Schooled in Ethics

SCHOOLED IN ETHICS By: Alex B. Long

Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

TOP TEN LEGAL ETHICS ISSUES I WISH THE BPR WOULD ADDRESS IN AN ETHICS OPINION

April 15, 2019. That’s the last time the Tennessee Board of Professional Responsibility published a formal ethics opinion. Can you think of anything important that has occurred in the interim? Anything that might impact how lawyers practice law?

I can think of a few. What’s more, I can think of at least ten legal ethics issues that are either more relevant today than they were three years ago or that are at least interesting or generating attention in other jurisdictions.

(1) Am I engaged in the unauthorized practice of law if I’m licensed only in Tennessee but advising clients from Georgia?: ABA Formal Opinion 495 addressed this situation as have a few other state ethics opinions. These opinions have concluded that as long as lawyers in this situation do not “hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction,” they are not engaged in the unauthorized practice of law. But it still might be nice to get some reassurance from the BPR on that point, particularly in light of the increased amount of working from home and telecommuting lawyers have been doing over the past two years.

(2) Who is going to file that motion for my client when I’m dead and buried? COVID-19 made plenty of us consider our own mortality. For solo practitioners, the pandemic could serve as a reminder about one’s ethical obligation under Rule 1.3 to plan for one’s death or disability. A comment to ABA Model Rule 1.3 says that the duty of diligence includes such a duty. Lots of other states recognize such a duty. Tennessee’s version of Rule 1.3 doesn’t contain this same comment. Does such an obligation exist?

(3) What’s the deal with this “Internet” I hear so much about? Once again, the pandemic required many lawyers to improve their overall technological proficiency. It’s been a few years since the Tennessee Supreme Court added language to a comment to the rule regarding the duty of competence explaining that the duty requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” TRPC R. 1.1 cmt. 8. Given the myriad of potential ethical issues involving the risks associated with legal technology (like the case of the lawyer who was whispering instructions to his client during a Zoom deposition or the risks of hitting “reply all”), the BPR could provide lawyers with some potentially useful advice.

(4) How can my firm comply with Rule 1.10’s screening requirement in the case of a conflict of interest? TRPC Rule 1.10(c) provides that screening may “cure” a law firm’s conflict involving a lawyer’s former client. But Tennessee’s rule takes something of an unusual approach in terms of its requirements. Wouldn’t it be helpful for firms across the state if the BPR clarified what some of those requirements really mean in practice? The California Lawyers Association recently did the same for California lawyers. See California Lawyers Association Ethics Committee Formal Opinion No. 2021-1, https://calawyers.org/california-lawyersassociation/ethics-committee-formal-opinion-no-2021-1/.

(5) Can I enforce this advance waiver I got my client to sign? Comment 22 to TRPC Rule 1.7 discusses the possibility that a lawyer might request that a client agree to waive conflicts that might rise in the future. What language must a prospective conflict waiver contain to be effective? The BPR has not addressed this issue, but the State Bar of Nevada recently did in Formal Opinion 58. https://nvbar.org/forlawyers/ethics-discipline/ethics-opinions/.

(6) What are my ethical obligations with regard to a client with diminished capacity? This is a difficult question about which lawyers could definitely use some guidance. The State Bar of California’s Standing Committee on Professional Responsibility and Conduct recently answered the call with a detailed ethics opinion on the subject. https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/ COPRAC-Formal-Opinion-No.2021-207.pdf

(7) What advice can I give my client about smoking or growing marijuana? Legalized marijuana use has become more common over the past few years. Marijuana use is still illegal in Tennessee, although it’s legal in plenty of other states. What advice can a Tennessee lawyer give to a client who wants to use or grow it? There are several ethics opinions on this subject, but none from Tennessee. See, e.g., N.Y. State Bar Association Op. 1225, https://nysba.org/app/uploads/2021/07/Opn1225-with-letterhead.pdf.

(8) What can I do if a former client gives me a negative review online? There have been several ethics opinions on this subject over the past three years. See, e.g., Florida Bar Ethics Opinion 21-1, https://www.floridabar. org/etopinions/opinion-21-1/; ABA Formal Opinion 496. Despite this there is still some gray area concerning this general issue.

(9) Can I collect a referral fee if I don’t perform any work and don’t assume any responsibility for the matter? Probably not, but the rule regarding fee-splitting - TRPC Rule 1.5(e) – is one that is of practical concern for many lawyers and one that has tripped up many lawyers. Some clear guidance from the BPR would be helpful. See State Bar of New Mexico Formal Ethics Advisory Opinion 2021001, https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/ Ethics/2021/2021-001.pdf?ver=Z-xfV0tfoCUiQFdtkRtjLw%3d%3d.

(10) What are my ethical obligations when it comes to metadata? This issue has been the subject of numerous ethics opinions in other states. A 2021 informal advisory opinion from Missouri provides new guidance on the question. https://news.mobar.org/ethics-thirteen-new-informaladvisory-opinion-summaries-published-in-2021/. This was one of 13 advisory opinions emanating from the Show Me State this past year.