Short Takes After a Long Absence
Hello readers! It has been awhile, hasn’t it? I hit three years and then promptly disappeared.
Hopefully I’ll be blogging more frequently now that the midterms are over and were not nearly as eventful as 2020 (for which we all should be grateful), but to tide you over in the meantime, some quick hits:
Michael Avenatti, of Stormy Daniels, celebrity swagger, and, well, crime fame, was sentenced to an additional 14 years in prison for stealing millions from clients (including an individual described as “a mentally ill paraplegic on disability”) and dodging taxes.
I’m assuming my readers know that stealing from clients and defrauding the IRS are wrong, so I won’t go into that. But whole series of episodes strikes me as a lesson in hubris. While we can speculate as to his motives—and in a prior case, the motive was said to be money—hubris likely paid a role. That’s a takeaway for lawyers who may not represent celebrities or have access to millions of other people’s money; sometimes, people steal because they can, and they think they can get away with it.
Rudy Giuliani’s disciplinary hearing began today before the DC Board on Professional Responsibility. This matter stems from Giuliani’s representation of the Trump campaign in a federal lawsuit in Pennsylvania seeking to overturn the results of the 2020 election, despite no evidence of widespread fraud or other wrongdoing in that state (or anywhere else). It sees Giuliani is throwing his local counsel under the bus, even though he was the one who argued in court about a Democratic plot to steal the election.
Of course, this interests me as a disciplinary practitioner as well as an elections practitioner—first and foremost, press attends these things in DC? Who knew? But also, there hasn’t yet been too much in the way of attorney discipline following the 2020 election and January 6, 2021; I look forward to seeing the results. Discipline involving highly public practitioners is tricky (no matter what the regulators do someone is always unhappy and loud about it).There is some discourse on social media today about a lawyer who appears to spill client confidences on TikTok. Rule 1.6 requires lawyers to treat “information relating to representation” as confidential absent informed consent, implied authorization, or a specific exception, and generally, even talking in vagaries (“my client did X”) should be avoided if there’s a chance the client or a third party will recognize the matter.
Now, of course, we don’t know that the TikTok lawyer didn’t obtain consent from her client(s), or that she isn’t making stuff up. When I present, I either stick to reported cases* or, if I want to make a point about what I see and deal with, I make something up of similar tenor (and let my audience know “this isn’t real but it’s along those lines”).
* Where it gets sticky is when the case is publicly reported, but I represented the lawyer in the matter. Typically, 1.6 extends even to information that is publicly known—lawyers still aren’t supposed to talk about it. But the disciplinary bar is small and the cases are precedent and sometimes the best, or only, case on a specific matter is a case I’ve worked on. It would seem absurd if I wasn’t allowed to discuss or even cite to a case for an important proposition simply because it was my client’s case; there’s no real guidance on that and I’m probably overthinking it and I’ve decided that absent more authoritative guidance, citing a case in a brief or argument is fine (and, the longer I do this, and the fewer other people who do this regularly, the more unavoidable it may become). I won’t put it on TikTok, though, and not just because I don’t have a TikTok and don’t know how it works.
