Three Pre-Holiday Short-ish Takes
I hope everyone is planning a restful and warm holiday. I may or may not be blogging more this year (that’s always a spur-of-the-moment decision), so in the meantime, I’ll leave you with a few little stocking stuffers/nuggets of coal (depending on your perspective).
(1) The 10th Circuit Court of Appeals has declined to provide relief to a lawyer who missed a jurisdictional deadline because he had difficulty with the federal electronic filing system (CM/ECF). He attempted, at 11:40 pm, to file a bankruptcy complaint that absolutely had to be filed by midnight; he missed the deadline by 16 minutes. The lower courts held that the complaint was untimely.
The Court of Appeals affirmed. Its opinion detailed the steps the attorney took to effectuate filing and his struggles with the system. But, in the end, it declined to enlarge the filing deadline because the errors were the attorney’s, and not any problems with the ECF system. If the system had been inaccessible or malfunctioning, the attorney may have been entitled to relief, but if it’s his fault, he was, well, SOL on the SOL.
The takeaway? We all procrastinate, and efiling makes procrastination even more tempting (you can legitimately file in most jurisdictions at 11:59 pm, in your pajamas, with a cocktail in hand, while watching White Lotus on your other screen, nobody’s there to judge you), and more perilous. 11:59 pm is after work hours and after courthouses and help desks are closed—if you get locked out because you forget your password, or the payment system won’t work, or one of a million potential problems happens, you’re likely dead in the water until morning, when it might be too late.
(2) There’s been a lot of talk about Madison Square Garden Entertainment’s weird policy banning lawyers from law firms involved in suits against its parent company from attending events at its venues, and its recent use of facial recognition software to kick a lawyer out of a Rockettes show she was attending with her daughter’s Girl Scout troop.
I don’t profess to be an expert on facial recognition and will leave the privacy implications and other legalities to others—I do know facial recognition doesn’t work well when identifying people of color, and people generally find this sort of thing creepy, at best.
But the ABA Journal, a couple of months ago, pointed out MSG’s claimed rationale for barring lawyers who work for opposing firms from attending events at its venues—it claimed that Rule 4.2 of New York’s Rules of Professional Conduct prohibited opposing lawyers from discussing the litigation with any MSG employees, and therefore, the lawyers shouldn’t be allowed in at all.
Again, I will leave the discussion about whether having such a policy at all is legal, or wise, to those better versed in entertainment law, but as the law firm noted in a lawsuit seeking to enjoin the policy, MSG’s proffered rationale does not square with what the Rules require.
Rule 4.2 (whether at the Model Rule level, in Wisconsin, or in New York) does prohibit lawyers from communicating about the subject matter of representation with a represented party, absent consent from that party’s lawyer. But that’s more or less where the prohibition stops—there is absolutely no prohibition against lawyers talking to represented parties about just about anything else. Moreover, in the case of aa represented entity, not every employee or other constituent of the organization is covered by the Rule. ABA comment 7 to the Rule states, in relevant part:
[7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
In other words—under just about any plausible scenario, this Rule is never going to be implicated during a performance. Picking up tickets, buying concessions, being handed a program and escorted to a seat, reporting a malfunctioning soap dispenser in the restroom—all of these are mundane activities not related to representation that anyone can freely do, lawsuit against the venue or not.
For a lawyer to run afoul of this Rule while attending the performance, she would somehow have to come in contact with an employee of the organization who is high up and involved with the lawsuit (or can bind the organization regarding the lawsuit) and, despite not actually being involved in the lawsuit herself, would have to recognize that employee, and, despite being at Radio City Music Hall to chaperone her daughter’s scout troop, would need to actually discuss the matter with that employee.
(3) As reported by Nerd Friend Tyler Maulsby, the New York Court of Appeals at long last has amended its multijurisdictional practice rule to allow for remote work in the state, by lawyers licensed elsewhere. So, if any of you are, say, a Chicago BigLaw litigator returning to your small upstate New York town for the holiday, and, say, you fall in love with the proprietor of the quaint local cidery, you won’t have to worry about working remotely if you extend your trip, or decide to leave the big city life behind permanently. I’m taking suggestions for what to call the Hallmark movie.
