16th Annual Professional Responsibility Seminar

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The 16th Annual Seminar on Professional Responsibility was presented on October 11, 2013, and offered 2.75 CLE credits to attendees. The seminar covered topics regarding ethics and professionalism, …

The 16th Annual Seminar on Professional Responsibility was presented on October 11, 2013, and offered 2.75 CLE credits to attendees. The seminar covered topics regarding ethics and professionalism, including: duties to prospective clients; tips to avoid ethical and malpractice traps; blogging in the digital age; and substance abuse.

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  • Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)After the judge told the jury NOT to discuss the case verbally or in writing, he posted an entry on his blog about the case.
  • Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)Criticized the judge.
  • Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)Also criticized the Defendant.
  • Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)After the judge told the jury NOT to discuss the case verbally or in writing, he posted an entry on his blog about the case.
  • Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients (criminal defendants) on her blog.
  • Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients on her blog.
  • Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients on her blog.
  • Attorney Kristine Peshek was an assistant public defender in Illinois. Also called out Judges.Suspended for 60 days.
  • Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients (criminal defendants) on her blog.
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial.
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial.
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. He posted 11 paragraphs of comments on JAA blog, where attorneys discuss issues concerning the Broward County Court. He described Judge Aleman as “seemingly mentally ill.”
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. He posted 11 paragraphs of comments on JAA blog, where attorneys discuss issues concerning the Broward County Court. He described Judge Aleman as an, “evil, unfair witch.”When he got in ethics trouble, guess what his defense was?
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. He posted 11 paragraphs of comments on JAA blog, where attorneys discuss issues concerning the Broward County Court. He described Judge Aleman as an, “evil, unfair witch.”When he got in ethics trouble, guess what his defense was?
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. Ended with Conway agreeing to a public reprimand.
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial.
  • Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.”
  • Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. IMPORTANT: BLOG CONTAINED NO DISCLAIMER
  • Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. IMPORTANT: BLOG CONTAINED NO DISCLAIMER
  • Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. IMPORTANT: BLOG CONTAINED NO DISCLAIMERGuess what Hunter’s defense was?
  • Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. Ended with Conway agreeing to a public reprimand.
  • Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. With respect to reporting on case results that are a matter of public knowledge, Virginia cannot stop Hunter (or any lawyer) from posting on his blog. Such restriction would violate the First Amendment.
  • Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. Gotta have a disclaimer that tells potential clients you can’t guarantee any result.
  • 1.18: 4.2: 8.4:posting favorable (disguised)reviews for self on Avvo, Yelp, etc…
  • Disclaimer depends on content of blog.Show OLE full page dislcaimer, always at top right of each page

Transcript

  • 1. Best Practices: Tips to Avoid Ethical and Malpractice Traps presented by Chris Weber & Rasheeda Khan Kegler Brown Ethics Seminar October 11, 2013
  • 2. Case Update
  • 3. Cicero Update • Tattoogate + RPC 1.18 = Urban Meyer • ODC v. Cicero • Good news: 17-0
  • 4. The Bad News • Board recommended 6 month suspension • Supreme Court ordered 1 year suspension
  • 5. Why? • Rife (drug dealer) = prospective client • Confidential information revealed • Court quotes April 16 emails from Cicero to Tressel • Sanction
  • 6. Sanction • Aggravation 1. Prior discipline 2. Selfish motive/self-aggrandizement 3. Cicero not credible 4. Failure to acknowledge wrongdoing 5. Harm to Rife – public criticism
  • 7. Lessons Learned • ODC v. Cicero, 2012-0278 • “First case” involving RPC 1.18 • Precedential value • Electronic age • Confidentiality!
  • 8. Tips to Avoid Ethical & Malpractice Traps
  • 9. The Importance of an Engagement Letter • Avoid Stumbling Into A Lawyer-Client Relationship – Identify Client – Clarity is key
  • 10. 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
  • 11. Define Client • Corporation does not mean all affiliates • Consider language in engagement letter • Avoid conflict situation later
  • 12. Define Scope • Protection through engagement letter • Avoid -- “Re: Legal Representation” • Define exactly what being asked to do • Litigation • Non-litigation
  • 13. 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
  • 14. 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.”
  • 15. 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
  • 16. Dual Representation • Make clear that there are no secrets between joint clients • Confidences must be shared • Give option to secure separate counsel
  • 17. 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”
  • 18. 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
  • 19. 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
  • 20. 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
  • 21. 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
  • 22. 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
  • 23. Key Areas to Communicate • 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
  • 24. 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
  • 25. 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”
  • 26. Grounds • Client fails to fulfill obligation - Financial or otherwise • Lack of payment • Lack of communication • Given warning that will withdraw unless obligation met
  • 27. More Grounds • “Unreasonable financial burden” on lawyer • Representation rendered “unreasonably difficult” • “Other good cause”
  • 28. 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
  • 29. Thank You! Rasheeda Khan, Director rkhan@keglerbrown.com (614) 462-5481 Chris Weber, Director cweber@keglerbrown.com (614) 462-5415
  • 30. #LegalBloggersBeware Blogging in the Digital Age Cases, Rules, and Guidelines for Lawyers & Judges presented by Jason H. Beehler & Kailee M. Goold Kegler Brown Ethics Seminar October 11, 2013
  • 31. 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
  • 32. Frank Russell Wilson (not related to this guy)
  • 33. 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.”
  • 34. 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…”
  • 35. Frank Russell Wilson (not related to this guy)
  • 36. Kristine Ann Peshek
  • 37. 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.’”
  • 38. 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.”
  • 39. Kristine Ann Peshek Called a judge, “a total a**hole.”
  • 40. Kristine Ann Peshek
  • 41. Sean Conway (not related to this guy)
  • 42. Sean Conway Judge Alemán
  • 43. Sean Conway “seemingly mentally ill”
  • 44. Sean Conway “evil, unfair witch”
  • 45. Conway’s defense to the ethics charges?
  • 46. James Madison said I could do it.
  • 47. Sean Conway (not related to this guy)
  • 48. Horace Hunter
  • 49. Horace Hunter Around 30 blog posts 22 were about his own cases In some instances, no client consent to post 21 described his successful results No disclaimer
  • 50. 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?
  • 51. James Madison said I could do it.
  • 52. 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.”
  • 53. Horace Hunter But also wrong: Posts were not inherently misleading, but had potential to be misleading Disclaimer was required
  • 54. 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.
  • 55. 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;
  • 56. 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.
  • 57. 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.
  • 58. 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.
  • 59. Other Rules 1.18 Duties to Prospective Client 4.2 Communicating with a Represented Person 8.4 Conduct Involving Dishonesty, Fraud, Misrep
  • 60. If I want to blog, what shouldn’t I do?
  • 61. #1: Don’t be an idiot.
  • 62. #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.
  • 63. 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.”
  • 64. #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.”
  • 65. #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.
  • 66. #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).
  • 67. #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.
  • 68. Questions? Jason H. Beehler, Associate jbeehler@keglerbrown.com (614) 462-5452 Kailee M. Goold, Associate kgoold@keglerbrown.com (614) 462-5479 www.OhioLegalEthics.com