An attorney in Ohio whose license has been suspended since 2013 was reminded just how important it is to cooperate with disciplinary authorities while facing his third disciplinary hearing in three years. Despite being cleared by the Ohio Supreme Court on the underlying charges, which involved the Board of Professional Conduct’s finding of the mishandling of a criminal case and related fraudulent statements to the court, the attorney nonetheless was sanctioned for his failure to cooperate.
The attorney’s failure to cooperate with the Board’s investigation was evidenced by the attorney’s failure to promptly respond to three letters of inquiry. He replied to the first letter several weeks after the stipulated reply date, and did not reply to the subsequent letters. The attorney defended his failure to reply to the subsequent letters by claiming that the questions in the subsequent letters were not relevant to the rule cited in the first letter. He also argued that he was given insufficient time to respond. The Court rejected the arguments after the attorney admitted he was aware of his duty to cooperate with the Board.
The attorney received a six-month suspension and was taxed with costs.
On August 25, 2015 the North Dakota Supreme Court decided that a consultation fee alone does not form an attorney-client relationship; it is merely a factor that may indicate its creation. Alone, the fee creates only a potential client relationship with an attorney. Without this distinction, the attorney in Kuntz v. Disciplinary Board of the Supreme Court of North Dakota would have been in violation of North Dakota Rules of Professional Conduct Rule 1.7 (Conflict of Interest) and Rule 1.9 (Duties to Former Client).
This case arose from a client, the father in a child custody matter, claiming his attorney violated her ethical duties. The client retained the attorney and later learned that approximately one year prior to commencing representation, the attorney had consulted with the child’s maternal grandfather, who had paid the attorney a $100 fee for the consultation. There was no further contact between the maternal grandfather and the attorney. The client felt there was a conflict of interest as the attorney had previously met with a family member of the opposing party for a consultation with respect to custody arrangements for the same child.
The attorney advised the court that she always charges a $100 fee for initial consultations, and in each meeting she makes clear to the potential clients that the consultation does not form an attorney-client relationship. Her notes from the meeting with the grandfather showed no exchange of legal advice or collection of confidential information, supporting the attorney’s assertion that she met her responsibilities under North Dakota Rules of Professional Conduct Rule 1.18 (Duties to Potential Client).
After reviewing the case de novo on the record and noting that violations must be established by clear and convincing evidence, the North Dakota Supreme Court found only a potential client relationship between the attorney and the grandfather despite the fee. As a result, Kuntz had not violated any conflict of interest rules. The court held that the “existence of a lawyer-client relationship depends on the particular circumstances of the case, including the conduct of the parties, the circumstances of the consultation, the nature of information exchanged, and any agreements between the parties.”
To read the full opinion, click here.
In Opinion No. 1 of 2015, the Indiana State Bar Association Legal Ethics Committee addressed the extent to which Indiana Rule of Professional Conduct 8.4(g) limits a lawyer’s participation as a leader of a nonprofit organization that discriminates through membership requirements (e.g. on the basis of religion, gender, race, etc.). That rule prohibits lawyers from “engag[ing] in conduct, in a professional capacity, manifesting…prejudice” based upon certain types of characteristics. Several other states, including Florida, have an anti-discrimination clause in their professional conduct rules guiding attorneys.
The main hurdle with which the Committee struggled was the lack of guidance from the Indiana Supreme Court on the definition of “professional capacity.” The Committee first reviewed the six Indiana cases that have applied Rule 8.4(g) and then reviewed a number of cases in which lawyers were disciplined for conduct that was unrelated to the representation of a client. It found that although the rule encompasses conduct in the course of representing a client, the rule’s reach goes well beyond that.
Having established that the bounds of Rule 8.4(g) extend beyond actions taken in a representative capacity, the Committee next turned to the question of how far those boundaries go. After an analysis of both the New Jersey Supreme Court’s interpretation of its own version of Rule 8.4(g) and Indiana’s Model Code of Judicial Conduct, the Committee decided that the rule is meant to catch only such conduct where the lawyer’s status as a lawyer is a relevant part of his or her role and where the conduct was intended or likely to discriminate. Further, even in such cases, the attorney may still be protected from the rule’s application, depending on the nature of the organization. That is because, in some types of organizations, the constitutional freedom of association may apply. The Committee noted that typically, smaller, more intimate organizations have been afforded greater protections of associations, whereas organizations whose goals involve other recognized freedoms have been afforded such protections only in more stringent circumstances.
In short, the Committee concluded the following: (1) mere legal representation of such organizations—without making discriminatory comments—is not a violation of the rule; (2) participation in a personal capacity is not a violation of the rule; and (3) participation where status as a lawyer is connected to the participation and where the lawyer intends to personally participate in activities that advance discriminatory policies may be a violation of the rule, depending on the nature of the organization and the lawyer’s role in it.
A U.S. District Court judge was unamused by a jab an attorney made at opposing counsel during litigation this past March. After a female attorney complained about the temperature in a room where 16 attorneys were participating in a deposition, a male attorney remarked aloud, “You’re not getting menopause, I hope.” After a motion for sanctions was filed against the attorney who made the offensive remark, the judge expressed his negative view of the offending attorney’s conduct.
The judge called the attorney‘s comment “discriminatory in nature.”
“Because menopause occurs only in women, and predominantly in middle-aged women…a comment suggesting that a woman may be menopausal singles her out on the basis of gender and age.”
The judge ruled that the attorney’s statement was a violation of ABA Model Rule 4.4 (Respect for Rights of Third Persons). “The public nature of [the male attorney’s] comment combined with the personal and private nature of menopause leads the Court to conclude that the comment was made to embarrass [the female attorney] and was not intended to serve any other purpose.”
Attempts to ridicule opposing counsel are unfortunately nothing new in the legal profession. Citing a 2015 ABA report, the judge noted that “inappropriate or stereotypical comments” made by opposing counsel are one cause for the under-representation of women in lead trial attorney roles.
Accordingly, the court decided that the violating attorney was to pay his opposing counsel’s reasonable attorneys’ fees of $1,000 for bringing the motion and complete a continuing legal education course on professional conduct.
Future Law Office 2020, a report issued by Robert Half, contains a survey in which 350 attorneys were asked which issue would have the biggest impact on the practice of law in the next five years. Emerging technologies was the issue that garnered the most votes. Furthermore, 44 percent of the respondents identified eDiscovery as the main issue driving legal departments to work more closely with IT specialists.
Is your law firm up to speed on technology and eDiscovery? Emerging technologies are not only a trend, but also are becoming a matter of competence. In fact, recent sanctions imposed on the Defendants and their attorneys in a case in the U.S. District Court for the Southern District of California reminds us of the legal implications of poor handling of eDiscovery. HM Elecs., Inc. v. R.F. Techs., Inc., 2015 BL 254876, No. 3:12-cv-02884-BAS-MDD (S.D. Cal. Aug. 7, 2015).
In HM Elecs. Inc, the Plaintiff—a manufacturer of drive-thru headset systems—brought forth various claims against the Defendant—a repairmen of drive-thru headset systems—for trademark infringement and unfair competition and interference by the Defendant. During the course of the case, several discovery disputes arose, most notably related to the failure to properly and timely produce documents as required. The Plaintiff filed a joint motion alleging that Defendant intentionally withheld and destroyed highly relevant electronically stored documents (“ESI”), among other allegations.
The Court granted the Plaintiff’s request for reasonable attorneys’ fees and costs incurred as a result of Defendants’ eDiscovery misconduct pursuant to Rules 26(g)(3) and 37, and for not paying close enough attention to the misconduct of its clients. The court sanctioned discovery practices by the Defendant such as (1) signing certifications of discovery stating that certain documents didn’t exist, even though they did; (2) attorneys did not property craft and implement a litigation hold; (3) emails were sent to employees instructing them to destroy relevant documents; (4) massive amounts of data withheld by the used of limited search terms; and (5) failure to produce more than 375,000 pages of electronically stored information (“ESI”) until after close of discovery due to vendor error.
Thus, failure to be proactive in acquiring competence in emerging technologies and specifically in eDiscovery may result in a costly lesson that not only takes a financial toll on a lawyer and his client, but also may tarnish the reputation and career of the lawyer. In other words, being a technophobe is becoming risky business for lawyers practicing law in the digital age.
To read the survey, click here.
To read the opinion, click here.
On July 17, 2015, the North Carolina State Bar Ethics Committee (“Committee”) issued a 2015 Formal Ethics Opinion 4, discussing when it is appropriate for an attorney to disclose potential malpractice to a client.
The opinion begins with an explanation of the distinction between professional malpractice and professional misconduct, the former being a lawyer’s error under the applicable standard of care, which could subject the lawyer to civil liability. The North Carolina Committee acknowledges that even a generally competent lawyer may make a mistake and then proceeds to analyze the responsibilities that ensue.
Relying on analysis from a Colorado Ethics Opinion and a New York State Ethics Opinion, the North Carolina Committee advises that the decision to disclose an error to a client is governed by an attorney’s duty of communication pursuant to Rule 1.4. The obligation of disclosure of an error depends upon where it falls on the spectrum of possible errors as well as the circumstances under which the error is discovered. With respect to the spectrum, errors range from those that are material and clearly prejudice the client’s interests, which should always be reported, to those that are easily corrected or negligible and do not need to be revealed to the client.
A mistake that falls within the grey area of the spectrum must be examined in terms of the attorney’s duty to keep the client reasonably informed about his legal matter. For example, if the error will result in financial loss to the client, substantial delay in achieving the client’s goals, or a significant disadvantage to the client’s legal position, the error must be disclosed. When in doubt about the duty to disclose, the Committee advises that it is best that an attorney err on the side of disclosure.
After making the decision to disclose, an attorney may retain representation of the client unless there is a Rule 1.7 conflict of interest issue. When disclosing the error to a client, the lawyer must candidly explain the important facts surrounding the error, including the circumstances under which it occurred and its effect on the lawyer’s continued representation of the client. The lawyer must not advise the client about a potential malpractice claim, but the lawyer can recommend that the client seek independent legal advice.
There is no doubt that since the inception of Facebook in 2004, various other social media networks have sprung up allowing people to share and exchange information instantly. As of the second quarter of 2015, Facebook had nearly 1.49 billion monthly active users. Originally a social networking website geared towards college students, Facebook has grown to market its services to people of all ages, backgrounds, and professional occupations. As social media continues to become a part of people’s everyday lives, many have predicted that this is a long-term trend that will be continuously refined so that people turn to interacting and behaving online as they do in their everyday lives. But with this dependency on online social networking comes potential consequences that can affect many groups of people, including the legal profession.
The American Bar Association reported in its most recent Legal Technology Survey that about 62% of law firms maintain social networks. This can include, for example, LinkedIn, Facebook, Twitter and Instagram. In fact, 78% of individual lawyers maintain one or more social networks, and spend on average 1.7 hours per week using these sites for professional purposes.
But what about in the courtroom? Is it ethical for a judge to use social media to comment and express his or her opinion on a case unfolding in the judge’s courtroom? Unfortunately for one District Court judge in Texas, Facebook updates about a trial over which she was presiding resulted in a reprimand by the State Commission on Judicial Conduct.
This story began during the criminal jury trial of State v. David M. Wieseckel, which was held in Judge Michelle Slaughter’s court. The defendant, Wieseckel, was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a wooden enclosure.
Judge Slaughter’s social media saga began a few days before the commencement of the trial when she posted on her Facebook page: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning”. However, it wasn’t until after the first day of testimony when Judge Slaughter posted several comments on her Facebook page that ethical issues allegedly emerged.
The following are the Facebook comments that led defense counsel to file a motion to recuse Judge Slaughter from the case:
“Opening statements this morning at 9:20 am in the trial called by the press ‘the boy in the box’ case.”
“After we finished Day 1 of the case called the “Boy in the Box” case, trustees from the jail came in and assembled the actual 6”x 8’ box inside the courtroom!”
“This is the case currently in the 405th!” [This post included a link to a Reuters article entitled “Texas father on trial for putting son in a box as punishment”].
The issue raised about these comments was that the box to which she referred had not yet been admitted into evidence at the trial.
As a result of these comments, defense counsel filed motions to recuse Judge Slaughter from the case and for a mistrial and she was removed from the Wieseckel case. The case was transferred to another court and the judge in that court granted the defendant’s motion for mistrial. Judge Slaughter’s behavior was criticized on social media despite her argument that she made her comments with the intention of promoting transparency and to encourage individuals to come watch the proceedings.
The State Commission on Judicial Conduct (Commission) did not share the Judge’s perspective. After considering the relevant standards of judicial conduct, including Canon 3B(10) of the Texas Code of Judicial Conduct and Canon 4A, the Commission concluded that Judge Slaughter’s comments “went beyond providing an explanation of the procedures of the court” and instead “highlighted evidence that had yet to be introduced at trial”. Further, the Commission stated that “Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the case”.
On April 20, 2015, the Commission issued a Public Admonition and Order of Additional Education to Judge Slaughter requiring her to obtain four hours of instruction, with a mentor and in addition to her required judicial education, on the proper and ethical use of social media by judges.
Judge Slaughter appealed the sanction to a special court of review based upon First Amendment claims. On July 20, 2015, Justice Charles Kreger of the 9th Court of Appeals, Justice Gina Benavides of the 13th Court of Appeals, and Justice John Bailey of the 11th Court of Appeals heard arguments and evidence in the trial de novo. The crux of Judge Slaughter’s argument is that this particular proceeding is going to chill the exercise of the right to free speech as the matters that occur within the courtroom are of public concern. The Court of Appeals has not yet issued its decision.-This case is a prime example of the tension between the First Amendment and the judicial canons that may arise when the judiciary engage in social media however well-intentioned.
 American Bar Association, 2014 Legal Technology Survey Report, available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/publications.html
The American Bar Association (ABA) recently released a formal opinion concerning the ethical obligation of a lawyer to provide a former client with documents relating to the previous representation. In 1977, the ABA released an informal opinion about a lawyer’s ethical duty to deliver files to a former client. Considering that technological advances have affected how lawyers “create, communicate, use, and store materials related to client representations,” the ABA released this formal opinion to clarify and update the lawyer’s duty pursuant to Model Rules of Professional Conduct 1.15 and 1.16.
Rule 1.15 provides that lawyers must safeguard client property and promptly deliver it to the client upon the client’s request. Additionally, Rule 1.16(d) requires that a lawyer take steps that are “reasonably practicable to protect a client’s interests.” These rules require a lawyer to surrender certain documents. The question then becomes: which documents are former clients entitled to receive?
After cautioning lawyers to review the law in the jurisdiction in which they practice, the opinion describes the two approaches that are most commonly used. A majority of jurisdictions use the “entire file” approach, whereas others use the “end-product” approach. Under the majority rule, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless a specific exemption applies. In contrast, the minority rule attempts to distinguish between the “end-product” of a lawyer’s services, which must be surrendered, and material that was used in the creation of that “end-product,” which need not be automatically surrendered.
Further, the opinion presents a factual scenario where a lawyer represents a client in an ongoing matter when the lawyer is terminated. Under these circumstances, the former client may be entitled to receive more documents. For example, if there is an upcoming deadline, the most recent draft and relevant supporting research would need to be surrendered.
The Model Rules of Professional Conduct require that a lawyer provide a former client with certain documents upon request and to the extent reasonably practicable to protect the client’s interests. The ABA’s Formal Opinion 471 delineates what types of documents this requirement encompasses. The full opinion can be found here.
On August 7, 2015, the Ohio Board of Professional Conduct made it clear in Formal Opinion No. 2015-2, that lawyers may present a legal seminar to prospective clients. Furthermore, following a legal seminar, lawyers may provide law firm brochures and information near the exit of the seminar, but cannot answer attendees’ legal questions or personally hand out promotional brochures. Nevertheless, attorneys do have several options when it comes to reaching new clients.
A lawyer may present an informational legal seminar to prospective clients, and even provide law firm brochures and information at the seminar; however, the brochures and information must be left near the exit of the seminar, so that the lawyer, or a third party on the lawyer’s behalf, does not personally distribute the materials to attendees. Outside legal seminars, lawyers are permitted to place brochures in advertising bags with other ads, mail brochures, or even place brochures on counters at public locations and private businesses.
Additionally, a lawyer may not stay after a legal seminar to discuss personalized legal needs of any attendee, even if the attendee signs up to meet with the lawyer in advance of the seminar. If an attendee is interested in meeting with the lawyer, the lawyer must inform the attendee to schedule an appointment with the lawyer’s office. Lawyers may accept employment as a result of the seminar, so long as the lawyer follows the rules of professional conduct for their respective state.
Because of the importance of seminars and the provision of legal information to individuals who cannot afford to hire a lawyer, volunteer lawyers who provide pro bono legal services along with the presentation of a seminar are allowed to do so. The provision of pro bono legal advice at a legal seminar would increase access to justice and would not be done simply to increase a lawyer’s business.
The final issue addressed by the Board related to the “prior professional relationship” exception under Professional Conduct Rule 7.3. The rule prohibits in-person, live telephone, or real-time electronic solicitation of clients. However, an exception is carved out for people who have a prior professional relationship with the lawyer. The Board concluded in its opinion that the “prior professional relationship” exception does not apply to employees of an organizational client. Thus, a lawyer that represents an organization may not make an offer to represent employees of the organizational client at a legal seminar. However, a lawyer may make general statements to attendees regarding firm information, services provided, availability, and contact information. Nevertheless, pursuant to Professional Conduct Rule 1.13, if there appears to be a conflict of interest in representing both the employer organization and the employee, then the lawyer for the organization likely cannot provide legal representation to the individual employees. Thus, a lawyer must conduct a thorough conflict of interest analysis prior to offering representation to individual employees.
One of the most important aspects of being an attorney is proper billing. Lawyers who use hourly billing must provide an accurate accounting of legitimate time that they work on a case. Lawyers should also communicate with clients when it appears that fees and costs may exceed initial expectations. Failure to employ best practices when billing clients can lead an attorney into hot water.
Tennessee lawyer Yarboro Sallee found herself in this hot water. Sallee was hired to represent the parents of a deceased wife and mother in a wrongful death lawsuit against their former son-in-law, who they blamed for her death. Sallee initially quoted the family a figure of $100,000 at $250 per hour. The family eventually fired Sallee after constant haggling with her over increasing fees and costs, which exceeded her initial quote.
After three months of work which included not much more than the drafting of a complaint, Sallee delivered an itemized bill for $140,000. She filed suit to collect her fees from her former clients, who filed an ethics complaint against Sallee. Sallee’s itemized billing contained charges to the clients for hours of watching reality crime shows such as The First 48, which Sallee justified as relevant research. Sallee also billed the clients the full rate for time spent waiting for records and 1½ times her normal rate for working after 5 pm. Sallee never discussed these charges with the clients prior to Sallee’s termination; she also refused to return some of the case files upon the clients’ request.
The Tennessee Supreme Court found that Sallee’s actions were in violation of the state’s ethics rules as she was unable to demonstrate any substantial work to support her fees. The court also found that she violated a duty to communicate with the clients in respect to increasing fees. Sallee also violated her duty to the clients post representation by unfairly withholding pertinent records needed for her former client’s litigation. The court upheld the decision of the Tennessee Board of Professional Responsibility’s hearing panel and affirmed Sallee’s suspension from the practice of law for one year.
Thus, the lesson in a nut shell is be honest and fair when billing clients, communicate any expected increases in billing, and watching The First 48 does not amount to legal research.
To read the opinion, click here.
On August 7, 2015, the Supreme Court of Ohio issued Advisory Opinion 2015-1. The opinion explains that a judge with the authority to perform civil marriages must take an oath declaring they will perform their duties impartially. This Judicial Oath of Office (“Oath”) states: “I, (name), do solemnly swear that I will support the Constitution of the United States and the Constitution of Ohio, will administer justice without respect to persons, and will faithfully and impartially discharge and perform all of the duties incumbent upon me as a judge according to the best of my ability and understanding. [This I do as I shall answer unto God.”]
Judges have the authority to perform marriages and must follow the Code of Judicial Conduct. When a judge performs a civil marriage ceremony, “the judge is performing a judicial duty and thus is required to follow the Code in the performance of that duty.” The Code mandates judges to remain impartial and fair, while prohibiting conduct that would appear as being biased or prejudiced to others.
The recent Supreme Court decision legalizing same sex marriage overruled jurisdictions—such as Ohio—that restricted marriage to only opposite-sex couples. In order to ensure that judges continue to perform their responsibilities impartially, the Ohio Supreme Court Board of Professional Conduct has held that Ohio state judges who perform marriages in their judicial capacity must also perform same-sex marriages.
The Board found that not performing same-sex marriages while still performing opposite-sex marriages, or refusing to perform all marriage ceremonies because the judge opposes same-sex marriage, violates the Oath judges have taken. Additionally, this refusal violates Ohio Rule of Professional Conduct 8.4(g), which does not allow lawyers to “engage, in a professional capacity, in conduct involving discrimination prohibited by law because of . . . sexual orientation.”
The Board also cautioned that failing to perform same-sex marriages violates a judge’s responsibility to remain impartial. Thus, failure to perform same-sex marriage ceremonies signifies to the public that the judge maintains a personal bias or prejudice towards a particular group. Moreover, a judge may not refrain from performing all marriages so as to avoid conducting same-sex marriage ceremonies. A judge’s position that he will not conduct any marriages may also be interpreted as bias towards a particular class, thereby raising reasonable questions about the judge’s impartiality in any case in which sexual orientation is an issue and resulting in disqualification of the judge.
Bottom line: The U.S. Supreme Court has upheld the right of same-sex couples to marry—Ohio judges must adhere to the rule of law.
To read the Ohio opinion, click here.
On June 30, 2015, the State Bar of California Standing Committee on Professional Responsibility and Conduct released Formal Opinion No. 2015-193 addressing an attorney’s ethical duties in the handling of the discovery of electronically stored information (“ESI”). ESI is information created, communicated, and stored on either computer hardware or software (i.e., emails, Word documents, videos, etc.). Given ESI’s pervasive presence in litigated matters, it is critical that attorneys understand electronic discovery so as to avoid potential ethical violations and exposure to unnecessary disputes.
The committee’s opinion focused its analysis around a detailed hypothetical that demonstrated the unfortunate, but relatable, missteps taken by an attorney that was familiar with discovery, but unfamiliar with electronic discovery. Consequently, and among other things, the attorney’s actions exposed him to various ethical violations. The committee specifically addressed Rules 3-110 and 3-100, the duties of competence and confidentiality, respectively. (Note: California has not adopted the ABA Model Rules of Professional Conduct; however, 3-110 and 3-100 generally echo the duties described in ABA Rules 1.1 and 1.6, versions of which of been adopted in all of the other states.)
With respect to the duty of competence, the committee broadly interpreted the existing language of the rule to include knowledge of electronic discovery. Depending on the case, the duty of competence may require a practitioner with a high level of technical knowledge and ability. If, however, the attorney lacks the requisite skillset, he has three available options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Moreover, the committee counseled that if an attorney chooses the second option, the attorney is always responsible for and obligated to supervise outside counsel and consultants.
Additionally, an attorney has a fundamental duty to protect confidential communications between the attorney and client. Thus, an attorney’s failure to diligently monitor the production of ESI could result in both an ethical violation and a waiver of attorney-client privilege. An attorney dealing with electronic discovery must take action to review a client’s network, instruct and supervise the client’s disclosure, develop a narrow list of acceptable search terms, and review the retrieved data before it is ultimately disclosed.
Please click here to read the full opinion.