Ethical Issues in Departing Employee Litigation

Ethical Issues in Departing Employee Litigation

If you’re a lawyer who handles departing employee litigation—including non-compete and trade secrets issues—you may sometimes find yourself tip-toeing around some ethical landmines. To avoid stepping on a landmine, first you have to know where they are. 

Let’s use a hypothetical to find them.

Paula Payne Windows sells—you guessed it—windows to builders. Dawn Davis quits her job as a legal assistant, goes to work for Paula Payne, and within a few years becomes Paula Payne’s top sales person. Paula, the owner, promotes Dawn to President and asks her to run the company.

But Paula just can’t help herself. She keeps butting in and interfering with Dawn. The sales people don’t know whether to take orders from Dawn or Paula.

Dawn gets frustrated and decides to start her own window business. She’ll call it Real Cheap Windows, she decides, and she’ll take Paula Payne’s best customers and employees with her.

Dawn has access to all the sales records, so she can easily offer to undercut Paula Payne’s prices as an extra enticement to the customers. Plus, she knows how much all the employees are making, so she can offer them a little more to jump ship to the new company. Shortly before announcing her resignation, she looks into creating her own LLC and saves 60 days’ worth of sales reports to a USB drive she takes home with her.

So far this is a fairly typical departing employee scenario. Now let’s see what ethical issues it can raise for lawyers.

1. Conflict of Interest and Communications Seeking Representation

Suppose you represent Paula Payne. You worked closely with Dawn Davis last year when a sales person got fired and made an employment discrimination claim.

Dawn has learned to value your opinion, so one day she calls you up and says she has a question. “Suppose I left Paula Payne Windows and started my own company,” she says, “and let’s say I don’t sell to any of Paula Payne’s existing customers, would that violate my non-compete?”

Hopefully you are already thinking wait, I have a duty not to represent a client in a matter adverse to my current client, Paula Payne Windows. In Texas, where I practice, this duty is found in Rule 1.06(b) of the Texas Disciplinary Rules of Professional Conduct.

So what should you do?

A. Give Dawn your honest opinion but caution her to “keep in mind, my client is Paula Payne Windows, not you individually.”

B. Tell Dawn “sorry, Dawn, I would love to help you with this, but Paula Payne Windows is my client, so I just can’t give you advice on this,” and leave it at that.

C. Tell Dawn the same thing in B, and then call Paula Payne to tell her what Dawn asked.

It is a good idea to make sure Dawn understands you don’t represent her. See Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.—Texarkana 1989, writ denied) (“an attorney can be held negligent where he fails to advise a party that he is not representing them on a case where the circumstances lead the party to believe that the attorney is representing him”).

But A is still problematic. Even if you make clear to Dawn that you don’t represent her, giving her your opinion about her non-compete may violate the duties of loyalty and confidentiality you owe to Paula Payne Windows. See Rule 1.05.

B is probably a safer answer than A. Just politely tell Dawn you can’t advise her on this issue and explain why.

But then what do you do? If you don’t tell Paula Payne Windows about the conversation, are you violating a duty of disclosure to Paula Payne Windows? If you do tell Paula Payne Windows, are you violating any duty to Dawn Davis?

Let’s change up the hypothetical. Suppose Dawn doesn’t call you, but one morning you see an email from one of your partners in the law firm with the subject line “Confidential Conflict Check.” The email simply says, “Any conflict with representing Dawn Davis in the formation of an LLC?”

Hmm. Why would Dawn be forming an LLC? You should probably let Paula Payne know about this.

But keep in mind that the attorney-client privilege can extend to communications made in seeking legal representation. See Tex. R. Evid. 503(a)(1)(B) (“client” includes person who “consults a lawyer with a view to obtaining professional legal services from the lawyer”). So you may have a duty to keep that confidential conflict check confidential, even if that means not revealing it to your own client.

2. Lawyer as Witness

One crisp fall morning you’re pulling out of the Starbucks drive through with your Pumpkin Spice Latte (I won’t judge), and you get a call on your cell phone. “Hey, Paula,” you answer “how are you?”

“I’m sorry to bother you like this,” Paula says, “but I need you to get over to our office right away.”

“What’s going on?”

“I need to fire somebody, and I need you here to see it.”

“Wow, ok, does Dawn know about this?”

“Dawn’s the one I’m firing. I just found out she formed her own company a month ago, and she’s been sending some of our best customers there. I’m meeting with her in an hour.”

You attend the meeting, where Dawn admits that she sent some of Paula Payne’s customers to her new company, but claims Paula Payne was too pricey for those customers. “They weren’t going to give Paula Payne that business anyway,” she says. “I’m sorry, Dawn,” you say, “but we’re going to have to let you go.”

The next day, Paula Payne asks you to file a lawsuit against Dawn Davis. What should you do?

A. Accept the representation and file the lawsuit

B. Tell Paula Payne you can file the lawsuit but can’t be the lead lawyer in the courtroom because you may be a material witness.

C. Tell Paula Payne it would be better to have one of your partners represent the company, because you may be a material witness.

D. Tell Paula Payne it would be better to send the matter to Zach Wolfe, Thought Leader, because you may be a material witness.

Obviously, the best answer is D.

Kidding. I’m just kidding.

But you can see the issue. You’re a witness to Dawn’s admission that she diverted customers to her new company. Perhaps not an essential witness, because Paula Payne can testify to the same thing, but at a minimum your testimony might be needed to corroborate Paula.

This implicates the lawyer-as-witness rule. See Rule 3.08. The bottom line is that you may not be able to act as the courtroom advocate for Paula Payne Windows if you’re also going to be a witness on a key potential fact dispute.

3. Duty of Candor

One of my favorite plot devices is that Superman is not capable of lying. You start with that premise and the story practically writes itself.

But did you know that lawyers are also not allowed to lie?

I know, it sounds like the setup for a bad punchline, but it’s true.

Rule 4.01 of the Texas Disciplinary Rules of Professional Conduct says that “[i]n the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact . . .”

A lawyer shall not knowingly make a false statement of material fact. Think about that. How many times do you think the typical lawyer knowingly makes a false statement of material fact to opposing counsel in a lawsuit?  

It’s probably not as many as you think, but still, it seems like lawyers ignore this rule more than they should. There’s no exception in the rule for “negotiations with opposing counsel.”  

Or is there? Comment 1 says that “under generally accepted convention in negotiation, a party’s supposed intentions as to an acceptable settlement of a claim may be viewed merely as negotiating positions rather than as accurate representation of material fact.”

But still, the general rule is that a lawyer can’t make a false statement of material fact.

Now let’s apply that.

Suppose Paula Payne Windows sues Dawn Davis for misappropriation of trade secrets, and Dawn hires you to defend her. Dawn confidentially tells you that she has the USB drive with 60 days of sales reports on it. 

Paula Payne’s counsel schedules a temporary injunction hearing. You call her to see if there’s a way to avoid the hearing. “Dawn doesn’t have any confidential documents from your client,” you say, “not a single one.”

Have you violated Rule 4.01?

A. No, because Dawn’s statement to you that she had confidential documents was attorney-client privileged.

B. Yes, because you knowingly made a false statement of material fact.

C. No, because whether the documents are confidential or not is a matter of opinion.

A strikes me as not quite right. It’s true that you shouldn’t reveal confidential attorney-client information to Paula Payne’s lawyer. But that doesn’t give you a license to make a false statement of material fact.

Of course, reconciling the duty of confidentiality and the duty of candor can get messy. Let’s say opposing counsel asks you point blank, “did Dawn take any Paula Payne documents with her?” If you say “I’m sorry, I’m not at liberty to say,” then you might as well say yes. Does that mean it would be ethical to lie and say no?

Perhaps answer C provides a way out of this dilemma. If there’s a reasonable basis to take the position that the sales reports don’t contain confidential information, then it’s not necessarily a false statement of material fact to say that Dawn doesn’t have any confidential Paula Payne documents.

But I think that approach only works if you have a good-faith basis for saying the documents are not confidential. Which leads me to the next issue.

4. Meritorious Claims and Contentions

A lawyer cannot take a position in a lawsuit without a reasonable good-faith basis. In Texas, Rule 3.01 provides: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.”

The term “frivolous” gets thrown around a lot, so let’s look at how the comments to the rule define it.

For starters, comment 2 says a contention is frivolous “if it contains knowingly false statements of fact.” That’s pretty obvious. But the motive behind the contention also matters. An assertion is also frivolous if it is made “primarily for the purpose of harassing or maliciously injuring a person.”

“It is not frivolous, however,” comment 3 says, “merely because the facts have not been first substantiated fully or because the lawyer expects to develop vital evidence only by discovery.”

Comment 3 goes on: “Neither is it frivolous even though the lawyer believes that the client’s position ultimately may not prevail.”

I think we can synthesize these principles in the overarching principle that a lawyer must have a good-faith and reasonable basis for making a contention in a lawsuit. Good faith means the motive is not merely to harass. Reasonable means the lawyer expects the evidence may support it.

Now let’s apply that to the lawyer for Paula Payne Windows. Suppose Dawn Davis has no non-compete. Suppose she didn’t start competing until after she left. In that case, Paula Payne’s best bet is to sue for misappropriation of trade secrets.

But what if Paula Payne doesn’t know whether Dawn Davis took any documents and has no evidence that Dawn used any confidential information or trade secrets? As a lawyer, can you ethically file a lawsuit against Dawn Davis asserting that she misappropriated Paula Payne’s trade secrets?

A. No, because you don’t have evidence to support the elements of the cause of action.

B. Yes, but only if you plead misappropriation of trade secrets “on information and belief.”

C. Yes, if your purpose is not merely to harass Dawn, and if you reasonably believe you will discovery evidence supporting the claim.

I think some judges want the answer to be A, especially in federal court, but that is not current law. Generally, you are not required to have evidence to support every element of every cause of action when you file a lawsuit. That is what discovery is for. And the comments to Rule 3.01 make this clear.

Some lawyers will instinctively gravitate to B. It’s a common practice for lawyers to say “on information and belief” when pleading an allegation that does not yet have evidence to support it.

I’ve never really understood this. There’s no “on information and belief” exception in Rule 3.01, the Texas Rules of Civil Procedure, or the Federal Rules of Civil Procedure. As the lawyer, you rarely have personal knowledge of the facts, so everything you plead is “on information and belief” in a sense.

I say you either have a reasonable good-faith basis to plead it or you don’t. I think “on information and belief” just clouds the issue.

And that’s why I think C is the better answer. It comes down to a question of reasonableness. If you have a reasonable basis to claim that Dawn misappropriated trade secrets, then you can sue for it. If you don’t, then you can’t.

5. Conflict of Interest and Joint Representation

For our fifth and final ethical issue, let’s change up the hypothetical. Assume that Real Cheap Windows was already a competitor of Paula Payne Windows, not a new company formed by Dawn Davis. Paula Payne is seeking an injunction barring Real Cheap from employing Dawn. The owner of Real Cheap wants to know if he can save some money by hiring you to defend both Real Cheap and Dawn in the lawsuit.

Can you represent both of these defendants?

A. No, because there is a potential conflict of interest between Real Cheap and Dawn.

B. Yes, if Real Cheap and Dawn both waive the potential conflict of interest.

C. Yes, if you confirm there is no actual conflict of interest and inform Real Cheap and Dawn that you cannot represent both of them if a conflict develops.

This may be our toughest issue. The potential for a conflict between Real Cheap and Dawn is real. Rule 1.06(b)(2) prohibits representing a person if the representation “reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client.”

It’s easy to see how that could happen. Suppose Paula Payne Windows offers to settle for no money as long as Real Cheap agrees to fire Dawn. That might be an ok deal for Real Cheap, but not for Dawn.

Still, I don’t necessarily think answer A is required. Let’s say you talk to the owner of Real Cheap Windows, and he says, “I don’t care how much money we have to spend on litigating, I want Dawn at my company, and I’m not going to let Paula Payne Windows tell me who I’m allowed to hire.”  

I have sometimes represented both defendants in scenarios like this, even through trial, and I don’t think I violated any conflict-of-interest rule.

But if you’re going to represent both defendants in a departing employee lawsuit, it’s important to do two things. First, satisfy yourself that the employee and her new employer have aligned interests such that an actual conflict is not present. Second, explain the potential for a conflict of interest in writing to both defendants and make it clear that you will be unable to take sides if a conflict between them develops.

Of course, this is not foolproof. It’s a judgment call.

So, A is the correct answer if you want to err on the side of caution, and this is often what defendants in this situation do.

I have separately represented the employee while another lawyer represented the new employer, and vice versa. In those scenarios I have typically worked closely with the lawyer for the other defendant. But the separate representation ensures that each defendant gets legal advice based solely on that defendant’s interests.

In other words, avoid the landmines by not walking into the minefield in the first place.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. Thomson Reuters named him a 2020 Texas “Super Lawyer” for Business Litigation.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Top 15 Proposed Changes to Texas Lawyer Advertising Rules

Top 15 Proposed Changes to Texas Lawyer Advertising Rules

I took a Professional Responsibility course in law school, but I can’t remember the grade I received. I think it was at least a B, so hey, that’s good enough for a thought leader, right?

Anyway, major changes to the ethics rules that govern Texas lawyer advertising—including the use of social media—may be coming soon. The proposed changes would modernize and improve the advertising rules. If the changes are enacted, Texas law firms will be allowed to use trade names, and Texas lawyers will be able to use social media more freely without fear of stepping on ethical landmines.

The proposed changes would amend Part VII of the Texas Disciplinary Rules of Professional Conduct, which contains Rules 7.01-7.07 governing lawyer advertising and solicitation. These rules are, frankly, kind of a mess. They were obviously written to regulate plaintiff’s personal injury lawyers, and they are awkward to apply to other practice areas.

For example, how is a defense lawyer or a transactional lawyer supposed to comply with the requirement that when stating results obtained, “the amount involved was actually received by the client”? See Rule 7.02(a)(2)(ii). This is just one example. And these were problems before social media.

Applying these rules to social media is even more awkward. I’ve written about this problem before. See Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media. As I explained, the good news was that the Texas State Bar Advertising Review Committee helped by issuing Interpretive Comments that clarified application of the rules to social media.

The bad news was that the Interpretive Comments still left open the possibility that (a) all the Texas lawyers who have LinkedIn profiles they haven’t filed with the State Bar are technically violating the requirement to file all lawyer advertising, and (b) every time a Texas lawyer posts something on social media, it could be an “advertisement in the public media” that is supposed to be filed.

For these reasons, when the Committee on Disciplinary Rules and Referenda circulated proposed changes to the advertising rules earlier this year, I recommended some changes to clarify these issues. See Influential Blogger Recommends Tweaking New Texas Ethics Rules.

To their credit—and to my pleasant surprise—the Committee members took the time to review my detailed memo, expressed appreciation, and listened attentively to my comments at the public hearing. They even invited me to share additional comments at a subsequent meeting and made further changes to the proposed rules to address some of the issues I raised. That was pretty cool.

As a result, the proposed rules include an exemption from the filing requirement for social media posts that are primarily “informational” or “educational,” as well as an exemption that would cover most lawyer social media profiles.

These are significant improvements that will encourage use of social media by Texas lawyers, while continuing the general prohibition of false or misleading lawyer advertising.

Want to see the details? Check out the submission packet for the proposed changes, including a redlined version of the rules. The packet even includes my memo and a transcript of my public comments. For the 15 changes that seem most important to me, read on.

Proposed Structural Changes

I call the first five changes structural in nature. These are the kind of changes that lawyer ethics nerds will love.

#1: One general “false and misleading” rule would replace the previous “per se” rules

This first one requires a little explanation, so bear with me.

The prohibition of false or misleading statements has been moved from Rule 7.02 to Rule 7.01, but the definition of “false or misleading” is the same:

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The new part is an expanded definition of a “misleading” statement:

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The key terms here are “substantial likelihood,” “reasonable person,” and “unjustified expectations.” This is more specific than the previous prohibition, which has been deleted:

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The idea is to prohibit statements that, while literally true, would cause a reasonable person to expect too much. The classic example would be something like “we got a $5 million verdict for a trucking accident victim, and we can do the same for you!”

This is a good clarification, but I don’t view this as a material change.

The bigger change is that the rules now rely on the general prohibition of false and misleading statements, without also enumerating specific types of false and misleading statements.

Previously, the rules identified certain statements that were false and misleading per se, particularly as to past results. Now the per se rule about past results would be deleted:

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This is a welcome change. This awkward rule created ambiguity because there are so many situations where it just doesn’t apply. The Advertising Review Committee had to clarify with Interpretive Comment 26, which essentially said just comply with the parts of the rule that apply to your situation:

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With the deletion of the previous per se rule about results obtained, this interpretive comment would no longer be necessary. The only downside is that I would no longer get to gripe about this rule when I present this topic at CLE seminars.

#2: The rules would now have a definition of “advertisement,” with the key language “offers or promotes legal services”

The new Rule 7.01 “governs all communications about a lawyer’s services, including advertisements and solicitation communications.” Believe it or not, the old rules did not define an “advertisement” in the public media, but the new Rule 7.01 would:

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The definition has three key elements:

(1) “substantially motivated by pecuniary gain”

(2) made to “members of the public in general”

(3) “offers or promotes legal services”

In my memo to the Committee, I quibbled with the “pecuniary gain” element because it’s subjective. Plus, isn’t most of what lawyers post on social media motivated by “pecuniary gain” to some degree? But it’s probably not a big deal. The “substantially motivated” language should be sufficient to keep this from being a problem.

The two other elements are really the key. To trigger the advertising requirements, it has to be a communication to the public, so a private post viewable only by your 50 Facebook friends is probably not advertising. And it has to offer or promote legal services. So a tweet that says “I’m working this weekend on a brief for a client” won’t be considered an advertisement.

Why does this matter? For one thing, the rules generally require advertisements to be filed with the Advertising Review Committee. More about that later.

#3: The rules would now have a definition of “solicitation,” which includes “offering to provide legal services”

The proposed rules also have a new definition of a “solicitation communication”:

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This definition has three elements, which correspond to the three elements in the definition of advertisement we looked at earlier:

(1) “substantially motivated by pecuniary gain”

(2) made to a “specific person who has not sought the lawyer’s advice or services”

(3) “offering to provide legal services . . . in a particular matter”

Thus, the difference between an advertisement and a solicitation communication is that a solicitation communication is to a specific person about a particular matter. This can be important because there are specific rules about solicitation in Rule 7.03, including a prohibition on solicitation through social media (with some exceptions).

#4: The rules would now expressly refer to social media

Speaking of social media, the proposed rules would include “social media” in the communications regulated by the rule on solicitation:

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Nobody thinks the existing rules don’t apply to social media, but expressly acknowledging social media in the advertising rules is a welcome update. I only wonder if, 20 years from now, the phrase “social media” will be out of date and people will cringe when they read it.

#5: There would be no separate rule for law firm websites

The current rules have a special provision just for law firm websites in Rule 7.07(c). That provision is old enough that it had to include a definition of “website.” The upshot of that rule is that law firms can file the homepage but not worry about filing changes to the rest of the website.

The new rules would have the same effect, but they would do it by adding a filing exemption for portions of the website other than the homepage. (I address this exemption below.)

Those are the major structural changes I see in the proposed new rules. The next five changes are new exemptions to the filing requirement. These exemptions would have more of a practical impact.

Proposed Exemptions from the Filing Requirement

Unless an exception or exemption applies, Texas lawyers must file advertisements and solicitation communications with the Advertising Review Committee, which requires filling out a form and paying a fee. This general requirement will not change.

This filing requirement creates a problem for lawyers who use social media for professional networking and business development. Most Texas lawyers do not file their social media profiles (such as LinkedIn), and they don’t want to have to think about filing every time they post something on social media that might be considered an advertisement.

The good news is that the new exemptions would clarify that in most cases Texas lawyers do not need to file their social media profiles or posts as advertising.

#6: The new rules would have an exemption for content published for informational, educational, political, artistic, or entertainment purposes

In my comments to the Committee, I suggested adding an express safe harbor for communications of an “educational or informational” nature. This would track the current guidance from the Advertising Review Committee in Interpretive Comment 17, which says the filing requirement does not apply to “[b]logs or status updates considered to be educational or informational in nature.”

The revised proposal expands the exemption:

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This would be a significant improvement that would provide needed clarity to Texas lawyers who are active on social media. It would allow attorneys to post freely on social media for informational, educational, political, artistic, or entertainment purposes. As long as such posts do not “expressly offer legal services,” they would not have to be filed as advertising.

#7: The new rules would have an exemption for “the type of information commonly found on the professional resumes of lawyers”

Initially, the draft rule revisions included a filing exemption for “a communication on a professional social media website to the extent that it contains only resume-type information.”

In my comments to the Committee, I suggested tweaking this social media exemption to make it clear that the typical lawyer profile on LinkedIn would be exempt.

The proposed language is now a little broader. The exemption would cover a social media profile that does not expressly offer legal services and that:

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This exemption would probably cover the typical lawyer profile on LinkedIn, as long as it does not “expressly offer legal services.”

My only hesitation is that one might question whether Endorsements and Recommendations, a staple of LinkedIn profiles, are commonly found on professional resumes of lawyers. But if this exemption is enacted, I think it would be a fairly safe bet to assume your LinkedIn profile does not have to be filed, at least until the State Bar says otherwise.

#8: Most of a law firm website would be exempt from the filing requirement

As noted earlier, the current rules have a special rule specifically for law firm websites, in Rule 7.07(c). That rule would be eliminated, but there would be a specific filing exemption for law firm websites:

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In other words, the homepage of a law firm website must be filed, unless all of the information on the homepage is covered by other exemptions. The rest of a law firm website would not need to be filed.

The effect is similar to the current rules, except in some cases firms wouldn’t even have to file the homepage.

#9: The newsletter exemption would be expanded

Existing Rule 7.07(e), newsletters sent to existing or former clients, other lawyers or professionals, and certain members of nonprofit organizations are exempt. The proposed rule would slightly expand this exemption to cover:

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Thus, a newsletter sent to a business person who is experienced in using the type of legal services the lawyer offers would be exempt, as would a newsletter sent to anyone who asked to receive it.

#10: Certain basic types of information about a lawyer or law firm would continue to be exempt

The proposed Rule 7.05(i) would carry forward most of the exemptions for certain basic information about a lawyer or law firm now found in Rule 7.07(e), such as names, contact information, court admissions, educational background, licenses, foreign language abilities, and board specializations.

Proposed Rule 7.05(i) would not include the previous exemption for “the particular areas of law in which the lawyer or firm specializes or possesses special competence,” but in most cases that information would be covered by the “professional resume” exemption addressed above.

Things Texas Lawyers Would Now Be Allowed To Do

#11: Use a trade name (if not false or misleading)

This is the big one. Rule 7.01(c) would expressly provide that “[l]awyers may practice under a trade name that is not false or misleading.” Law firm names would no longer be limited the name or names of current or past partners.

I don’t really have a dog in the trade name fight, so I’ll leave it to others to debate this one. I’ll just be curious to see how far creative firms push this. Will we see a firm called Badass Trial Lawyers of Abilene? Trademarks R Us? The Lollipop Firm?

Keep in mind, the only limit is that it can’t be false or misleading. Nothing in the proposed rule requires good taste.

#12: Say you “specialize” (instead of “focus,” “concentrate,” etc.)

Under the current rules, only lawyers certified by the Texas Board of Legal Specialization can say they “specialize” or call themselves “specialists” in a certain type of practice.

Of course, almost every lawyer today specializes in one or more specific areas of law practice, whether board certified or not. And there are many specialties—hmm, non-compete and trade secret litigation comes to mind—that have no board certification.

This is not a big problem, because those lawyers can simply say they “focus” or “concentrate” on their type of practice, rather than “specialize.” But this really puts form over substance.

The proposed changes would end this silliness. Rule 7.02(b) would allow lawyers to say they practice in particular fields of law:

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The part about “particular fields of law” does not use the word “specialize,” but the proposed comments to Rule 7.02 make it clear that lawyers would be allowed to say they specialize:

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There are limits, of course. As the proposed comment notes, the statement about specialization must not be false or misleading. And as the rest of Rule 7.02(b) provides, there are limits on stating you’re a member of an organization with a name that implies its member possess special competence.

But generally, it will now be ok to say you specialize in a particular type of practice, as long as that’s true.

#13: Promote past successes and results obtained without specific conditions

As noted above, the current Rule 7.02(a) imposing specific conditions on statements about past successes would be deleted. So, for example, there would no longer be a requirement that the lawyer was lead counsel.

But again, to comply with Rule 7.01, the statement can’t be false or misleading, or create unjustified expectations. And the proposed comment to Rule 7.01 says the lawyer who cites a past result must have “played a substantial role in obtaining that result.”

#14 Compare yourself to other lawyers (if not false or misleading)

Current Rule 7.02(a)(4) prohibits comparisons to other lawyers that are not based on objective, verifiable data. In other words, you can’t compare yourself other lawyers based just on opinion. At least that’s the rule. I’m not sure it is followed.

But this rule would be deleted:

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This is one case where I like the current rule. Do we really need lawyers expressing opinions comparing themselves with other lawyers? I admit I’m a little old-fashioned on this issue.

On the other hand, deleting this prohibition wouldn’t mean that anything goes. Under the new Rule 7.01, Texas lawyers still wouldn’t be allowed to make comparisons to other lawyers that are unsubstantiated.

The proposed comment to Rule 7.01 makes this clear:

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So, assertions like “we’re the best lawyers in town,” or “we can get you a recovery when others can’t” are probably still off limits.

#15: Solicit business from personal or professional contacts

In addition to expanding the filing exemptions for advertisements, the proposed changes would simplify and slightly expand the filing exemptions for solicitation exemptions.

The current solicitation exemptions in Rule 7.05(f) would be deleted:

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These exemptions would be replaced by the following solicitation exemptions in the new Rule 7.05:

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While the “pecuniary gain” exemption would be deleted, it would effectively remain in place because the new definition of “solicitation communication” in Rule 7.01(b) would include the element of “substantially motivated by pecuniary gain.”

The new exemptions for other lawyers and experienced business users will be especially advantageous for business lawyers who seek to develop business through contact with other lawyers and potential business clients.

Bonus Change: Hammer Don’t Hurt ‘Em

I said the top 15 changes, but here’s a bonus. The proposed changes include a rule that would prohibit telling potential clients you can get results through violence:

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Apparently we needed to clarify that lawyers can’t do this. Only in Texas.

My Grade for the Proposed Changes

The Committee on Disciplinary Rules and Referenda has done good work to update and modernize the rules governing Texas lawyer advertising for the social media era. It will be impossible for the changes to please everyone, but the proposed new rules would be a significant improvement in clarity over the old rules.

The new rules would rely heavily on the command to avoid false or misleading statements. That may be a “fuzzy” command that reasonable lawyers can disagree on in any particular case, but at least the command is intuitive and easy to understand.

The proposed rules would also have the benefit of making it easier for Texas lawyers to share information freely on social media without fear of violating the advertising rules. This is a development Texas lawyers should welcome. I give the Committee an A.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Influential Blogger Recommends Tweaking New Texas Ethics Rules

Influential Blogger Recommends Tweaking New Texas Ethics Rules

If you scour every issue of the Texas Bar Journal for proposed changes to the ethics rules that govern Texas lawyers–and who doesn’t?–then you saw that the March 2020 edition included proposed changes to Texas Disciplinary Rules of Professional Conduct 7.01-7.06. These are the rules that regulate lawyer advertising, including social media. You can find background material about these changes here.

I’ve blogged about this topic (see Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media) and taught continuing legal education programs on it, so you know I was eager to check out the proposed changes. And guess what, the proposed changes are generally an improvement.

It gets even better. You can submit public comments on the proposed changes to the Committee on Disciplinary Rules and Referenda by email to CDRR@texasbar.com or by clicking here. You can also call in for a public hearing on the proposed changes on my birthday, April 7. They will even let law bloggers participate. (Thanks to the Rules and Referenda Staff Attorney, Brad Johnson, for providing this helpful info.) 

You know I’m not going to pass up a chance to give my two cents on these proposed revisions. So here’s a draft of my memo to the Committee.

Memo

To:            Texas Committee on Disciplinary Rules and Referenda

From:       Five Minute Law

Re:            Changes to Texas Disciplinary Rules of Professional Conduct 7.01-7.06

Date:         3/23/20

A. Overview

  • My focus is on application of the advertising rules to social media. I am a practicing Texas litigator who has taught CLE programs on this topic for ethics credit.
  • The overhaul of the advertising rules is a welcome change. The old rules were unwieldy and difficult to apply to current reality, especially social media.
  • A literal application of the current rules could mean that a lawyer has to file every social media post with the Advertising Review Committee.
  • In addition, the current rules could be read to require all lawyers to file their LinkedIn profiles (and other “landing page” profiles). Hardly any Texas lawyer does this.
  • The new rules offer some guidance by now defining “advertisement.” The definition has three elements: (1) communication to the public, (2) offers or promotes legal services, and (3) substantially motivated by pecuniary gain.
  • The new definition of “advertisement” is helpful, but could be improved.
  • The Advertising Review Committee’s current Interpretive Comment 17 provides helpful guidance that “[b]logs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department.”
  • Consistent with Interpretive Comment 17, the new definition of “advertisement” should include a carve-out or safe harbor to confirm that educational communications are not “advertisements.”
  • The new Rule 7.05 expands the exemptions from the filing requirement to include “a communication on a professional social media website to the extent that it contains only resume-type information.” Again, this is an improvement, but it could be better.
  • It is unclear whether the typical lawyer LinkedIn profile—which often includes endorsements and recommendations—would fall under this exemption. This should be clarified.

B. My Perspective

My perspective on the advertising rules and their application to social media is based on several things:

  • I have been a practicing Texas litigator for over 20 years.
  • My current practice focuses on representing both employers and employees in disputes involving non-competes, trade secrets, and other departing employee issue. There is no board certification for this practice area.
  • I am a frequent user of social media for both professional networking and sharing educational content with other lawyers and the public.
  • I publish a weekly blog, Five Minute Law, which focuses on litigation-related topics for both lawyers and non-lawyers.
  • I have written about the ethics of lawyer use of social media in Texas at my blog and have presented the topic multiple times at continuing legal education programs.

C. Problems with the Current Rules

The current Texas advertising rules were written specifically to regulate plaintiff’s personal injury lawyers, but they apply to everybody.

So, for example, Rule 7.02(a)(2) says a communication about past results is false and misleading unless:

(i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise to the recovery, or was primarily responsible for the settlement or verdict,

(ii) the amount involved was actually received by the client,

(iii) the reference is accompanied by adequate information regarding the nature of the case or matter, and the damages or injuries sustained by the client, and

(iv) if the gross amount received is stated, the attorney’s fees and litigation expenses withheld from the amount are stated as well.

The problems with this rule are obvious. What if you weren’t lead counsel? What if you’re a defense lawyer who got a take-nothing verdict, so no amount was “actually received by the client”? What if you’re a transactional lawyer and there was no litigation, settlement, or verdict at all?

Fortunately, the Advertising Review Committee of the State Bar recognized the problem and published Interpretive Comment 26. It says, essentially, comply with the parts of the rule that apply to your situation, and don’t worry about the rest.

Even aside from these specific flaws, the way the current rules define false or misleading communications by reference to specific instances is problematic. I’ve always thought it would make more sense to have one general rule, i.e. don’t make false or misleading statements. The new proposed Rule 7.01(a) essentially does that. This is a definite improvement.

Another problem with the current rules is that, generally, a lawyer can’t say “I specialize” or “I’m a specialist”—even if it’s true—if the lawyer is not board certified in that practice area.

The reality today is that most lawyers specialize in a particular practice area but are not board certified. And what do you do if you specialize in, for example, non-compete and trade secret litigation? There’s no board certification for that.

The answer is that you just use a different word. Rather than say “specialize,” you say that your practice “focuses” or “concentrates” on a particular area of law.

Obviously, this puts form over substance. A limitation so easily avoided seems silly.

The new Rule 7.02 seems to fix this. It allows a lawyer to say the lawyer “practices in particular fields of law” and removes the express prohibition on a non-certified lawyer saying the lawyer is a “specialist.” It even appears that under the new rule a non-certified lawyer could say “specialize” or “specialist,” provided that statement is not false or misleading.

That is what the rule should be. The only constituencies that might have a reason to oppose this are board-certified lawyers and the Texas Board of Legal Specialization.

So I applaud this and the other proposed improvements to the “false and misleading” rules. But that still leaves the problem of social media.

D. Problems Applying the Current Rules to Social Media

Obviously, the current advertising ethics rules were not written with social media in mind, and applying them to social media is difficult.

The fundamental problem is that lawyers do not usually think of their social media profiles or posts as advertising, but these communications could be considered advertising under a literal application of the current rules. That would mean for every profile or post, the lawyer would need to fill out an application, pay a fee, and file a copy with the Advertising Review Committee of the State Bar of Texas.

Take LinkedIn. It is by far the most popular platform for professional networking for lawyers. Almost every Texas lawyer has a LinkedIn profile.

The profile includes an “About” section that usually contains a self-promoting description of the lawyer’s practice written by the lawyer, an “Experience” section showing the firms the lawyer has worked for, and an “Education” section with the lawyer’s degrees. These sections are followed by the “Skills and Endorsements” section and the “Recommendations” section (more about those later).

In short, the point of the profile is to promote the lawyer’s experience and qualifications as a lawyer. And in the vast majority of cases, the profile is set to be viewable by the public. So is it an “advertisement” that must be filed?

It sure sounds like advertising, and the Advertising Review Committee has said it is. Interpretive Comment 17(C) says: “Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements.”

It therefore appears that, generally, Texas lawyers must file their LinkedIn profiles.

Of course, hardly any lawyers do this. I have plenty of anecdotal evidence from raising this question at multiple CLE presentations. It appears that thousands of Texas lawyers are currently breaking the rules by not filing their LinkedIn profiles (arguably).

This is an untenable situation.

One possible solution is for a lawyer to limit the material in the LinkedIn profile to matters that are exempt from the filing requirement under current Rule 7.07(e). The exemption includes some basic resume-type information, including “the particular areas of law in which the lawyer or firm practices.”

That helps, but it does not entirely solve the problem. Remember Endorsements and Recommendations? They expressly promote the qualifications and experience of the lawyer, and they do not seem to fall under any existing exemption. So, even a lawyer who tries to limit her profile to material that falls under an exemption is still going to have a hard time achieving strict compliance.

And the problem is not limited to profiles. There is also the problem of social media posts.

E. The Problem with Social Media Posts

Let’s take a typical LinkedIn post by a lawyer. The lawyer shares an article that recognizes the lawyer’s firm as a top firm in a particular practice area, adding the comment “Congrats to my wonderful colleagues!” If the lawyer published this in a magazine, we would all agree it’s an advertisement. But it is unlikely the lawyer will consider the social media post an advertisement, and even less likely the lawyer will file it with the Advertising Review Committee.

I suppose the Bar could take a hard line and strictly enforce the filing requirement. But the likely result would not be lawyers filing their LinkedIn profiles and posts as advertisements, but lawyers getting off LinkedIn. That would not benefit the profession or the public.

The problem is even greater on Twitter. A lawyer who is active on Twitter may share dozens of tweets, retweets, and responses to tweets in a day. But we don’t want to make  the lawyer evaluate each tweet to determine if it’s an “advertisement,” file a copy of each one that crosses the line into advertising, and pay multiple fees each day.

F. The “Educational or Informational” Solution

Interpretive Comment 17 offers a potential solution by drawing a line between “educational or informational” content and advertising: “Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department.”

So, a lawyer who wants to post content on social media can avoid violating the filing rule by keeping the content “educational or informational” rather than self-promotional.

For example, a tweet that comments on a recent Texas Supreme Court decision would not be advertising, because it’s educational or informational, but a tweet that says “my firm just won a huge case for our client X at the Texas Supreme Court” might be advertising.

It’s not a perfect solution, but it helps.

G. The Proposed New Definition of “Advertisement”

The new Rule 7.01 improves on the situation by defining “advertisement.” The proposed definition is “a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.”

The last part of the definition is there to distinguish an advertisement from a “solicitation.” I will focus on the first part.

The proposed definition has three elements:

(1) communication to the public

(2) offers or promotes legal services

(3) substantially motivated by pecuniary gain

One of these things is not like the other. Elements 1 and 2 are objective. Element 3 is subjective. In other words, you can evaluate elements 1 and 2 solely by looking at the communication on its face. Element 3, in contrast, requires looking into the mind of the lawyer who made the communication.

It would be preferable to make the definition entirely objective. The focus should be on the substance of the communication, not its motivation.

The problem with the subjective element, in a nutshell, is that there is almost always some pecuniary motivation to content a lawyer shares on social media. Even when a lawyer shares a post that is entirely educational, the lawyer is probably hoping that the post will help to generate interest from a potential client or referral source.

I’ll use myself as an example. My last three blog posts covered application of force majeure clauses, drafting considerations for Texas non-competes, and a recent Texas Supreme Court case on whether an exchange of emails established an enforceable purchase agreement.

Each of these posts was primarily “educational” in its content, for both lawyers and members of the public. And at the risk of flattering myself, I would also say the content was helpful to understanding the topics.

Was my motivation purely educational? Of course not.

Yes, I enjoy educating people, but my blog posts are also part of an overall networking and business development strategy. Obviously, I am hoping that these posts will help generate referrals by other lawyers or inquiries by potential clients. You might call that a “pecuniary” motivation.

H. Applying the New Definition of “Advertisement”

So would my blog posts be “advertisements” under the new proposed definition?

Probably not. That’s because my posts do not “offer or promote legal services,” at least not expressly. Ignoring the advice of marketing experts, I never add a “call to action” to my posts, e.g. “if you need help with drafting a force majeure clause or a non-compete, please contact me.” I avoid the call to action because it sounds too “salesy” for my taste, but also because I don’t want to turn my educational blog post into an advertisement that I’m supposed to file.

Plus, I could make a case that the post was only partly, not “substantially,” motivated by pecuniary gain.

The problem is the “probably.” It would be better if the new definition would provide more certainty that an educational post is not an advertisement, following Interpretive Comment 17. The “motivated by pecuniary gain” element adds some uncertainty.

To mitigate this problem I propose the following modification:

An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which and that offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters. A communication, including an article, blog post, or social media post, that is primarily educational or informational and does not expressly promote the experience or qualifications of the lawyer or solicit potential clients is not a communication that “offers or promotes legal services.”

This continues existing policy (under Interpretive Comment 17) but provides more certainty.

I. The New Exemption for Resume-Type Information

The new Rule 7.05 expands the list of things that are exempt from the filing requirement. It includes a new exemption for “resume-type information” on social media:

(g) a communication on a professional social media website to the extent that it contains only resume-type information.

This is a welcome improvement. It potentially solves the problem with LinkedIn profiles—and other social media profiles—discussed above. Lawyers should be free to post resume-like information about their experience and qualifications on their social media profiles without worrying about whether they are required to file the profiles as advertisements.

The problem with the proposed exemption is that the term “resume-type information” is vague. In particular, it is not clear whether resume-type information includes endorsements and recommendations, and therefore it is not clear whether the exemption solves the LinkedIn profile problem.

To address this issue with more certainty, I propose the following revision:

(g) a communication on a professional social media website to the extent that it contains only resume-type information; “resume-type information” includes third-party endorsements and recommendations and other information about experience and qualifications customarily provided on social media profiles, provided the information is not false or misleading under Rule 7.01;

Again, lawyers are already sharing this information. We need a rule that accommodates this reality. A situation where thousands of lawyers are potentially violating the rules by not filing their profiles does not increase public confidence in the legal profession.

J. Conclusion: Lawyer Use of Social Media Should be Encouraged

The assumption that implicitly underlies my comments is that the rules should encourage lawyers to engage with other lawyers and the public on social media. There is a real benefit to both lawyers and non-lawyers when lawyers freely share information on social media. Any rule that would have a chilling effect on lawyer engagement on social media should be avoided.

Granted, there is a danger to the public from unscrupulous lawyers using social media, just like there was a potential danger when we allowed lawyers to write articles in magazines, place ads in the yellow pages, record TV and radio commercials, and put up billboards. But the general prohibition on false or misleading communications can do most of the work. Protecting the public does not require antiquated and byzantine rules that were never intended for social media.

I hope my comments are helpful to the Committee’s admirable effort to update and streamline the Texas advertising rules for the social media era.

So what do you think of my draft public comment? I’d love to hear your feedback. And if you agree with my suggested improvements, please email the Committee on Disciplinary Rules and Referenda at CDRR@texasbar.com and tell them “I agree with Zach Wolfe’s proposed revisions published at Five Minute Law.”

_______________________________________

IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

One Law Dude’s Reflections on #MeToo, and Seinfeld

One Law Dude’s Reflections on #MeToo, and Seinfeld

You have to feel bad for us men in the workplace these days, what with the #MeToo movement and everything. I mean, we just don’t know what we’re allowed to say or do anymore.

Can you hold the door open for a lady at the office? Compliment a woman on her new dress? Roll up to the parking garage blasting “Panama” on the car stereo?

Of course, back in the “good old days,” things were not so good for women in the workplace. There was plenty of overt sexism. It was wrong, but at least the rules of polite society were better defined.

That all changed beginning with the social upheavals of the 60s. Now everything’s upside down, and we need somebody to tell us the new rules.

Fortunately, there was a TV show in the 90s that examined the new social rules, sometimes in minute detail. It was billed as a “show about nothing,” but it was actually a meticulous comedy of manners.

Seinfeld was brilliant because it explored the social world’s unique standards of conduct. You don’t want to be one of those “low talkers.” You don’t make out with your date during Schindler’s List. You stand at a certain distance behind someone at the ATM. You certainly don’t double dip.

At the same time, Seinfeld showed that these norms cannot be reduced to a code of conduct with rules, sub-rules, exceptions, and counter-exceptions. This is what distinguishes manners from the law, or at least from what the law wants to be. It’s why someone with autism might be able to memorize the NFL rulebook but struggle with simple social cues.

And it’s why us guys might have a hard time grasping the new rules for how to interact with women. Take George Costanza, for example. In Season 5, Episode 4, “The Sniffing Accountant,” George gets a lesson in appropriate workplace conduct.

In the opening scene, Elaine gushes over her new boyfriend. They met at the office:

Elaine: So, I was sitting at the reception desk, I was looking pretty hot. I was wearing my sling back pumps.

George: What are those?

Elaine: Ask your mother, you live with her now, don’t you? Anyway, so then this guy comes up to me and starts feeling my jacket through his thumb and his forefinger, like this.

Jerry: So, what did you do?

Elaine: I said, “So, what do you think?” And he said, “Gabardine?” And I said, “Yeah.” That was it.

George: Wow, just felt your material?

Elaine: Yeah, Jake Jarmel.

George: Sounds like a cool guy.

Later, George decides to try out Jake’s maneuver. After a successful job interview with Mr. Farkus for a position as a brassiere salesman, George is on a roll as he waits for the elevator. There’s an attractive woman standing next to him, so he reaches out and touches the sleeve of her jacket. It does not go well:

Ms. De Granmont: What do you think you’re doing?

George: Oh, nothing.

Ms. De Granmont: Farkus, get out here!

Farkus: Yes, Ms. De Granmont?

Ms. De Granmont: Who is this perverted little weasel?

Farkus: This is Costanza, he’s our new bra salesman. He’s supposed to start on Monday.

Ms. De Granmont: If he’s here on Monday, you’re not. Take your pick.

Farkus to George: Get out!

You have to pity George. When Jake pulled this move on Elaine, it was charming. But when George tries the same thing, it’s just creepy.

How is this fair? What is the applicable rule?

The problem, of course, is that all men are not created equal. Jake is handsome and smooth. George is short and bald and awkward. But you couldn’t have an employee handbook that says “debonair men may touch women’s clothing and comment on it; others are prohibited.”

That’s the difference between manners and law. This episode teaches us two things about social conventions: they are hard to rigorously define, and they are decidedly unequal as applied to different people.

This is just not fair, us dudes tend to think. How are we supposed to navigate the gray areas of acceptable conduct towards women?

You hear this kind of complaint a lot from certain guys. But then a funny thing happened on the way to Monk’s Diner. The #MeToo movement exploded, and it exposed an ugly truth: a lot of men have done a lot of really horrible things to women at work.

Let’s just take some of the obvious public examples:

  • Harvey Weinstein
  • Matt Lauer
  • Al Franken
  • Bill Cosby
  • Donald Trump
  • Update: Jeffrey Toobin

Obviously, some of their alleged offenses were worse than others. But all of them have one thing in common: these men allegedly did things that everybody knows you shouldn’t do. These things were wrong before the Sexual Revolution, and they are wrong after it. They are not gray areas.

Not only that, I’d wager that part of the attraction for these men was knowing the things were wrong. That’s the whole point. Proving you’re a big shot guy who can take advantage of women and get away with it. “When you’re a celebrity they let you do it.”

Of course, everyone is innocent until proven guilty . . . yadda, yadda, yadda. But let’s assume for the sake of argument these men did the things they’re accused of. One defense they cannot assert in good faith is “I didn’t know it was wrong.”

That’s why the common lament of “we just don’t know what’s ok anymore” rings a little hollow to me.

And that brings me back to Seinfeld. Specifically, Season 3, Episode 12, “The Red Dot.” It’s another one of George’s misadventures at work. George has an affair with the cleaning lady at his office, leading to this confrontation with the boss:

Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?

George: Who said that?

Boss: She did.

George: Was that wrong? [audience laughs . . .] Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, [more laughs] you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.

Boss: You’re fired.

This time we don’t pity George at all. It’s not like the fabric incident at the brassiere company, where we laughed because George was so pitiful. In this case, the “was that wrong?” line gets laughs precisely because it’s so absurd. Of course it was wrong!

And once again, Seinfeld delivers an insightful lesson about social norms. Some rules don’t have to be written down; they’re just obvious. The employee handbook doesn’t need to say “employees may not have sexual relations with the housekeeping staff in the office.”

So men, here’s my modest proposal on sexual harassment: let’s agree not to tolerate the stuff we all know is wrong, and not complain so much that there will inevitably be borderline cases.

Don’t get me wrong. I’m not saying that women should just chill about the minor incidents and only complain about major felonies. I’ve got a wife, a mom, sisters, a college-age daughter–I don’t want them or any woman to be subjected to even minor incidents of harassment.

I’m also not saying that men are totally off base when they complain that the standards are so ill-defined today. There is at least a grain of truth to that.

But maybe us guys could focus more on cutting out the stuff we know is bad. I think #MeToo has done a great service by shining a light on those things.

Was that wrong?

________________________________

IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Thanks to Rebecca Wolfe and Hailey Wolfe for their advice on my initial draft (though I bear full responsibility for the final content).

Ethics Tips for Law Bloggers

Ethics Tips for Law Bloggers

I know what you’re thinking. “A blog post about blogs? Wow, Five Minute Law has really jumped the shark.”

But if you’re a lawyer who blogs, a lawyer thinking about blogging, or just someone who reads lawyer blogs, I think you’ll find these ethics tips worthwhile. And so “meta.”

If you also want practical tips on lawyer blogging, check out my UT Law CLE webcast with legal marketing expert Stacey E. Burke, Lawyer Blogging: Ethical Issues and Practical Tips.

These tips focus on Texas ethics rules, because that’s where I practice, but other states have similar ethics rules, so read on, non-Texas lawyers.

Ethics Tip #1: Don’t imply an attorney-client relationship

There are two things you don’t want your blog post to do: form an attorney-client relationship or provide legal advice.

Forming an attorney-client relationship requires that the client communicate an intent that the lawyer provide legal services and that the lawyer consent to do so. The grey area is that the lawyer’s consent can be express or implied. Implied consent happens when the lawyer knows or reasonably should know that the client is reasonably relying on the lawyer to provide the services.

Screen Shot 2019-06-09 at 10.16.36 AM.png

It is unlikely that a person would form an attorney-client relationship by reading a lawyer’s blog post. No one reading a blog post would reasonably think “that lawyer just agreed to provide me with legal services.”

But sometimes people are unreasonable. So be careful not to write anything that implies you are agreeing to provide the reader with legal services. And if you want to be extra cautious, include a disclaimer. On my YouTube channel, for example, I say “Zach Wolfe is not your lawyer (unless you have signed an engagement agreement with his firm).”

The danger of an inadvertent attorney-client relationship is greater in the comments section. Imagine a reader comments, “thanks for the helpful post about non-competes” and then asks if you think his non-compete is enforceable. (Something like this has happened to me.) Don’t ignore the comment, but make sure your response does not imply that you have agreed to be that guy’s lawyer.

The second thing to avoid is related, but thornier: legal advice. It’s related because if the person reading your blog post is not your client, then generally you can’t be held responsible for giving that person bad legal advice. It’s thornier because the whole point of many blog posts is to give guidance based on your expertise. Of course it’s legal advice, in a sense.

So there is no perfect solution to this problem, but it is a good practice to include a disclaimer. The best disclaimer I’ve seen was on a Twitter profile: “Expressly incorporates all disclaimers of all Twitter lawyers everywhere.”

But seriously, a disclaimer can clarify that your expert analysis is not legal advice for anyone’s specific situation. Again, that should be obvious, but it doesn’t hurt to say it.

Ethics Tip #2: Be aware of potential issue conflicts 

You know you have arrived as a law blogger when opposing counsel cites a statement from your blog post against you in the courtroom. That is the greatest compliment.

But this points out a risk that makes lawyers nervous about expressing opinions on legal issues: issue conflicts. There is always the risk that an opinion in your blog post could conflict with the position of your client in a present or future case. The situation is analogous to “issue conflicts” that can arise when a lawyer advocates for conflicting positions in different litigations.

Considering this danger of issue conflicts, law bloggers have essentially three choices:

  1. Never express an opinion on a legal issue; it could be cited against you.
  2. Say whatever you want; it’s just your personal opinion.
  3. Express educated opinions about legal issues in your practice area, but be careful how you do it.

Choice 1 strikes me as overly cautious. If you’re that risk averse, then blogging probably isn’t for you in the first place. And if you are blogging, one of the best ways to develop a reputation as a “thought leader” in your practice area is to express opinions. You’re a blogger, not a reporter.

But Choice 2 goes too far the other way. I respect the attitude of saying whatever the heck you think, but if you want to get and keep clients, you should at least consider how your opinions could impact clients and potential clients.

The prudential considerations are obvious. Your client probably won’t be happy if you express an opinion directly adverse to the client’s position in a pending lawsuit. In some cases, the issue conflict might even present an ethical issue.

The rules on issue conflicts are fuzzy. Here is comment 24 to Model Rule 1.7 on conflicts of interest:

Screen Shot 2019-06-09 at 10.10.41 AM.png

Applying this to law blogs, we essentially get the following rule: a lawyer taking an inconsistent position in a blog post is generally not a conflict of interest, except in the rare case where it would materially limit the lawyer’s effectiveness in representing the client.

So it depends. Let’s take three different opinions as examples:

  1. Texas should only allow non-competes in the sale of a business.
  2. Under Texas law, the employer has the burden to prove that a non-compete is reasonable.
  3. The Texas Citizens Participation Act (TCPA) applies to a claim that an employee misappropriated trade secrets.

These are different types of opinions. No. 1 is a personal opinion about what the law should be. No. 2 is a plain-vanilla statement about what the law is. No. 3 is somewhere in between.

I doubt that expressing a personal opinion about what the law should be would ever violate an ethical duty to a client, especially when the First Amendment is factored in. If you’re prosecuting a drug offense and the defense attorney cites your public statement that marijuana should be legalized, the response is easy: that was just my personal opinion. It’s a free country.

But exercising your freedom of speech could present a practical problem. If your practice is defending medical malpractice claims, your clients probably won’t be too excited if you publish a blog post opining that caps on pain and suffering damages in med mal cases should be abolished.

The second kind of statement—simply stating what the law is on a basic issue—is also unlikely to create an ethical issue. That is, unless you take a contrary position in court. Let’s say I write a blog post saying the statute of limitations for a certain claim is four years, and then in court I say it’s two years. That kind of stark conflict is going to hurt my credibility.

The solution to this problem is fairly simple: be accurate in your statements about what the law is, and don’t take unfounded positions in court.

Opinion 3 is a harder case. When you express an opinion about an unsettled question that is troubling the courts, you could say it’s just your personal opinion. And judges should understand the difference between your personal opinion on a difficult legal issue and your role as an advocate for your client.

But the reality is that many judges are more formalistic in their thinking. If the judge thinks there is only one “right” answer to the legal issue, your conflicting statements about that issue could weaken your position in the eyes of the court. One could argue that “materially limits” your effectiveness in the lawsuit.

Assuming your opinion could hurt your client—even if it shouldn’t—do you violate an ethical duty to your client if you express an opinion on an unsettled legal issue that goes against your client’s position? Generally, I say no.

But that’s just my opinion, man.

Ethics Tip #3: Don’t say you “specialize”

After that difficult issue, let’s go to a simple rule.

Texas Rule of Professional Conduct 7.04 generally prohibits lawyers from saying they “specialize” in a certain area of law. There are exceptions, most notably if you are certified by the Texas Board of Legal Specialization. Unless you fit one of the exceptions, you should not say that you “specialize” or that you are a “specialist.”

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Texas lawyers break this rule more often than you might think. If I see a Texas lawyer say in a blog post that he “specializes” in some area of law that I know the Texas Board of Legal Specialization doesn’t recognize as a specialty, I’m going to raise an eyebrow.

The solution to this problem is also simple. Just don’t use the word “specialize.” Say that your practice “focuses” on a certain area of law, and you should be fine.

Does this put form over substance? Sure, but the Texas State Bar seems to be comfortable drawing the line here.

*Update: Proposed changes to the Texas rules would allow lawyers to say they “specialize,” even if not Board certified, if the statement is not false or misleading. See Top 15 Proposed Changes to Texas Lawyer Advertising Rules.

Ethics Tip #4: Remember that a client’s “confidential information” includes non-confidential information

This may be the most counter-intuitive tip.

Suppose you represent a client in a bitter business dispute that goes all the way through trial and appeal. There’s a transcript of the trial testimony on file with the trial court, plus an appellate court opinion detailing the sordid facts of the case. So you’re free to write about the facts in a blog post without client permission, right? I mean, it’s “public record.”

Not so fast. Look at Texas Rule of Professional Conduct 1.05(a). “Confidential information” includes both “privileged information” and “unprivileged client information.”

Privileged information is easy to understand. But the definition of “unprivileged client information” is surprising: “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”

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Read that again. Confidential information includes all unprivileged information:

  • relating to a client or furnished by the client and
  • acquired “during the course of” or “by reason of” representation of the client.

This is an extraordinarily broad definition. It doesn’t matter whether the information is publicly available. If the information “relates” to the client and you obtained it during the course of the representation, it’s confidential.

That means, generally, you can’t publish such information in a blog post. Rule 1.05(b) says a lawyer may not “reveal” confidential information or “use” confidential information to the client’s disadvantage.

There are, of course, exceptions, e.g., when “the client consents after consultation.” See Rule 1.05(b) and (c). But the bottom line is that in most cases if you want to say anything about a client’s case in a blog post, you’re going to have to get the client’s informed consent.

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Can this be right? The press is free to write an article discussing all the facts of a case that are available in the public record. But if I represented one of the parties to the case, you’re telling me I can’t blog about the facts, even when I’m portraying my client in a positive light.

Here’s a possible solution: You could make a case that you’re not violating client confidentiality by focusing on the rule’s use of the word “reveal.” Implicit in the word reveal is the idea that you are communicating something not already known.

That’s the textualist case for allowing lawyers to blog about the facts of their cases. And there’s a non-textualist argument as well: surely, despite the literal language of the rule, a common-sense interpretation would allow a lawyer to write a blog post that discusses facts that have already become public, provided the discussion doesn’t disadvantage the client.

Maybe, but don’t expect help from the American Bar Association. ABA Formal Opinion 480 on lawyer blogging says the rule means what it says: lawyers cannot blog about “unprivileged confidential information” without permission, even if the information is not really confidential.

Unless an exception applies, the ABA says “a lawyer is prohibited from commenting publicly about any information related to a representation.” And it doesn’t matter if the information is in the public record: “information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality.”

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There’s one obvious solution: just get client consent. But it can be awkward to contact a client or former client every time you want to include a little war story in your next blog post.

There’s an easier way to avoid disclosing “unprivileged confidential information.” Just don’t name names. When you describe the facts of a case you’ve handled, don’t name the parties. Just describe the situation generically, or as a hypothetical.

This will sometimes solve the problem, but be careful. As the ABA opinion points out, if your description is specific enough that the reader can figure out who you’re talking about, you may still be violating the confidentiality rule. “A violation is not avoided by describing public commentary as a ‘hypothetical,’” the opinion says, “if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.”

And hypotheticals can sound like real cases, especially when you handle the same type of case over and over. When I describe a hypothetical departing employee lawsuit, I sometimes wonder if a former client might think I’m talking about him, only because the fact patterns tend to be so similar.

Here again, a disclaimer may be helpful. On my LinkedIn profile, for example, I say: “Hypotheticals are based on my general experience and reading, not particular actual cases.”

Ethics Tip #5: File your blog post if it contains “advertising”

Texas lawyers must file any advertisement in the public media with the Advertising Review Committee of the State Bar. See Rule 7.07(a). So lawyer bloggers have two options: put as much advertising as you want in your blog post and file it, or avoid saying anything in your blog post that will turn it into advertising.

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Simultaneous filing with the State Bar is a pain (and there is a fee), so most lawyers will opt for the latter. But when is a blog post considered advertising?

The Texas ethics rules don’t expressly define “advertisement” or “advertising.” But the State Bar has provided guidance in Interpretive Comment 17: “Blogs or status updates considered to be educational or informational in nature are not required to be filed.”

So if you’re trying to avoid making your blog post an advertisement, “educational or informational” is your mantra. To avoid an ethical issue, you should aim to educate and inform your audience, not to brag about yourself. And this usually makes for a better post anyway.

But even when you’re trying to educate and inform, it’s easy to stray into content that could be considered advertising.

Here are three things likely to turn a lawyer’s “educational or informational” blog post into advertising:

  1. Promoting good results obtained for a client
  2. Touting the lawyer’s experience or qualifications
  3. The “call to action”

Trouble is, these are natural things to do in a blog post. A good result you recently obtained for a client is a classic blog post topic. Talking about your experience and qualifications is also natural. And many marketing experts say your content should conclude with a “call to action,” e.g. “if you’re facing a difficult divorce, call me now at the number below.”

The first two things that can make your blog post an advertisement are matters of degree. If you write about a result obtained for a client, do it in a way that is educational, without expressly using it to promote yourself. Similarly, you can convey information about your experience and qualifications in a subtle way. In both cases, the key concept is “show, don’t tell.” Show the readers that you understand a particular area of law.

The call to action is different. In my opinion, any post that includes a call to action is crossing the border into Advertising-Land. So you’ve got two choices. Either don’t include the call to action, or include it and just deal with the hassle of filing your blog post with the State Bar.

There’s one more thing that is likely to make your blog post an advertisement: comparing yourself to other lawyers. That brings me to the next tip.

Ethics Tip #6: Don’t compare yourself to other lawyers

This is another fairly simple one. Rule 7.02(a)(4) of the Texas Disciplinary Rules provides that a lawyer may not compare the lawyer’s services with other lawyers’ services, “unless the comparison can be substantiated by reference to verifiable, objective data.”

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It’s a rare comparison that can be backed up with verifiable, objective data. So, if you can document that “I’ve tried more mesothelioma cases to verdict in Jefferson County than any other practicing lawyer,” then have at it. If you know for a fact that “I’m one of only nine Texas lawyers board certified in both Real Estate Law and Civil Trial Law,” then I suppose you can say that.

But just about any opinion comparing yourself to another lawyer is going to be off limits. By definition, if it’s an opinion it probably cannot be proven with “verifiable, objective data.”

Comment 5 to Rule 7.02 gives some examples of unsubstantiated opinions: “we are the toughest lawyers in town,” “we will get money for you when other lawyers can’t,” or “we are the best law firm in Texas if you want a large recovery.”

Never mind if you see lawyers making statements like this all the time. Don’t do it in your blog post. In addition to violating Rule 7.02, it also risks turning your blog post into an advertisement, as discussed above.

Plus, who wants to read a blog post where a lawyer just boasts and compares himself to other lawyers? That’s almost as bad as a blog post about blogging.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who focuses—he didn’t say “specialize”—on non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He expressly incorporates herein all disclaimers of all law blogs everywhere.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Florida Man Friends Judge on Facebook, Defeats Motion to Disqualify

Florida Man Friends Judge on Facebook, Defeats Motion to Disqualify

Shortly before Election Day 2018, I had a temporary injunction hearing where the judge made an interesting statement. After the close of evidence, the judge said he would take the injunction under advisement. Then he added that he had a campaign fundraiser that evening and did not want to see any of us there. Because “that just ain’t right,” he said.

I appreciated the judge doing this. I don’t think he was concerned that someone showing up at his fundraiser would sway him one way or the other, but he understood how it would look. I think he wanted to avoid even the appearance of impropriety.

The funny thing is, it would have been perfectly legal and ethical for us lawyers to show up and hand checks to the judge—at least under Texas rules and the cases applying them. Texas courts have repeatedly held that  a lawyer’s campaign contributions to a judge do not require recusal. They brush aside the obvious appearance of impropriety for pragmatic reasons: if campaign contributions were disqualifying, Texas judges would have to recuse themselves in half their cases.

The judge’s statement stayed on my mind after the election, when headlines focused on  the great State of Florida.

I love Florida for two reasons. First, Disney World. Second, the great headlines.

You know the kind of headlines I’m talking about:

Florida Man Breaks Into Jail to Hang Out With His Friends 

Florida Woman Calls 911 Three Times Over McDonald’s Chicken McNugget Shortage

Florida Clerk Smashes Jar of Ranch Dressing Onto Darth Vader Armed Robber 

Florida Strip Club Offers Free Flu Shots

Florida Supreme Court Rules That Facebook Friendship Does Not Disqualify Judge

Which of these do you think are real?

Ok, it’s a trick question. The answer is “all of the above.”

“Friends of an indeterminate nature”

The headline about a judge’s Facebook friendship intrigues me the most. The Florida Supreme Court held in a 4-3 decision that the mere fact that a judge is Facebook “friends” with a lawyer in a case before the court does not require disqualification of the judge.[1]

If that sounds familiar, maybe it’s because I wrote about the earlier Florida Court of Appeals decision in Social Media in Litigation Part 3: Why Can’t We Be Friends?

The underlying case was a civil suit by a law firm against a former client. After filing the lawsuit, the law firm hired a lawyer listed as a “friend” on the trial court judge’s personal Facebook page. It appears this was the only evidence regarding the relationship between the judge and the lawyer.

To disqualify a judge under Florida law, the movant must have a “well-grounded fear” that he will not receive a fair hearing. The question is whether the facts alleged “would place a reasonably prudent person in fear of not receiving a fair and impartial trial.”[2]

Note this has a subjective and an objective component. The subjective question is whether the movant fears the judge won’t be fair—not whether the judge will actually be unfair. The objective question is whether that fear is reasonable.

After laying out this standard, the Florida Supreme Court did what courts usually do when confronted with a new issue involving social media: analogize to pre-social media conduct. So the court started out by asking whether a “traditional” friendship between a lawyer and judge requires disqualification.

The mere existence of a friendship does not inherently reveal the degree or intensity of the friendship, the court said. “It follows that the mere existence of a friendship between a judge an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship.” Thus, “[n]o reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature.”[3]

That is why, under Florida law, “an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”[4]

The Florida Supreme Court then applied these principles to a Facebook friendship. You can already see where this is going. If a friendship IRL does not require disqualification, why should a Facebook friendship require it?

The court made the obvious observation that a Facebook “friendship” is not “as a categorical matter” the equivalent of a “traditional” friendship. That means a Facebook friendship “does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship.’”[5]

It’s common knowledge that Facebook friendship varies in degree from “greatest intimacy” to “virtual stranger” to “complete stranger,” the court said. “It is therefore undeniable that the mere existence of a Facebook ‘friendship,’ in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook ‘friends.’”[6]

In short, “the mere fact that a Facebook ‘friendship’ exists provides no significant information about the nature of any relationship between the Facebook ‘friends.’”

The court concluded:

Therefore, the mere existence of a Facebook “friendship” between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook “friends” with a relationship of an indeterminate nature.[7]

The court added that its holding was in line with the majority of state ethics committees that have considered whether a Facebook friendship between a judge and a lawyer creates an appearance of impropriety.

Of course, we must not read too much into this. The issue was narrow: whether a Facebook friendship standing alone was sufficient to warrant disqualification.

A relationship “fraught with risk”

Nevertheless, three dissenting justices in the Florida case would have required disqualification even on this narrow basis. Justice Pariente wrote in dissent that “a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.” He would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them.[8]

The dissent did not question the standard for disqualification cited by the majority, nor did it dispute the case law dealing with actual friendship. Rather, the dissent questioned the majority’s premise that Facebook friendship is analogous to traditional friendship. “[E]quating friendships in the real world with friendships in cyberspace is a false equivalency,” the dissent argued.[9]

Wasn’t that the majority’s point? A Facebook friendship is not the equivalent of a traditional friendship, the majority said, so if a traditional friendship doesn’t automatically require disqualification, a Facebook friendship shouldn’t either.

But the dissenting opinion touches on three things  that make a Facebook friendship potentially more problematic.

First, a Facebook friendship is public. Unlike a traditional friendship, which the parties may not even know about, a Facebook friendship is typically there for everyone to see. And it’s the appearance of impropriety—and the resulting loss of confidence in the integrity of the judicial system—that matters most.

Second, unlike some other social media platforms, Facebook allows the user to select and reject friends. “[T]he selection and rejection function is what causes the potential for the appearance of impropriety, after the judge has established the social networking profile that affords the judge the ability to accept or reject ‘friends.’”[10]

Third, the dissent seems worried that social media is just too risky for judges. “An individual judge’s social media, whether it is Facebook, LinkedIn, Instagram, or any other site, is fraught with concerns for the average litigant.”[11]

On this point at least one member of the majority agreed. Justice Labarga agreed with the majority that disqualification was not required but wrote a concurring opinion to “strongly urge” judges not to participate in Facebook. “[J]udges who elect to maintain Facebook ‘friendships’ with attorneys who have any potential to appear before them are, quite simply, inviting problems.” That means “the safest course of action is to not participate in Facebook at all.”[12]

That is obviously the “safest” thing for judges to do with social media. But is it the best thing? Could there be some benefits to judges engaging with lawyers and others on social media? Let me know what you think on my LinkedIn, Twitter, YouTube, or Facebook.

Unless you’re a judge; that wouldn’t look right. Instead maybe I’ll see you at your next fundraiser.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Law Offices of Herssein and Herssein v. United Servs. Auto. Ass’n, 271 So.3d 889, 897 (Fla. 2018).

[2] Id. at 894 (citing some cases).

[3] Id.

[4] Id.

[5] Id. at 896.

[6] Id. at 897.

[7] Id.

[8] Id. at 900 (Pariente, J., dissenting).

[9] Id. at 901.

[10] Id. at 902.

[11] Id. at 903.

[12] Id. at 899-900 (Labarga, J., concurring).

Social Media in Litigation Part 4: Jury Research

Social Media in Litigation Part 4: Jury Research

When I sat at the counsel table in my first jury trial, there was no Facebook and no iPhone. Ricky Martin was rocketing up the charts with Livin’ La Vida Loca. We nervously awaited the arrival of Y2K, but at least we didn’t have to worry about someone on the jury live-tweeting updates about the trial.

My how times have changed.

Previously on Five Minute Law, we looked at the ethical issues that arise from using social media for opposition research (Part 1), advising clients on their social media use during litigation (Part 2), and interacting with judges on social media (Part 3). In this final Part 4 we look at using social media to research information on members of a jury panel, before and during the trial.

The bottom line: monitor, but don’t communicate, and promptly disclose to the judge and opposing counsel if you discover jurors behaving badly.

Hypothetical 1: Jury Research Before Trial

To illustrate, let’s get back to our favorite fictional non-compete lawsuit, Paula Payne Windows v. Dawn Davis. Paula Payne’s lead counsel, John Laurens, is worried. He’s concerned about jury bias for the “little guy” against the employer. When he gets a list of the jury panel the week before trial, he tells his team “find the ones who think the system is rigged!”

His local counsel, venerable trial lawyer Hank Livingston, drives by the homes of several on the list. Two catch his attention: Marc Horger, a welder who has a “Come and Take It” assault rifle sticker on his massive pickup truck, and Scott Silveri, a freelance journalist who has a “Feel the Bern” sticker on his Prius. “Johnny, you need to get rid of these guys,” he tells Laurens, “they don’t like authority.”

Laurens also finds out that Judge John Lansing has a new program to encourage giving younger lawyers more courtroom opportunities: extra time for jury selection if you let an associate handle it. Laurens summons young associate Phil Hamilton to his office. “Bill,” he says. “It’s Phil, sir.” “Whatever. Phil, you’re handling this voir dire; but first find out everything you can about this jury panel.”

Phil starts by Googling each juror. Then he checks any publicly available info on LinkedIn, Facebook, Instagram, and Twitter. He sees that juror Alex Hart looks good for employers, at least on paper: 45-year old CPA, married with three kids, employed by the same company for 15 years. But Hart once liked a LinkedIn article titled “How Non-Competes are Killing Free Enterprise in America.”

Meanwhile . . .

Maria Reynolds, the lawyer for defendant Dawn Davis, is also snooping. She’s not satisfied with the jury pool’s publicly available social media, so she asks her very attractive legal assistant to start friending male members of the jury pool on Facebook. The assistant gains access to several non-public Facebook profiles by sending vague friend requests.

One thing is clear: these lawyers are walking through an ethical minefield.

Ethics of Jury Research

So, which of these would be an ethical violation?

(A) Phil checking publicly available social media

(B) Hank driving by a juror’s house, if the juror sees him

(C) Phil viewing a juror’s LinkedIn profile, if LinkedIn notifies the juror he did so

(D) Maria’s assistant sending deceptive friend requests

(E) Not investigating the jury pool on social media at all

Let’s start with the most obvious. There is so much wrong with (D), having an assistant friend members of the jury panel. First, a lawyer can’t communicate with a potential juror, period.[1] Second, a lawyer can’t get around this rule by having an assistant or third party do the dirty work .[2] Third, even aside from the prohibition on communicating with a potential juror, a lawyer can’t use deception to gain access to a private social media account.[3]

Avoiding an outright lie does not necessarily solve the third problem. As the Philadelphia Bar Association reasoned, failing to disclose the reason for a friend request is an omission that renders the request deceptive.[4]

It should also be pretty obvious that (A), checking publicly available information on jurors, is generally ok. ABA Formal Opinion 466 (2014) states the consensus view: a lawyer may view a potential juror’s publicly available social media content, as long as the lawyer doesn’t communicate with the juror.

(B) is a little harder. Driving by a juror’s house is not communicating with a juror, but could it be considered “vexatious or harassing”?[5] Driving by one time is probably ok, even if the juror happens to notice the lawyer. Driving by three or four times? That might cross the line.

Answer (C), viewing LinkedIn if the juror becomes aware of it, is more difficult. In Part 1, I opined that this is ok as to witnesses. But contact with jurors is more sensitive, and there is a difference of opinion on whether a lawyer can view a juror’s public social media if the social media platform alerts the juror that the lawyer has done so.

Two New York opinions saw this as an ethical problem. “If a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites,” the New York County Lawyers’ Association said in its Formal Opinion 743, “the contact may well consist of an impermissible communication, as it might tend to influence the juror’s conduct with respect to the trial.”[6]

Same for the New York City Bar. In Formal Opinion 2012-2 they said it would be a prohibited communication if a lawyer views a juror’s social media knowing that the juror will receive a notification that the lawyer has done so.

But the ABA has a different view. It said in Formal Opinion 466, “[t]he fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer . . .”

The ABA reasoned that the notification is a communication from the social media platform, not the lawyer:

This Committee concludes that a lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror.  The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.

Pennsylvania Bar Formal Opinion 2014-300 agreed with the ABA’s position.

I think the ABA got it right on this one, except for using the acronym “ESM.” Why do ethics opinions always have to make up terms that people don’t actually use?

But if you want to take the cautious approach, make sure you only view juror social media if you know the social media platform won’t notify the juror.

Finally, answer (E), not investigating social media at all, is the least tested of these issues. Investigating the social media accounts of the jury panel may be an ethical minefield, but failing to do any investigation could violate a lawyer’s duty of competence. Some will even say that it’s malpractice if a lawyer doesn’t find out what is in the jury panel’s publicly available social media.

And competent representation may also include continuing to monitor jury use of social media after the jury is selected and the trial proceeds.

*UPDATE: The Social Media Subcommittee of the Texas Supreme Court Advisory Committee (affectionately known as SMSTSCAC) weighed in on December 1, 2017. The subcommittee sided with the ABA approach in this memo, recommending the following comment to Texas Disciplinary Rule of Professional Conduct 3.6: “A lawyer’s review of a venireman’s or juror’s website or electronic social media (ESM) that is available without making an access request, is not an improper ex parte communication.” The subcommittee also gave a charitable shout-out to Myspace in footnote 1.

Hypothetical 2: Jury Research During Trial

So let’s get back to our hypothetical non-compete case. Paula Payne’s lawyers strike Horger and Silveri, but Hart somehow manages to get on the jury. Phil Hamilton, the young associate, checks Hart’s Twitter feed after jury selection and sees that he tweeted: “Can’t believe I got picked for jury duty this week. Too much work to do!”

Reynolds, the lawyer for Dawn Davis, is also keeping tabs on social media. She tells her assistant to monitor the public posts of everyone who got on the jury. During the trial, they see a tweet from Hart: “The defense lawyer spent the last hour making the same point over and over. Someone shoot me now!”

Neither lawyer reports Hart to the judge. Phil doesn’t do anything differently, but Reynolds decides to tighten up her next cross exam to make it less repetitive.

So which of these things is an ethical violation?

(A) The lawyers monitoring a juror’s social media without permission from the judge

(B) Phil failing to report Hart’s “too much work to do” tweet

(C) Reynolds failing to report Hart’s “boredom” tweet

(D) Reynolds changing her trial strategy based on Hart’s “boredom” tweet

Answer (A) should not be a problem. Unless the judge has ordered otherwise, the lawyers don’t need to get permission to check what the jury may be saying on social media, and the duty of competent representation may even require that they do so.

(B) is borderline. Hart’s tweet lamenting his selection to the jury doesn’t really comment on the case itself. On the other hand, maybe it provides a clue about Hart’s state of mind and suggests an attitude about the lawsuit?

Failing to report an innocuous statement like this doesn’t strike me as an ethical violation, but the safer course would be to report it to the judge and opposing counsel. Plus, if the judge admonishes the juror for a harmless tweet at the start of the trial, it may prevent a more damaging tweet later.

(C) and (D) are likely to get Reynolds in hot water. If a lawyer finds that a juror has commented on something substantive about the case, the lawyer needs to promptly disclose that fact to the judge and opposing counsel.[7] And failing to disclose is even more dangerous if the lawyer uses the information to try to gain some advantage in the trial.[8]

Now that would be livin’ la vida loca.

*UPDATE: In its December 1, 2017 memo, the Social Media Subcommittee of the Texas Supreme Court Advisory Committee noted this issue: “Should counsel, in undertaking the permissible review of a venire member’s or juror’s ESM, discover improper conduct by that individual, what is the obligation to advise the court?” The subcommittee made no recommendation but did cite two disciplinary rules: 3.03(a)(2) (“A lawyer shall not knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act”) and 3.06(f) (“A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror . . . of which the lawyer has knowledge”).

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Zach Wolfe
(zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. His invitation to join SMSTSCAC must have been lost in the mail.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Texas Disciplinary Rule of Professional Conduct 3.06(b) (“Prior to discharge of the jury from further consideration of a matter, a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected or any juror or alternate juror, except in the course of official proceedings”); see also ABA Model Rule of Professional Conduct 3.5 (lawyer shall not communicate ex parte with a juror or prospective juror unless authorized to do so by law or court order).

[2] New York City Bar Formal Opinion 2012-2 (“Third parties working for the benefit of or on behalf of an attorney must comport with these same restrictions”).

[3] Texas Disciplinary Rule 4.01(a) (lawyer shall not knowingly “make a false statement of material fact or law to a third person”); ABA Model Rule 4.1 (same); see also New York City Bar Formal Opinion 2012-2 (“the attorney must not use deception—such as pretending to be someone else—to gain access to information about a juror that would otherwise be unavailable”).

[4] See Philadelphia Bar Association, Opinion 2009-02 (having a third party send a friend request to a witness “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness”).

[5] See Texas Disciplinary Rule 3.06(a) (lawyer shall not “conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation of a venireman or juror”).

[6] New York County Bar, Formal Opinion 743 (2011).

[7] ABA Formal Opinion 466 (“if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal”); New York City Bar Formal Opinion 2012-2 (“if a lawyer learns of juror misconduct through a juror’s social media activities, the lawyer must promptly reveal the improper conduct to the court”).

[8] See New York County Bar Opinion 743 (if lawyer learns of jury misconduct on social media, he must not unilaterally act on such knowledge to benefit the client but must promptly bring the misconduct to the attention of the court “before engaging in further significant activity in the case”).

Social Media in Litigation Part 3: Why Can’t We Be Friends?

Social Media in Litigation Part 3: Why Can’t We Be Friends?

Judge’s Facebook friendship with lawyer does not necessarily require recusal

As a Florida court recently acknowledged, everybody knows that Facebook friends are not necessarily close personal friends. That got me thinking of the classic song Everybody Knows by Leonard Cohen. The first verse:

Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That’s how it goes
Everybody knows

After that sunny beginning, the rest of the song takes an unexpected dark turn.

Getting back to the Florida case, the court in Herssein & Herssein v. USAA said the mere fact that a judge is Facebook friends with a lawyer for a party does not require recusal. The court reasoned that being friends on social media is not necessarily being friends in the “traditional sense.” Thus, the Facebook friendship “does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”[1] The Florida Supreme Court later affirmed.

Texas courts and the American Bar Association had already figured this out a few years ago.[2]

The conclusion seems pretty obvious, especially when you consider that, before social media, the fact that the lawyer and judge were FITS (“friends in the traditional sense”) did not necessarily require recusing the judge.

There ought to be a law . . .

That leads us to Wolfe’s First Law of Social Media Ethics: If it’s unethical to do it in a traditional way, it’s unethical on social media too.

Recently, the Social Media Subcommittee of the Texas Supreme Court Advisory Committee issued this memo. The subcommittee recommended writing Wolfe’s First Law into the Texas Code of Judicial Conduct. They didn’t refer to my law by name or anything, but the resemblance is remarkable:

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The subcommittee also proposed a detailed comment. The comment agrees with the recent Florida case that a lawyer’s “friend” status with a judge does not necessarily require recusal: “Simple designation as a social-media connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person and is not, in and of itself, determinative of whether a judge’s impartiality might reasonably be questioned.”

But the comment also gives judges several warnings about potential problems arising from use of social media, including: be mindful of privacy settings and public access, be mindful of the Code’s prohibitions when making public endorsements, and use extreme comment to avoid interactions that may be interpreted as ex parte communications concerning pending cases. In short, mindfulness and caution.

This proposed rule should not be too controversial. The only criticism I might have is that this proposal, which merely states the obvious, may be unnecessary. Wolfe’s First Law is nothing if not intuitive.

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Texas recommends judges practice mindfulness when using social media

Still, I’m not saying that applying this general principle to specific cases is easy. Courts, bar associations, and lawyers across the country have struggled with thorny questions that arise from judges using social media. Let’s consider a hypothetical.

Previously on Five Minute Law . . .

Take our favorite fictional non-compete case, Paula Payne Windows v. Dawn Davis, where lawyer John Laurens filed suit to enforce a non-compete. After finding out the case was assigned to Judge John Lansing, Laurens hires local counsel, Hank Livingston, a venerable trial lawyer who “knows everybody.”

Oddly enough, Livingston and the judge happen to be FITS: Livingston was the best man at Judge Lansing’s wedding, and they go dove-hunting together near San Angelo every December. They’re also connected on LinkedIn, although Livingston doesn’t really know how to use it.

Meanwhile . . .

Laurens’ young associate, Phil Hamilton, is eager to impress his boss. Phil starts following Judge Lansing on Twitter and retweeting his tweets, which are mostly about barbeque and Texas A&M football. Phil also sends Judge Lansing a Facebook friend request, which the judge accepts without a second thought, adding Phil to the 3,000 friends he accumulated when he ran his last campaign. They like and comment on each other’s posts several times.

Laurens, on the other hand, still does things the old-fashioned way. He starts by filing a motion for a temporary injunction to prevent Dawn Davis from competing with Paula Payne Windows. After scheduling a hearing on his motion, Laurens shows up at Judge Lansing’s campaign fundraiser and hands him a check for $5,000. “Good luck with your campaign, judge, I know you’ll keep doing a great job.”

None of this goes unnoticed by Dawn Davis’s lawyer, Maria Reynolds. She gets aggressive and files a motion to recuse Judge Lansing based on his relationship with the lawyers representing Paula Payne.

Reynolds is careful not to impugn the judge’s integrity. Instead, she cites Texas Rule of Civil Procedure 18, which says a judge “shall recuse himself in any proceeding in which . . . his impartiality might reasonably be questioned.” It’s not a question of whether the judge will be impartial, she argues, but merely whether someone could reasonably question whether he can be impartial.

So what is the strongest ground for recusing Judge Lansing?

(A) The connection between the judge and local counsel on LinkedIn.

(B) The interactions between the associate and the judge on Facebook and Twitter.

(C) The fact that Paula Payne’s local counsel is the judge’s close personal friend and former campaign manager.

(D) The $5,000 campaign contribution Laurens handed the judge right before the temporary injunction hearing.

Unless you’re a member of Congress, I’m guessing the campaign contribution strikes you as the most egregious conduct here. And you would not be alone.

Texas case law on campaign contributions

The defense lawyers in a little case called Texaco v. Pennzoil also had an issue with campaign contributions. After that suit was filed, Pennzoil’s lead counsel, Joe Jamail, contributed $10,000 to the presiding judge’s campaign fund. Texaco moved to recuse the judge, arguing that the contribution, coupled with Jamail’s service on the judge’s “steering committee,” created an appearance of impropriety.

A simplistic person might think the timing and amount of the contribution would at least create a situation where the judge’s impartiality “might reasonably be questioned.”

But the Houston Court of Court of Appeals took a more sophisticated view. It held that recusal was not required.[3] The court cited Rocha v. Ahmad, where the San Antonio Court of Appeals ruled that two justices who received thousands of dollars in political contributions from one of the law firms did not have to be recused.[4]

Funny thing about Rocha: it did not deny the obvious. The court did not deny that campaign contributions can create an appearance of impropriety. Instead, the Rocha court reasoned that campaign contributions cannot be a basis for recusing Texas judges, because then the judges would have to recuse themselves all the time: “If a judge cannot sit on a case in which a contributing lawyer is involved as counsel, judges who have been elected would have to recuse themselves in perhaps a majority of the cases filed in their courts.”[5]

The Texas Code of Judicial Conduct also bows to this practical reality. Canon 4(D) generally requires a judge to refrain from financial dealings that reflect adversely on the judge’s impartiality. But there is an express exception for soliciting campaign contributions. So, generally a Texas judge does not violate any ethical rule by accepting political contributions from lawyers who practice in his court.

And Texas courts have continued to follow Rocha’s lead. Ten years later, the El Paso Court of Appeals held that recusal was not required where the campaign contribution was small, the judge had a policy of accepting only limited contributions, and the contributing lawyer was not lead counsel.[6]

The Corpus Christi Court of Appeals even went as far as holding that recusal was not required where the lawyer was the judge’s close personal friend, the judge’s personal attorney in another case, and the judge’s campaign manager in his last campaign.[7]

By 2014 the Dallas Court of Appeals could accurately state that “Texas courts have repeatedly rejected the argument that campaign contributions by attorneys is grounds for recusal.”[8]

The Texas case law leaves open the possibility that the timing and circumstances of a political contribution to a judge could be so egregious that recusal would be required. But the general rule in Texas is that courts will bend over backwards not to require recusal based on campaign contributions. I haven’t seen a single case where a Texas appellate court required recusal on this ground.

So what does this have to do with social media?

Texas law on contributions to judicial campaigns provides a helpful backdrop for questions about social media. If a lawyer can freely contribute to a judge’s campaign without fear of triggering recusal, it’s hard to see how any typical interaction between a lawyer and a judge on social media would create a sufficient appearance of impropriety.

No, when judges go wrong on social media, it usually involves something else: improperly commenting on a pending case before the judge. See John G. Browning and Justice Don Willett, Rules of Engagement, Texas Bar Journal (February 2016) (“judges shouldn’t discuss pending cases—period”). Generally, judges can freely interact with lawyers through social media, as long as they don’t use social media to do something they couldn’t do in a traditional way.

It’s Wolfe’s First Law of Social Media Ethics again.

And fortunately, there is a happy ending to the campaign contribution issue. The Texas legislature solved the problem in 1995 by passing the Judicial Campaign Fairness Act. Among other things, the Act provides that a judge may not accept a political contribution while physically present in a “courthouse,” which is defined to include a courthouse.[9]

That’s probably a good rule. There’s no appearance of impropriety when a lawyer hands the judge a check, as long as he does it at a fundraiser at Billy Bob’s BBQ and not at the courthouse.

Everybody knows.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Law Offices of Herssein & Herssein v. United Servs. Auto. Ass’n, 229 So.3d 408 (Fla. 3rd App. 2017), aff’d 271 So.3d 889 (Fla. 2018).

[2] See Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.—Dallas 2013, pet. denied) (fact that judge was Facebook friend of victim’s father did not necessarily require recusal in criminal case); ABA Formal Opinion 462 (2013) (“Simple designation as [a social media connection] does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person”).

[3] Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 842-43 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). The case had the largest damages verdict in Texas history but famously did not go up to the Texas Supreme Court.

[4] Rocha v. Ahmad, 662 S.W.2d 77, 78 (Tex. App.—San Antonio 1983, no writ).

[5] Id.

[6] Aguilar v. Anderson, 855 S.W.2d 799, 802 (Tex. App.—El Paso 1993, writ denied).

[7] Lueg v. Lueg, 976 S.W.2d 308, 310-11 (Tex. App.—Corpus Christi 1998, pet. denied).

[8] Holland v. Friedman & Feiger, No. 05-12-01714-CV, 2014 WL 6778394, at *10 n.8 (Tex. App.—Dallas Dec. 2, 2014, pet. denied).

[9] Tex. Elec. Code § 253.039.

Track These Changes: Ethics of Inadvertent Disclosure of Metadata

Track These Changes: Ethics of Inadvertent Disclosure of Metadata

Texas Ethics Opinion 665 says lawyers have an ethical duty to avoid inadvertently disclosing confidential metadata, but not an ethical duty to disclose they received inadvertently-sent metadata

Does a lawyer have an ethical duty to avoid sending opposing counsel a document containing metadata that reveals confidential client information? Does the receiving lawyer have a duty to inform the sending lawyer of the receipt of confidential metadata and to refrain from using the information obtained therefrom?

Did I really just use the word “therefrom” in Five Minute Law? Please don’t report me to Bryan Garner.

In any case, the Professional Ethics Committee for the State Bar of Texas recently addressed these questions in Opinion No. 665, which appeared in the January 2017 Texas Bar Journal. The Committee said yes, a Texas lawyer generally has an ethical duty to avoid transmission of confidential metadata, and no, a Texas lawyer generally does not have an ethical duty to notify opposing counsel of the inadvertent receipt of confidential metadata.

In short, you could say the Texas rule on inadvertent disclosure of metadata is don’t disclose. If you’re the sending lawyer, don’t disclose confidential metadata. If you’re the receiving lawyer, you don’t have to disclose that you received it.

The Committee included this important qualification: the opinion applies only to the “voluntary transmission of electronic documents outside the normal course of discovery.” Disclosure of metadata in discovery—an issue currently before the Texas Supreme Court in the State Farm case—is an entirely different subject.

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I read these things on the weekend so you don’t have to

The second part of Opinion 665 is consistent with Opinion 664, which I covered here. Opinion 664 said generally Texas lawyers do not have an ethical duty to notify opposing counsel they have inadvertently received confidential information. You might even say Opinion 665 simply applies Opinion 664 to metadata.

Once again, this puts Texas at odds with the ABA’s Model Rule of Professional Conduct 4.4(b), which  requires a lawyer to promptly notify the sender of the receipt of inadvertently-sent electronically stored information. This is Texas, the home of rugged individualism. If the other guy inadvertently sends you confidential information, that’s his problem.

But there is a limit. Would you believe the Texas ethics rules require lawyers to be honest? It’s right there in Rule 8.04(a)(3), which says a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” and Rule 3.03(a)(1), which requires that a lawyer shall not knowingly “make a false statement of material fact or law to a tribunal.” You can use confidential metadata opposing counsel inadvertently sent you; you just can’t lie about it.

In the Committee’s words:

[A]lthough the Texas Disciplinary Rules do not prohibit a lawyer from searching for, extracting, or using metadata and do not require a lawyer to notify any person concerning metadata obtained from a document received, a lawyer who has reviewed metadata must not, through action or inaction, convey to any person or adjudicative body information that is misleading or false because the information conveyed does not take into account what the lawyer has learned from such metadata.

That sounds reasonable. But it’s so abstract. What does it really mean?

Application of the Texas “don’t disclose” rule to metadata in a settlement agreement

Let’s make this concrete with my favorite hypothetical non-compete lawsuit, Paula Payne Windows v. Dawn Davis. Suppose Dawn’s lawyer sends Dawn Paula Payne’s proposed settlement agreement in Microsoft Word. Dawn revises it and inserts some confidential comments, such as “change this to a one-year non-compete, but I’ll agree to two years if that’s what it takes—I just want this nightmare to be over!”

Dawn’s lawyer emails Paula Payne’s lawyer, Sam Sneaky, a Word document containing metadata that allows Sam to recover and review Dawn’s comments, including the comment about the length of the non-compete. Sam decides not to tell Dawn’s lawyer about the inadvertent disclosure. Knowing that Dawn is desperate to settle and will cave on the non-compete, Sam sends back a demand for more money and a two-year non-compete.

So has anyone broken any ethical rules under Opinion No. 665?

Dawn’s lawyer probably failed to meet his duties of competent representation (see Rule 1.01) and maintaining confidentiality of client information (Rule 1.05).  According to Opinion 665:

Lawyers . . . have a duty to take reasonable measures to avoid the transmission of confidential information embedded in electronic documents, including the employment of reasonably available technical means to remove such metadata before sending such documents to persons to whom such confidential information is not to be revealed pursuant to the provisions of Rule 1.05.

Let’s assume Dawn’s lawyer knew the original Word document had sensitive client communications in it and should have known those communications could be recovered from the metadata in the new document. In that case, Dawn’s lawyer should have taken reasonable measures such as using a common metadata-scrubbing program when emailing the document to opposing counsel.

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Be careful what you send opposing counsel

On the other hand, Dawn’s lawyer only has to take reasonable measures. “Not every inadvertent disclosure of confidential information in metadata will violate Rule 1.05.”

What about Sam Sneaky? Under the ABA Rule, you could argue Sam had a duty to promptly notify Dawn’s lawyer that the confidential metadata was inadvertently sent. But under Opinion 665, he’s fine in Texas.

That is, unless he conveys information that is false or misleading because it doesn’t take into account what he learned from the metadata. For example, after reviewing the confidential metadata, Sam couldn’t say to Dawn’s lawyer, “I have no idea what length of non-compete your client is willing to agree to, but my client insists on two years.” That would be dishonest. It’s a statement Sam could truthfully make before seeing the confidential metadata, but not after.

Admittedly, this hypothetical is pretty contrived. Who talks like that?

Let’s imagine something more subtle and realistic. Can Sam say to Dawn’s lawyer, “we have to insist on a two-year non-compete because anything less than that won’t adequately protect my client”? That statement is misleading, you could argue, because it omits the material fact that Sam is insisting on the two-year non-compete because he knows from the inadvertently-disclosed metadata that Dawn will agree to it.

The bottom line seems to be this: when Texas lawyers receive confidential metadata from opposing counsel, they don’t have to disclose they received it, and they can use it to their advantage. They just have to be careful what they say after receiving it.

Is this the Cowboy Way?

I’ll be honest. I don’t like this. Ethics Opinion 665, like Opinion 664 before it, seems to make Texas an outlier, and in the wrong direction. I prefer the approach of the ABA Model Rule.

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Let’s rustle up some metadata

Yes, Texas is the Lone Star State, where the legacy of Old West rugged individualism is strong. But we should also remember “Tejas” means “friendship.” And last I checked, Texas was still part of the Bible Belt. The Bible says “do unto others as you would have them do unto you.” If you inadvertently sent a document containing confidential metadata and opposing counsel discovered it, wouldn’t you want him to tell you?

I’m not saying Ethics Opinion 665 is wrong. It’s a reasonable interpretation of the existing disciplinary rules. But using confidential information that opposing counsel inadvertently sends you just doesn’t feel like the Cowboy Way. If your neighbor’s cattle wander onto your ranch because he wasn’t careful, you don’t keep them and say “that’s his problem.”

Perhaps this comes down to the difference between “professionalism” and “ethics.” Ethics, in this context, means complying with a specific set of rules. Professionalism, on the other hand, is a higher—and admittedly fuzzier—standard. Telling a lawyer he accidentally sent you something you know he didn’t mean to send you is good professional courtesy, even if the Rules of Professional Conduct don’t require it.

It’s just following the Golden Rule. And the principles derived therefrom.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. You can probably tell from this week’s image that his son is into Lamborghinis.  

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Do Lawyers Have an Ethical Duty to Disclose That Their Clients Took Confidential Information?

Do Lawyers Have an Ethical Duty to Disclose That Their Clients Took Confidential Information?

A typical customer list scenario illustrates the problem

On the first day of law school, they teach us that the answer to almost every legal question is “it depends.” (And I hear they teach the same lesson on the first day of Economist School.) Opinion 664 from the Texas Center for Legal Ethics takes 1,699 words to say the same thing. The issue: a lawyer’s ethical duty to disclose that he has the opposing party’s confidential or privileged information.

We’re talking lawyer ethics, so you know there’s going to be a hypothetical, right? Well here it is.

Paula Payne Windows sells windows, primarily for residential construction. Dawn Davis, one of Paula Payne’s top sales people, leaves Paula Payne and takes a job with Real Cheap Windows. Paula Payne sues Dawn Davis and Real Cheap for misappropriating confidential information and trade secrets.

Specifically, Paula claims that Dawn took a confidential customer list she compiled while working for Paula—specifically, the names and contact information for her customers stored on her iPhone contacts.

Dawn hires you to represent her in the lawsuit. She tells you she does indeed have the names and contact information for her 50-some-odd customers on her iPhone. Shortly after you file an answer, opposing counsel inadvertently copies you on a confidential email to his client in which he says, “I know it’s silly, but we need to claim that Dawn’s customer list is a trade secret.” The email attaches a memo outlining opposing counsel’s legal strategy.

Two questions: (1) do you have an ethical duty to disclose to opposing counsel that Dawn has the customer list? (2) do you have an ethical duty to disclose to opposing counsel that you received the confidential email?

A recent Texas ethics opinion weighs in on two issues

These two questions, in abstract form, are the subject of Texas Ethics Opinion 664. The answer? “Not necessarily.” Which is another way of saying, “it depends.”

The opinion is careful to distinguish between what a lawyer should do and what the Texas Disciplinary Rules of Professional Conduct require. A lawyer should aspire to inform opposing counsel of an inadvertent disclosure of confidential information, the opinion says, but failing to do so is not necessarily an ethical violation.

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Don’t miss the ethics opinion tucked away in the December 2016 Texas Bar Journal

In the words of the Opinion: “a Texas lawyer who fails to provide notice to opposing counsel upon receipt of an opposing party’s confidential information outside the normal course of discovery does not necessarily or automatically violate the Texas Disciplinary Rules. The answer is the same whether the information is obtained in an unauthorized manner or inadvertently.”

But the Opinion also notes that the use of the confidential information could violate the ethics rules depending on the circumstances, citing rules that bar lawyers from engaging in or assisting criminal, fraudulent, or dishonest conduct.

The “not necessarily” answer strikes me as basically correct, but not very helpful. To use a technical legal term, Ethics Opinion 664 is too wishy-washy.

A duty to disclose the other guy’s inadvertent disclosure of privileged information would make more sense

The root of the problem is that the opinion tries to address two significantly different questions at once. The opinion underappreciates the difference between the questions, particularly the difference between privileged information and confidential information. Instead of giving a wishy-washy answer that tries to cover both issues, the opinion could have given separate, more definitive answers.

I’ll use my hypothetical to explain what I mean. As Dawn Davis’s lawyer, would you have an ethical duty to disclose to opposing counsel that he inadvertently sent you a privileged memo outlining his legal strategy? I bet when you first read this question you said yes. That seems like the right answer to me as well.

And I’m not the only one. ABA Model Rule 4.4(b) says: “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”

This seems like a workable common sense rule. Like most good manners, it’s reciprocal: if you tell me when I send you something privileged by mistake, I’ll do the same for you.

One reason this rule would make sense is that in most cases it is obvious when opposing counsel has inadvertently sent you privileged material. The lawyer who receives the communication usually doesn’t have to make a difficult judgment call about whether it’s privileged or not.

A duty to disclose that your client has confidential information would make less sense

The second issue from the hypothetical is quite different. Do you have an ethical duty to disclose that your client Dawn Davis took Paula Payne Window’s confidential customer list? I bet when you read this question you said no, and I agree.

But why? First, it’s important that the confidential status of the customer list is an issue in dispute in the lawsuit. Keep in mind that a customer list can be—but is not necessarily—a trade secret (more about this issue here). If you represent Davis, you’re going to take the position that Davis’s list of her own customers is not a trade secret or even confidential information.

Now imagine that the ethics rules required you to volunteer that your client possesses that information if the information is actually confidential. Your ethical obligation would depend on a judgment call on an issue in dispute in the litigation. This would be unworkable.

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Ethic Opinion 664 isn’t necessarily wrong. But it could have been better.

Ethics Opinion 664 fails to address this problem. It simply assumes that the information is confidential.

But the problem goes beyond that. Even if we assume that the information held by the client is confidential information or a trade secret, it would be strange for trade secret cases to be subject to a special rule that a lawyer has an ethical duty to volunteer information to the other side about an issue in dispute in the litigation.

Keep in mind we’re talking about an ethical obligation to volunteer information, not the duty to respond to proper discovery requests. If the Court orders Dawn Davis to produce documents that contain customer names and information, then her lawyer’s obligation is clear. But that is not the question presented.

If I ran the zoo

It’s hard to find anything incorrect in Ethics Opinion 664. But the opinion could have provided better guidance. Rather than giving one generic answer to two different questions, the opinion could have drawn a sharper distinction between the questions and taken a stronger stand on each.

Generally, there should be an ethical duty to disclose to opposing counsel that he has inadvertently sent you privileged information. Generally, a lawyer should not have an ethical duty to disclose that his client has documents that the opposing party claims contain confidential information or trade secrets.

But why do I say “generally”? Well, you know. Because it depends.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.