not to be part of the sale. And that's the bit about how clients are not fungible, because is often quoted that can't be treated as chattel, because they are not something that the lawyer has a property right in. So what rule 1.17 requires is that the person selling their practice has to provide a written notice to all of their clients about the proposed sale. And the notice that goes out has got to mention the fact that the client has the right to retain a different lawyer, different from the selling lawyer, different from the lawyer buying the practice or that they even have the right to simply come get their file if they want to use this opportunity to begin representing themselves. And the notice has to make clear that if the seller doesn't hear from the client within 90 days of getting the notice, then it's presumed that the client is okay with the sale. So it is a rule that sets up silence on the client's behalf as consent to the transaction. And so one of the reasons you don't hear a lot about lawyers selling law practices and regular people may not even know it's an option, is that the fact that a buyer really might not know and can't know the amount of clients of a practice that they will end up with at the end of the transaction, can really make valuing a law practice for sale or purchase quite difficult. And that's why it's not that common of an occurrence. Now, we go to the 20th entry on our list, and just eviscerate the applicability of the golf course analogy that we had been relying upon here all together. And I called this one, our duty to the court can override even our obligation to our clients. I figure with the really bad pun in list item 19, we'll just be straightforward with list item 20. So clients are afforded lots of protections in dealing with their lawyers under our rules. And that's rightly so because of how important it is for clients to be able to trust their lawyers with information, even if they're worried about that information being damaging to them. But under Model Rule 3.3, at least there are two noteworthy situations where the duties, the rules imposed on lawyers as to making sure the court isn't defrauded, those override any duty of loyalty or confidentiality to a client. So the first of these is when, at least if we're dealing with a civil lawsuit as opposed to a criminal matter, when our client has testified about something, and we know for a fact that the client's testimony on the topic is false. So think client takes stand and purges themselves in a civil lawsuit. If that has happened and we know it, we are obligated to tell the court under ABA Model Rule 3.3 that our client has lied on the stand, despite the fact that that would otherwise be confidential information, and despite the fact that that is on its face, a very disloyal action on the part of the lawyer. The other instance is if we come to learn that someone, including even our own client intends to engage or is engaged in criminal or fraudulent conduct related to the proceeding. And the rule in its comments explain that what we're talking about here are things such as bribing or intimidating a witness or bribing or intimidating a juror or destroying or concealing documents. And we are required to inform the court of this development, even if it's not our client who was involved in the wrongdoing, and even if silence would really help our client, because as the title of the topic indicates, under the ABA Model Rule, our duty to the court can even override our duty to our clients. So having completed our list of 20, what are some additional takeaways or what are the things that lawyers can and should learn or be thinking about a little bit more clearly in light of having just sat and talked through these areas of our rules, where there can be a real knowledge and perception gap that would exist between lawyers and regular people? We sprinkled in a couple along the way, but the overriding takeaway would be to focus on communication. I made light of, made a few unfunny jokes about the idea that at least one of our rules seems to be built on the notion that lawyers have a superpower when it comes to the ability to persuade. But lawyers actually should strive to have a superpower in the form of an ability to have clear communication with our clients and with other regular people we interact with in our law practice. We should not assume that our clients know the landscape in which they find themselves when they're having to deal with a lawyer or navigate the legal system. And this is true, both for assumptions that might seem good and beneficial to us as lawyers and the ones that might seem quite bad. Even more additional takeaway, a bit of a final takeaway. I said early on today that this format was not just a trick to actually remind lawyers about a number of important ethics rules. Now, of course, if it had been a trick, now would be a pretty good time to have something that wraps up with a bow, what might be the most important thing a lawyer could take away from this presentation and have learned or recrystallized their focus on. That thing would be a bit of a callback to one of the first slides we talked about today, one of the first topics that we talked about today, and that's the source of our ethical obligations as lawyers. One of the reasons that regular people might not know about some of these rules is some of these rules we talked about today might not really be the rules in their part of the country, where they deal with lawyers or in your part of the country where you practice law. So knowing as to each of these 20 topics we went over today, whether your state has adopted a rule like the ABA Model or something altogether different could be vital to your practice. As just one example, hearkening back to the most recent thing we talked about, the idea that our duty to the court overrides our duty to our clients, and that under the ABA Model Rule, if your client gets on the stand and testifies falsely, and you know it, the idea of having to tell the court that your client testified falsely, in Tennessee, where I practice, for example, that's not what the rule requires. In Tennessee, we make a different public policy choice. In that instance, our version of Rule 3.3 does not allow us to tell the court about the false nature of the testimony. We instead have to first attempt to remonstrate with our client and get them to correct it themselves. But ultimately if they refuse to do so, our rule says the lawyer has to move to withdraw, and has to do so without disclosing to the court what has happened or why the withdrawal is being sought. So there are other jurisdictions with variations on that theme, and I suspect a few others sprinkled throughout the presentation. And with that, that brings us to a close of our discussion of things that regular people don't know about the lawyer ethics rules and what lawyers can learn from that. I wanna thank Quimby for letting me put this together. And I wanna thank all of y'all for listening and coming along for the ride today. If you have any questions or thoughts about things you think I might have gotten horribly incorrect or otherwise wanna provide some feedback, you can reach me at my email address, which is [email protected] Again, I have been Brian Faughnan. I have my own law firm in Memphis, Tennessee, Faughnan Law PLLC and I blog frequently at faughnanonethics.com. And I hope you got a little bit something out of today's presentation. And I very, very much appreciate it and hope everyone stays safe and well, take care.
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1h 32s

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