16th Annual Professional Responsibility Seminar

Best Practices: Tips to Avoid Ethical and Malpractice Traps

presented by Chris Weber & Rasheeda Khan

Kegler Brown Ethics SeminarOctober 11, 2013

Case Update

Cicero Update

• Tattoogate + RPC 1.18 = Urban Meyer

• ODC v. Cicero

• Good news: 17-0

The Bad News

• Board recommended 6 month suspension

• Supreme Court ordered 1 year suspension

Why?

• Rife (drug dealer) = prospective client

• Confidential information revealed

• Court quotes April 16 emails from Cicero to Tressel

• Sanction

Sanction

• Aggravation1. Prior discipline2. Selfish motive/self-aggrandizement3. Cicero not credible4. Failure to acknowledge wrongdoing5. Harm to Rife – public criticism

Lessons Learned

• ODC v. Cicero, 2012-0278

• “First case” involving RPC 1.18

• Precedential value

• Electronic age

• Confidentiality!

Tips to Avoid Ethical & Malpractice Traps

The Importance of an Engagement Letter

• Avoid Stumbling Into A Lawyer-Client Relationship

– Identify Client

– Clarity is key

Define Client

• “Dear Ms. ___ (officer of corp.), we are pleased to provide our legal services to you.”

• Actually – client = Corporation

• Representing entity does not mean represent officers

• May later be asked to be adverse to constituent

• Avoid conflict of interest

Define Client

• Corporation does not mean all affiliates

• Consider language in engagement letter

• Avoid conflict situation later

Define Scope

• Protection through engagement letter

• Avoid -- “Re: Legal Representation”

• Define exactly what being asked to do

• Litigation

• Non-litigation

Benefits to Clarity

• Avoid blame for unrelated matters

• Defines when representation ends –helpful for S/L purposes

• Conflicts - easier to be adverse to a former client than current client

Consideration

• Gentle Termination Letter (“Thank You” letter)

• Helps define when current client becomes former client

• “We enjoyed representing [client] in this matter, and look forward to working with you in the future should the need arise.”

Dual Representation

• Cover in the engagement letter• Asked to represent partners; multiple shareholders; multiple

parties to a contract; employer and employee• Confirm that no conflict exists

– i.e. possible claims against each other; conflicting testimony; conflicting goals/objectives)

• Get informed consent confirmed in writing

Dual Representation

• Make clear that there are no secrets between joint clients

• Confidences must be shared

• Give option to secure separate counsel

Other Considerations for Engagement Letter

• Somebody other than client paying legal fees

• RPC 1.8(f) - Confirm in writing

• Representing an insured

• Lawyer paid by insurance company

• RPC 1.8(f)(4) requires sending “Statement of Insured’s Rights”

Other Considerations

• Flat fee - RPC 1.5(d)(3)

• Add language that client may be entitled to refund

• Refund if early termination

• ODC v. Summers, 2012-Ohio-1144

• Where does $$ go?

• “Earned upon receipt” - Operating account

Sharing Fees: Not In Same Firm

• Contingent fee cases

• Rule 1.5(e) – permissible if

• Division of fee in proportion to services performed by each or

• Each lawyer assumes joint responsibility for matter/available

• Includes joint/severable liability for malpractice

• Client consent - identity each lawyer and division of fees

Doing Business with Clients

• Rule 1.8(a) - allows us to do business with clients

• Explain in writing

• Terms, risks/disadvantages to client

• Reasonable alternatives

• Lawyer’s role

• Advisable to consult with another lawyer

Properly Declining Representation

• Prospective clients

• Communications are confidential – RPC 1.18

• Confirm in writing that unable to take engagement

• Consider whether to inform of applicable S/L

Additional Tips

• Communicate with Clients

• Failure to communicate is bad business

• Can lead to malpractice and ethical problems

• RPC 1.4 requires us to communicate with clients

• When seeking waiver of conflict or confidentiality

• Settle/appeal

• Client objectives

• Means to accomplish client goal (litigation tactics)

• Updating on status of matter

• When client requests information

Key Areas to Communicate

How to Communicate

• Talk to clients – do not rely exclusively on e-mails

• Send key letters, pleadings and bills

• Show client value and hard work

• Gets you paid

• Informs client of status

How to Withdraw

• Grounds

• RPC 1.16

• Client engages in illegal/fraudulent conduct

• Client insists upon action lawyer considers “repugnant”

• Or which lawyer has “fundamental disagreement”

Grounds

• Client fails to fulfill obligation - Financial or otherwise

• Lack of payment

• Lack of communication

• Given warning that will withdraw unless obligation met

More Grounds

• “Unreasonable financial burden” on lawyer

• Representation rendered “unreasonably difficult”

• “Other good cause”

Withdrawal Considerations

• Minimize risk to client• Fair notice/opportunity to retain new counsel• Cooperate with transitioning file• Refund unearned fees• Litigation – permission from court• Careful with client confidences• Submit motion in camera

Rasheeda Khan, Directorrkhan@keglerbrown.com

(614) 462-5481

Thank You!

Chris Weber, Directorcweber@keglerbrown.com

(614) 462-5415

#LegalBloggersBewareBlogging in the Digital Age

presented by Jason H. Beehler & Kailee M. Goold

Kegler Brown Ethics SeminarOctober 11, 2013

Cases, Rules, and Guidelines for Lawyers & Judges

You Should Care Because…• You blog • She blogs• We blog• You can’t leave your house without hearing “social media” “tweet” or “blog”• You use the internet• The cases are entertaining

CASES

Frank Russell Wilson

(not related to this guy)

Frank Russell Wilson

The judge is “a stern attentive woman with thin red hair and long, spidery fingers that as a grandkid

you probably wouldn’t want snapped at you.”

Frank Russell Wilson

“Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial. (Ha. Sorry, will do.)

So, being careful to not prejudice the rights of the defendant – a stout, unhappy man by the first name of Donald…”

Frank Russell Wilson

(not related to this guy)

Kristine Ann Peshek

Kristine Ann Peshek(After posting her client’s jail identification #)

“This stupid kid is taking the rap for his dirtbag of an older brother because ‘he’s no snitch.’”

Kristine Ann Peshek“He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney,

swearing he was clean.”

Kristine Ann Peshek

Called a judge,

“a total a**hole.”

Kristine Ann Peshek

Sean Conway

(not related to this guy)

Sean Conway

Judge Alemán

Sean Conway

“seemingly mentally ill”

Sean Conway

“evil, unfair witch”

Conway’s defense to the ethics charges?

James Madison said I could do it.

Sean Conway

(not related to this guy)Reprimand +

$1,250 fine

Horace Hunter

Horace Hunter

Around 30 blog posts

22 were about his own cases

21 described his successful results

In some instances, no client consent

to postNo disclaimer

Horace Hunter

Virginia State Bar launches an investigation, and says Hunter violated rules on disseminating “client confidences,” misleading advertising, and advertising without a disclaimer.

Hunter’s defense?

James Madison said I could do it.

Horace Hunter

Virginia Supreme Court said in part that Hunter was right:

“To the extent that information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

Horace Hunter

Posts were not inherently misleading, but had potential to be misleading

Disclaimer was required

But also wrong:

RULES

1.6: Confidential Info (e.g. Hunter)

(a) A lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by division (b) or required by division (c) of this rule.

3.3: Candor to the Tribunal (e.g. Peshek)

(a) A lawyer shall not knowingly do any of the following:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

3.6: Trial Publicity (e.g. Peshek, Russell Wilson)

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

7.1: False, Misleading, Nonverifiable Communication (e.g. Hunter)

A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.

8.2: False, Misleading Statement About a Judge (Conway)

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judicial officer, or candidate for election or appointment to judicial office.

Other Rules

1.18 Duties to

Prospective Client

4.2 Communicating

with a Represented

Person

8.4 Conduct Involving

Dishonesty, Fraud, Misrep

GUIDELINESIf I want to blog, what shouldn’t I do?

#1: Don’t be an idiot.

#2: If you wouldn’t do it in court in front of the judge, don’t do it in your blog post, on Facebook,

on your website, in your Tweets.

Let’s Test the Guideline

Conway: “Judge, you’re an evil

witch.”

Peshek: “Your honor, my client is really stoned

right now.”

Wilson: “Judge, you are a stern attentive

woman with thin red hair and long, spidery fingers.”

#3: Don’t blog without a disclaimer.

“Case results depend upon a variety of factors unique to each case. Case results do not

guarantee or predict a similar result in any future case.”

#4: Don’t post blog comments that reveal you

lied to the court.

Texas case where attorney told judge she needed a continuance for a death in the family, and judge found evidence on lawyer’s

Facebook page that she was partying instead.

#5: Don’t interact with commenters or visitors to your blog unless you

intend to enter into an attorney-client relationship (and keep their info

confidential).

#6: Don’t communicate online with someone you know is represented by

counsel. You represent a company in an employment matter. You know

the terminated employee maintains a personal blog. You

go on without revealing who you are, and post comments you want

the blogger to respond to.

Jason H. Beehler, Associatejbeehler@keglerbrown.com

(614) 462-5452

Questions?

Kailee M. Goold, Associatekgoold@keglerbrown.com

(614) 462-5479

www.OhioLegalEthics.com