Tag Archives: Legal Ethics

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.

Continue reading →

Top Posts for 2014.

01 Thursday Jan 2015

Posted by in ALWD, Android Phones, Citations, File Naming Conventions, Law Office Management, Legal Ethics, Legal Technology, Legal Writing, Legalese, Microsoft Office, Office Procedures, Outlook, Readability, The Bluebook

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Here they are – the posts ranked highest during 2014, the first full year for this blog. Posted in order of popularity, it is an interesting mix. Many thanks for stopping by. -CCE

Android Users – Good Advice And Alternative Options For Google Calendar Sync.

https://researchingparalegal.com/2014/07/09/android-users-good-advice-and-alternative-options-for-google-calendar-sync/

Peter Martin’s Introduction to Basic Legal Citation — An ALWD and Bluebook Cheat Sheet.

https://researchingparalegal.com/2013/10/31/peter-martins-introduction-to-basic-legal-citation-an-alwd-and-bluebook-cheat-sheet/

Legal Ethics Head’s Up – Don’t Get Drunk, Move A Dead Body, And Lie To Police.

https://researchingparalegal.com/2014/02/10/legal-ethics-heads-up-dont-get-drunk-move-a-dead-body-and-lie-to-police/

What The Heck Does “SS” In An Affidavit Mean Anyway?

https://researchingparalegal.com/2014/05/25/what-the-heck-does-ss-in-an-affidavit-mean-anyway/

Plain English Tools include Gobbledygook Generator.

https://researchingparalegal.com/2013/11/20/plain-english-tools-include-gobbledygook-generator/

Please Use Electronic File Naming Conventions!

https://researchingparalegal.com/2014/03/29/please-use-electronic-file-naming-conventions/

Sayeth or Saith? Actually, It’s Neither.

 https://researchingparalegal.com/2014/02/22/sayeth-or-saith-actually-its-neither/

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

28 Friday Nov 2014

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

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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.

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. . . .

When Working Freelance, Get An Agreement In Writing.

30 Thursday Oct 2014

Posted by in Confidentiality, Conflict of Interest, Legal Ethics, Malpractice

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Get It In Writing: Freelance Attorney Work Agreement, by Emerald Gratz, Lawyerist Blog

http://tinyurl.com/ntjd2gk

A quick word to paralegals who consider freelance work. Please remember that only lawyers can give legal advice. Except for specific circumstances provided by state or federal statutes, a non-lawyer cannot appear in court on behalf of someone else. If you work freelance, please review and follow the ethical requirements for our profession when working freelance. –CCE

The question of whether the work of a freelance attorney requires a written agreement seems obvious at first glance — “get it in writing” is the golden rule, after all. In practice it is not always that simple. There may be situations, depending on the client, project, or timetable, where getting a written freelance work agreement is not possible or necessary. If a hiring attorney is looking for last-minute emergency assistance, there may not be time to negotiate an agreement. Or the hiring attorney and freelance attorney may have an existing relationship and are comfortable working without a formal agreement.

In these situations, it still benefits both sides to set forth basic project terms in an email, at least. Ultimately, the freelance attorney is responsible for defining the business relationship and running his or her own freelance law practice. . . .

Five-Month Suspension Appropriate for Serious and Deliberate Ethical Misconduct?

05 Sunday Oct 2014

Posted by in Attorney Discipline, Legal Ethics, Probate and Trusts

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Suspension Proposed For Failure To Correct False Client Affidavit, by Mike Frisch, Legal Profession Blog

http://tinyurl.com/k7tevnu

An attorney who failed to correct his client’s  false affidavit claiming sole heirship in an estate matter should be suspended for five months, according to a report and recommendation of the Illinois Review Board.

Following the death of James Volgar (‘James’) in 2008, Respondent agreed to represent James’ brother, Paul Volgar (‘Paul’), regarding the administration of his brother’s estate. Paul was angry that Margaret Madonis (‘Margaret’), a great-niece who had cared for James during his life, was named as a joint tenant on one of James’ bank accounts. After James’ death, Margaret received about $400,000. Paul wanted this money. Paul told Respondent that he was James’ only heir. Based upon the information he received from Paul, Respondent drafted and filed in Will County an affidavit of heirship and letters of administration stating that Paul was the only surviving heir. The probate court then appointed Paul as administrator of the estate.

In early 2009, Respondent learned that Paul had lied to him and that James had additional heirs. However, Respondent took no steps over the following seventeen months to correct the false affidavit he had filed with the court or to file an amended affidavit of heirship. At hearing, Respondent asserted he failed to amend the affidavit of heirship because he simply forgot about it and forgot about the existence of other heirs. He testified he was more focused on the issue as to whether Paul could obtain the money received by Margaret. The Hearing Board rejected Respondent’s testimony, finding it incredible, and noting that 1) Respondent discussed the existence of additional heirs with various individuals; 2) he conducted research regarding distribution law; and 3) he formulated a potential argument to limit the share of the other heirs. Accordingly, the Hearing Board found that Respondent knowingly failed to correct the false statement in the affidavit. Respondent does not challenge this finding.

Following Paul’s appointment as administrator of the estate, Respondent used the false information regarding heirship to obtain information from financial institutions in an attempt to support Paul’s claims against Margaret. Respondent also sold James’ home in 2009 without notification to the other heirs. Respondent’s mother-in-law was the listing real estate agent and Respondent was the title agent. Respondent took over $9,000 in attorney’s fees from the sale proceeds, most of which was for fees Paul owed him to pursue the claim against Margaret.

In addition, Respondent repeated the false statement that Paul was an only heir in subsequent statements to the court, including in a motion for waiver of a surety bond filed in December 2009. . . .

 

 

Is It Legal Malpractice If You Are Technologically Incompetent?

01 Friday Aug 2014

Posted by in Law Office Management, Legal Ethics, Legal Technology, Malpractice, Social Media, Technology, Technology, Technology, Trial Tips and Techniques, Using Social Media

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Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog

http://tinyurl.com/lo9fs45

Do you have a smart phone but only know how to make a telephone call? Do you think of a cloud as some white puffy thing in the sky that looks like a ducky? Do you have a computer on your desk but never turn it on? Is the password to your computer actually “password”? Then this article is for you. Technology is here, and it is not going away. Resistance if futile. -CCE

Technological incompetence used to be merely a competitive disadvantage. Now, it is a potential ethics violation — or even legal malpractice.

During my first year of law school, we were not allowed to do computerized research. Instead, we were taught to use the leather-bound reporters, Shepherds, and treatises. It was only during our second year that we were deemed worthy to use Westlaw and Lexis to ‘confirm’ our book findings. (Of course, I doubt any of us ventured into the stacks again.)

This approach reflected the general attitude of the legal profession in the mid-to-late 1990s. Technology was grudgingly accepted, but not required. Lawyers at big firms had online research accounts and solos went to the law library to use the books. Nobody thought anything was wrong with this, although online research did give big firms a competitive edge.

In 2013, email is ubiquitous, and just about every lawyer has some form of electronic research available on his laptop, tablet, or phone. And everyone — lawyers included — uses Google to find everything else. In law practice, that includes research on witnesses, opponents, judges, and anything else not found in a Fastcase, Westlaw, or Lexis database. Technology is an unavoidable part of practicing law.

Ethics rules follow practice

The ethics rulemakers have taken note of this evolution, and the rules have grown to require technological competence.

Lawyers cannot ignore technology

The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis added.)

As Nicole Black, Director of Business Development at MyCase, puts it, ‘I think it’s pretty clear that […] lawyers can no longer turn a blind eye to technological advancements and their effect on the practice of law.’ . . .

Is It Time For A “Bring Your Own Device” Policy for Your Law Office?

01 Tuesday Jul 2014

Posted by in Android Phones, Apple, Blackberry Phones, Cell Phones, Clouds, Computer Forensics, Confidentiality, Cybersecurity, Disaster Preparedness, Emails, Encryption, Google, Intellectual Property, iPad, iPhones, Law Office Management, Legal Blogs, Legal Ethics, Legal Technology, Mac, Management, Marketing, Passwords, PC Computers, Social Media, Supervising Support Staff, Tablets, Technology, Using Social Media

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Mobile Device Security for Lawyers: How Solos and Small Firms can Ethically Allow Bring Your Own Device, by Will Harrelson, Curo Legal Blog (with hat tip to Jeff Richardson, iPhone J.D. Blog!)

http://tinyurl.com/lrrnp7g

The Start of Bring Your Own Device Policies

It really is the iPhone’s fault. Yes, Apple is to blame for designing the most desirable piece of technology of the last decade. So desirable, in fact, that employees of all stripes requested (and, often, begged) their IT departments to toss the increasingly-‘corporate’ Blackberry out the window and allow the use of their personal iPhones for corporate emails and calls. As a result, we have been living in the age of ‘Bring Your Own Device’ where employees use a single personal mobile phone (or tablet) for both their personal email, texting, and social media while also using it for work email, word processing, and other enterprise applications.

Before the Bring Your Own Device era, a company’s greatest out-of-office security concern was an employee who left a briefcase in a taxi. Today, the worry is an employee misplacing a device the size of wallet containing almost limitless amounts of data that criminals or hackers would easily and quickly exploit if given the chance. Clearly, there is an obvious financial motivation for all businesses to protect their own or customer’s sensitive data.

However, lawyers face particular ethical consequences if they fail to take reasonable efforts to either investigate the technologies that they implement or protect their client’s confidential information. . . .

Use Safe Smart Pro App to Secure Your Sensitive Data.

14 Saturday Jun 2014

Posted by in Apple, Apps, Cell Phones, Confidentiality, iPad, iPhones, Legal Ethics, Legal Technology

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App of the Week: Smart Safe Pro – Secure Sensitive Data on Your iPhone, by Lisa Pansini, Legal Productivity Blog

http://tinyurl.com/lxzhvrw

Regardless of whether you use your iPhone for docketing or receive emails from clients, legal ethics require that information about your clients be treated as confidential. And guess what, there’s an app for that. -CCE

Smartphone data is sacred to many. The mere thought of another human being infiltrating the privacy of their devices is enough to bring them to their knees. Rejoice, over-protective iOS user, for there is Smart Safe Pro ($2.99).

Secured with a AES-256 encryption, Smart Safe Pro operates as your digital vault, allowing you to secure passwords, photos, credit cards, and other documents. All this can be done without having to put a password lock on your device (but you can still have one if you really want it!)

You can choose between a PIN code, dot lock, numeric or alphanumeric passcode. The app can also send break-in reports with photo and GPS data via email, just in case someone tries to worm their way into your private data (requires in-app purchase). As if that wasn’t enough, the app also comes with a decoy login mode to throw potential snoopers for a loop. . . .

When You Share Files, Are They Secure?

31 Saturday May 2014

Posted by in Clouds, Confidentiality, Cybersecurity, Dropbox, Emails, Encryption, Legal Ethics, Legal Technology, Technology

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File Sharing by Lawyers Largely Insecure, Survey Suggests, by Robert Ambrogi, Robert Ambrogi’s Law Sites

http://tinyurl.com/pr3apcc

If I were to leave a document on a table entitled, ‘My Deepest, Darkest Secrets,’ under which I wrote, ‘Please do not read this unless you are someone I intended to read this,’ how securely would you think I’d protected myself?

That, effectively, is all the majority of lawyers do to protect confidential documents they share with clients and colleagues, according to a LexisNexis survey published this week. . . .

An Unique Response to Texas Center for Legal Ethics’ Opinion 642.

31 Saturday May 2014

Posted by in Law Office Management, Legal Ethics, Management, Marketing

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The Depths T’Which Ethics Reaches: or, The Origin of Opinion 642, by Greg Lambert, Three Geeks And A Blog

http://tinyurl.com/oz7hb6v

 Inspired by recent events.

Dewey said to Cheatum, ‘What ever shall we do?
Our book is getting slimmer and I haven’t got a clue
How to run a proper business, you know, one that still makes money?
We can’t just raise our rates… stop your laughing. It’s not funny!’

‘Silly Dewey, how you worry!’ chortled Cheatum through his drink.
‘There’s no problem we can’t tackle with a good and proper think.
We’re the brightest and the smartest and by far the best paid too,
We’ll just put our heads together and we’ll figure what to do.’ . . .

A Double Treat – Two-Part Posts On Cybersecurity and Outsourcing From Ralph Losey.

19 Monday May 2014

Posted by in Computer Fraud and Abuse Act, Computer Virus, Confidentiality, Document Retention, Emails, Encryption, Heartbleed, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Malware, Technology, Technology, Trojans

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The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/oalblet

and,

The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part Two, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/mjek896

It is worth taking the time to read the Comments for both Part One and Part Two. -CCE

Georgetown’s Legal Ethics Research Guide.

05 Monday May 2014

Posted by in Legal Ethics

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Legal Ethics Research Guide, Georgetown Law Library

http://bit.ly/1mx4ms9

This guide focuses on the codes of professional ethics and ethics opinions available from the American Bar Association and various state bar associations. Contents of this guide include Codes of Professional Ethics and ethics opinions.

Introduction

When researching issues of legal ethics, you will need to consult sources beyond the familiar cases and statutes, such as codes of professional ethics and ethics opinions issued by state and national bar associations. To assist you with your research, there are numerous secondary sources that focus specifically on issues in legal ethics. These secondary sources, including books and journal articles, are designed to help you understand the issues and locate primary materials.

This guide will give you an overview of the materials available, both print and online, that you will need to conduct your research in legal ethics. Locations of materials in the library are given. . . .

A Guide to Legal Conflict of Interests.

09 Sunday Mar 2014

Posted by in Conflict of Interest, Legal Ethics, Malpractice

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Freivogel on Conflicts – A Guide to Conflicts of Interest for Lawyers

http://www.freivogelonconflicts.com/home.html

This Guide is a good place for your research. Of course, you should update any research you find on the Internet. As in all legal research, please verify that no rules, regulations, case law, or other controlling legal authority has made any changes to what you find here. – CCE

This guide is built around the categories listed in the Table of Contents below. The What’s New page contains very recent decisions and opinions on those categories. It is updated several times a week.  Before using these materials, please read the “Ground Rules and Tips for Using this Site,” by clicking here.

Legal Ethics Head’s Up – Don’t Get Drunk, Move A Dead Body, And Lie To Police.

10 Monday Feb 2014

Posted by in Attorney Discipline, Kansas Supreme Court, Legal Ethics

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Someone Died, Someone Lied, by Legal Profession Prof (Mike Frisch), Legal Profession Blog

http://tinyurl.com/p3vxrmw

A partner-shareholder has an adulterous affair with one of the firm’s associates who suffered from depression and alcohol abuse. From there, it sadly got worse. -CCE

Rethink Calling Your Clients “Toothless Cooties.”

25 Saturday Jan 2014

Posted by in Legal Ethics, Litigation, Trial Tips and Techniques

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Criticize Clients Carefully, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/mg4bbue

Please note additional articles on client communication and relations at the end of the article. – CCE

There is no doubt that it’s a litigator’s job to realistically assess the case and, when the situation demands it, to deliver bad news to the client. How that assessment is crafted and communicated, however, is where the care comes in.

Former Texas “Texting” Judge Now Running for District Attorney.

12 Sunday Jan 2014

Posted by in Judges, Legal Ethics

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Former Judge Who Was Caught Texting Instructions To Prosecutors Now Running For District Attorney Post, by Tim Cushing, techdirt Blog

http://tinyurl.com/prtyo82

Her resignation from the bench was effective December 6. The press release announcing her campaign to run for district attorney of Polk County came out two days later. This should be interesting. Let’s see what happens. -CCE

Former Texas Judge Elizabeth Coker resigned from the bench on December 6, 2013. She announced that she was running for District Attorney on December 8, 2013.

*     *     *

Judges are supposed to be impartial arbiters of justice. However, former Texas judge Elizabeth Coker felt the prosecution needed a helping hand now and then to ensure “justice” was done and provided hints via text messages to district attorneys. Once evidence of her ex parte communications became public knowledge after an investigation, Coker resigned — or as she put it, ‘took one for the team.’

 

Reinstatement of Suspended Attorneys With Unique Conditions.

11 Saturday Jan 2014

Posted by in Attorney Discipline, Kansas Supreme Court, Legal Ethics

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Reinstated With Conditions, by Mike Frisch, Legal Profession Blog

http://tinyurl.com/kb7g6ea

The Kansas Supreme Court has reinstated two suspended attorney, with unique and unusual conditions imposed on each. Of the two attorneys reinstated by the Kansas Supreme Court, one is still on federal criminal probation. The other attorney is limited to representing only criminal defendants. -CCE

Robert Ambrogi’s Most Popular 2013 Posts

02 Thursday Jan 2014

Posted by in Adobe Acrobat, Clouds, Law Office Management, Legal Ethics, Social Media, Using Social Media

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My Most Popular Posts of 2013, by Robert Ambrogi, Robert Ambrogi’s Web Sites

http://www.lawsitesblog.com/2013/12/popular-posts-2013.html

Is Failing to Keep Abreast of Latest Technology Tantamount to a Possible Ethical Violation?

03 Tuesday Dec 2013

Posted by in Legal Ethics, Technology, Trial Tips and Techniques

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Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog

http://lawyerist.com/luddite-lawyers-ethical-violations-waiting-happen/

 The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

South Carolina Court Says to Attorney: No Email = No License.

24 Thursday Oct 2013

Posted by in Attorney Discipline, Court Rules, Emails, Legal Ethics, Legal Technology, Trust Accounts

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No E-Mail, No License, by Mike Frisch, Legal Profession Prof, Legal Profession Blog
http://bit.ly/16v90hL

The South Carolina Supreme Court suspended an attorney for repeatedly refusing to follow its explicit rules to maintain and monitor a working email account. This transgression, plus other failures by the Respondent to follow the Court’s orders and rules, led to the attorney’s suspension. The lawyer’s license to practice law was until further order of the Court.