Public Defenders and Part-time Judges: Duties under the Misconduct Rule

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a public defender may not represent a client in the court where another public defender is a part-time judge because to do so would violate the public defender’s duties under Rule 8.4(f)—Misconduct.

Rule 8.4(f) prohibits a lawyer from causing a judge to violate his or her own ethical obligations under the Rules of Judicial Conduct not to “permit his or her partners or associates to practice law in the court in which he or she is a judge.”

In the inquiry before the N.Y.S.B.A., the attorney was a member of a public defender office and lived in an area where City Court judges serve on a part-time basis. These part-time judges are also permitted to practice law. Another member of the public defender office was a part-time judge in the City Court.

In reaching its opinion, the Committee reasoned that if the associated part-time City Court judge does not take steps to prevent other lawyers who are part of the same public defender’s office from practicing before the City Court, then the other public defenders—on their own initiative—must decline to make appearances or withdraw altogether.

To read the entire opinion, click here.

Hey “Darling,” There’s No More “Honey” In The Courtroom

The American Bar Association (ABA) House of Delegates passed Resolution 109, which states that it is a violation of professional responsibility to discriminate or harass in conduct related to the practice of law.

So, the use of “honey,” “darling,” and other remarks and gestures is now considered professional misconduct.

Although the discussion focused mainly on harassment and discrimination of women, the Resolution amends Model Rule 8.4 so that it now prohibits conduct that an attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Proponents of the Resolution assert that without an overt prohibition on this type of conduct, the use of demeaning and misogynistic terms and actions to undermine opposing counsel and others will continue without repercussion.

However, whether this Resolution and amendment to Model Rule 8.4 will have the desired effect remains to be seen as it is within the province of each state bar to determine whether to adopt the amendment and if adopted, how to enforce it.

New Social Media Opinions: West Virginia and Colorado

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships. The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.

Also in September 2015, the Colorado Bar Association Ethics Committee issued its opinion titled “Use of Social Media for Investigative Purposes.” The Committee concluded that investigation of public profiles and posts is always permitted. Limits apply, however, when permission is requested to view restricted or private content. The opinion addresses ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information regarding witnesses, jurors, opposing parties, opposing counsel, and judges.

Both West Virginia and Colorado came to the following conclusions, among others: Regarding attorneys reviewing jurors’ Internet presence, attorneys may review public sections of a juror’s social networking presence, but may not attempt to access private sections of a juror’s social media page or use the assistance of a third party to do so. Moreover, attorneys may not seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge. The Colorado opinion further states that attorneys may not request permission to view restricted portions of a judge’s social media profile while the judge is presiding over a case in which the lawyer is involved as counsel or as a party.

In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.

To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

Duty To Notify Clients When Their Files Are Accidentally Destroyed

Accidents happen. However, when an unforeseen disaster or accident results in the destruction of client files, an attorney may have an ethical obligation to notify current and former clients according to the Association of the Bar of the City of New York Committee on Professional Ethics. In September 2015, the Committee opined that “[w]here the destruction of a client file compromises the lawyer’s ability to provide competent and diligent representation to the client, the lawyer must take reasonable steps to reconstruct the file sufficiently to allow the lawyer to provide such competent and diligent representation or must notify the client if he is unable to do so.” Additionally, the lawyer must “notify the current or former client if an accident or disaster compromises the security of confidential information.”

According to the committee, “[t]here is no bright line rule to determine whether the inadvertent destruction of a document triggers a duty to notify the client or former client.” The committee grouped client documents into three categories of importance. For “Category 1” documents (i.e., documents with intrinsic value, such as wills, deeds and negotiable instruments, that directly affect property rights), the lawyer has an affirmative obligation to take reasonable steps to notify the client or former client, unless there is an agreement to the contrary. For “Category 3” documents (i.e., documents that have no useful purpose in serving the client’s present needs for legal advice), the lawyer has no affirmative duty to notify their client of the inadvertent destruction, unless the lawyer and client agreed otherwise. However, if the client asks about the files, the lawyer has a duty under New York Rule of Professional Conduct 1.4 (communication) to inform the client.

As for “Category 2” documents (i.e., documents that may still be necessary or useful), the lawyer must make a case-by-case analysis. If the client’s matter is still active, the lawyer must take reasonable steps to notify the client. However, if the client’s matter is closed, the lawyer must evaluate whether the “client foreseeably may need” the documents. If a document relates to a fully resolved matter, the lawyer need not notify the client of its destruction. Nevertheless, if there are open issues, the lawyer should take reasonable steps to alert the client of the file’s loss.  Other factors to consider for “Category 2” documents include: the amount of time that has passed since the matter was closed; whether the firm previously gave the client reasonable notice that the files were available to be collected or delivered and whether the client responded to such notice; whether the firm delivered copies of the files to the client at the conclusion of the matter or the client received copies of the files while the matter was ongoing; whether the firm has previously made unsuccessful attempts to contact the client; and whether the contents of the file can be reconstructed from other sources.

To read the opinion, click here.

Indiana Advisory Opinion on Reporting Child Abuse: Attorneys’ Obligations & Constraints

What happens when an Indiana lawyer learns, while representing a client, that a child is a victim of abuse or neglect? Must the lawyer make a report to the Indiana Department of Child Services or local law enforcement? The Indiana State Bar Association (“ISBA”) Legal Ethics Committee’s advisory conclusion is essentially, “it depends.”

In Formal Opinion 2 of 2015, the ISBA concluded that absent client consent, an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary “to prevent reasonably certain death or substantial bodily harm.” Notably, the ISBA cautioned that the Indiana Supreme Court is the final authority on both Indiana law and the professional conduct of Indiana lawyers.

Generally, under Indiana Rule of Professional Conduct 1.6(a), a lawyer may not “reveal information relating to representation
of a client . . . .” However, Indiana Code §§ 31-33-5-1 and 5 broadly require that any “individual who has reason to believe that a child is a victim of child abuse or neglect” to “immediately make an oral report to (1) the department [of Child Services] or (2) the local law enforcement agency.” Failure to report constitutes a Class B misdemeanor under Indiana Code §31-33-22-1(a). This broad statute does not exempt lawyers from the reporting requirement. As a result, there is a direct conflict between a lawyer’s ethical duty to keep silent and the apparent statutory duty to speak.

The committee expressed that constitutional, pragmatic and statutory reasons dictate that the lawyer’s duty of confidentiality is generally paramount over the general duty
to report. The committee reiterated that Indiana’s constitution gives the Indiana Supreme Court authority to regulate lawyers. This authority indicates that the Indiana Rules of Professional Conduct, which are promulgated by the court, “control over conflicting legislation.” After determining that Rule 1.6 generally trumps Indiana’s child abuse reporting statute, the committee concluded that, unless the client consents to disclosure, the rule forbids the attorney to report any abuse that does not come within the exception in Rule 1.6(b)(1) authorizing the disclosure of information necessary “to prevent reasonably certain death or substantial bodily harm.” Absent the client’s consent, mandatory reporting would undermine the “fundamental principle” that “the lawyer must not reveal information relating to the representation” because confidentiality is critical to encouraging clients “to seek legal assistance and to communicate fully and frankly” with lawyers.

Nevertheless, the committee held that lawyers must report information relating to child abuse or neglect if they believe it necessary “to prevent reasonably certain death or substantial bodily harm,” regardless of the client’s wishes. However, a lawyer may not report information of lesser harm without the client’s consent.

Although ISBA noted that Formal Opinion 2 of 2015 is advisory in nature and does not have the force of law, it is important for lawyers to obtain as much information as possible prior to disclosing information regarding possible child abuse. If the attorney does not have information that would lead him or her to be reasonably certain that death or substantial bodily harm was going to occur, the attorney could be potentially violating the rules of confidentiality.

Click here to access the full opinion.