Carreon v. The Oatmeal: Legal Ethics, or Lack Thereof?

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There has understandably been enormous interest in Charles Carreon's crusade against (1) The Oatmeal, (2) some charities, and (3) reality. In fact, not since somebody claimed she was bamboozled by a Crunch Berries box (see "Reasonable Consumer Would Know Crunch Berries Are Not Real, Judge Rules" (June 2, 2009)) has there been so much interest in a lawsuit. Or at least the kind of lawsuit that is likely to end up here.

Ken at Popehat wrote this post the other day analyzing the complaint and suggesting that Carreon's claims are at the very least dubious and hypocritical (Ken went with the legal term, "full of shit"), and as usual his post is dead-on. Since he's done that, I thought I'd discuss the related but different topic of legal ethics.

First, to some of you "legal ethics" may seem like an oxymoron, but it's not, really. The legal profession is governed by ethics rules in addition to the generally applicable legal duties that apply to everyone, other than the members of whatever administration is currently in power, of course. Every state has its own rules, although by now they almost all have some version of the ABA's Model Rules, which aren't binding but are influential. You can find the Model Rules here, or here (PDF) if you happen to need the Russian translation (I guess you never know).

These rules cover topics including (and this may also surprise some) competence, fees, conflicts of interest, and what a lawyer can and can't say in certain circumstances. These rules can be vague and some are controversial, but many are just common sense. Violating them can result in a "reprimand" (unpleasant but not career-ending), a suspension of the license to practice law, or even disbarment. Committing an actual crime is often (though not always) also a violation of the ethical rules, but it is possible to violate the rules without violating any laws.

So let's consider Carreon v. Inman. As Ken has noted, because Carreon filed in federal court, Rule 11 is looming over his case. This is not strictly an ethics rule, but it's a rule of civil procedure that requires lawyers to certify that papers presented to a court are supported by the law and facts and aren't for an improper purpose like harassment. Violating Rule 11 can lead to a fine or an order to pay the other side's fees and costs, but doesn't directly threaten a license. The court could refer the matter to the state bar, though.

Attorneys practicing in federal court are subject to the ethics rules of the state where the court is located, and also the rules of the state(s) in which they are licensed. That can get complicated, but isn't here. Carreon is licensed in California, and according to the California Bar's website (this is all based on publicly available info), he is also licensed in Oregon, but his status there is "inactive." He lives in Arizona, but doesn't appear to be licensed there. So California's rules will apply.

It is worth noting, and the California Bar already does note it, that Carreon's license was suspended in 2006 by both California and Oregon for practicing law in Canada without authorization. He was representing a U.S. company in Vancouver, but never took the bar there or applied for a "foreign lawyer" permit. More unfortunate was his decision to use some of the money from a settlement trust fund to pay a personal expense, a "money judgment obtained for a residential lease he had signed" in connection with the job. He may have legitimately thought he was entitled to do that, but the company disputed it, and if there's one thing that will almost always get you in trouble, it's messing with (even disputed) client funds. Anyway, the suspension lasted 60 days, and Carreon has been able to practice law here ever since. That's too bad for a number of reasons, partly because California's current rules are more limited than elsewhere and because it is still in the process of converting its rules to the Model Rule format, which is a pain in the ass for me here.

In this case, Carreon doesn't really have a client, since he's representing himself. So it would appear that many rules intended to protect clients, like conflict-of-interest rules and, let's say, rules about not messing with (even disputed) client funds, would not apply here. (If you're thinking that self-representation could cause problems under Rule 3-120 (Model Rule 1.8(j)) "Sexual Relations With Client," think again, smarty—the definition of "sexual relations" requires that it involve "another person." They thought of that, apparently.)

Carreon does have a client elsewhere, though——and he may have violated a rule in the course of that representation. Explaining in an interview why he never filed the lawsuit he originally threatened Inman with, Carreon said he had been "told" all of Inman's comics were removed from the FunnyJunk website but that turned out not to be true. Well, presumably he was told that by his client, and if so then he was publicly disclosing confidential and privileged information (a potential admission of infringement, in fact). Unless the client consented for some reason (or Carreon and FunnyJunk are really the same entity), that would violate Rule 3-100 (MR 1.6).

Then there's Rule 3-110 (MR 1.1), which requires a lawyer to be "competent." In practice, though, a lawyer's got to be very bad, or repeatedly not very good, in order to violate this rule; if that's the case, he or she has probably violated other, more specific rules and will be disciplined for that instead.

Such as, here, Rule 3-200 (MR 3.1), which prohibits a lawyer from bringing cases or making arguments that are "frivolous" (meaning "bogus" or "unfounded," not "full of fun and frivolity"). As Ken's post suggests, there are already several reasons to think that this case is frivolous, or even that the complaint states some facts that aren't true. One questionable case or three is usually not enough to get sanctioned, as the Crunch Berries saga demonstrates, but it could be different if the BS gets especially deep here, as it very well may.

Oh, what about the possible lying? Well … California doesn't exactly have a rule against that, at least generally speaking. You can't lie in advertising (Rule 1-400) or to a court (Rule 5-200), but at the moment there are no equivalents to the more general provisions in Model Rule 4.1 (no lying to third parties) or 8.4(c) (no being dishonest in general). That doesn't make it okay to lie, though. As the committee considering the new rules has said, there are other very good (and binding) reasons not to do that, so nobody should rely on the lack of a general no-lying rule. (It has recommended adopting 8.4 anyway.)

Ultimately, dumb as the lawsuit is, so far Carreon probably has not violated any of California's current ethics rules, with the possible exception of 3-200 if the complaint turns out to be frivolous or false. This is not as crazy as it may seem, because the rules (California's, at least) are mostly aimed at protecting clients, and no clients appear to have been harmed in the making of Carreon's saga. So far. Which is not to say that there won't be repercussions, since Rule 11 and the anti-SLAPP statute could end up having real financial consequences here. But California has not yet adopted some of the broader ethical rules that could have caused Carreon more problems.

Why it has not done that, but has taken the time to debate whether the words "another person" should be added to the no-sex rule, is a topic for another day.