All in Rules
Even though I’m posting this on the Saturday of a three-day-weekend, you’re probably not actually reading this until Tuesday or later. But if you’re as terminally online as I am, you’ve already heard about the lawyer who has used ChatGPT to perhaps accelerate his own obsolescence—allegedly, he used it to generate a whole brief, which was then filed in the Southern District of New York. (The docket and most of the pleadings are available on Court Listener.)
Yesterday, I (and several of my nerd friends, as it would turn out) spoke with Benjamin Penn for an article that ran today in Bloomberg Law about outgoing US Attorney Rachel Rollins, who was found by the Department of Justice’s inspector general to have engaged in wide-ranging violations of government ethics rules. I am not an expert in federal government ethics, far from it, so I stuck to the disciplinary implications of the alleged misconduct.
Relevant here, and to my quote that ran with the Bloomberg story, was that Rollins was found to have falsely testified, under oath, during the investigation of her other conduct (including leaking sensitive information to the press, and potential violations of the Hatch Act). I told Mr. Penn that “Bar regulators, in general, they’ll get their hackles up about any sort of dishonest conduct that has any nexus with the practice of law.”
Recently, a viral Twitter conversation asked participants born before 1990 about their first online purchase. I’m really not sure—was it a book from the early days of Amazon? Some long-forgotten kitchen gadget? I know I was long out of college, but this was still when “e-commerce” was something distinct from just buying stuff. Even though it quickly became apparent that online shopping was secure, quick, and soon to be inevitable, it took awhile for people’s habits and risk tolerance to catch up with the technology.
State lawyer regulatory authorities are similar—at any given time, the Rules of Professional Conduct reflect the state of the world from years ago. (Don’t believe me? Take a look at the advertising rules and tell me they reflect how people do business in 2022.) It takes time for the rules to catch up.
Model Rule 1.8(j) (Wisconsin counterpart here) is the one rule (other than, perhaps, don’t steal from your clients) that non-lawyers seem to know. Not that this has ever been polled, but if I had to guess, it’s the rule that attorneys other than professional responsibility lawyers can cite most often without looking up. Law students try to stump their professors with increasingly fanciful scenarios. Of course this Rule seems more interesting to most observers than imputed conflicts and multijurisdictional practice.
This post is about what happens when your client asks you to get to “X” despite all available authority telling you “X” is not possible (which I speculate may have happened in the above transaction). “We need to enforce this poorly drafted restrictive covenant.” “I want maintenance from my spouse despite only being married for 9 months and voluntarily waiving it.” “I don’t care what the law says, just fix it.”
Can you get to X?
Over the weekend, mythical sea creature /(probably) soon-to-be-sanctioned lawyer Sidney Powell announced that she was joining a legal team to aid who she termed “political prisoners” (people who are accused of participating in the January 6 insurrection and are now in jail).
While, okay, everyone deserves a defense, what caught my eye was that this announcement was, of course, attached to a request for donations to Powell’s 501(c)(4). It is not clear whether donations would actually go to some sort of legal defense fund, some other project of the organization, or anywhere else.
This blog isn’t about politics so I’m not going to dive down that rabbit hole (except to remind Ms. Powell that 8.4(c) is a 24/7 law and misleading donors can get her sanctioned just as readily as misleading clients). So instead I’ll talk about crowdfunding legal fees.
Can I be disciplined professionally for off-duty conduct?
The answer is, of course (say it with me) it depends.
When I launched this site back in October I intended it to be a site for discussion of legal ethics. I mean, it’s right there in the title (sort of; perhaps I should add getting “ethicking” added to the dictionary to my bucket list). Disciplinary decisions, new rules, general nerdery. Some current events but “it’s not about politics, and it’s not going to be about politics,” or so I told my employer when making the pitch.
I wrote this about nine years ago. My first real lawyer job started as a 2L clerkship and ended after only a year, as the Great Recession was showing its teeth. I had just started my second job out of law school, and felt pretty confident, even though I was branching into some new areas of law and working in a wholly new environment.
