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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Category Archives: Rules of Professional Responsibility

CLIENT GRIEVANCES – HOW TO AVOID THEM AND WHAT TO DO WHEN YOU HAVE ONE

31 Saturday Oct 2020

Posted by Celia C. Elwell, RP in Law Office Management, Legal Ethics, Rules of Professional Responsibility, Supervising Support Staff

≈ Comments Off on CLIENT GRIEVANCES – HOW TO AVOID THEM AND WHAT TO DO WHEN YOU HAVE ONE

Tags

Attorney Discipline, David Bright, Malpractice, St. Mary's Journal on Legal Malpractice and Ethics

Avoiding Grievances: 25 Things You Can Do, David Bright, St. Mary’s Journal on Legal Malpractice and Ethics, 270 (2016) (with hat tip to William P. Statsky)

https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1063&context=lmej

I was taught that the biggest client complaint to bar associations was lack of communication. Failing to return calls, respond to emails or correspondence, and requests for updates on the status of the case were the best ways to earn a grievance. Incompetence, lack of representation, and disputes over fees and costs were not far behind.

Mr. Bright’s essay, from the Texas perspective, is nonetheless an excellent refresher and reminder for all of us. Paralegals and legal support staff – do not think you are off the hook. You represent your attorney and employer. These ethical considerations are important for you as they are for your attorney. -CCE

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Law Firm Email Encryption – Are You Ethically Compliant?

11 Thursday May 2017

Posted by Celia C. Elwell, RP in Clouds, Confidentiality, Emails, Ethics Opinions, Law Office Management, Legal Ethics, Legal Technology, Rules of Professional Responsibility, Technology, Technology

≈ Comments Off on Law Firm Email Encryption – Are You Ethically Compliant?

Tags

ABA Ethics Opinion, Email, Encryption, Jim Calloway's Law Practice Tips Blog

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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What’s the Top Complaint Against Lawyers?

11 Thursday Aug 2016

Posted by Celia C. Elwell, RP in Law Office Management, Legal Ethics, Management, Professional Civility, Rules of Professional Responsibility

≈ Comments Off on What’s the Top Complaint Against Lawyers?

Tags

Bencher’s Bulletin, Carolyn Anderson, Legal Ethics, The Law Society of British Columbia

Top Complaint Against Lawyers Is Rude or Uncivil Behaviour, by Carolyn Anderson, Bencher’s Bulletin, The Law Society of British Columbia

https://www.lawsociety.bc.ca/page.cfm?cid=2219

Before you read the article, just for fun guess what rude or uncivil behavior comes to mind? Profanity? Naw! Profanity in a law office is almost an unwritten law in the office manual. Failing to return calls or respond to letters or emails from clients? That’s always been a favorite. You’re getting warmer! -CCE

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Get Your Head Out of the Sand.

07 Sunday Aug 2016

Posted by Celia C. Elwell, RP in Continuing Legal Education, Ethics Opinions, Legal Ethics, Legal Technology, Recent Links and Articles, Rules of Professional Responsibility, Technology

≈ Comments Off on Get Your Head Out of the Sand.

Tags

LawSites Blog, Legal Ethics Opinions, Robert Ambrogi, Technology Competence

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.

Continue reading →

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We Should Know Better.

07 Sunday Aug 2016

Posted by Celia C. Elwell, RP in Confidentiality, Legal Ethics, Rules of Professional Responsibility

≈ Comments Off on We Should Know Better.

Tags

California Bar Association, Casey Sullivan, Confidentiality, Findlaw, Legal Ethics

Don’t Reveal Embarrassing Client Info, Cal. Bar Warns, by Casey C. Sullivan, Esq., FindLaw (with hat tip to William P. Statsky)

http://bit.ly/2aFqJOQ

I hope that everyone learned in paralegal or law school that you don’t talk in elevators, restaurants, and any other public place about clients and other embarrassing facts you may pick up along the way.  I once worked in a building with a popular restaurant on the top floor. We were close enough to the courthouse that lawyers often went there for lunch. It was amazing how many settlement discussions I heard in the elevator. It wasn’t hard to guess which case it was either.

We all have great war stories. Funny things that happened in court or depositions – things like that. Yes, truth is often funnier than fiction. Maybe thinking of it from the client’s perspective is helpful. If you were the client, would you want your attorney making your case the butt of a joke or story told in public? – CCE

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Canada Revokes Paralegal’s License.

13 Wednesday Jul 2016

Posted by Celia C. Elwell, RP in Malpractice, Rules of Professional Responsibility

≈ Comments Off on Canada Revokes Paralegal’s License.

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Federation of Law Societies of Canada, Legal Ethics, Legal Profession Prof Blog, Legal Techicians, Mike Frisch, Paralegals, William P. Statsky

Paralegal License Revoked, by Mike Frisch, Legal Profession Prof Blog (with hat tip to William P. Statsky)

http://bit.ly/29ASMw6

There has been increasing discussion in the United States about creating class of paralegal often called “legal technicians.” Some states already have them. There are arguments pro and con on both sides. The underlying idea is to find a way to provide legal services at a lower rate making legal services more affordable.

But here’s the sticker. There are rules and laws to address situations where lawyers commit malpractice. Are there similar provisions for legal technicians and, if so, what are they? How do they protect consumers, is there any kind if discipline, and who is responsible for that oversight and discipline?

Canada might be good example to help answer some of these questions. What do you think? -CCE

Unlike its American counterparts, the Law Society of Upper Canada has and exercises disciplinary authority over paralegals,

The Law Society Tribunal revoked a paralegal’s license.

‘[M]r. Djukic’s actions clearly brought discredit upon the paralegal profession. Through his work as an immigration consultant and his standing as a paralegal, Mr. Djukic was able to meet and, ultimately, to persuade members of two families to provide him with monies totaling more than $900,000.’

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Gender Discrimination During Deposition Earns Judge’s Benchslap.

16 Saturday Jan 2016

Posted by Celia C. Elwell, RP in Attorney Discipline, Benchslap, Depositions, Discovery, Judges, Legal Ethics, Professional Civility, Rules of Professional Responsibility

≈ Comments Off on Gender Discrimination During Deposition Earns Judge’s Benchslap.

Tags

Above the Law (blog), Benchslap, Depositions, Gender Discrimination, Staci Zaretsky

Lawyer Receives Stern Benchslap And Amazing Sanction For Sexist Deposition Comment, by Staci Zaretsky, Above The Law Blog 

http://bit.ly/1RNcs34

As we’ve thoroughly documented in these pages, women who practice law are often subjected to demeaning and degrading comments from their male colleagues, for no other reason than because they’re women. One federal judge had finally had enough of this type of disrespectful behavior, so he took a lawyer to task for making a sexist remark during a deposition. . . .

Continue reading →

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Chief Justice Urges Judges To Impose More Management Over Their Cases.

01 Friday Jan 2016

Posted by Celia C. Elwell, RP in Diligence, Discovery, E-Discovery, Federal Judges, Interrogatories, Judges, Legal Ethics, Requests for Admissions, Requests for Production, Rules of Professional Responsibility

≈ Comments Off on Chief Justice Urges Judges To Impose More Management Over Their Cases.

Tags

Case Management, Chief Justice Roberts, Discovery Abuse, Judges, Procedural Posturing

Chief Justice Wants Less Gamesmanship By Lawyers, by Lyle Denniston, SCOTUSblog

http://bit.ly/1JkhNf7

Justice Roberts’ words apply to state courts as well. Ignoring client’s cases, unnecessary and burdensome discovery disputes, and repeated continuances do nothing to endear the legal profession to their clients or the public. -CCE

Speaking in soft but plain words, Chief Justice John G. Roberts, Jr., used his year-end report on Thursday night to urge lawyers who practice in federal courts to take steps to help improve the efficiency, and reduce the cost, of trying cases.  Roberts also added some strong encouragement for judges who preside over federal civil trials to take greater control of the management of cases, rather than leaving the process to the tactics of the competing lawyers. . . .

Continue reading →

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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 Celia C. Elwell, RP in Ethics Opinions, Judges, Legal Ethics, Legal Technology, Research, Rules of Professional Responsibility

≈ Comments Off on Is It Wrong To Research Your Judge And Jury? Is It Wrong If You Don’t?

Tags

Anna Massoglia, Duty To Prepare, Online Research, Social media, The Lawyerist Blog

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. . . .

Continue reading →

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

29 Tuesday Sep 2015

Posted by Celia C. Elwell, RP in Attorney Discipline, Ethics Opinions, Legal Ethics, Rules of Professional Responsibility

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

Tags

Legal Ethics, Legal Profession Blog, Mike Frisch, Plea Bargaining, Prosecutorial Misconduct

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 . . . .

Continue reading →

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Your Electronic Communications and Record Keeping Requirements.

21 Monday Sep 2015

Posted by Celia C. Elwell, RP in Ethics Opinions, Law Firm Web Sites, Law Office Management, Legal Blogs, Legal Ethics, Legal Technology, Rules of Professional Responsibility, Technology, Technology

≈ Comments Off on Your Electronic Communications and Record Keeping Requirements.

Tags

Anna Massoglia, Law Office Management, Lawyerist Blog, Legal Ethics, Record Keeping Requirements, Websites

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. . . .

Continue reading →

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Big Law Firms Miss $1.5 Billion Dollar Mistake.

07 Friday Aug 2015

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Diligence, Lawyer Supervision, Legal Ethics, Malpractice, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

≈ Comments Off on Big Law Firms Miss $1.5 Billion Dollar Mistake.

Tags

Above the Law, Due Diligence, Joe Patrice, Legal Ethics, William P. Statsky

Mayer  Brown & Simpson Thacher Make Epic Screwup, by Joe Patrice, Above The Law (with hat tip to William P. Statsky)

http://abovethelaw.com/2015/01/mayer-brown-simpson-thacher-make-epic-screwup/

It is rare indeed to find such a dearth of responsibility among so many fine legal professionals. If you can, follow the bouncing ball. –CCE

Mistakes happen. It’s why pencils have erasers. But it’s also why law firms install tier after tier of increasingly senior professionals to second-guess every ounce of work product. It’s remarkably effective — and fairly lucrative on an hourly basis.

Unfortunately, the flip side of a tiered system is a tendency toward over-delegation. And that’s how an unwary paralegal ends up costing a bank millions. . . .

Continue reading →

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Legal Ethics and Conflicts of Interest – What Is Your Professional Duty?

19 Sunday Jul 2015

Posted by Celia C. Elwell, RP in Confidentiality, Confidentiality, Conflict of Interest, Ethics, Lawyer Supervision, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

≈ Comments Off on Legal Ethics and Conflicts of Interest – What Is Your Professional Duty?

Tags

Client Confidentiality, Conflict of Interest, Legal Ethics

Regardless of whether you are a lawyer, judge, or paralegal, have you kept a list of every case on which you have worked? Does it include all the parties or only your client?

Christine Simmons recently posted an interesting article in the New York Law Journal in which the Court disqualified a White Plains attorney’s representation of his client. The attorney’s paralegal had, in the past, been involved with the opposing party. For this reason, the Court ruled to vacate the settlement due to tainted negotiations.

So back to my original question – when you were hired, did anyone ask you to look at the firm’s active client list to determine whether you had a conflict of interest? Shouldn’t this especially be the case if your practice is limited to only one or two specific areas of law where you often get repeat business from your clients?

Often, when a firm signs on a new client, it will run a conflict check through its database. It likely also sends an email to all the attorneys asking whether any have a conflict with this particular client. Are support staff and/or the IT Department included in this inquiry? Shouldn’t they if they will have access to the file or any communication with the client, regardless of what role they play in the preparation of the case?

Although every legal professional, lawyer and paralegal, are aware of their ethical obligation to confidentiality and conflicts of interest, how many of us have a complete list of every client and/or parties in each case we have ever worked? Should we? -CCE

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Avoid Juror Contact And An Ethical Violation.

14 Tuesday Jul 2015

Posted by Celia C. Elwell, RP in Legal Ethics, Litigation, Rules of Professional Responsibility, Trial Tips and Techniques

≈ Comments Off on Avoid Juror Contact And An Ethical Violation.

Tags

Jurors, Jury Tampering, Legal Ethics, Mistrials, Trial Tips & Techniques

Attorney-Juror Contact: What to Do When Running into a Juror Outside of the Courtroom, by Jessica Baer, M.A., Litigation Insights

http://www.litigationinsights.com/case-strategies/attorney-juror-contact-outside-courtroom/

This post makes an excellent point about avoiding contact or the appearance of tainting the jury. If you should find yourself inadvertently in the presence of juror in a courtroom hallway, bathroom, or elevator, avoid eye contact, look down, and appear deep in thought, as if you are not aware they are there. Then get out of there as quietly and quickly as possible. -CCE

Opening statements had just ended and members of the trial team were beginning to return from their lunch breaks. The attorney we were working with for this shadow jury and I got on the elevator in the parking garage and he began telling me about the upcoming witness testimony. As people (some of whom presumably could be jurors) piled into the elevator on the next floor, the attorney stopped our conversation, looked over at me and whispered, “I’ll take the stairs to get some exercise.” I knew what he meant. . . .

Continue reading →

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Professional Civility In The Legal Profession.

27 Saturday Jun 2015

Posted by Celia C. Elwell, RP in Legal Ethics, Professional Civility, Rules of Professional Responsibility

≈ Comments Off on Professional Civility In The Legal Profession.

Tags

Legal Ethics, Paul N. Luvera, Plaintiff Trial Lawyer Tips, Professional Civility

What About Professional Civility In The Law? by Paul N. Luvera, Plaintiff Trial Lawyer Tips  

http://plaintifftriallawyertips.com/what-about-professional-civility-in-the-law

The subject of professional civility has been widely discussed and promoted in the past few years. Some states have incorporated the requirement in their oath of attorneys. All of the states  have emphasized it in recent years. The United  States Supreme Court, the ABA and even The National Judicial College promote the principles of civility. Here, for  example,  is part of the language of the core principles from the Judicial College written for judges  nationally:

‘Civility encompasses a form of courtesy and behavior and speech that is essential to the role of courts in a democratic society. It is therefore, important that all involved with the court – judges, attorneys, jurors, witnesses, court staff, parties – act with civility to ensure the fair administration of justice and resolution of disputes . . . . Civility in action and words is fundamental to the effective and efficient functioning of our system of justice and public confidence in that system.’

Continue reading →

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Yes, Lawyers Have An Ethical Duty Of Technology Competence.

23 Saturday May 2015

Posted by Celia C. Elwell, RP in Law Office Management, Legal Ethics, Rules of Professional Responsibility, Technology, Technology

≈ Comments Off on Yes, Lawyers Have An Ethical Duty Of Technology Competence.

Tags

Law Sites Blog, Legal Ethics, Legal Technology, Luddite, Model Rules of Professional Conduct, Robert Ambrogi, Technology Competence

13 States Have Adopted Ethical Duty of Technology Competence, by Robert Ambrogi, Law Sites Blog

http://www.lawsitesblog.com/2015/03/11-states-have-adopted-ethical-duty-of-technology-competence.html

If this standard has not yet hit your state, it is only a matter of time. If technology intimidates you, take a deep breath and jump in. I promise the water is nice and warm. As technology has evolved, it has become more intuitive, which makes it easier to learn.

Regardless of whatever excuse you use to avoid updating technology in your law office, you cannot avoid the requirement imposed by an ethical duty. It is not a question of whether your state’s bar association will adopt this standard – it’s when.

Paralegals and other legal support staff — same goes for us too. -CCE

[Update: It is now 14 states. See my 3/27/15 post on the rule’s adoption in Massachusetts.]

In 2012, something happened that I called a sea change in the legal profession: The American Bar Association formally approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology. . . .

Continue reading →

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West Virginia Supreme Court of Appeals Rules On Fee-Splitting Between Lawyers and Non-Lawyers.

09 Saturday May 2015

Posted by Celia C. Elwell, RP in Contract Law, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Unauthorized Practice of Law

≈ Comments Off on West Virginia Supreme Court of Appeals Rules On Fee-Splitting Between Lawyers and Non-Lawyers.

Tags

Contracts Prof Blog, Fee-Splitting, Jeremy Telman, Legal Ethics, Non-Lawyers, Rules of Professional Conduct

West Virginia Supreme Court of Appeals Refuses to Enforce Unethical Fee-Splitting Agreement, by Jeremy Telman, Contracts Prof Blog

http://tinyurl.com/pxrloyc

Gary Rich and Joseph Simioni met in connection with an asbestos case involving West Virginia University. Rich is an attorney. Simioni has a J.D. but was never admitted to the bar. Starting in the 1990s, the two men collaborated on two additional asbestos cases and contracted with out-of-state law firms to help them class action litigation. It appears that until 2002, the men agreed that they would split the proceeds of their work 50/50. but then Rich announced there would be an 80/20 split in his favor. The parties then proceeded on this basis and committed their agreement to writing in 2005.

Rich now contends that he was under the impression that Simioni was a licensed attorney, and he did not realize that Simioni was not licensed until 2000 or 2001. He consulted with the former Chief Lawyer Disciplinary Counsel of the West Virginia State Bar, who told him that Sinioni ‘might not be able to get paid ethically.’

Simioni eventually filed sued in District Court against the out-of-state law firms, seeking recovery based in quantum meruit, unjust enrichment and breach of an implied contract. The District Court certified the following question to the Supreme Court of Appeals:

Are the West Virginia Rules of Professional Conduct statements of public policy with the force of law equal to that given to statutes enacted by the West Virginia State Legislature?

The Supreme Court of Appeals answered in the affirmative, at least with respect to Rule 5.4 of the Rules of Professional Conduct. which prohibits fee-sharing between lawyers and non-lawyers. The Court held for the first time (but based on numerous authorities) that fee-sharing agreements between lawyers and non-lawyers violate public policy. . . .

Continue reading →

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Attorney Refusing Mental Health Eval Is Suspended By Florida Bar Association.

06 Monday Apr 2015

Posted by Celia C. Elwell, RP in Attorney Discipline, Legal Ethics, Rules of Professional Responsibility

≈ Comments Off on Attorney Refusing Mental Health Eval Is Suspended By Florida Bar Association.

Tags

Attorney Discipline, Florida Bar Association, Legal Ethics, Legal Profession Prof, Mental Health Evalution, Mike Frisch

Attorney Suspended For Refusing Mental Health Evaluation, by Mike Frisch, Legal Profession Prof

http://lawprofessors.typepad.com/legal_profession/2015/04/attorney-suspended-for-refusing-mental-health-evaluation.html

Janice L. Jennings, P.O. Box 103, West Palm Beach, suspended for 91 days, effective immediately, and indefinitely thereafter, until she complies with the terms and conditions set forth in a Feb. 19 court order and demonstrates rehabilitation. (Admitted to practice: 1985) Jennings refused The Florida Bar’s request that she schedule a mental health evaluation with Florida Lawyers Assistance. The request came after the Bar learned of a written filing and statements in which Jennings advised the court, among other things, that her former employer had caused the implantation of a microchip in her left ear that was designed to harm and disrupt her ability to function. (Case No. SC14-1218)

The Tampa Bay Times reported on the situation in June 2014

A June 16 Times article showed that she had been  telling federal judges for more than a decade that she was the victim of mind control and torture, with no apparent effect on her license to practice law….

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Lawyer Sanctioned For Throwing Paralegal Under The Bus To Explain Mistake To Court.

24 Tuesday Mar 2015

Posted by Celia C. Elwell, RP in Attorney Discipline, Lawyer Supervision, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

≈ Comments Off on Lawyer Sanctioned For Throwing Paralegal Under The Bus To Explain Mistake To Court.

Tags

ABA Journal, Debra Cassens Weiss, Lawyer Supervision, Legal Ethics, Paralegals

Judge Sees ‘Self-Congratulatory Blather’ In Biglaw Brief; Paralegals Blamed For Error, by Debra Cassens Weiss, ABA Journal (with hat tip to William Statsky!)

http://tinyurl.com/na9l6gy

A Florida bankruptcy judge overseeing a fight between investors in a shuttered fashion mall made no secret of his dissatisfaction with a Duane Morris pleading during a sanctions hearing on Friday.

U.S. Bankruptcy Judge John Olson said the law firm appeared to be throwing a paralegal ‘under the bus’ when it blamed her for a mistaken court filing, and its sanctions brief was lacking the proper tone, the Daily Business Review (sub. req.) reports.

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How A Dental Board Decision Could Affect The Business of Practicing Law.

07 Saturday Mar 2015

Posted by Celia C. Elwell, RP in Federal Trade Commission, Government, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff, Unauthorized Practice of Law, United States Supreme Court

≈ Comments Off on How A Dental Board Decision Could Affect The Business of Practicing Law.

Tags

Anti-trust, Board of Dental Examiners, Federal Trade Commission, Forbes, Ken Friedman, LegalZoom Inc., Monopoly, Non-Lawyers, Unauthorized Practice of Law

Could Dental-Board Decision Unlock Lawyer Control Of State Bar Regulations?, guest post Ken Friedman, Forbes

(Mr. Friedman is the Vice President of Legal and Government Affairs for LegalZoom Inc.)

http://www.forbes.com/sites/danielfisher/2015/03/04/dental-board-decision-could-unlock-lawyer-control/

Many state regulatory agencies are controlled by active members of the very professions they oversee. Last week, this fox-and-hen-house scenario was addressed by the United States Supreme Court, which ruled that such agencies are not immune to federal antitrust laws unless their actions are actively supervised by politically accountable government officials. While the case dealt specifically with dentistry (teeth whiteners everywhere, rejoice!), the ruling will have far broader ramifications for many professions, including how the practice of law is regulated.

In North Carolina State Board of Dental Examiners v. Federal Trade Commission, the Supreme Court upheld the FTC’s ruling that the Dental Examiners violated antitrust laws when they sent dozens of ‘cease and desist’ letters to teeth whiteners, claiming that they were engaged in the ‘unauthorized practice of dentistry.’ The letters and other strong-arm tactics worked – dentists in North Carolina established a monopoly over teeth-whitening services until the FTC intervened.

The Dental Examiners monopolistic campaign was modeled after a similar, if less successful, campaign engaged by the North Carolina State Bar.

The Supreme Court’s decision will have broad positive effects throughout the country. The Court’s ruling recognizes that letting professionals enforce their own monopolies creates a ‘real danger’ that they will act to further their ‘own interests,’ rather than the public interest. These practices increase prices to the detriment of consumers while decreasing consumer choice. The Court recognized that the problem is far worse when the boundaries of the state-granted monopoly are not ‘clearly articulated and affirmatively expressed as state policy,’ and the professionals are given the power to decide what is the ‘unauthorized practice’ of their profession.

This lack of clarity is not uncommon. For example, Rhode Island opens the door to this defining the unauthorized practice of law as the ‘doing of any act for another person usually done by attorneys at law in the course of their profession.’ They list a few examples, ‘without limiting the generality of the definitions.’

The active supervision concept is important. While the requirement is ‘flexible and context-dependent,’ the Court made clear that the ‘supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it.’ The supervisor cannot be a market participant and needs to have the power to veto or modify decisions. This will require significant interaction.

Regulating the practice of law is the classic example of active market participants protecting their monopoly. In its amicus brief, the NCSB states that its authority is vested in the State Bar Council, 65 of whose 68 members are lawyers.

The threat this poses is not idle. . . .

Continue reading →

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Don’t Have A PIN Lock On Your Phone? Hope Your Malpractice Insurance Is Up To Date.

16 Monday Feb 2015

Posted by Celia C. Elwell, RP in Android Phones, Attorney Discipline, Blackberry Phones, Cell Phones, Confidentiality, Cybersecurity, E-Filing, Emails, iPad, iPhones, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Office Procedures, Passwords, Rules of Professional Responsibility, Supervising Support Staff, Technology, Technology

≈ Comments Off on Don’t Have A PIN Lock On Your Phone? Hope Your Malpractice Insurance Is Up To Date.

Tags

Android Phones, Confidentiality, Cybersecurity, DARKReading, Ed Hansberry, InformationWeek©, iPhones, Legal Ethics, Malpractice, PIN Lock, Smart Phones

Most Consumers Don’t Lock Mobile Phone Via PIN, by Ed Hansberry, DARKReading, InformationWeek©

http://tinyurl.com/plw76ut

My guess is that most people who use a smart phone access some kind of confidential information, such as your bank account or conversations with a client or the office. If you do not have a PIN lock on your smart phone, this truly is special kind of stupid.

This is not a hard one to understand. If you use your cell phone to communicate with clients, sync your phone to your office computer and docket, or attach yourself to your office and confidential information – without taking simple, basic security measures – you are  inviting a dangerous breach of confidentiality. -CCE

44% of respondents say it’s too much of a hassle, new survey reports.

People put a lot of sensitive info on their phones, but they often give little though to how secure their data is. In a survey by a security company, over half of the respondents said they didn’t bother with a PIN lock. This takes on a whole new dimension when you begin to understand how many of these people keep corporate data on the device.

Losing an unlocked phone can be far worse than losing a wallet. Emails on the device alone can reveal a wealth of information about the person, including where they bank, where they live, names of family members, and more. If company email is on the device, and it often is, there can be competitive information, salaries, system passwords, etc. If any of those emails contain links, often clicking on it will take you into the website, be it Facebook or a corporate portal.

According to Confident Technologies, 65% of users have corporate data on their phone, even though only 10% actually have a corporate issued device.

For that majority that don’t lock their phone at all, 44% said it is too much of a hassle to lock it and 30% said they weren’t worried about security. These are likely the same people that store things like social security numbers, passwords, and other sensitive information in text files or basic note applications. They may even store their computer’s password on a Post-It Note in their center desk drawer. . . .

Continue reading →

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Attorney Disbarred For Mishandling Administration of Mother’s Estate.

06 Saturday Dec 2014

Posted by Celia C. Elwell, RP in Ethics Opinions, Legal Ethics, Malpractice, Probate, Probate and Trusts, Rules of Professional Responsibility, Trusts, Wills

≈ Comments Off on Attorney Disbarred For Mishandling Administration of Mother’s Estate.

Tags

Disbarred Attorneys, Discovery, Ethical Misconduct, Frivolous Motions, Legal Profession Prof Blog, Mike Frisch, Probate, Sanctions

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.

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Do You Ever CC Clients On Emails? Here’s Why You Shouldn’t.

28 Friday Nov 2014

Posted by Celia C. Elwell, RP in Confidentiality, Emails, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Office Procedures, Rules of Professional Responsibility

≈ Comments Off on Do You Ever CC Clients On Emails? Here’s Why You Shouldn’t.

Tags

Client Confidentality, Email Address, Emails, Lawyerist Blog, Legal Ethics, Rules of Professional Responsibility, Sam Glover

Don’t CC Clients on Emails, by Sam Glover, Lawyerist Blog

http://tinyurl.com/mrm3ucz

This one seems like a no-brainer, but I suspect many lawyers and paralegals alike have not realized the danger in this practice. -CCE

As a general rule, you should not CC your clients on emails.

First, because it gives every other recipient a chance to communicate directly with your client. In fact, it looks like an invitation to do so. Opposing counsel should know better, but even they might use Reply All accidentally, accidentally-on-purpose, or maybe even intending — albeit misguidedly — to be helpful.

In the case of recipients who are not bound by the rules of professional responsibility, you can hardly be surprised if they take the inclusion of your client’s email address as an invitation to keep them in the conversation or communicate with them directly. And remember that the recipient might forward your email, giving anyone not already included the chance to do so. This could be harmless if your email is related to a friendly business transaction. It could also be disastrous.

Don’t forget that clients can make mistakes, too. Even if you BCC your client to avoid the above problems, it could be your client who uses Reply All.

Second, part of your job is to counsel your client, which is difficult to do without providing at least a sentence or two of summary or context or explanation. If all you do is CC your client on every email (or forward every email with little more than “FYI”), you are missing a chance to do your job.

The better practice is usually to wait until the end of the discussion (or at least a decision point), so you can bring your client up to speed with a brief summary, some context, your analysis, the options you need to discuss, etc. Go ahead and include all the back-and-forth if you like, but don’t just hand it off. It is safe to assume given the fact of your representation that your client wants you to use your legal acumen to help them understand what is going on.

So don’t CC your client. There are certainly some exceptions to this ‘rule,’ or times when it doesn’t really matter. But at a minimum you should think twice before adding your client to the CC or BCC field of an email you are about to send.

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