Category Archives: Ethics Opinions

Law Firm Email Encryption – Are You Ethically Compliant?

11 Thursday May 2017

Posted by in Clouds, Confidentiality, Emails, Ethics Opinions, Law Office Management, Legal Ethics, Legal Technology, Rules of Professional Responsibility, Technology, Technology

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ABA Issues New Ethics Opinion on Encryption of Attorney-Client Email, Jim Calloway’s Law Practice Tips Blog

http://bit.ly/2qy8J2a

Does your state have an ethics opinion about encryption of your firm’s email? Do you use encryption? Do you use a secure cloud based platform? If you are not sure, don’t you think you should check?

Most law firms frequently use email over fax and regular mail to communicate with their clients, their expert witnesses, and opposing counsel. What is your obligation to ensure confidentiality of your firm’s email, and are you meeting it?

The ABA’s ethics opinion is instructive, as well as the Texas ethics legal opinion referred to by Mr. Calloway at the end of his post. -CCE

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Get Your Head Out of the Sand.

07 Sunday Aug 2016

Posted by in Continuing Legal Education, Ethics Opinions, Legal Ethics, Legal Technology, Recent Links and Articles, Rules of Professional Responsibility, Technology

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Another Two States Adopt Ethical Duty of Technology Competence, by Robert Ambrogi, LawSites Blog

http://bit.ly/2b22uwA

Ambrogi includes a link to all states that have adopted an ethical duty of technology competence. My state is not yet one of them, but there is still no excuse.If your state has not yet adopted this ethical requirement, it is only a matter of time.

I know there are so much technology out there that it is hard to know exactly what you’re supposed to know and what you can pass by. But it’s your duty to find out, and not rely on staff to do it for you. -CCE

As I continue to track the states that have adopted the ethical duty of technology competence, I have two more to add, bringing the total to 23.

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Is It Wrong To Research Your Judge And Jury? Is It Wrong If You Don’t?

27 Tuesday Oct 2015

Posted by in Ethics Opinions, Judges, Legal Ethics, Legal Technology, Research, Rules of Professional Responsibility

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The Do’s and Don’ts of Researching Judges and Juries Online, by Anna Massoglia, The Lawyerist Blog

http://tinyurl.com/p7f4hlg

It makes sense to research potential jurors, and social media makes it easier than ever. But courts have only recently begun to issue guidance now that researching jurors and other courtroom players online is becoming an increasingly common practice.

Researching judges, too, has its advantages. Some jurisdictions, like California, allow you to strike a judge once per case without establishing bias. Although there are limitations and technicalities on these rules, they can give you a say in who decides cases — making it important to know your judge. . . .

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Proposed New York State Bar Discipline Reforms With A Focus on Prosecutorial Misconduct.

29 Tuesday Sep 2015

Posted by in Attorney Discipline, Ethics Opinions, Legal Ethics, Rules of Professional Responsibility

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Reforms Proposed For New York Bar Disciplinary System, by Mike Frisch, Legal Profession Blog

http://tinyurl.com/pl3atls

A comprehensive series of reform proposals have been set forth in a recent report evaluating the New York State bar disciplinary system by the Commission on Statewide Attorney Discipline.

Two proposals strike me as particularly important and, in my view, should be adopted throughout these United States . . . .

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Your Electronic Communications and Record Keeping Requirements.

21 Monday Sep 2015

Posted by in Ethics Opinions, Law Firm Web Sites, Law Office Management, Legal Blogs, Legal Ethics, Legal Technology, Rules of Professional Responsibility, Technology, Technology

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Deleting Your Website Can Come Back to Bite You in the Assets, by Anna Massoglia, Lawyerist Blog

http://tinyurl.com/nzda7hh

Chances are, you are all too aware that record-keeping is a tedious but necessary evil in the legal profession. There’s also a good chance that you have a website. According to the 2014 ABA Technology Survey Report, 84% of law firms do.

Record-keeping requirements include more than just client files and financial transactions. Many state rules also apply to other electronic communications — including websites.

It is not true that something released to the internet is ‘out there’ forever — especially when it comes to those attempting to comply with record-keeping requirements. . . .

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Why Aren’t All Lawyers And Law Students Trained In E-Discovery And Should They Be?

07 Saturday Mar 2015

Posted by in Continuing Legal Education, Diligence, Discovery, E-Discovery, Ethics Opinions, Federal Rules of Discovery, Legal Ethics, Technology

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The Conundrum of Competence in E-Discovery: Need Input, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/03/07/the-conundrum-of-competence-in-e-discovery-need-input/

I frequently blast lawyers for their lack of competence when it comes to electronic evidence. I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.

So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct. And I am, a little. Requiring competence is just part of the solution to the competence crisis. The balance comes from supplying the education and training needed to become competent. You can’t just order someone who’s lost to ’get there;’ you must show them the way. In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.

The legal profession is dominated by lawyers and judges. I state the obvious to expose the insidious: the profession polices itself. We set the standards for our own, and our standard setters tend to be our old guard. What standard setter defines himself out of competence? Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.

These laudable efforts just say ‘get there.’ They do not show us the way. . . .

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Attorney Discipline For Drunk Driving. Agree or Disagree?

19 Monday Jan 2015

Posted by in Attorney Discipline, Ethics Opinions, Legal Ethics

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A Not-So-Golden Oldie, by Mike Frisch, Legal Profession Prof, Legal Profession Blog

http://tinyurl.com/m4y2erx

The most overdue District of Columbia hearing committee report (perhaps ever) has finally been filed.

Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.

After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.

His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.

He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court’s usual (indeed, nearly invariable) practice for felony convictions.

The hearing was competed on January 15, 2008.

The report was filed last Friday – seven years and a day after.

And it stinks.

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Attorney Disbarred For Mishandling Administration of Mother’s Estate.

06 Saturday Dec 2014

Posted by in Ethics Opinions, Legal Ethics, Malpractice, Probate, Probate and Trusts, Rules of Professional Responsibility, Trusts, Wills

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Brother Can You Spare A Disbarment? by Mike Frisch, Legal Profession Prof Blog

http://tinyurl.com/m8bcrmw

The Washington State Supreme Court has disbarred an attorney for misconduct in connection with the administration of his mother’s estate.

The attorney was appointed as personal representative on his mother’s death in 1995. He lived with her at the time of her death and had his law office in her home.

The estate was to be equally divided between him and his three brothers.

The court affirmed findings that the attorney had engaged in frivolous motions and appeals, ignored discovery obligations and mis-valued estate assets.

In this case, the hearing officer reasonably concluded from the evidence presented at the hearing that Jones filed frivolous motions and appeals that harmed his brothers and the administration of justice. Jones filed numerous motions and appeals in the trial court, the Court of Appeals, and this court. Each motion was denied, and sanctions were awarded against Jones. Because Jones received sanctions, the hearing officer reasonably concluded that Jones was put on notice of the frivolous nature of his motions before refiling and appealing them. Like in Sanai, the hearing officer did not rely solely on a particular judicial ruling, but rather used judicial decisions as evidence that Jones filed repetitive frivolous motions that resulted in sanctions. The hearing officer’s conclusions were additionally supported by the testimony of six witnesses, resulting in over 1,500 pages of transcripts, as well as nearly 200 exhibits.

The court found seven aggravating factors including refusal to acknowledge the ethical violations

Jones argues that the record does not support refusal to acknowledge because he is not required to agree with the charges made or to confess. However, the aggravating factor of refusal to acknowledge the wrongful nature of conduct was correctly applied. Jones continued to file motions, lawsuits, and appeals even after being sanctioned numerous times for the frivolous nature of such filings. By receiving sanctions, Jones was aware of his RPC violations but persisted with his conduct.

What Are Lawyers’ Ethical Responsibilities For Their Clients’ Mental Health?

02 Sunday Nov 2014

Posted by in Ethics Opinions, Legal Ethics, Research

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Clients and Suicide: The Lawyer’s Dilemma, by Ken Strutin, LLRX.com

http://www.llrx.com/features/lawyerclientssuicide.htm

Imagine representing Socrates and then learning that he was planning to take hemlock, what should counsel have done?1 It is a question that would have perplexed the wisest of his time and ours.2 Add twenty-four centuries and the issues are all the more complicated.3

Mental health challenges abound in many precincts of modern society, including the practice of law,4 the prosecution and punishment of crime5 and the representation of clients.6 The stress of prosecution or litigation, whether it means risking a prison term, unemployment, bankruptcy, eviction, broken family relations, isolation, or other serious consequences can create or exacerbate a vulnerable and dangerous state of mind in a client.

Client suicidal thoughts, attempts or actions expose the intimacies of human autonomy and test the limits of the attorney-client relationship. They cross a range of legal, moral and medical contexts: professional responsibility, client confidentiality, effective assistance of counsel, legal malpractice, criminal liability, and end of life issues. So it is that attorneys confronted with signs of suicidal intentions in their clients need to be conscious of their legal and ethical responsibilities.7

This article collects notable materials on this complex and sensitive topic, including ethics opinions, law reviews, bibliographies and other resources. . . .