Oct 31, 2014
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, [email protected]
(614) 462-5481
Thank You!
Chris Weber, [email protected]
(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, [email protected]
(614) 462-5452
Questions?
Kailee M. Goold, [email protected]
(614) 462-5479
www.OhioLegalEthics.com