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13th Annual Seminar on Professional Responsibility
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13th Annual Seminar on Professional Responsibility

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This seminar was held on 9/24/2010 for clients and friends of the Columbus, Ohiio-based law firm of Kegler, Brown, Hill & Ritter.

This seminar was held on 9/24/2010 for clients and friends of the Columbus, Ohiio-based law firm of Kegler, Brown, Hill & Ritter.

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    13th Annual Seminar on Professional Responsibility 13th Annual Seminar on Professional Responsibility Presentation Transcript

    •  
    • Professional Responsibility Overview presented by Geoffrey Stern Kegler, Brown, Hill & Ritter 13 th Annual Professional Responsibility Seminar
    • “ Tips in Dealing with Former Employees and Avoiding Ethical Traps” presented by Chris Weber Kegler, Brown, Hill & Ritter 13 th Annual Professional Responsibility Seminar
    • Dealing with Former Employees of Corporate Defendant
      • Interviewing
      • Representing
      • Corporate defense counsel
      • Plaintiffs’ counsel
    • Are Communications with Former EEs Privileged?
      • Upjohn Co. v. United States , 449 U.S. 383 (1981) - current EEs
      • Upjohn did not address former EEs
      • If took place during employment - remain privileged
    • Are Communications with Former EEs Privileged?
      • If take place after employment
      • Not privileged
      • United States ex rel. Hunt v. Merck-Medco Managed Care, LLC , 340 F. Supp. 2d 554 (E.D. Pa. 2004)
      • Infosystems, Inc. v. Ceridian Corp. , 197 F.R.D. 303, 306 (E.D. Mich. 2000)
      • City of New York v. Coastal Oil N.Y., Inc. , 2000 U.S. Dist. LEXIS 1010, 2000 WL 145748 (S.D.N.Y. Feb. 7, 2000).
    • Are Communications with Former EEs Privileged?
      • But See
      • Peralta v. Cendant , 190 F.R.D. 38 (D. Conn. 1990)
      • Allen v. McGraw , 106 F.3d 582, 606 (4 th Cir. 1997)
      • In Re Flonase , 2010 US Dist. Lexis 65584
      • Work-product doctrine apply
      • If represent former EE, privilege attaches
      • Can you represent former EEs (as corporate defense counsel)?
      • “ Solicitation” – RPC 7.3(a)
        • Rivera v. Lutheran Medical , 866 N.Y.S.2d 520 (N.Y. Sup. Ct., October 16, 2008)
        • NY firm violated ethical rule
        • Firm defended LM in employment case
        • Contacted former EEs who were to be deposed
        • Offered to represent them (at LM’s expense)
        • No issue if EE asks for representation
      • Court analyzed DR 2-103 (our RPC 7.3(a))
      • Elements:
        • Shall not by in-person, phone or real-time electronic solicit employment
        • From prospective client
        • When “significant motive” is lawyer’s “pecuniary gain”
      • Unless person contacted is
        • A lawyer
        • Family, close personal relationship
        • Or prior professional relationship with lawyer
      • Firm argued
        • Not motivated by pecuniary gain
        • Spent same amount of time with former EEs
        • Paid to prepare them for deps
        • Paid to attend deps
      • Rivera - did not address whether “significant motive” was “pecuniary gain”
      • Rivera held former EEs solicited “to gain a tactical advantage in this litigation by insulating them from any informal contact with plaintiff’s counsel.”
      • Rivera suggests that “a/c relationship must . . come about at the initial request of the former EEs.”
      • DQ’d firm from representing former EEs
      • footnote - “no alternative but to report misconduct to the Disciplinary Committee.”
      • Aff’d - one-liner – “record supports finding.” Rivera 2010 N.Y. App. Div. LEXIS 4127 (App. Div. May 11, 2010).
      • Rivera - criticized
      • C. Evan Stewart, How One Bad Ruling Can Spoil A Whole Bunch of Cases , N.Y.L.J., Jan. 8, 2009, at 4 (col. 2) (The Rivera decision is “dead wrong”)
      • Jeffrey E. Gross, Solicitation or Shrewd Tactics? Ethics of Speaking for Ex-Workers , N.Y.L.J., Dec. 8, 2008, at 4 (col. 2)
      • Holdings contrary to Rivera
      • Wells Fargo Bank, N.A. v. LaSalle Bank National Association , Case No. CIV-08-11256-C (W.D. Okla., April 19, 2010)
        • Court reached opposite conclusion
        • No violation of 7.3
        • Motion to DQ denied
        • Analyzed the elements
      • Counsel not soliciting “professional employment”
      • Already employed by defendant
      • Significant motive was not for pecuniary gain
      • Would spend great deal of time with EEs regardless of whether clients
      • Attempting to represent its client, the corporation
      • Protect interests of former EEs - conduct formed basis for claims
      • City of Long Beach v. Standard Co. of Cal. , 658 F.2d 1355, 1361 (9 th Cir. 1981)
    • Conflict in Representing Former EEs
      • RPC 1.7(a)(1)
        • “ directly adverse to another current client”
        • claims between clients
        • differing goals/objectives
        • conflicting testimony
    • Conflict in Representing Former EEs
      • RPC 1.7(a)(2)
        • “ significant risk that representation will be materially limited by the lawyer’s responsibility to another client . . .”
        • mere potential not enough
    • Conflict in Representing Former EEs
      • Critical questions
        • (1) whether difference in interests exists or likely to arise,
        • (2) if so, will it materially interfere with independent professional judgment in considering/pursuing alternatives on behalf of client. (Cmt 8).
        • Consent cure?
        • Same proceeding
    • Conflict in Representing Former EEs
      • Cases - permit joint represent of corp. and a non-party witness.
        • B onner v. Guccione , No. 94 Civ. 7753 (DLC)(DFE), 1997 WL 91070, at *2 (S.D.N.Y. Mar. 3, 1997)
        • D.S. Magazines, Inc. v. Warner Publisher Servs., Inc. , 623 F. Supp. 624, 625 (S.D.N.Y. 1985).
    • Additional Considerations
      • Engagement letter
      • Cover who paying fees
      • Explain lack of conflict
      • Clarify scope of engagement
      • Explain right to choose counsel
    • Lawyers Adverse to Corporation
      • Contact former EEs
      • Need consent?
      • RPC 4.2
      • Cmt. 7 - no consent required
    • Lawyers Adverse to Corporation
      • Guidance - Advisory Opinion 2005-3:
        • consent of former EE
        • explain that your client is adverse to corp.
        • explain not to divulge privileged info.
        • don’t give advice (other than to seek counsel)
        • confirm in writing
    • Lawyers Adverse to Corporation
      • RPC 4.4(a)
        • Shall not use methods of obtaining evidence that violate party’s rights
        • Information sought is privileged
        • Sanctions
        • In Amarin Plastics, Inc. v. Maryland Cup Corp ., 116 F.R.D. 36 (D. Mass. 1987).
        • Civil exposure
    • The Importance of an Engagement Letter
      • Avoid Stumbling Into a Lawyer-Client Relationship
      • Identify the client
    • Tips to Avoid Ethical Traps
      • Example
        • “ Dear Ms. ___ (president of XYZ), we are pleased to provide our legal services to you. ”
        • Actually – Corporation is client
        • May later be asked to be adverse to constituent
        • Person may raise conflict
    • Tips to Avoid Ethical Traps
      • Representing corp. does not mean representing subs, parent, affiliates
      • Consider language in engagement letter
      • Help avoid conflict situation later
    • Tips to Avoid Ethical Traps
      • Define Scope of Engagement
        • Avoid -- “Re: Legal Representation”
        • If litigation – say it
        • If non-litigation, be clear on what asked to do
    • Tips to Avoid Ethical Traps
      • Benefits
        • Avoid blame
        • Determine when representation ended – helpful for S/L purposes
        • Helpful for conflict purposes - easier to be adverse to a former client
    • Tips to Avoid Ethical Traps
      • Gentle Termination Letter (“Thank You” letter)
        • Often unclear as to when a current client becomes a former client
        • Consider “gentle termination letter”
        • “ We truly enjoyed representing you [the client] in this matter, and look forward to working with you in the future should the need arise.”
    • Tips to Avoid Ethical Traps
      • Dual Representation – Cover in Letter
        • Confirm no conflict exists
          • possible claims against each other
          • conflicting testimony
          • conflicting goals/objectives
        • Confirm in writing
    • Tips to Avoid Ethical Traps
      • No secrets between joint clients
      • Confidences are shared
      • Give option to secure separate counsel
    • Tips to Avoid Ethical Traps
      • Other Considerations for Letter
      • Somebody other than client paying legal fees
      • Confirm in writing
      • Representing an insured
      • Lawyer paid by insurance company
      • RPC 1.8(f)(4) - “Statement of Insured’s Rights”
    • Tips to Avoid Ethical Traps
      • Sharing Fees With A Lawyer Not in the Same Firm
        • Contingent fee cases
        • Rule 1.5(e) applies
        • Permissible if division of fee in proportion to services by each lawyer or
        • Each lawyer assumes joint responsibility
        • This includes joint severable liability for malpractice
        • Client consent after full disclosure of identity of each lawyer, and that fees will be divided
        • Spell out in writing
    • Tips to Avoid Ethical Traps
      • Doing Business With Clients
        • Rule 1.8(a) - business with clients (loans; joint ownership in a corporate client, joint ventures)
        • Rule 1.8(e) – no financial assistance in connection with litigation
    • Tips to Avoid Ethical Traps
      • Doing Business With Clients, cont.
        • Terms must be fair/reasonable
        • Terms explained in writing
        • Advise to consult with another lawyer
        • If representing client in transaction, disclose in writing signed by the client
    • Tips to Avoid Ethical Traps
      • Properly Declining Representation
        • Discussions with prospective clients
          • Communications are confidential – See RPC 1.18
          • But do not always lead to an engagement
          • Confirm in writing that unable to represent
    • Tips to Avoid Ethical Traps
      • Additional Tips
        • Communicate with Clients
          • Failure to communicate = bad business
          • Can lead to malpractice and ethical problems
          • RPC 1.4 requires us to communicate
          • Key areas to communicate:
    • Tips to Avoid Ethical Traps
      • Whether to settle or appeal
      • When seeking conflict waiver
      • Whether to litigate, arbitrate/mediate, stipulate to facts
      • Status of matter
      • When client requests information
    • Tips to Avoid Ethical Traps
      • Talk to clients – do not rely exclusively on e-mails
      • Send copies of all letters/pleadings
      • Helps bills get paid timely
      • Client sees work being performed
    • Thank You!
      • Christopher J. Weber
        • Director , Kegler Brown
        • [email_address]
        • (614) 462-5415
    •  
    • “ Professionalism Update: The Good, The Bad & The Ugly” presented by Rasheeda Khan & Geoffrey Stern Kegler, Brown, Hill & Ritter 13 th Annual Professional Responsibility Seminar
    • Departing Attorneys and the Law Firm
      • The Roadmap: Ohio Supreme Court Advisory Opinion 98-5
        • The starting point: Clients are not the property of a lawyer or law firm. "Clients are individuals with choice as to who will be their counsel.”
        • Respecting the client's choice promotes professionalism.
    • Departing Attorneys and the Law Firm
      • Notification: A lawyer or law firm may send announcements.
        • Joint notification before the lawyer's departure is best.
        • The advertising and solicitation rules apply.
        • In-person or live notification is permitted.
    • Departing Attorneys and the Law Firm
      • Notification continued….
        • If the lawyer is already providing legal services to the client, the departing attorney may notify clients of his or her new location of practice, and indicate a willingness to provide legal services at the new location.
        • A law firm may notify clients of the departure of a lawyer from the law firm and inform the clients of the law firm's desire to provide continued representation of the client.
    • Departing Attorneys and the Law Firm
      • Best Practices for Notification
        • Both parties should handle the departure professionally and ethically
        • Both parties should be made aware of the planned departure before any announcement is made to the client.
        • Notification may communicated be separately or jointly.
        • Professionalism is key for both the lawyer and the law firm - no disparaging comments to the clients.
    • Departing Attorneys and the Law Firm
      • Client Files
        • Client files should remain with the law firm if that is the client's choice.
        • If client chooses departing attorney, client files should be handed over in a professional and timely manner.
        • The law firm should not withhold the departing lawyer's whereabouts from the client.
        • Client files should neither be "raided" by the departing lawyer nor "locked up" by the law firm.
    • Ethical Implications for Social Networking
      • A recent ABA Survey shows that 56% of lawyers in the U.S. maintain a presence in an online community/social network such as Facebook / LinkedIn, LawLink, or Legal OnRamp.
      • Reasons why:
        • Professional Networking (76%)
        • Socializing (62%)
        • Client Development (42%)
        • Career Development (17%)
        • Case Investigation (6%)
    • Ethical Implications for Social Networking
      • Social Networks Used:
        • LinkedIn (83%)
        • Facebook (68%)
        • Plaxo (18%)
        • Martindale.com Connected (4%)
        • Twitter (2%)
        • Avvo, LegalOnRamp, LegallyMinded (1% each)
    • Ethical Implications for Social Networking
      • Ethical Implications for Lawyers and Judges Using Facebook
        • Lying to client and judges when your Facebook page reveals the truth.
    • Ethical Implications for Social Networking
      • Ethical Implications for Lawyers and Judges Using Facebook, continued…
        • Talking about your client
          • An Illinois Public Defender wrote about her client:
          • #127409 (client's jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he's no snitch." I managed to talk to the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.
          • … that judge is a total asshole
          • … "Judge Clueless."
    • Ethical Implications for Social Networking
      • Ethical Implications for Lawyers and Judges Using Facebook, continued…
      • Judges "friending" lawyers in pending cases.
        • It is judicial misconduct for a judge to add as “friends” on Facebook lawyer who may appear before that judge. This reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge
        • Florida Supreme Court Judicial Ethics Opinion No. 2009-20
    • Ethical Implications for Social Networking
      • Ethical Implications for Lawyers and Judges Using Facebook, continued…
      • Lawyers spying through Facebook
        • A lawyer may not use a third person to contact "or "friend") a non-party witness in order to access her private Facebook or MySpace pages.
        • Philadelphia Bar Association Op. No. 2009-2
    • Ethical Implications for Social Networking
      • Should the RPC's apply?
        • RPC 7.1: COMMUNICATIONS CONCERNING A LAWYER'S SERVICES
          • A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer's services….
        • RPC: 7.2(c): ADVERTISING AND RECOMMENDATION OF PROFESSIONAL EMPLOYMENT
          • Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.
    • Ethical Implications for Social Networking
      • Should the RPC's apply?
        • RPC 7.3(a): DIRECT CONTACT WITH PROSPECTIVE CLIENTS
          • A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain….
    • Ethical Implications for Social Networking
      • Social Networking Dos and Donts
        • don’t blow client confidences
        • don’t give legal advice (keep it general and for education purposes)
        • don’t say anything misleading about your capabilities
        • don’t solicit work
        • don’t unintentionally create a lawyer-client relationship
        • do use disclaimers
        • Do follow the RPC's.
    • Ethical Implications for Social Networking
      • Tweets That Get You Fired
        • Just failed my drug test. Oops. lol.
        • Sleeping with my boss’s daughter in his office.
        • I wish my ****head boss would stop sending us stupid emails.
        • Just lied to my boss to leave work for a bit … me starving counts as a family emergency right? Haha
        • My boss caught me on twitter 3 times today. This **** has got to stop. My poor heart cannot take it.
        • Goofing off at work.
        • Totally just lied on my application lol….
        • I need a **** ***** lawyer chick to sue my boss. You in?
        • Bad day? Me too. Boss showed up. Hate him. Must tell you about payroll f*** up. He’s so stupid!
    • Thank You!
      • Rasheeda Khan
        • Associate , Kegler Brown
        • [email_address]
        • (614) 462-5481
    • Substance Abuse presented by Carol Costa 13 th Annual Professional Responsibility Seminar
    • Panel Discussion: A View from the Top- How to Handle an Investigation 13 th Annual Professional Responsibility Seminar
    •