New lawyers are facing significant hurdles to developing strong professional competency as economic conditions and client demand for experienced practitioners have usurped these developmental opportunities from recent graduates. This trend has had the effect of cannibalizing the legal profession by robbing young lawyers of the very work that teaches them how to be compliant of the competency requirements as laid out in ABA Rules of Professional Responsibility Rule 1.1.
California has decided to do something about it. The State Bar of California’s Board of Trustees has “charged the Task Force on Admissions Regulation Reform (the “Task Force”) with “[e]xamin[ing] whether the State Bar of California should develop a regulatory requirement for a pre-admission competency training program, and if so, proposing such a program” for submission to the Supreme Court.” After studying this issue for a year, the Task Force on Admissions Regulation Reform released a report on June 24, 2013.
The Task Force found that this problem stemmed from the gap between law school curriculum and the actual practice of law, coming from the fact that law schools focus on doctrinal teaching, which teaches students how to think like a lawyer, rather than classes teaching students how to act like a lawyer. At present, the Task Force is working on a final draft of its recommendation which “would require pre-admission competency training, a 50-hour pro-bono or low-bono requirement and enhanced post-admission practical skills training, with an additional 10 hours of mandatory continuing legal education for new lawyers.”
The pre-admission competency training could be achieved through practice-based experiential course work of fifteen hours or a bar-approved externship or clerkship, during or after finishing law school. The course work would include “oral presentation and advocacy; counseling; law practice management and using technology in law practice; collaboration and project management; and practical writing.”
The pre-admission competency training is an innovative idea. The requirement of competency which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” as laid out in the ABA Rules of Professional Responsibility Rule 1.1 is a fundamental rule that is now being undermined. State bars should take the initiative as California did to attempt to eliminate this deterrent to competency.
To read the Task Force’s report, click here.
In its September Advisory Opinion, the Pennsylvania Bar’s Ethics Committee reiterated the guidance provided in several previous ethics opinions in the developing area of social media and gave a broad overview of the main ethical issues attorneys face when both using social media and advising clients who use social media.
The Committee concluded that:
- Attorneys may advise clients about the content of their social networking websites, including the removal or addition of information.
- Attorneys may connect with clients and former clients.
- Attorneys may not contact a represented person through social networking websites.
- Although attorneys may contact an unrepresented person through social networking websites, they may not use a pre-textual basis for viewing otherwise private information on social networking websites.
- Attorneys may use information on social networking websites in a dispute.
- Attorneys may accept client reviews but must monitor those reviews for accuracy.
- Attorneys may generally comment or respond to reviews or endorsements, and may solicit such endorsements.
- Attorneys may generally endorse other attorneys on social networking websites.
- Attorneys may review a juror’s Internet presence.
- Attorneys may connect with judges on social networking websites provided the purpose is not to influence the judge in carrying out his or her official duties.
Despite prohibiting attorneys from contacting represented persons through social media, in accordance with the New York State Bar Association Committee on Professional Ethics’ Opinion 843, the Pennsylvania Committee advised that it would nevertheless be permissible for attorneys to access the public portions of represented persons’ social networking websites.
This growing leniency of what attorneys may do and may advise their clients to do using social media, emphasizes the importance of competent representation by gaining at least a basic level of knowledge and understanding of how social media websites work; an obligation that is becoming an almost crucial element of the practice of law in this new digital age.
The Tennessee Supreme Court suspended an attorney from practice for 30 days for sending an email to a bankruptcy judge, calling the judge a “bully and clown”. On September 3, 2014, the court decided that although the sending of the e-mail did not violate Tennessee Rule of Professional Conduct 8.2(a)(1), the e-mail constituted an improper ex parte communication with the judge in violation of Rule 3.5(b) and conduct intended to disrupt a tribunal in violation of Rule 3.5(e).
The court found that Rule 8.2 was not violated because it was not designed to protect judges from criticism, but rather to protect against unfairly undermining public confidence in the administration of justice. Because this e-mail was not communicated to a third party, it did not violate the rule.
Even though the e-mail was sent nine months after the bankruptcy judge denied the attorney’s fee application, it was sent “during the proceeding,” under Rule 3.5(b), because the attorney could still appeal the district court’s ruling at the time. Thus, the court concluded that Rule 3.5(b) extends through any appellate process until final disposition.
Additionally, the e-mail violated Rule 3.5(e) because: (1) the time for appealing the denial of the fee application had not yet expired, and thus a proceeding was still pending for purposes of the rule; and (2) the e-mail demanded a written apology and had a “threatening tone”, thus representing the conduct that Rule 3.5(e) proscribes.
To be safe, lawyers should refrain from sending possibly offensive or threatening communications to judges.
The full opinion can be found here.
A recently released opinion by the ABA Standing Committee on Ethics and Professional Responsibility (Formal Opinion 467) sets out a directive for prosecutors in both managerial and supervisory positions to establish procedures that ensure lawyer and nonlawyer compliance with ABA Model Rules of Professional Conduct. The Opinion discusses scenarios and obligations during those scenarios, which aim to guide the desired behavior from attorneys in key supervisory or managerial positions. The suggestions posited in the Opinion are dictated by relative size and structure of the office. Additionally, the Opinion suggests that attorneys incentivize, encourage, and reward compliance to lawyer and nonlawyer subordinates. Emphasizing ethics compliance in the hiring process will also help with issues that arise down the road.
Managers and supervisors should make ethics compliance part of the emphasized and encouraged culture of the office. An office should have a known and adhered-to system, which is enhanced through appropriate discipline, education, and sanctions.
For the opinion click here.
A Seymour County defense attorney will be in need of his own defense after he appeared to be under the influence during court proceedings in Shelby County, Indiana, reported the IndyStar. The attorney, who has been a member of the Indiana bar since 1981, appeared to be drunk during court proceedings on September 8, 2014. The police statement asserts that a witness claimed that the same attorney “almost ran her off the roadway on his way to the court house.” Further, a staff member of the court stated that the attorney had previously touched her inappropriately multiple times and that he smelled of alcohol.
During the proceedings, Judge Riggins found the attorney to be in contempt of the court and ordered that he be tested for alcohol in his system. The police statement claims that the attorney, who seemed to have problems keeping his balance, failed the alcohol test on three separate occasions and ultimately blew a blood alcohol level of 0.154. This certainly indicated that the attorney was not only under the influence during Court Proceedings but also was over the 0.08 Blood Alcohol Level maximum allowed in Indiana while driving to the courthouse.
The attorney was ultimately arrested and faces multiple charges including operating a vehicle while intoxicated with endangerment, operating a vehicle with a BAC greater than 0.15 percent, operating a vehicle while intoxicated and public intoxication. This is only the beginning of what could be a very long week for this attorney as he could also face a multitude of Ethics violations and runs the risk of being severely disciplined by the state of Indiana.
The attorney’s alleged actions violate Indiana Rules of Professional Conduct, Rule 8.4(b), Misconduct, which states that it is professional misconduct when a lawyer commits a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. He also likely violated Indiana Rule 1.1, Competence, which states that a lawyer shall provide competent representation to a client. It doesn’t matter how “confident and competent” a lawyer may feel when inebriated, that lawyer is in no position to provide adequate representation.
Click here to read more.
In its July 25th Formal Ethics Opinion, the North Carolina State Bar chimed in on the lively discussion centered on whether lawyers may advise their litigation clients to remove postings on social media. There were three main questions that the Opinion tackled. All three questions pertained to advice that may be provided before filing a lawsuit and during litigation.
The first question was whether a lawyer may advise a client about the legal implications of social media posts and coach the client on what should and should not be shared on social media. The Opinion answered in the affirmative, explaining that pursuant to Rules 1.1 and 1.3, lawyers must provide competent and diligent representation to clients and, as such, should provide social media advice both before and after a lawsuit is filed.
The second question was whether a lawyer may instruct the client to remove existing social media content. The Opinion responded in the negative, explaining that as a general rule, relevant social media postings must be preserved. However, the Opinion elaborated that “if removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media.” However, if there is a possibility that removal may constitute spoliation then copies must be preserved.
The third question was whether a lawyer may instruct a client to change and increase the security and privacy settings on social media pages. The Opinion again answered in the affirmative.
Thus, North Carolina has joined Philadelphia and New York in opining on the repercussions of clients “cleaning up” their social media pages and reinforced the belief that in order to be competent and effective, lawyers must recognize and understand the growing impact of social media on the practice of law.
Click here for the full text of the Opinion
A New Jersey lawyer has been suspended for three months due to conduct that “ranged from childish to outrageous.” The New Jersey Supreme Court found that the lawyer violated the State’s Rules of Professional Conduct, particularly RPC 3.2 (failing to treat with courtesy and consideration all persons involved in the legal process), RPC 3.3(a)(1) (knowingly making a false statement of material fact or law to a tribunal), RPC 3.3(a)(5) (failing to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal), RPC 4.1(a) (in representing a client, knowingly making a false statement of material fact or law to a third person), RPC 8.4(a) (violating or attempting to violate the RPCs), and RPC 8.4(d) (conduct prejudicial to the administration of justice).
During discovery, the attorney made inappropriate comments to opposing counsel such as, “Did you get beat up in school a lot?, because you whine like a little girl.” and “Why don’t you grow a pair?” Furthermore, he was found to have made representations to the court during trial which were knowingly false. During his ethics hearing, he admitted that his conduct was inexcusable and that he should be “disciplined for it.” Nevertheless, the attorney made the following statement in his defense at the ethics hearing:
“I neglected my files, I played too much golf, I went to Punta Cana with my family all within two months. Was it wrong? I don’t know. This is the lifestyle that I’ve chosen, the practice I’ve chosen because I worked at Methfessel & Werbel for 15 years in a cubicle rising to managing director.”
Ultimately, the New Jersey Supreme Court adopted the Disciplinary Review Board’s recommendation for a three-month suspension.
To read the Supreme Court order and the opinion by the Supreme Court’s Disciplinary Review Board click here.