I remember at the end of the George W. Bush administration, some comedians said that the Obama administration would put them out of business, what with Obama’s lack of propensity for scandal or gaffes. While of course that didn’t happen (the comedy world survived Obama’s tan suits and fancy mustard just fine), I’ve been asked (once) whether I am worried I won’t have blog fodder after all of the ridiculous election and Trump-related litigation is over.
This is the non-lawyer version of a question I get a lot from lawyer clients—”how long is this disciplinary proceeding going to take?”
Unfortunately for lawyers facing discipline and curious lay folks alike, there’s no real answer. I know people get tired of hearing this from lawyers, but really, “it depends.” Every disciplinary authority has its own internal case processing goals, but it is often difficult to determine whether a particular case will fall within the guidelines.
Breaking up is hard to do. (After all, it’s cuffing season.) This axiom is as true in a professional setting as it is in a personal one. How to ditch your quarantine bae before they’re vaccinated is beyond the scope of a legal ethics blog (as is whether I should ever use the term “quarantine bae” ever again). But firing a client and withdrawing from representation is sometimes absolutely necessary, regardless of what the calendar says. Perhaps they won’t return your calls, or are refusing to pay your bill, or you can’t see eye to eye about the objectives of representation. Some clients and cases are just albatrosses that you can’t and shouldn’t see through.
This happens frequently when lawyers are in the news—social media lights up with calls to disbar them for doing whatever the posters believe was out of line. Now, as someone with an increasingly public practice, I wait with bated breath to see if and when the virtual torches and pitchforks come for my license. I’d like to say I’d see it as a badge of honor, but probably in action I would not be as amused.
This post is not about whether any lawyer currently in the news deserves discipline, but about the process.
All eyes are on the Middle District of Pennsylvania, which is set to hear arguments in one of the Trump Campaign’s voting lawsuits today. Enter Rudy Giuliani, who has applied for pro hac vice admission despite his last federal court appearance being before some lawyers were born.
However, it looks like Rudy may have some problems right out of the gate, in addition to all of his other problems.
That’s right, if you can believe it, Ethicking.com launched one year ago, on October 24, 2019.
…so, what a year, huh?
Like anyone who set out to do anything a year ago, this did not go as I’d planned. Sure, I did manage to keep up with the blog generally, updating every couple of weeks or so (and sometimes more often, though not quite at the weekly frequency I’d hoped). I thought I’d be writing about ABA opinions, nerd friends, and best practices, and I did that. And, sadly, I knew at this time last year, barring some very rapid advancement in medical science (or, as he called it, “a meteor crashing to Earth with the cure”) I would be posting a eulogy for my dear friend and mentor at some point.
Can I be disciplined professionally for off-duty conduct?
The answer is, of course (say it with me) it depends.
Anyhow, today he discovered something familiar to most lawyers—the joys of recreating his week, after the fact. Truth is, he couldn’t remember exactly what he did when, so he made some educated guesses.
We’ll call that good enough for this purpose, but is it good enough for lawyers?
Almost a year ago (wow), I wrote a bit about the State Bar Car Crash Symposium Heckler, who spent some quality time during my presentation lecturing us about the fact that sometimes plaintiff’s counsel and defense counsel are friendly with one another. (He also cornered me after my presentation, which dealt broadly with dealing with emotional situations, and complained that I didn’t consult with religious authorities about breaking bad news to a client. Oh well.)
And it does happen—sometimes I do see my existing friends on the other side of the caption, and sometimes I become friends with people on the other side after the litigation is over.
Every now and again, I’ll be blogging some answers to questions I get frequently. (I’ll be sorting these under the category, “FAQ,” and will leave the debate as to whether that should be pronounced “fack” or “eff-A-cue” to a later date.)
One question I get frequently enough that I have the State Bar Ethics Committee opinion number* memorized, so we’ll tackle it first: “My former client has a big outstanding balance and now wants a copy of their file. Can I hold their file until they pay up?”
We all procrastinate. Even you—yes you, with your wall calendar and your daily planner in your briefcase and your Outlook calendar synched to your phone and Siri shouting reminders at you weeks, days, hours, and minutes before each important deadline. It’s part of the human condition, and not dependent on time management skills. Most of us know how to manage our time; we just don’t follow through. Lawyers do it for more than an hour a day.
Typically, courts redo their Web sites and it’s not for the best. They don’t display right on a mobile device and I end up not being able to find anything regardless of where I am. But credit where it’s due.
I have been derelict in updating this blog most of this summer, despite the promise to myself that I’d have fresh and exciting new content every 10-14 days and quick hits in between. Of course, when I made that promise to myself it was October 2019.
And I do have a bunch of half-written entries and prompts floating around, ranging from a February piece-in progress on the illusion of work-life balance (which, to be fair is still an illusion now, except I’m not writing about those weird feet-on-the-beach pictures or Bar events anymore) to three lines in an entry titled: “So It’s Come To This: The Ethics of Using Mail in 2020.” But it’s been hard to see things to completion and publication.
That’s because everything is hard, and it’s been hard.
Under normal circumstances I'd be in Chicago right now, checked into the Hotel Palomar, hanging out with my nerd friends from the Association of Professional Responsibility Lawyers at the Annual Meeting. This blog would be quiet but I’d be annoying everyone on Facebook with out-of-context giddy snippets from the conference.
Instead, it's Yet Another Zoom.
When I talk to lawyers about scams, any kind of scams, most respond somewhat defensively. “How could anyone possibly fall for that? My BS detector would have picked that up.” And yes, we know that the IRS doesn’t make robocalls requesting a credit card number; that we don’t know any royalty in Nigeria who want to wire us money; and that nobody who really needs legal help in the United States starts an email with “Hello Barrister I am in need of enlisting your aid in enforcing a loan agreement in your jurisdiction” (which is why, when versions of that email come in, we quickly delete them—you do that, right?).
The problem is, the scams are getting smarter.
Todd Banks’ valiant attempt to invalidate Al Johnson’s Restaurant’s Goats on the Roof trade dress as “demeaning to goats” (chronicled here in December) has ended not with a bang, or a whimper, or even with a fish fry, but with a denial of a cert petition.
I don’t think you need to be an ethics attorney or an attorney at all to know you generally need your client to be a client and to know that they’re a client before filing a lawsuit on their behalf and then litigating it for two years and then having it dismissed with a petition for attorney’s fees made against you.
!["Why isn't [Lawyer Villain In the Media] Disbarred Already?"](https://images.squarespace-cdn.com/content/v1/5d93821f16ea12193a39cbf7/1610230956148-Y2U3R0JGBTT4JUUO5FKS/image-asset.jpeg)
