Category: Profession

Remote Practice: in California, the Big Question Remains Unanswered

The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has written a proposed ethics opinion on remote practice that is now out for public comment, formal opinion interim number 20-0004. The scope of the issues addressed by the opinion is broadly framed: “What are a California lawyer’s ethical duties when working remotely?” The opinion digest responds broadly:

Remote practice does not alter a lawyer’s ethical duties under the California

Rules of Professional Conduct and the State Bar Act. Managerial lawyers must

implement reasonable measures, policies, and practices to ensure continued

compliance with these rules in a remote working environment, with a particular

focus on the duties of confidentiality, technology competence, communication,

and supervision.

Proposed formal opinion 2020-0004

The impetus for the opinion, like other opinions regarding remote practice, over the last two years (ABA formal opinion 495, New Jersey opinion 59/742, District of Columbia opinion 24-20) is the widespread adoption of remote work during the pandemic. The transition to remote work is hardly new; it has been going on ever since advanced information technology made geography irrelevant around 1995. California was one of the first states to address the phenomenon in the seminal Birbrower case in 1998, albeit in dicta that was not really related to the facts of the case:

Our definition does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state.   Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive.   For example, one may practice law in the state in violation of section 6125 although not physically present  here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.   Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law “in California” whenever that person practices California law anywhere, or “virtually” enters the state by telephone, fax, e-mail, or satellite.  (See e.g., Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543, 86 Cal.Rptr. 673, 469 P.2d 353 (Baron ) [“practice law” does not encompass all professional activities].)   Indeed, we disapprove Ring, supra, 70 P.2d 281, 26 Cal.App.2d Supp. 768, and its progeny to the extent the cases are inconsistent with our discussion.   We must decide each case on its individual facts.

Birbrower, Montalbano, Condon & Frank v. Superior Ct. (1998) 17 Cal. 4th 119, 128–29

Since the case had to do with New York lawyers who were physically, not virtually, present in California, the rationale behind this dicta is difficult to discern on the surface. Some, including amicus counsel for the petitioner New York law firm, thought the case presented an opportunity to undermine the outdated patchwork of individual jurisdictions jealously protecting their turf, a position opposed by the amicus for the client trying to get out of paying their bill, the State Bar of California, who advocated for a traditional California protectionist approach ( I was present at the oral argument.) The Birbrower dicta, accurate as it was, probably created more confusion than insight.

The existing trend toward remote work accelerated, by necessity, during the pandemic, and even the State Bar of California was part of the trend. Once work becomes remote, it can become truly remote by moving beyond a state boundary line. Remote work raises a number of issues not directly connected with the multi-jurisdictional practice (MJP) problem. The problem is that licensure is still handled by that patchwork of jurisdictions long after this approach stopped making sense.

These non-MJP problems are well addressed by 2020-0004. But 2020-0004 says only this about the MJP problem:

California licensed lawyers practicing California law remotely in another
state where they are not licensed should consult the multijurisdictional practice and unauthorized practice of law rules and authorities of the state where they are physically present.35 The ABA and some other state bar and local ethics committees have issued opinions regarding unauthorized practice of law considerations for attorneys remotely practicing the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted.

Proposed formal opinion 2020-0004, at page 7.

The Committee does helpfully attach a long footnote citing the many opinions from other jurisdictions that address remote practice, including MJP. But for lawyers licensed in other jurisdictions who are practicing remotely while in California, the Committee offers no guidance.

This is a big question. There are hundreds, perhaps thousands, of lawyers, admitted in other jurisdictions who are physically present in California and “virtually” practicing in their licensed jurisdictions to adopt the Birbrower language. The only guidance those lawyers have now is the limited guidance provided by California Rule of Professional Conduct 5.5(b): “A lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.” Emphasis added.

What exactly does this language mean? Is practicing New York law for your New York clients from your home office in California a “systemic or continuous presence”? Can that lawyer use his residence address in California or establish a post office box in California for use in their “virtual practice” without “holding themselves out” as entitled to practice in California? Does this type of “virtual practice” violate their licensing jurisdiction’s version of ABA Model Rule 5.5(a)?: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”

These are questions that need to be answered. But COPRAC is unable to. By direction of the Board of Governors (now Board of Trustees) in 1992, COPRAC cannot opine on questions involving the unauthorized practice of law. But if not COPRAC then who? Text or comments to Rule 5.5 could be added to clarify the meaning but in the normal course, those comments would be vetted through COPRAC. Would consideration of such clarifying language violate the Board’s directive? The Legislature could direct the State Bar to draft an amend Rule 5.5 or adopt a new Rule of Professional Conduct to submit to the California Supreme Court for adoption or a statute clarifying what constitutes the unauthorized practice of law. Given California’s protectionist proclivity, such Legislative activity seems very unlikely. There seems to be no procedural mechanism to directly request the Supreme Court to adopt new Rules of Professional Conduct.

So it appears that there is no way to get this question answered until some sweeping reform of multi-jurisdictional practice occurs to conform to reality. In the meantime, non-California licensed lawyers virtually practicing in California will continue a sort of shadow existence.

ATILS Shrugged

 

 

On March 12, 2020, the Board of Trustees of the State Bar of California voted to shelve consideration of most of the proposals contained in the final report of the State Bar’s Task Force on Access Through Innovation of Legal Services (ATILS).  Among the most heralded of those proposals was the the so-called “sandbox”, a program that would relax regulatory standards for certain projects designed to test the efficacy of innovation in the delivery of legal services, including their potential for harm to the public.  The exact nature of these sandbox proposals was not precisely defined but presumably with revolve around one or more of these three axes – non-attorney ownership of legal service providers, relaxed unauthorized practice of law of rules, and commodification of legal services through technological platforms.  Utah and then Arizona had adopted the sandbox concept.  ATILS did not in its initial set of recommendations released for public comment in July 2019.  Those recommendations prompted a tsunami of negative comment, mostly from practicing lawyers. and largely about the proposed changes to Rule 5.4, the rule forbidding non-lawyers from owning a stake in law firms or dividing fees with lawyers

This seemed to be a surprise to the advocates of legal reform.  But it should not have been.  The crisis in “PeopleLaw” sector, to use Prof. Henderson’s nomenclature, is not only about clients who can’t get access to justice but about lawyers who can’t make a living serving those markets.  Opening up PeopleLaw to competitors fired with non-lawyer investment would make even more difficult for these lawyers to compete.  Not being able to beat them, they would be compelled to join them, becoming employees in larger, more bureaucratic legal service providers designed around efficiency, at less compensation with no control over their working conditions.  A similar path to that followed in recent decades by our fellow professionals in the medical field.

Moreover, ATILS did not present much evidence to support its view that relaxation of ownership rules would decrease the costs of legal services.  The evidence it did marshall was a law review article examining the implementation of “Alternative Legal Structures” in Great Britain which found that most non-lawyer investment went not to grossly underserved PeopleLaw sectors like family law but to areas that were much more lucrative like personal injury, products liability and mass torts (Robinson When Lawyers Don’t Get All The Profits, 29 Georgetown Journal of Legal Ethics 1.

Not exactly a surprise; investors, like Willy Sutton, go where the money is.

Sally and Johnny pondering the use of dispute resolution software platforms for in pro per marital dissoution litigants.

Hence, the sandbox, a safe space where entrepreneurs would be allowed to develop the evidence supporting the structural change advocated by the legal reformers. It is a curious concept, and not only the name, which conjures up children engaged in enjoyable frivolity. Perhaps this is meant to evoke the child-like creativity of the entrepreneurs who will find use it to find new ways to deliver legal services at low cost, without much need for expensive lawyers.  It falls into place a little more neatly when you learn that “sandbox” is a software development jargon:  “A sandbox is a testing environment that isolates untested code changes and outright experimentation from the production environment or repository, in the context of software development including Web development and revision control” as defined by Wikipedia.  The ATILS proposals are being pushed by the tech industry and software developers are very clearly in touch with their inner children.

Which is part of why they are going nowhere, for now. Certainly, the intervention of Covid 19 pandemic played a part in putting the “sandbox” on hold.  But the backdrop is a growing disillusion with technology and its alleged benefits, growing skepticism that the tech industry really has society’s best interests at heart.  Disruptive technologies have made people fearful, not more secure.

At some point, the “sandbox” is probably inevitable and a good thing.  There is no path backwards for lawyers, only forward, and that path is not going to be easy. Technology products may help to bring down the costs of some legal services (see Sally and Johnny, above.) Limited license practitioners could bring down the costs of routine services as well.  Legal education may transform itself into practical training without the academic excesses that make it needlessly expensive.  Lawyering is not going to be the same; it will be smaller, more focused, less independent. It’s been moving that way for some time now. The challenge is preserving some shreds of humanity amid the economic pressure to commodify and tech-up.  For that reason alone, tapping the brakes on dramatic restructuring of the profession is a good thing.

A Judicial Cri De Coeur On Civility

The tone of most judicial opinions runs a little cold. Decisions crafted with logic and authority that read as if they might have been written by Mr. Spock or some futuristic AI. A recent decision of the Fourth District Court of Appeal moves against the trend, blending its logic and authority with a passionate viewpoint that laments the lost civility of the profession. At the same time, the decision cites law that hints at potential ways to enforce civility rules that heretofore have had only the force of a bully pulpit.

The setup in Lasalle v. Vogel, case no. G055381, filed June 11, 2019 (Justice Bedsworth, writing for the Court, with Justices Moore and Ikola concurring) is a legal malpractice action filed by a client ascribing the dismissal of her action for failure to provide discovery to her lawyer’s failure to communicate. The defendant lawyer was served with the summons and complaint. Thirty-six days later, after no response was filed in the court, the plaintiff’s lawyer sent the defendant lawyer a letter and an email, informing the defendant lawyer that her default would be entered if no response was filed the very next day, a Friday. No response was filed. On Monday a request for entry of default was filed at 4:05 pm and emailed to the defendant. She responded at 5:22 pm, with a request for an extension of time to respond.

By then, it was too late. The defendant lawyer filed a motion for relief from the default. It was opposed, with an opposition that took the opportunity to slime the defendant lawyer with a request for judicial notice (granted) of her discipline in two unrelated matters. Based on the default, a $1 million judgment was entered about a year later.

While the Court expressed sympathy for court and plaintiff and bemoaned the dilatory tactics “we have all encountered [but] we cannot see this as such a situation, and cannot countenance the way this default was taken, so we reverse the judgment.” (Slip opinion at page 4.)

In the pages that follow, the Court cites a long history of judicial opinions bemoaning the decline of civility in litigation practice and states that the Court could have cited many others from other jurisdictions “were we writing a compendium rather than an opinion”. They summarize our current state of affairs from quoting it’s own opinion and call to action in Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th267, 293:

Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.  It’s time to stop talking about the problem and act on it.  For decades, our profession has given lip service to civility. All we have gotten from it is tired lips.  We have reluctantly concluded lips cannot do the job; teeth are required.  In this case, those teeth will take the form of sanctions. We sanctioned counsel $10,000.

And, aside from the court’s power to sanction, what sort of teeth might exist?

The Court notes that “it’s gotten so bad the California State Bar amended the oath new attorneys take to add a civility requirement.  Since 2014, new attorneys have been required to vow to treat opposing counsel with dignity, courtesy, and integrity. That was not done here. Dignity, courtesy, and integrity were conspicuously lacking.” (Emphasis in the original.)

Because this is a civil action, not a discipline decision, there is no citation to Business and Professions Code section 6103:

A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.

Emphasis added.

The Court also cites Code of Civil Procedure section 583.130:

So to the extent it was possible for a party seeking a default with unseemly haste to commit an ethical breach without creating a legal issue, that distinction was erased by section 583.130. The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties “cooperate in bringing the action to trial or other disposition.”  (§583.130.)  Quiet speed and unreasonable deadlines do not qualify as “cooperation” and cannot be accepted by the courts.

Business and Professions Code section 6068(a) provides that “it is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.” The State Bar Court has found that “the Supreme Court interprets section 6068(a) as a conduit by which attorneys may be charged and disciplined for violations of other specific laws which are not otherwise made disciplinable under the State Bar Act.” In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, 1991 WL 70703.

California law once provided that it was the duty of an attorney to avoid “offensive personality”, former Business and Professions Code section 6068(f). That section was found to be unconstitutionally vague by the Ninth Circuit (United States v. Wunsch, 84 F.3d 1110, 1120 (9th Cir. 1996).) That section had been used to discipline attorneys for extreme violations of the civility rules. Since Wunsch, the conventional wisdom has been that civility codes were well-intentioned but unenforceable through the discipline process.

Lasalle suggests that there are two possible paths to enforce some civility codes: as violations of section 6103 (as oath violations for attorneys admitted after 2014) or section 6068(a) violations based on failure to comply with section 583.130.

It is also worth noting new California Rule of Professional Conduct 8.4(d) states that professional misconduct includes engaging “in conduct that is prejudicial to the administration of justice.” We have no case law yet interpreting just how broad this rule’s reach might be.

Is discipline for lack of civility consistent with the public protection mission of the State Bar? The Lasalle Court would probably say yes: “We cannot accept [lawyer incivility] because it is contrary to legislative policy and because it is destructive of the legal system and the people who work within it. Allowing it to flourish has been counterproductive and corrosive” citing increased litigation [Slip opinion at page 10.]

Is discipline for lack of civility consistent with the public protection priorities of the State Bar? That is a question no one can yet answer.

Real Lawyers Do Take Notes

The reported exchange between President Trump and the former White House counsel Mr. McGahn regarding his note-taking shines a light on one of the bigger fault lines in legal ethics: the tension between the lawyer’s role as an advocate for a client and the lawyer’s responsibilities to others.  Not a perfect example because McGahan was not Trump’s personal lawyer but for the Office of President, but close enough to illustrate some of the aspects of that fault line.

The fact that the distinction between his personal lawyer and White House counsel (and the Attorney General as well) seems to been lost the President is one aspect of that tension.  Lawyers for organizations are consistently called upon to remind corporate constituents that they don’t represent them, and themselves need to be reminded by Rule 1.13.  Clear understanding of who the client is the first task of any lawyer, a task sometimes difficult in government service where the client is an abstraction speaking through an individual. Lawyers generally have no duty to communicate with non-clients but they have a duty to communicate the true facts of the relationship to non-clients who might reasonably believe they are clients (see Butler v. State Bar (1986) 42 Cal.3d 323.)

Identifying the client is critical to the duty of the lawyer to communicate relevant limitations on the lawyer’s conduct as required by Rule 1.4(a)(4).  Among those limitations is the lawyer’s inability to lie for the client (Rule 8.4(c), Rule 3.3(a), Bus & Prof. Code §6068(d), §6106.) Another is lawyer’s inability to prosecute an action without probable cause to injure someone (Rule 3.1.) Another is the lawyer’s inability to advise the client to violate the law (in most instances) (Rule 1.2.1.)

Rule 1.2.1 occupies a position directly over that fault line.  Oliver Wendell Holmes famously characterized the lawyer’s duty as to zealously represent the client within the bounds of the law.   The conjures up the image of a race car speeding across the Bonneville salt flats and suddenly stopping on a dime.  Crossing the line can occur in many ways and unconsciously. Zeal can become zealotry, especially in emotionally charged representations. Clients want lawyers who care about their problems but lawyers must be sources of independent dispassionate advice.  Loyalty, money or the lawyer’s own emotional needs can interfere with this balancing act.

While a lawyer cannot counsel a client to violate a law, a lawyer can inform the client about what the law is, whether the client’s course of action might violate the law and what the consequences of that violation. In course of that give and take, the client may inevitably garner the information necessary to figure out how to violate the law with impunity.  Rule 1.4(a)(4) requires the lawyer to inform the client that the lawyer cannot advise the violation of the law, no matter what currents of meaning flow during the consultation.

An entertaining example of those currents of meaning is provided by what might be the best lawyer movie of all time, Anatomy of Murder, in the scene were lawyer Paul Biegler (Jimmy Stewart) first meets his client Lt. Manion (Ben Gazzara).  Manion has killed an innkeeper who allegedly raped Mrs. Manion (Lee Remick).  In the first meeting, Biegler tells Manion that he is “just explaining what the law is” but in the course of discussion, skillfully suggests to Manion exactly what facts he needs to hear to establish Manion’s defense to murder (see Freedman, Lawyer Ethics in an Adversary System (1975) at pages 59-75.)

 

President Trump, according to Mr. McGahn, expressed a fondness for lawyers who don’t take notes, presumably to reference to the late disbarred Roy Cohn.  Keeping important books and records is central to the concept of lawyering, to the point where the California Supreme Court has said that failure to do so“ is in itself a suspicious circumstance (Clark v. State Bar (1952) 39 Cal. 2d 161, 174.) When a client complains to the State Bar, the attorney-client privilege (and presumably, the duty of confidentiality) are waived and the State Bar’s inquiry letter will ask for all communications and all notes detailing conversations with the client. If there is any prospect that the attorney-client relationship will go south, a lawyer would be wise to document interactions with the client.  Of course, it isn’t always possible to document every conversation with a client and the 21st century has given us texting, perhaps the worst possible way to communicate between lawyer and client.  More than one lawyer has told me that all or most of their interactions with clients occurred through text messages and they have no way to recover them to disprove the client’s allegations.

What President Trump’s comments say about the nature of his interactions with Roy Cohn is best left to our fertile imagination, although given the well-documented information on the character of both, not too much imagination may be necessary. Rule 1.2.1 might be violated in subtle ways, but subtlety is not associated with either.  Mr. McGahn is a real lawyer; unfortunately, Roy Cohn was, too, at least until he was disbarred, and it probably takes no imagination to say that Rule 1.2.1 and its Model Rule equivalent are violated all the time.

Lawyers, take heed.  Take notes.  But also take notice the counseling a client can present an ethical challenge that you might not even be aware of.