Ethics Implications of Dobbs for Law Firm Management and Client Counseling

Today’s post was authored by my partner, Richard M. Hunt.

Ethics Implications of Dobbs for law firm management and client counseling 

            The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization has triggered direct threats of prosecution directed to law firms that adopt policies aimed at providing abortions services to their staff. Those threats and coming legislation across the country raise important issues of professional responsibility for attorneys and firms whose conduct is perfectly legal in some states and arguably criminal in others. Firms need to consider those issues now so they can act to protect themselves and their clients from the possibly unexpected consequences of laws criminalizing abortion services.

The Problem – law firms are not just another kind of business.

            Law firms across the country reacted to Dobbs v. Jackson Women’s Health Organization by announcing policies to help attorneys and staffers obtain abortion services that might be illegal in their home states. This has put attorneys on the front page of local and national newspapers and prompted threats against attorneys from opponents of legal abortion. These threats, like similar threats against other businesses, raise legal and constitutional issues concerning the full faith and credit clause, the commerce clause and extraterritorial jurisdiction, among others. Law firms also face the same practical concerns as other businesses trying to balance the need to attract and retain talented attorneys against client reactions to policies they may dislike. Unlike most businesses, law firms face an ethical concern as well; that is, do a firm’s policies and individual attorneys’ actions concerning reproductive rights violate rules of professional responsibility that may apply to them? The question is important because the polarized nature of the debate about reproductive rights makes it very likely that groups opposed to abortion will use disciplinary actions as part of their effort to punish those they see as promoting reproductive rights.

Crime and the Disciplinary Rules

            One of these concerns arises from the treatment of many kinds of criminal activity as violations of legal ethics. A group of anti-reproductive rights politicians from Texas threatened Sidley Austin and its attorneys based on the group’s claim that Sidley Austin’s policies violated pre-Roe v. Wade Texas statutes that criminalized abortion and conduct facilitating abortion. The Texas Disciplinary Rules of Professional Conduct provide that an attorney shall not “commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” ABA Model Rule 8.4 is almost identical. Assuming for discussion purposes that law firms who assist employees in obtaining abortion services have committed a crime, is it a “serious crime” that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”? 

            Both the Model Rules and the Texas Rule make clear that not every felony is a “serious crime.” The comments to ABA Model Rule 8.4 suggest that the kinds of crime creating an ethical concern are “offenses [such as “violence, dishonesty, breach of trust, or serious interference with the administration of justice”] that indicate lack of those characteristics relevant to law practice.” The Texas Rule defines serious crimes that may be applicable as “any felony involving moral turpitude.” About 61% of the U.S. population lives in states where abortion is legal. Given this, does it make sense to say that laws criminalizing conduct that facilitates travel to a state where abortion is legal create a crime involving moral turpitude

            The opposite answer may seem just as obvious to those who oppose abortion, but even in Texas only about one-third of citizens agree that all abortions should be illegal. The same is undoubtedly true in other states with legislatures that have already broadened, or that are in the process of broadening, the range of abortion-related conduct that is made criminal. Because of the large number of states where abortion is  legal, and because of the constitutional right to interstate travel which, as Justice Kavanaugh points out in his concurring opinion in Dobbs, would make unconstitutional any state law that would bar a resident of that state from traveling to another state to obtain an abortion, there is a persuasive argument that even in states where abortion is illegal, abortion-related crimes do not involve moral turpitude.  Nonetheless, attorneys must recognize that ethical uncertainty may loom.

Multi-Jurisdictional Concerns

            In the abortion arena, firms and attorneys with a multi-jurisdictional practice may have to confront claims of the unauthorized practice of law. The mobility of our modern legal practice creates issues concerning the unauthorized practice of law generally, but a state would not normally claim that an attorney in one state who provides advice to a client in another has engaged in the unauthorized practice of law. However, considering the current legal and emotional atmosphere surrounding abortion, advice across state lines concerning matters related to abortion may be seen by abortion opponents as an opportunity to file complaints based on the unauthorized practice of law.

            Attorneys who need to appear pro hac vice in specific matters may face similar problems. Will conduct that is legal in the attorney’s state of licensure but illegal in the state where pro hac vice admission is sought preclude admission? Some courts, such as the US District Courts in Montana, already require any attorney seeking admission in a matter to submit, in writing, to the authority of the local bar as a condition to pro hac vice status. Will an attorney licensed in New York whose firm pays for abortion services find they are subject to discipline in Montana if they appear pro hac vice in a matter unrelated to abortion? How will other courts view a history of discipline based on this application of local law to an out-of-state attorney? Finally, what balance should courts strike between a client’s right to the attorney of their choice, which every state favors, and a single state’s desire to prohibit any conduct by an attorney that is alleged to facilitate abortion even if that conduct takes place outside the state?

Liability for Firm Policies and Procedures

            Of course, ethics rules apply to individual attorneys, not to the business enterprises for which they work. ABA Model Rules 5.1 to 5.7, although titled “Law Firms and Associations” deal with obligations of attorneys with respect to the conduct of other attorneys or other individual non-attorneys within the firm, not the law firm as an entity. Model Rule 5.7 creates obligations concerning “law-related services” but the definition of “law-related services” does not extend to all the management and human resources activities of a firm. Depending on a firm’s governance even the firm’s owners may have no practical influence over a decision by the firm to assist attorneys and staff members with abortion services, and where that assistance is provided it is likely to be implemented by non-attorney staff members. 

            Individual criminal responsibility for the conduct of a business enterprise is not always easy to determine. It will be even harder to decide how to assign ethical responsibility for supposed crimes authorized by a few firm managers, especially if the firm practices in many  jurisdictions. If the Texas-based members of a firm’s management committee vote against providing abortion-related services to the staff but the law firm’s management implements policies to provide those services, have the Texas-based attorneys engaged in an ethical violation by remaining associated with the firm? What if they vote for the policy but have nothing to do with its implementation? Where there is strong opposition to abortion in a state among those who make or enforce the laws, one cannot rule out the potential that an enforcement authority, including a state bar association, may test the limits of personal responsibility for firm policies related to abortion, perhaps even going so far as to attempt to treat the firm itself as a criminal enterprise.

Advising Clients on Abortion-Related Policies 

            The re-criminalization of abortion also has ethical implications beyond matters of firm governance. Businesses that have announced their intention to pay for abortion-related travel and services for their employees presumably did so after consulting their attorneys, including attorneys in the states where abortion has been criminalized. Some individuals will likely seek legal advice before making decisions about their own abortion or the abortion of a sibling, relative, friend, or spouse. Medical professionals and hospitals may need legal advice as well. In these cases, opponents of legal abortion might argue that one or more of the crime-related exceptions to Model Rule 1.6(b)’s protection of client confidences applies. These exceptions are not limited to crimes involving moral turpitude. In addition, some legislatures are already acting to redefine personhood to include an unborn child. That might trigger the confidentiality exception for preventing death or serious bodily harm under that same rule. 

            It is not difficult to imagine prosecutors seeking records of client communications related to abortion discussions and invoking one of the crime related exceptions to the confidentiality obligation or privilege to obtain those records. One response to protect client confidences might be the use of encrypted “disappearing” messages like that offered by Signaland other apps. Advice to clients might include taking steps to conceal or delete internet search history or social media messages. Law firms considering these steps must also consider the ethics rules potentially implicated in such conduct as well as evaluating whether criminal penalties for destroying or concealing evidence could be applicable.

            Law firms must also consider the risk that individual attorneys might choose to expose client confidences because of their strongly held personal beliefs about abortion, and then defend their conduct by invoking one of the crime-related confidentiality exceptions. This risk can undermine the free flow of information within a law firm.

Firms and bar associations alike will also need to develop, within the applicable rules of professional conduct, policies to deal with client expectations of confidentiality when the communications relate to matters that might be criminal in one state but not in another.

The Duty to Report Professional Misconduct

            A duty that affects attorneys in nearly every state is the attorney’s obligation to report professional misconduct by another attorney found in ABA Model Rule 8.3. There is usually little controversy about what kinds of professional misconduct trigger this reporting requirement—if one attorney views a particular behavior as a violation of the applicable code of professional responsibility, other well-informed attorneys are likely to agree. The polarizing nature of the abortion debate is likely to end this kind of widespread agreement about what is and is not ethical when it concerns abortion.

Now Is The Time To Address These Issues

            Before Dobbs it would have been almost unimaginable that a national law firm would be threatened with criminal prosecution because of an internal policy related to the health of its employees. Today it is clear that attorneys and law firms who act in ways that are seen to support abortion rights may be targets for those opposing abortion rights. There are good reasons to argue that like other kinds of conduct that is criminal in some states but not others, prohibitions on abortion are not the kind of crimes that implicate ethical concerns. There are equally good reasons to argue that the territorial limits on the authority of state bars preclude action against foreign attorneys. Nonetheless, abortion is an issue so polarizing that it seems inevitable that attorneys whose firms implement policies to help attorneys and staff members seek legal abortions, or who advise clients on how to obtain or help others obtain legal abortions, will be subjected to claims of professional misconduct by someone. Such grievances will be a challenge for those who enforce disciplinary rules as well as for attorneys who see nothing wrong in advising clients on something that remains legal in 26 states as of the writing of this article. Responses to these risks are likely to be complex and involve matters of firm governance that transcend the views of an individual lawyer. Attorneys and law firms should be aware of the risks as they make decisions about providing abortion-related services to firm attorneys and employees and how they will advise clients seeking to understand what the law allows in a rapidly changing legal landscape.

© 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Three Steps to Effective and Ethical Third-Party Discovery

Step 1: Ask for What You Really Need 

From international banks to local pharmacies, third parties routinely provide documents and testimony needed to prove a case. At the same time, many clients want to preserve relationships with some of these third parties for after the lawsuit is over. To best serve our client’s interests in winning and preserving relationships requires careful application of ethics rules, procedural rules, and good manners. 

Every third-party request starts with a practical and ethical question: “Do I really need this information?” Is it crucial to your client’s case or does the client have some other improper motive for wanting a deposition or documents from a third party? ABA Model Rule 4.4 uses the phrase “shall not” in forbidding discovery that has no purpose other than to embarrass, delay, or burden a third party. Using discovery to punish someone or to interfere with the opposing party’s professional relationships is not only unethical, but it is also usually a waste of money, imposing an unnecessary cost on our own clients for very little in return. 

The Model Rules also require that we avoid unreasonably inflicting costs on the other parties. (Rule 3.2). Pages and pages of boilerplate document requests to third parties are likely to garner very little valuable information and generate unnecessary fees and animosity all around. Many state and local procedural rules impose similar duties to third parties: Federal Rules of Civil Procedure Rule 45(d)(1) requires the issuing party or attorney to avoid “imposing undue burden or expense on a person subject to the subpoena.” Failure to do so can result in sanctions. Unless the anticipated discovery is likely to have results that justify the burden on our own client and the third party, common sense and ethical obligations forbids it. 

Step 2: Find Out Who, Where, and How Much It Will Cost 

Second, if you are sure the evidence is useful, you still need to think about whom you should ask, how to ask, and what the cost might be. If you are going to subpoena or contact a witness in their professional capacity (the local banker or school administrator for example) you should assume that they are represented by counsel—the company’s in-house or other lawyer. Find out who that lawyer is and contact them before approaching the individual witness so that you do not risk starting off on the wrong foot. Making initial contact with counsel for a witness also ensures that there is not even the appearance of running afoul of the rule against communications with a person represented by counsel (Rule 4.2). If you are certain that a third-party witness is not represented by counsel, you and anyone in your office who may be dealing with the witness should always review and follow Rule 4.3, which requires that a lawyer dealing with an unrepresented third party make it clear that they are not disinterested, and correct any mistaken impression about their role. You must clearly state who you are, whom you represent, and why you are contacting the witness. If you are going to serve a subpoena, say so. If you or your staff try and soft-pedal why you are calling, you may generate resentment later when you serve a subpoena, and that resentment will likely hurt the quality of information you receive. For more on the intersection of Rules 4.2 and 4.3 see the discussion in ABA Formal Ethics Opinion 472

Knowing in advance where to direct a subpoena is not only efficient for you and your client, but it also may also garner the cooperation of the third party whose help you need. In making initial inquiries, find out about any policies or procedures that the third party has in place regarding the information you seek. This includes getting a good idea of any costs that may be passed on to your client. Many doctors and hospitals, for example, require that those seeking discovery pay the cost of responding to discovery requests up front. Procedures and costs of obtaining discovery from financial institutions is governed by state and/or federal law, and any business that your client subscribes to likely has a provision about obtaining records or testimony built into a membership or other agreement to which your client may be bound. 

Knowing these procedures before you ask for testimony or documents, as well as knowing whether or how much your client is going be charged by the third party for your request, will also allow you to better determine if the information you seek is worth the time and cost involved. And always consider what notice you must give the third party and opposing counsel under the relevant policies or rules of procedure. Typically, third-party document requests must be served on all parties before any subpoena can be served on the third party. In most courts, failure to give this advance notice is also sanctionable. 

Step 3: Mind Your Manners 

Finally, remember what you learned as a child: It is always a good idea to treat others the way you would want to be treated. In addition to the ethics and procedural rules, most local bar associations and court rules require that lawyers treat everyone—including nonparties—with fairness and respect. And there is no reason not to. A truly hostile witness is very rare. Even those affiliated with a party will rarely put their reputation or professional license at risk by lying under oath or withholding documents properly requested. If it later turns out that the third-party witness has lied under oath or omitted documents on purpose, your good behavior in dealing with them will only put you in a better position to complain to the court and seek relief for your client should you need to do so. 

By Jeanne M. Huey, Hunt Huey PLLC.

© 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

ABA Formal Opinion 500: A lawyer’s ethical duties to the client when there is a language or other barrier to communication

Model Rule 1.1 (competency) and Rule 1.4 (communication) govern a lawyer’s duty to effectively communicate with their clients. A recent ethics opinion from the ABA—ABA Formal Opinion 500—makes the obvious point that these duties are not diminished when you have a client with whom you cannot communicate due to a language or other barrier. The Opinion, however, leaves out important considerations and provides an impractical standard for the real world practice of law.

The Opinion fails to recognize the legal duty to communicate with disabled clients

First, the Opinion does not adequately distinguish the ethical duty of effective communication under the Model Rules from the legal duty to communicate under Federal Law. Law firms are public accommodations subject to Title III of the Americans with Disabilities Act and are legally obligated to communicate with those whose disabilities make ordinary written or oral communication difficult. With respect to a client with a disability a law firm cannot decline the representation just because, as the Opinion suggests, “obtaining necessary services would place an unreasonable financial burden on the lawyer.” To refuse to serve a client with a disability just because it costs money violates the anti-discrimination provisions in the ADA, as would imposing the cost on the client in most cases. If your client has a disability that affects communication the inquiry about fulfilling your legal as well as ethical obligations will require a more nuanced approach than just looking at the cost. The same can be true for all clients with limited English proficiency if your law firm receives any form of federal support and is therefore covered by Title VI of the Civil Rights Act.

An interpreter is not always required for effective communication

While ignoring these absolute legal requirements the Opinion also fails to take into account the many possibilities of effective communication without the use of a hired interpreter. The Opinion refers to “engagement of an interpreter, translator, or an appropriate assistive or language-translation device” as if these were universally necessary for effective communication and as if every case warrants them or every lawyer or client can afford them.

Here there are lessons to be learned from the ADA, which has required regulators and the courts to wrestle with how the cost of communication can be balanced against the need for communication in a particular form. Broadly speaking, the ADA requires rapid accurate oral communication—usually through ASL interpretation—in situations where speed and accuracy are important, like a hospital emergency room. When time is not of the essence, or perfect accuracy is less critical, written communications or oral communications through a friend or family member may be sufficient.

The ethical duties regarding the use of non-lawyer staff always applies

The Opinion reminds us that our duty of supervision over non lawyers under Rule 5.3, and our duties under Rule 1.6 regarding confidentiality apply to any interpreter we may utilize. These issues can be dealt with under the same kind of written contract used by the firm for other non-lawyers. This is so whether the interpreter is a professional or the client’s friend or family member. A contract with anyone assisting the client with communication in the case can also protect against waiver of the privilege.

What about the privilege?

Because it is a question of law, the Opinion does not address what might constitute waiver of the privilege in situations where someone not engaged by the firm is assisting with client communication. While this problem can be resolved with a contract to provide interpretation services, there may be situations where the lawyer does not realize that the client is utilizing third party assistance for translating written communications on their end. For this reason it is always a good idea to make sure the client fully understands the privilege so that it is not inadvertently waived. Prudent lawyers will also look up the caselaw in their jurisdiction regarding waiver of the privilege prior to allowing any third party to be present at or assist with any privileged conversation with the client.

Lawyers concerned with effective communication must inevitably identify and work through communication issues using tools that may include communicating only in writing or using ad hoc translations by friends and relatives in addition to the use of trained interpreters or assistive technology for important oral communications. They must also adhere to Federal Law regarding disabled clients. It is only by looking at the entire range of communication options that a lawyer can discharge their ethical duties under the Rules and provide legal services at costs that make sense for smaller cases or firms who seek to regularly serve clients with limited communication skills.

©2021. Published by the American Bar Association Litigation Section Professionalism and Ethics Committee December 3, 2021. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Texas Ethics: What you need to know now

Things are happening in Texas courts, at the State Bar, and in the Texas Legislature that could affect your practice. Here are three things that you should know about today:

Here We Go: Texas Courts Are Now Allowed To Proceed with In-Person Hearings and Jury Trials.

On March 5, 2021, the Texas Supreme Court issued its 36thCOVID-19 emergency order. Finally, the prohibition against in-person proceedings, including jury trials, has been lifted, albeit only in certain circumstances and after certain protocols are put in place locally.

This is a bit of good news for litigation clients who have had their cases frozen for the past year waiting for a final trial.

Courts can of course continue to hold remote proceedings, and participants may opt to appear remotely. 

The Order is summarized in a recent Texas Bar Blog. Exactly how and when in-person proceedings will begin depends on how quickly your local Judges can establish and adopt the protocols and procedures required by the Order to ensure the continued safety of everyone involved. 

Because of this you should check (frequently) the local websites of the individual Judges, Courts and Counties in which you have cases pending so that you don’t miss any of the new rules or procedures that result from this Order.

The State Bar President’s “grievance taskforce” is ready to receive feedback from Texas lawyers.

You may have seen the State Bar President’s “President’s Page” in the Texas Bar Journal about his Task Force that is “ensuring the grievance process is fair to all”.

In the 4 months since it was formed, the Task Force has received input from selected stakeholders (like the Chief Disciplinary Counsel). The first opportunity for Texas lawyers to provide feedback is now upon us. With a projected finish date in April, the Task Force will have little time to debate/consider the input of those affected by the grievance process. 

So now is the time to act. We have been invited to provide comments in writing or to sign up to speak at one of two public feedback sessions taking place on March 10 and 24. You can sign up at the links in a recent Texas Bar Blog

My Firm will be addressing my concerns with the Investigatory Hearing process and procedure, specifically, the lack of due process afforded Texas lawyers who are “invited” to participate and then presented with “findings” after a “non-adversarial” proceeding. 

This is just one aspect of what the Task Force needs to hear from Texas lawyers and it comes from my experience representing lawyers around the State in disciplinary proceedings. 

If you have experienced the grievance process and have insights or helpful suggestions about how the grievance process can guarantee Texas lawyers due process while remaining fair to the general public, please think about sharing that with the Task Force. While they don’t want specific grievance stories (which are confidential), the best way for them to actually understand what it feels like to go through the process is to hear comments from Texas lawyers who have experienced it first-hand.

I urge you to take this opportunity to share your concerns and comments with the Task Force. 

The Texas Legislature is Back At Work.

The Texas State Bar earned the right to continue to self-govern when the Texas Legislature passed SB 302 (the “Sunset Legislation”) in 2017. This included the creation of a new committee to research, write and propose amendments and changes to the disciplinary rules—presumably without the interference of the Legislature.[1]

If you thought the Texas Legislature was done interfering with the Bar—consider SB 247, a bill that would amend the Texas disciplinary rules to protect the “sincerely held religious belief” of every Texas attorney from a hypothetical disciplinary rule based on ABA Model Rule 8.04(g) that is not being considered and will likely never be considered or adopted in Texas.”[2]

I won’t opine on why the Texas Legislature is even talking about a pre-emptive strike on a disciplinary rule that does not and is not likely to exist in Texas. But since it does not exist, the relief supposedly provided by SB 247 is not necessary. There has never been any incident of a Texas lawyer being disciplined for expressing sincerely held religious beliefs and the right to be free of government interference in the expression of such beliefs is already guaranteed by the Texas and United States constitutions. 

Plus, the State Bar already has in place procedures for appealing disciplinary and admission proceedings that can be used by anyone who believes they are being subjected to religious discrimination. Federal law also gives a judicial remedy to those who claim state actors are infringing on their freedom of religion. 

The Legislature is confronted by enough real problems; it should not waste its time or taxpayer dollars on imaginary ones.

Don’t take my word for it. Take a look for yourself. SB 247 addresses no legitimate facts or concerns and, if advanced, will bring the kind of negative attention to the State of Texas (and Texas lawyers) that drives away businesses and their executives and employees. 

Surely we can all agree we would like to have those businesses as clients.

[1] You will recall that in 2017, SB 302 created a new entity (the Committee on Disciplinary Rules and Referenda (CDRRR)—whose members are appointed by the Texas Supreme Court) to amend/create disciplinary rules that would protect the both the public and members of the Bar.

[2] ABA Model Rule 8.04(g) was adopted by the ABA in 2016. There was a firestorm of comment and controversy at the time, and the sponsor of SB 247 sought and obtained an opinion from Attorney General Paxton in 2016 in which the AG concludes that, if adopted in Texas, ABA Model Rule 8.04(g) would most certainly be struck down as unconstitutional. 

Lawyers Take Care: Well-Being During Covid-19

Due to Covid-19 most lawyers are working remotely–and many are feeling a bit isolated.

Some lawyers report an inability to concentrate on their work for any length of time; others complain that they miss interacting with their colleagues at the office, in court, and at Bar activities and events.

Enter, Lawyer Well-Being Week, sponsored by the National Task Force on Lawyer Well-Being and many partner organizations. Lawyer Well-Being Week takes place May 4-8, kicking off May, which is National Mental Health Month.

Click on the link above to access all the resources and tips for the week, including worksheets and activities for downloading and using throughout the year. Share these resources with colleagues who may appreciate a reminder to focus on wellness during this unusual time.

In addition, here is a short podcast I recorded with Bree Buchanan, Co-Founder of the National Task Force on Lawyer Well-Being and Co-Author of its groundbreaking 2017 Report. Bree was formerly the director of the Texas Lawyer’s Assistance Program (TLAP)* for the State Bar of Texas, and now is a consultant with Krill Strategies in Austin.

Be well.

*TLAP is here for all Texas Lawyers 24/7. Call them at 800-343-8527, follow them on Facebook @TLAPhelps for daily wellness programming and resources, and check out their well-being resources for remote living.

The Ethics Of Getting Paid During The Pandemic: a quick podcast

So. Much. Advice.

As lawyers, we are inundated with helpful information about practicing law during the pandemic that is Covid-19.

Rather than give you something else to read, check out my recent podcast (8 minutes) recorded for the ABA Section of Litigation Ethics and Professionalism Committee.

The link is here.

Stay safe.

Preparing for a Pandemic: Practical Steps and Ethical Responsibilities

It is probably just a matter of time before Texas joins the list of states who are declaring a state of emergency due to the number of confirmed cases of the novel coronavirus known as “Covid -19” (the Virus).

Even so, this is no time to panic–it is time to prepare.

Prepare to protect your practice so that you can continue your work for your clients as seamlessly as possible no matter what happens—and do so with minimal risk of violating your ethical duties.

This is exactly what the United States District Court Chief District Judge Rodney Gilstrap* did when he issued a new Standing Order for the Eastern District of Texas last week. Judge Gilstrap cited the court’s duty to ensure (and maintain) “the just and speedy disposition of proceedings” and its duty to protect those who work for and appear before the court and the general public. The order requires parties involved in a case to give notice to the other parties if they may have contracted or been exposed to the Virus and sets out a number of alternative procedures for continuing the progress of the case while protecting those involved in the case from possible exposure.

The Texas Supreme Court is preparing as well—but in a different way. The Court is even now appointing Judges to enforce a possible quarantine due to the Virus.** The goal, it seems, is to have a large number of Judges who have experience in quarantine law ready and available 24/7 to respond to requests from any city, county or district attorney or the AG to enforce a quarantine. The law regarding communicable diseases is right there in the Texas Health and Safety Code Chapter 81, which includes criminal penalties for not cooperating in any investigation or for concealing exposure to communicable disease, among other things. Because quarantines involve highly communicable diseases, part of the Court’s planning includes making sure that these Judges have breathing masks available as well as the technology they need to hold remote hearings to protect themselves and others from contracting or spreading the Virus.

So what should you be doing to protect yourself, your practice, and the public? Consider the advice given and issues raised in the 2018 ABA Ethics Opinion number 482. The Opinion starts by observing that lawyers have various ethical obligations implicated by a disaster, including the obligations to communicate with clients and to protect client funds and documents. It offers this advice about preparing to meet these obligations BEFORE disaster strikes:

  • Make sure you have policies and procedures in place to safeguard client property and funds as well as access to those funds. If you can’t go to the bank are you prepared to receive and disburse client trust funds? Are your delivery services prepared for an emergency?
  • Make sure you have the means to work, keep clients informed about how they can reach you, and then have a way to “meet” even if you cannot do so in person. Many businesses are already arranging for employees to work from home. If your practice can’t be managed from home it’s time to get the appropriate technologies in place, including any necessary cloud and video conferencing services. The “paperless office” you and your partners have talked about may be the only kind of office that works.
  • Don’t forget billing – you don’t want to have everything set up to do the work and then discover you don’t have the means to get paid for your work.
  • Most important, don’t forget insurance. The costs of fulfilling your obligations may be high, and the obligations don’t disappear just because the money isn’t available.

Lawyers’ duties to their clients don’t go away in a disaster; like the courts, lawyers should be preparing now for the disruptions that may come with this disaster or the next.

*Chief Judge of the U.S. District Court for the Eastern District of Texas—Marshall Division
**See the March 6, 2020 article in the Austin American-Statesman

Warning: Hackers are alive and well and after your [client’s] data

We have all tried to ignore the warnings about our ethical duty to be competent in the technology we use:

  • The articles and emails about data breaches and hacking of law firms
  • Texas Ethics Opinion 680 with its (incredibly long and seemingly impossible to achieve) laundry list of “reasonable precautions” Texas lawyers should take in order to meet our duties of confidentiality and competence and
  • Comment 8* to Rule 1.01, which makes it crystal clear that Texas lawyers are required to be competent in all forms of technology that they (and their firms) utilize

But no longer. 

The headline last week from announcing that a well-known hacker group had obtained and then released a small Texas law firm’s data, including the firm’s personal injury client’s “pain diaries” and HIPPA consent forms, should be a wakeup call to all Texas lawyers.

Here is how it can happen.

A hacker targets a law firm and then uses ransomeware to gain control of the firm’s data (i.e. confidential client information). They then publish the firm name and, if the law firm does not pay the demanded ransom (say, a million dollars) they will publish the firm’s data. Sometimes, as was the case with the recent hack of a Texas firm, the hacker publishes a sample of the firm’s data as proof that they can deliver on their threat if the law firm does not pay. Presumably if the firm pays the hackers release the data and remove the firm’s name from their published list of targets.

If this happens to you, it will not be a secret.

Texas law has for some time required any entity whose suffers a data breach to notify any individual who’s “sensitive personal information” may have been acquired by an “unauthorized person”. So yes, the clients will know. In addition, as of January 1, 2020, Texas law requires any business who experiences a data breach affecting 250 or more Texans to provide notice of that breach to the Office of the Texas Attorney General. Find the law in the Texas Business and Commerce Code, Title 11 Chapter 521 (Sec. 521.053) and forms for reporting to the AG here.

There is no excuse for delay.

No firm wants to admit that their data storage system has been hacked, which is why the answer to questions by the media is usually “no comment”. As a PR strategy—that is the way to go. However, if all of your clients’ personal data has been published on the internet—no PR strategy can save you. At that point, a disciplinary violation for breaching the duty of confidentiality and/or competence is going to be your last concern—and a massive number of lawsuits your first.

We must become the experts.

We may not be able to thwart a determined hacker; data security is a moving target due to the fast pace of technological advances. But being overwhelmed is not an excuse for  ignoring our ethical duties with respect to technology.

Don’t know where to start?

Here is a short list to begin: know and educate your staff about your ethical duties with respect to technology. Do what you need to in order to put protections in place to secure your firm’s data. Make sure that your Wifi security and software is up to date. Put a data privacy plan in place and replace weak passwords. Educate your staff to recognize phishing emails. Put all of it in your firm’s policies and procedures handbook, make sure everyone in the firm reads and understands the handbook and keep it up to date.

More information can be found online at the American Bar Association’s cybersecurity legal task force, including security resources and CLE links to articles aimed specifically at small firms.  The ABA has also recently issued a the 2nd edition of their publication The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business Professionals a review of which is posted on the SBOT website.**


*Comment 8 to Rule 1.01: 
Maintaining Competence
8. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated wtih relevant technology. . . .

**By my former Winstead colleague, Texas attorney Shawn Tuma.

Family Law and the August Onslaught

I recently wrote an article for the UNT Dallas College of Law publication Accessible Law. The publication is aimed at educating the public on various legal issues.  My article, “Understanding Court-Appointed Attorneys for Children in Family Law Cases” also includes a nifty infographic that contains nearly all the information from the article for those who prefer a shorter read.

The article is aimed directly at the questions that litigants and family members may have about court-appointed attorneys.* It brings to mind all the years I spent practicing family law and dreading the month of August–and not because of the Texas heat.

About this time each year, those of us who have spent hard time practicing family law know it is coming: the inevitable August onslaught. Something about the end of summer causes many family law clients to reconsider their possession/support/situation and they pick up the phone and call a lawyer to see what can be done. Often these calls require the lawyer’s immediate attention or an emergency motion of some sort.

Keeping family law clients happy at any time of the year can be difficult. The high stakes combined with the average client’s lack of experience with the courts often results in unreasonable client expectations about what a Judge can do for them. This is a lethal combination for family law lawyers who too frequently find themselves the subject of a frivolous State Bar grievance.

And–let’s be honest–some grievances simply cannot be avoided. Certain clients will always be willing to hop online and file a made-up grievance out of spite or anger and, in the interest of protecting the public, the State Bar has made it incredibly easy for them to do so. It takes no more time and effort than a negative Yelp review after a bad restaurant meal.

So what can be done to reduce the risk of such a grievance being filed against you? To start, three things: communication, documentation, and education.

Failure to Communicate under Rule 1.03 is frequently cited by disgruntled clients (family law and other) as the reason for their grievance. It requires (1) that a client be kept reasonably informed about the status of a matter, (2) that a lawyer promptly comply with reasonable requests for information, (3) that a lawyer explain a matter to the extent reasonably necessary to permit the client to make informed decisions. What is “reasonable” is not determined by the individual client’s anxiety level, but in order to lower that anxiety and the risk of being grieved in the first place, document everything that you can.

Education for the layperson like the kind provided by the UNT publication Accessible Law  is an important component that enhances effective client communication. Providing your client with articles, books and helpful website links will ultimately help them make more informed decisions. For family law lawyers, it may also reduce the August onslaught.

*Thanks to Rachel Li for her input and feedback on the UNT article.




We Need One More Texas Ad Rule Re-do

The latest proposed re-do of the Texas attorney advertising rules (the Ad Rules) has just been released by the Committee on Disciplinary Rules and Referenda (CDRR) and, surprisingly, they make a lawyer’s subjective desire for pecuniary gain the sine qua non of the Ad Rules. If you don’t read any further at least please view the proposed rules, comment, and learn about public hearings on them here.

This new subjective standard is a problem.

It has long been settled that, when it comes to attorney advertising (aka commercial speech), what matters is not the speaker’s subjective intent but rather whether the actual words used mislead the public, tarnish the image of the profession or otherwise harm some legitimate value the bar is allowed to protect.

You will recall that the CDRR released its first version of proposed changes to the Ad Rules in November, 2018.  That version allowed Texas lawyers to use trade names. Much objection from the Bar followed. Those rules were scrapped, and, as predicted, the prohibition against trade names has been revived in this latest version–but with a twist. It now states:

Rule 7.07: A lawyer substantially motivated by pecuniary gain shall not practice under a trade name.

Every lawyer works for pecuniary gain except when working on a purely pro bono basis. If we look honestly at what motivates lawyers then all lawyers in private practice are forbidden to use trade names because the only reason to use a trade name is get more trade; that is, for pecuniary gain.

But wait . . . there’s more.

The newly revised Ad Rules are riddled with this phrase–substantially motivated by pecuniary gain appears 17 times in the latest version–and there is no guidance at all as to how to objectively determine whether a communication or advertisement qualifies as such.∗

This phrase is even being used to define the kind of communications to which the Ad Rules apply in the first place. See proposed Rule 7.01(b)(1).

Invitiation to ligitation? Probably. Invitation to confusion? Absolutely.

Back to Bates.

Although a lot of work went into the new advertising rules it was work based on a flawed notion of what principle should guide the Bar’s regulation of advertising. Instead of trying to look into the heart and mind of the lawyer, which is an enterprise fraught with the likelihood of error, the rules need to look at the effect of advertising and trade names on the public. Bates v State Bar of Arizona , 433 US 350 (1977), struck down rules that forbade truthful advertising and specifically permitted restrictions on advertising that is false or misleading. Our advertising rules only need to restrict false and misleading advertising–something that is recognizable by the actual content of the message and not the motivation behind it. The profit motive will remain a legitimate concern in regulations forbidding direct solicitation of individual clients because the profit motive creates an unacceptable risk of other kinds of misconduct∗∗, but for communications aimed at the general public it is the actual words, not the motive that matters.

Back to trade names.

By way of example (and this analysis should be done on each rule that includes the phrase substantially motivated by pecuniary gain), if there is a problem with trade names it must be that they are misleading because they imply a specialization or expertise that does not exist. “Worlds Greatest Law Firm” would be a pretty obvious example of this. Nothing about the intent behind the name matters or is relevant to determining whether it is misleading.

The proposed addition of the attorney’s subjective intent renders the prohibition against trade names meaningless because it allows for only two possibilities. It either:

(1) applies to every lawyer (if that is the intention–it simply needs to say “no trade names”)


(2) every lawyer can use a trade name as long as they can explain that they were not “substantially motivated by pecuniary gain” in so doing. To put it mildly–it is a standard that any decent lawyer can drive a truck through.∗∗∗

We need a standard that is objective and consistent with the Courts’ rulings on attorney advertising. The new proposed Ad Rules are neither.

∗ There are no comments to the proposed Ad Rules. Comments to the rules are necessary and typically used to define, explain or interpret what is meant by the language used in the rules. Moreover, the only similar language we found in any current Texas statute is the phrase “substantially motivated by sincere religious belief” in the Texas Religious Freedom Restoration Act. The word “substantially” itself appears thousands of times in Texas statutes without, however, ever being defined. Thus, the proposed rule hangs on a never before used phrase whose most important word, “substantially,” is not defined.

∗∗This is made clear in the comments to existing rule 7.03 (covering prohibited solicitations), which largely follows the ABA Model Rule on direct solicitation.

∗∗∗For example, the lawyers practicing at “The ADA Firm” are going to say that they are substantially motivated not by making money but by protecting the public and educating them about important rights under the American with Disabilities Act (ADA). Copy and paste a similar argument for every firm operating under such a trade name.