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20th Annual Professional Responsibility Seminar

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On Friday, October 13, 2017, attorneys from Kegler Brown’s Professional Responsibility practice area held the 20th Annual Professional Responsibility Seminar.

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20th Annual Professional Responsibility Seminar

  1. 1. z
  2. 2. z Presented by Jonathan E. Coughlan October 13, 2017 Recent Ethics OPINIONS
  3. 3. z Reporting MISCONDUCT You agree to meet with former law partner for a glass of wine after work one day And she tells you very upsetting news…
  4. 4. z Do you have any duty to investigate and see whether what you learned about the overbilling was true? 1. Yes 2. No 3. Don’t Know – That’s what my managing partner is for
  5. 5. z Do you tell the client? 1. Yes 2. No 3. Hope it’s not my decision to make
  6. 6. z Assume you do tell the client. Do you report the lawyer for engaging in misconduct? 1. Yes 2. No 3. How should I know – let the firm’s managing partner figure that one out
  7. 7. z Rule 8.3 Possess unprivileged knowledge Of a violation of the Rules That raises a question about The lawyer’s honesty, trustworthiness or fitness as a lawyer
  8. 8. z Is it privileged knowledge? 1. Yes 2. No
  9. 9. z Do you have knowledge? 1. Yes 2. No
  10. 10. z Rule 1.0(g) “Knows”/”known” denotes actual knowledge of the fact in question A person’s knowledge may be inferred from the circumstances
  11. 11. z Assume you had just heard your friend tell you at the bar about what she had done. Do you have knowledge at this point in time? 1. Yes 2. No 3. Depends
  12. 12. z Assume your former partner tells you she overbilled a client at her new firm, but not any clients at your firm while she was there. Do you have any obligation to tell her new firm? 1. Yes 2. No 3. Not my problem
  13. 13. z Do you have to report this to disciplinary authorities? 1. Yes 2. No
  14. 14. z Rule 8.3 Possess unprivileged knowledge Of a violation of the Rules That raises a question about The lawyer’s honesty, trustworthiness or fitness as a lawyer
  15. 15. z So is it privileged? 1. Yes 2. No
  16. 16. z A lawyer shall not reveal information relating to the representation of a client, including attorney-client privileged information, unless the client gives informed consent. Relevant exception – permissible to disclose in order to prevent commission of a crime Rule 1.6
  17. 17. z OPINION 2016-02 Question is whether the information acquired from the client regarding their prior lawyer’s conduct is privileged, thereby eliminating any duty to report under Rule 8.3
  18. 18. z OPINION 2016-02 Prohibited from revealing information related to representation without client consent But Rule 8.3 requires disclosure to disciplinary authorities of all information that is not privileged
  19. 19. z OPINION 2016-02 Even if confidential under 1.6, if the information is not privileged then it’s permissible to report the misconduct If privileged, lawyer must obtain client consent to reveal by reporting to disciplinary authorities
  20. 20. z Does the conduct raise a question about the lawyer’s honesty, trustworthiness or fitness to practice? 1. Yes 2. No
  21. 21. z OPINION 2017-02 Issued February 10, 2017 Withdraws Opinion 89-32
  22. 22. z Jud.Cond.R. 2.15(A) A judge who has knowledge that another judge has committed a violation of the Code of Judicial Conduct that raises a question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects is required to report it to the appropriate disciplinary authority
  23. 23. z Jud.Cond.R. 2.15(B) A judge who has knowledge of a lawyer’s violation of the Rules of Professional Conduct conduct that raises a question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer has an ethical duty to report it
  24. 24. z Do judges have a duty report a witness who testifies to possession of marijuana? 1. Yes 2. No
  25. 25. z What about a witness that testifies to a felony? 1. Yes 2. No
  26. 26. z Does a judge have to recuse from a case if the judge has reported one of the lawyers to disciplinary authorities? 1. Of course 2. Nope 3. Good question
  27. 27. z Lawyer Advertising
  28. 28. z What about lawyer advertising saying “There is no charge unless we win your case” or “No fee without recovery”? 1. That’s fine – I see it all the time 2. Depends
  29. 29. z OPINION 2017-01 Prohibited if the lawyer will be seeking payment of fees/costs at any time unless the lawyer uses a disclaimer that clearly indicates the client will be responsible for the expenses and costs
  30. 30. z Is it proper for a lawyer to advertise legal services by sending unsolicited emails? 1. Absolutely 2. Maybe but… 3. No 4. Why would anyone want to?
  31. 31. z OPINION 2017-03 Issued April 7, 2017 Update + Withdrawal of 2004-1 Solicitation of Professional Employment via Email
  32. 32. z OPINION 2017-03 Disclose accurately + fully Refrain from expressing predetermined evaluation Conspicuously include disclaimer
  33. 33. z OPINION 2017-05 Issued June 9, 2017 Virtual Law Office
  34. 34. z What is a Virtual Law Office?
  35. 35. z “Reasonable efforts” can be determined through the analysis of several nonexclusive Op. 2017-5 factors including: sensitivity of the information likelihood of disclosure if additional safeguards are not employed cost of employing additional safeguards difficulty of implementing the safeguards extent to which safeguards adversely affect lawyer’s ability to represent clients
  36. 36. z 1 Determine that the vendor understands and agrees to maintain and secure stored data consistent with the lawyer’s duty of confidentiality 2 Ensure that client files and data will be maintained and regularly backed up 3 Require that the vendor give the lawyer notice of subpoenas for client data, nonauthorized access to the stored data, or other breach of security, and a reliable means of retrieving the data if the agreement is terminated or the vendor goes out of business
  37. 37. z Jonathan E. Coughlan Kegler Brown Hill + Ritter jcoughlan@keglerbrown.com keglerbrown.com/coughlan 614-462-5455
  38. 38. z Presented by Chris Weber October 13, 2017
  39. 39. z Engagement Letter TIPS
  40. 40. z Identify Client1
  41. 41. z Exclude affiliates?
  42. 42. z Define Scope2
  43. 43. z Define exactly what asked to do, avoid using “Re: Legal Representation”
  44. 44. z Benefits to Avoid blame for unrelated matters Defines when representation ends Easier to be adverse to a former client
  45. 45. z Gentle Termination Letter
  46. 46. z Dual Representation3
  47. 47. z Someone Other Than Client Pays4
  48. 48. z RPC 1.8(f)(4) Statement of Insured’s Rights
  49. 49. z Evergreen Retainer5
  50. 50. z Flat Fees6
  51. 51. z Other Considerations Flat fee – RPC 1.5(d)(3) Add language – may be entitled to refund Refund if early termination ODC v. Summers 2012-Ohio-1144 Where does $$ go? “Earned upon receipt” Operating account
  52. 52. z Advance Waivers7
  53. 53. z Sharing Fees Not in Same Firm
  54. 54. z Rule 1.5(e) Permissible if: Division in proportion to services performed by each Each lawyer assumes joint responsibility for matter/available Includes joint/severable liability for malpractice Client consent: identify each lawyer and division of fees
  55. 55. z Doing Business with Clients Rule 1.8(a) – explain in writing Terms, risks/disadvantages to client Reasonable alternatives Lawyer’s role Advisable to consult with another lawyer
  56. 56. z Properly DECLINING Representation
  57. 57. z Prospective clients RPC 1.18: Communications are confidential Confirmation in writing unable to take Consider whether to inform of applicable S/L
  58. 58. z Additional Tips
  59. 59. z Key Areas to COMMUNICATE When seeking conflict waiver Settle/appeal Client objectives Means to accomplish goal (litigation tactics) Updating on status When client requests information
  60. 60. z How to COMMUNICATE
  61. 61. z
  62. 62. z How to RPC 1.16 Client engages in illegal/ fraudulent conduct Client insists upon action lawyer considers “repugnant” Or which lawyer has “fundamental disagreement” WITHDRAW
  63. 63. z Client fails to fulfill obligation financial or otherwise Lack of payment Lack of communication Warn that will withdraw unless obligation met “Unreasonable financial burden” on lawyer Representation rendered “unreasonably difficult” “Other good cause” Grounds to WITHDRAW
  64. 64. z Withdrawal Considerations Minimize risk to client Notice/opportunity to retain new counsel Cooperate with transition Refund earned fees Litigation: permission from court Careful with client confidences Submit motion in camera
  65. 65. z Chris Weber Kegler Brown Hill + Ritter cweber@keglerbrown.com keglerbrown.com/weber 614-462-5415

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