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An Attorney's Top 5 Ethical Blunders

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An Attorney's Top 5 Ethical Blunders

This course will address five of the most common ethical blunders that attorneys encounter in the practice of law, including emails, the unauthorized practice of law while working remotely, the attorney-client relationship, and interacting with opposing counsel. We will address how to recognize these potential traps and explore best practices for staying within the Rules of Professional Conduct.

Transcript

Hello everyone, and welcome to today's presentation of Top Five Ethical Blunders. Today we are going to be talking about different things in the realm of ethics, especially attorneys ethics. And we are going to probably have some fun. We are going to go over various topics, some very relevant, some that happen all the time and you not even realize it. And we may have some fun, some jokes, and some great examples along the way as well. I wanted to introduce myself briefly though, before we get started. My name is Cari Sheehan and I'm a conflicts attorney at Scopelitis, Garvin, Light, Hanson and Feary in Indianapolis, Indiana, where I practice in ethics and conflicts. I'm also assistant clinical professor of business law and ethics at IU Kelley School of Business in Indianapolis. I do both roles and I work very hard at both roles. So you can say ethics, particularly attorney ethics, is my life. 100 every day of the week, 24 hours a day, seven days a week. And I also teach over at the Robert H. Mckinney School of Law, the professional ethics course there as well. So you can say I'm fully immersed in this topic, fully immersed in everything that we do in the world of ethics. And so let's get started on our different blunders. If you have any questions along the way, you can always put them in the Q&A as part of the zoom. If I do not see them right away, I do apologize, but I will get to them at the end of the seminar as well. If I don't answer them throughout the seminar, you could also put them in potentially the chat feature too. But there is a a special Q&A feature if you do have those questions. So let's get started on blunder number five. I call this the everyone take cover blunder because this is regarding cyber security, spyware, different viruses, different Trojans that can come in and attack our computer systems, attack our confidentiality of our clients, and attack our law firms just in general. And we do have to guard against this in today's day and age of AI and different things is getting harder and harder to have robust cybersecurity because it's coming at us at all angles. And we really do need to have security on our systems, security on our computers, on our cell phones, and everything that we use that has client confidential information on it. Because if we don't, then we are at a high risk of being attacked by the cyber criminals and also our client confidential information being stolen, which as we will see as violations of our ethical rules. And it was actually Robert Mueller, FBI director, in 2012, so that he is convinced that there are only two types of companies, those that have been hacked and those that will be, and even those are converging onto one category, companies that have been hacked and will be hacked again. And he is not just talking about businesses and the business world, but he's also in talking about law firms in general because we are businesses. If you work at a big law firm, I guarantee you that large law firm has an internal management system, has an internal system just for its non legal employees and then one for its legal employees. We operate like businesses. We operate like big companies and corporations, especially as we get into the bigger law firm model. And so we are at risk for being hacked. So we're at risk because we have the client files, we have the data, the HIPAA data, the protected health information, social security numbers, trade secrets, analysis strategies. We have everything that is ripe for a cyber criminal to steal someone's identity. And guess what? We have it in mass volumes. If you think of all the clients in your firm and the information you have on them, and just think of what a cyber criminal could do if that landed in their hands, is a pretty high volume and a lot of damage that could come from it. We also maintain financial information not just of our clients, but of our law firm as well. And we have financial information of our employees, again, ripe for security crimes, ripe for theft, ripe for infiltrating those accounts, stealing credit card numbers, bank account information. We have it all in our databases. And not only that, we also have human resource records that our employees with Social Security numbers, dates of birth. Again, anything that's ripe for that cyber attack, for the theft of identity, all of those things are housed right here. In our firm and we have to protect them. Now, what kind of protection depends on the type of data we're housing? How big of a law firm we are? The different risks that are imposed or could be imposed, you know, coming at us. And it's not a one size fits all model, as we'll see. But the things that we do have to remember are, first, our competency under rule 1.1 of the rules of professional conduct. We have to remain competent in all things that touch the practice of law. Now, the rule itself says just requires the legal knowledge, skill, thoroughness and preparation necessary for the representation. Common eight says that we have to keep abreast of changes in the law and its practice, including the benefits and risks of technology. So that could include our cybersecurity threats that can include. You know, different areas like that. We also have to maintain that duty of confidentiality, prevent the inadvertent or unauthorized disclosure of or unauthorized access to certain information that we have. We have to keep confidences. Rule 1.1 tells us that 1.6, our duty of confidentiality tells us that we have to prevent that unauthorized access of disclosure. So when we put those two things together, we have to take a reasonable approach of how to protect our clients confidences. And you may think to yourself, well, the client's confidences are just those communications between the attorney client, the attorney client privilege. That's easy. We talk verbally. There's nothing there that's not right. Confidentiality and protecting our clients confidences not only includes the things that are subject to the attorney client privilege, which are those communications directly between the attorney and the client, but also anything else that touches and concerns the representation, which is that big red circle on the screen in front of you. So our duty is way broader than just the attorney client privilege. We're just not trying to protect and guard against cyber attacks regarding those communications between us and the client directly, but everything that we learn in furtherance of the representation, everything that we collect, every witness statement, every piece of evidence, everything that's told to us, written to us in an email from our clients, that is all confidentiality. Attorney client privilege is just a little subsection, but not the big overarching what we have to keep confidential. So you may think, okay, well, this got a little more complicated because that's a lot of information sometimes depending on what case you do. But there are ways to make sure that you are protected and that you do protect that confidentiality. And you just have to use reasonable measures. Like I said, when we combine those rules, rules 1.1 and 1.6, it kind of comes to the summary that a lawyer must act competently to preserve or safeguard confidential client information against the unauthorized disclosure by the lawyer or persons under his or her supervision. So we just have to act competently to safeguard information clear as mud, right? Aren't the attorney rules great when it comes to being clear, being precise, telling us exactly what we should and shouldn't do. As we all know, they are not that. So we kind of have to interpret what this means based on those two rules, 1.1 and 1.6 and so common 18 of rule 1.6 gives us a little more insight, just that reasonable efforts. But again, it doesn't advise on what reasonable efforts are. But there are certain things that the ABA has said are included in reasonable efforts. And what attorneys can use as reasonable efforts in looking or trying to protect client confidential information. Client data. And it was ABA opinion. 477 R that stated, it isn't that one size fits all model, that there's actually factors you have to look at to determine what your law firm, specific, reasonable obligations are to keep client data confidential. The first of those factors is the information sensitivity. Is it something like HIPAA health information? Is it Social security numbers? Is it medical records or is it just a witness statement? How sensitive is the information? Obviously the more sensitive the information, the more emphasis is going to be put on this factor. And probably the more robust confidential information or confidentiality system, a more robust security system, you're going to have to have, you know, to protect that client data. You also, to number two, the likelihood of disclosure without additional safeguards is another one. So you have to make sure that, you know, you're trying to assess the risk. This is kind of like what an insurance company does. They assess risk of how often someone's going to file a claim based on their questionnaire, based on their risk analysis that they have in the background. And we have to kind of decide that, too. We have to look at the information we have. How sensitive is it the likelihood that disclosure or hacking would occur without additional safeguards? Then we have to take those and balance it with factor number three, the cost, the difficulty of implementing a system on top of the cost. And then two, does the new system or security basically prohibit or inhibit the lawyer's ability to actually do their job and represent clients effectively? Because sometimes we can have too much data protection and too much. Security features that we can't do our job effectively. So we have to balance all these things together. The information sensitivity, the likelihood of disclosure without additional safeguards, the cost associated therewith, difficulty of implementation. And then to can we still do our job? Think about it this way. How many of you have had a firewall blocker where you can't get to the site you need to get to to adequately represent your client? That's a problem. So that is why this balancing act is there. Now there are a few things that an ABA formal opinion force seminar said that are usually considered reasonable under any, if not all, circumstances. Our email encryption, it's a thing in Microsoft or whatever email platform you have. You can encrypt emails to where only a certain person can open it. That's who you directly send it to. Or they have to have a password which you would send to the person separately in a separate email or communication to where they would have to use that password to open the file attached. So that's kind of an encryption type of thing to guard against. This has seen a lot. When you send medical records via email, when you send that more highly sensitive information, and so something as small and inexpensive or part of the program you already have is that email encryption. Now there's other guidance to what reasonable measures would look like. If you are a broader firm, you may have to have backup where a full IT department, firewalls, tracking systems, different things. If you're a smaller firm or a solo practitioner, reasonable may not be those things just because that cost of implementation factor number three, the difficulty of implementing it would far outweigh any benefits. So you really have to look at the factors and take them all together to determine what's best for your firm and your fit. But we don't stop there. On top of that, we have duties to communicate with our client regarding our cyber security, and especially if we were hacked into by one of the hackers that are coming our way. And so rule 1.4 tells us that a lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required. Reasonably consult to accomplish objectives. Keep the client informed of the status, respond to requests for information, and consult on any relevant limitation of the lawyer's conduct. So your security protocols, if there is a breach, would require communication under rule 1.4. So you need to make sure you give that communication. And this is going to come in the form of you have a cyber event where maybe you were hacked or something happened to where some of your client's data was taken, disclosed, or there was a violation of rule 1.6. And so your duty is not just to plug the hole, figure out what went wrong, and do better next time. On top of that, you have to follow this rule and communicate what happened to the client. Now, this is probably going to be done simultaneously with reporting the the cyber attack to your general counsel internally, or you're going to consult with your general counsel or ethics group that's in your firm. Figure out what happened. Figure out where the holes are, figure out what client data was taken and which clients it belonged to. Then you're going to figure out how to effectively report that out to the client. But I will remind you that bad news does not get better with time. I repeat that bad news does not get better with time. So you need to make sure you make prompt communications as prompt as possible. After a cybersecurity event, I would recommend advising the clients of what was taken, what happened, and how you were going to move forward to make sure this doesn't happen again, or at least reduce those risk. And so you're going to have a plan of action ready to go when you make that communication. And you should have a plan of action. On if a cybersecurity event happens way before it ever happens, you may need to consider a policy of the steps you're going to take. Who's going to do what? Have that on the books because when it happens, time is of the essence. The longer you let them into your system, the more data and information they're going to keep extracting. So once you've found that you've been hacked, cutting off that access immediately, having that plan of attack in place, having the protocols in place for when it does happen is vital to stopping the bleeding of the confidential information. So you need to make sure that you do that. Then when we communicate out to the client, we can tell them what we did. We can tell. Tell them of the risk and how we're moving forward and what this looks like for their particular case and their particular information. Now, in that communication to the client, I probably would apologize to saying we're sorry to have to have this communication. However, here's what's happened. We're fixing it and move forward again. So we need to make sure that we do that. Now. The type of communication is the form it comes in that varies from client to client. Some clients like a form filled out. Other clients prefer just a phone call. If your client does have what's called outside counsel guidelines, terms and conditions they want you to follow, look into those because they probably have a cybersecurity policy in them, and then you can see what your duties are after that. Just some examples here as we close out this blunder. Number five John works at a large law firm. One afternoon he clicks on a link that says change your password in an email. John really did know that. You know, usually you have to hit control, delete, then change the password. But he thought it was being nice and just sending the link directly to him. It was a phishing email and his system got hacked and 3000 client files were stolen. What did he do wrong? First he clicked on an unknown link. He should have looked at the email, seeing if it had any of the common signs of a phishing social engineering email such as misspellings, odd pacing, odd spacing, different font. The characters in the email are off, maybe just by 1 or 2. It says attention to detail that help us spot those phishing and social engineering emails. Once John had clicked on the link, if he realized that thereafter, he should have immediately reported it to the general counsel and started figuring out how to stop the leak and also advising the clients thereafter. Since he did not. The ethical response now is to stop the hack, figure out what client was affected, communicate out to those clients, and then of course, do better next time. John probably needs some phishing social engineering training through it and through the law firm. Another place we can have cybersecurity attacks, and we not even realize it is the misdirected or email that goes out to opposing counsel, meaning you use that autofill feature on your phone or on your computer and your email and you know your opposing counsel's name. John, you have a lot of John's. He just wasn't the last one you emailed. So you populate in the wrong name. But when you send it to that person that was not intended for and you have client confidential information attached to it, we have a breach of security and we have a violation of rule 1.6. Now, what do you do in this instance? Well, there's some guidance in modern rule 4.4, the rules of professional conduct, which tells us if there is an inadvertent disclosure, the sender of it, once they realize it needs to notify the recipient and advise them what to do. Normally it's please stop reading it. If you have not read it, please discard it. Confirm that you've discarded it. Now, the thing about rule 4.4, it's different jurisdiction by jurisdiction, and some jurisdictions require that the the the receiver of the inadvertent disclosure comply with the sender's request. Other jurisdictions say they don't have to comply, that they can take it to court, try to use it for their client if it's sent to the opposing counsel, which is the wrong person, or whatever the case may be, that they don't have to follow the instructions. The rule just says the sender gives instructions. It doesn't say anything about what the recipient is supposed to do necessarily and some of the rules. So you do have some ambiguity there. But this is another scenario where we could see an inadvertent disclosure. And then obviously our good old devices, our cell phone, our laptops, they need to be password protected if we leave them in a taxi cab, as our friend Dan did here while he was on vacation or doing business in the city, they're ripe for being hacked. If your device gets taken, you need to immediately notify your internal IT or internal general counsel or whoever you would report to within your law firm structure, because there are ways to remote turn off a phone so that it can't be hacked into. And you may think, why would anyone hack my phone? And why is that a work thing? Do you have your email coming directly to your phone? If the answer is yes, then it's a problem because that's client confidential information and we have to protect it and use reasonable measures. One of the first reasonable measures is making sure all your devices are password protected. A second reasonable measure is don't allow family members, children or anyone outside that law firm on the phone, because that's also a disclosure and violation of rule 1.6. There is no exception to confidentiality for family members, spouses, significant others, or anyone of that kind. It's unfortunate, but there's not. In a lot of times, parents let their teenage children get on the phone. They rifle through emails, they rifle through confidential information, especially if their parent is working on high profile cases. And that's a violation of rule 1.6. You need to keep a work phone and a personal phone. If you do let your children on it, or you do let others on it, or don't want it password protected, or you need to take those reasonable measures to make sure it is password protected. That brings us to blunder number four, the domestication of attorneys, also known as remote work and the unauthorized practice of law. This picture probably looks all too familiar to some people over the past now three years, and it's maybe not the norm 100% anymore. But you still have those days where we still have remote work working from home, and so we have to be cognizant of those the things that could be implicated. The biggest one is the unauthorized practice of law that can be present. And this is because some of us, when the pandemic hit, moved to other states in which we're not licensed and then continued to work when we're physically in one state, but working within a different state. So that scenario, while it seems common sense, as long as you're only doing work in the state in which you're practicing, why does it matter where you're physically located? And a lot of jurisdictions said that it is common sense. It's okay, but you still have to do the analysis because within the jurisdiction you're physically located, you need to make sure you don't advertise, hold out as a lawyer, anyone misconceives you as a lawyer there or could practice there just because you're physically there. You have to take those additional safeguards to basically say, no, I'm not a lawyer in the state. I'm only doing work in Indiana or in Illinois or whatever state you're only licensed in. Otherwise you can run into that rule 5.5 types of violations. We also do see with remote work, failure to supervise or non non-attorney personnel, failing to author, you know, failing to keep up on the technology and the security protocols and that reasonable things we just talked about. And then also to some other rules that are implicated with remote work, diligence, confidentiality, communication, it all starts to fall to the wayside because we're disconnected. We don't see our staff every day. We don't connect and talk to our attorneys or our fellow coworkers every day. So we get this disconnection, and we also don't have that sense. You're not going to invite a client necessarily over to your house for a meeting. So then you start lacking that diligence and communication because of the separation, because of the informality of the remote work structure. So you do have to watch out for all these things. And I did cite two formal ABA opinions regarding remote work and just particularly supervision in that one there at the bottom of your screen. These are things you really do need to look out for when it comes to remote work or that domestication. Then I did want to give you some material on slides, just particularly on the unauthorized practice of law, since it's a big one and it's ABA formal opinion 4.95 that talked about this in depth, particularly when a lawyer is licensed in one jurisdiction but physically located in another. That scenario I was talking to you about. And when you look at that, you may think, common sense, okay, I don't need to do anything like I said previously, but it still sparks a determination on the on if the representation is UPL. And so like I was saying, we cannot hold out or establish an office or systemic and continuous presence in a jurisdiction where we are not admitted. So if we're physically in one but practicing in another, then we got to make sure that when we are physically located in. Um, is, you know, we don't hold out. We don't set up an office there. We don't do those certain things because otherwise we could be hit with that systemic presence that, you know. Presence there that we don't really want. That could trigger rule one point or excuse me, 5.5. Some factors to consider when looking at a rule 5.5 potential violation. You always want to check the local jurisdiction in which you're physically located, and the one in which you are doing your practice. Rule 5.5 differs from all jurisdictions. Some. There's obviously a majority rule with the model rule, but then some jurisdictions don't view it the same as the model rule. So you want to check the jurisdictions in which you're physically located and those that you're holding out to practicing in that you are licensed. You also then too as that factor analysis regarding any remote work situation in this scenario, not establish an office in the places you're not located, not hold out as a licensed attorney there. Don't be passing out your business card in church. Don't be passing it out on those events to neighbors unless you have those disclosures that said, not licensed in X, Y, Z. That's a good way to guard against some of this UPL or the appearance of UPL because say for instance, you're physically located in a state you're not licensed in, you go to a church event, you go out with friends, you go out to a bar association event, but you're not licensed there. People are going to presume your license there if you're acting like you are. And you have to correct that misconception because it's how people perceive it, not how you actually intended it. So you need to make sure you kind of disclaim those, not give off that perception. Otherwise we may have a rule 5.5 violation. Also to watch out for doing webinars to groups residing in jurisdictions in which you're not licensed, particularly if it's something from a local bar. I am only licensed in Indiana, Illinois, which is why I say, look at your particular jurisdiction. I'm not advising you on things you should and should not do. I'm not giving you legal advice. This is for educational purposes only. And so you need to have those disclaimers. You need to make sure that everyone knows where you are licensed, especially in seminar settings and social settings where people are asking things. Disclaimers can be your best friend. Make sure you put it on there. Make sure you hold that out. Make sure everyone knows. So here's a common scenario or scenario that sometimes comes up, particularly in the area of estate planning. Can an Ohio attorney draft a will for an out-of-state resident? So say the couple lived in Ohio. Pandemic hits. They up and moved to Indiana. Now, in the past, they'd used this lawyer for services while in Ohio, but now they're in Indiana and they want to redo the will, or they want to do a new will. They reached out to their long term attorney. You know, the one they've used for other things in their family back in Ohio and say, hey, can you do this for us? Wheels are a little different, it seems. Now obviously will statutes by jurisdiction are different. And what they require the signing of the will and different things. And so the question here would be, can this Ohio lawyer draft a will for a couple that lives in Ohio? Well, this lawyer is only licensed. Excuse me. Can a Ohio lawyer draft a will for a couple that lives in Indiana while the lawyer is only licensed in Ohio? And so that is the question. And a lot of times it perplexes estate planning. Now there is an exception under rule 5.5 or 1 of the different provisions of it. I think it's 5.5 E. I think it is that says that so long as the practitioner is doing work that he would, he or she would normally be doing in their jurisdiction with their license, then they can do it in the other or the different jurisdiction without it being UPL. But again, this is jurisdiction by jurisdiction, which is why on those steps of factors, we have to look at, you know, what your particular jurisdiction says with your particular jurisdiction is doing and to what is included in their. And so. Is actually rule 5.5. C as in cat four and it says. It's. A lawyer who is not admitted to practice in this jurisdiction shall not, you know, do any of these things unless the matter arises out of a reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. So if you hold out as an estate planning lawyer in the jurisdiction in which you are practicing or licensed to practice, then in your jurisdiction has this section of rule 5.5. You could be okay to do this out of state will for the lawyers or for the couple in Indiana. You just have to look at the particular jurisdictions. And so sure you can draft a will for a non resident. Um, but just don't sign your name to it. That's what one local practitioner how they answer this question, which is kind of wrong. You don't want to ghostwrite legal work and not say you wrote it. That's can be still the unauthorized practice of law. Another practitioner told me. No, the answer to the question on the last screen. No. Drafting your will for a non Ohio resident would be a violation of the unauthorized practice of law. They're on the right track. They just may have forgot that exception. So difference of opinion leaves a 50, 50, 50 chance, business as usual or potential disbarment. Meaning if you don't check the rules, you don't do the things, then maybe you could. But the answer really depends. It depends on if the jurisdiction has adopted rule 5.5. Particularly. See for that one I just read to you or what it deems as the practice of law. Or is there an exception? So it's jurisdiction by jurisdiction. When we really look at what is the practice of law, what is the unauthorized practice of law, and then how do we guard against those things? And the model rule does give us kind of a definition of what the practice of law is. It says a person is presumed to be practicing law when engaging in any of the following conduct. On behalf of another person. The first one is giving advice or counsel to persons as to their legal rights or responsibilities, or those of others. The second thing that could be deemed the practice of law selecting, drafting or completing legal documents or agreements that affect the rights of others so that ghostwriting or that attorney answers. Let me go back a couple of slides. Sure, you can draft a don't cite your name to it. That could still be the practice of law on UPL. So we need to not do what that one attorney told us. Then number three here representing a person before an adjudicated body, including but not limited to preparing or filing documents or conducting discovery, or for negotiating legal rights or responsibilities on behalf of a person. These are all things related to the practice of law. So some of the things you may have thought of, some of the things you're like, oh, that's not the practice of law. These are broad definitions. It could fit into them. So you need to be very careful when you're giving any type of advice or anything to anyone outside the jurisdiction in which you are or licensed to practice, even though you're physically located someone else somewhere else. So here is an example. We have a few examples here in the next few slides. In another case, an individual gave a client legal advice and practice law by aiding the client in designating probate and non probate assets, selecting a form of a trust, designating various beneficiaries, and determine tax treatment. The conduct was also considered the practice of law. So here the the person did all these things the lawyer did and they were saying, this really isn't a practice of law because I'm not doing very much. I'm not drafting something necessarily like I'm not signing my name to it, but it was considered the practice of law. So anything really that touches probate, that touches estate work is probably going to be found in the broad definition. This was also considered to be the practice of law giving legal advice concerning the application, preparation, advisability, or quality of any legal instrument or document or forms thereof in connection with the gift of property is the practice of law. So you can see there's varying forms of how the practice of law is really defined. Drafting a will for an out-of-state resident likely falls within one of the examples as the practice of law. But then we go to that exception, which I already talked to you about, which is now cited on the screen in front of you. 5.5 C for the exception. To provide legal services on a temporary basis in a jurisdiction under circumstances that do not create an unlikely or, excuse me, a risk of reasonable harm. And then that fourth exception down there highlighted in red. Anything arising out of the reasonably related to the lawyer's practice in a jurisdiction with the jurisdiction is admitted. So if the jurisdiction you're physically located in and I would also look to it, the one you're actually licensed in have this provision because you can get in trouble in either jurisdiction for UPL. Then you're okay to go and do this will. But if they don't then you need to take and step a pause and really figure out is this UPL and what does that look like? And so taking that you got to see what's reasonably related, what cannot be to your practice. You have to do that analysis too, because estate planning lawyers okay. You do estate planning work, you can kind of define what that is or what's reasonably related. But is now the personal injury. Accident reasonably related to your estate planning work? Is a tornado damage reasonably related? Like, what significance does it have and how do we really define reasonably related? When it comes to those things? We can look at different activities. We can try on our experience. We can draw on what practice groups or how we hold ourselves out in different areas. But we do need to do the analysis because that rule 5.5 always comes into play. In 5.5. Never allows us, though, to have that systemic, continuous practice in a place that we are not licensed. It only has to be the temporary basis or fit within one of the exceptions within the rule that we were just talking about to not meet up or to not get sanctioned with it. So you have to look at everything when it comes to it. And in addition to that too, another thing that could be up to. Is failure to supervise. They go hand in hand with UPL because UPL is not just attorneys practicing in jurisdictions in which they are not licensed. Upl has also been found or attorneys have been found in violation of it when they allow their non attorney staff, such as paralegals or secretaries, to do legal work. They're not lawyers. There are certain things solely reserved to what a lawyer can do. So not only do you have to watch out for UPL in the sense of you being physically somewhere, or practicing law somewhere in which you're physically located but not licensed, or in which you're not licensed, just in general. You don't have to be physically located there either, but you also have to watch out for UPL concerns when it comes to supervising our non-attorney assistants and or knowingly assisting someone else to violate the rules, such as the non attorney assistant, because a lot of times we get busy, we ask our assistants to do things and those things are actually considered legal advice. There are five things solely reserved for lawyers to do that constitute legal advice. The first one is initiate that attorney client relationship. The second one is to provide legal advice. Only lawyers can do that. Then we have prepare any legal papers or pleadings on behalf of a client, and they must be signed by the lawyers. Only a lawyer can sign your legal pleadings. Unless you're pro se, then you don't have a lawyer. A lawyer can also be the only one to carry out legal proceedings in a court of law. For a third party, anyone can represent themselves, but not anyone can represent someone else. A lawyer is usually solely reserved for them to do that. Lawyers can also charge a fee for their services, but non attorneys usually cannot unless it's negotiated upfront and communicated to the client. So failing to supervise having those oversights and remote work breeds into that. This separation, this not connecting every day, not seeing the person as you walk outside your office leads to a disconnection and then also to two ethical violations. So we have to be very careful with what we do. This is an example. You task 15 paralegals with evaluating client matters. Accepting cases, signing up clients with a retainer fee, an agreement. In other words, the paralegals doing everything on the case until that final court hearing or that transactional matter comes in. It's the only lawyer that all 15 paralegals. So you've got a massive staff of paralegals, and you're tasking them with all these things which you view as administrative work. But if you look at this, they're drafting engagement letters. They're they're negotiating and signing that engagement letter with the client. They're evaluating cases based on legal analysis, and they're accepting cases without the attorney's permission. Is that UPL? The answer is yes. This attorney overstepped its bounds over, gave or gave stuff to the paralegals that they shouldn't be doing. No matter how long a paralegals been been practicing paralegal studies or within a firm, it does not ever substitute needing a law degree to do those five things right here that only a lawyer can do. And that scenario, the attorney was having the paralegal. Create the attorney relationship. Give legal advice along the way because the attorney only saw the person at the hearing. Probably draft some pleadings along the way to and then charge fees. So this paralegal and this lawyer are violating rule 5.5 by doing several things. Now, the beauty or the downside of rule 5.5 is the employee does not get in trouble. The lawyer gets in trouble. The employee may be fired from their job. The. The lawyer, though we can be disciplined for it because we hold the license, we are subject to the disciplinary rules and we cannot counsel or assist someone else to do it. That's at 8.4, and if they do, then we have to counsel them and train them on the rules. Another one of our obligations rectify the situation. If none of that's done, then of course the paralegal doesn't have a license, so the commission can't come after them or the disciplinary commission. So they're going to come after the lawyer. So again for the non assistant roles we need to do certain things. Obviously start every client relationship by identifying your roles I'm the attorney. This is my paralegal. This is my assistant. Don't be afraid to say that. They need to know who everyone's roles are and where they need to seek the advice from. And if they forget, then you and your staff need to remind them. If they call and say and ask your paralegal legal question, he or she needs to say, I'm sorry, you're going to have to talk to a lawyer about that. I can't answer it. You need to establish that understanding of who is who and what they get from each person. You also need to remind the clients of those rules regularly. Like I said, when they forget. And then two, if you're a non-lawyer and you send out a communication, including your signature block, that you're not licensed to practice law. Also watch out for that firm letterhead. Don't use it for anything that you are not pre-approved to use it for. Now it is okay for a non-lawyer assistant to relay advice between the lawyer and client. It is not okay, though, for that assistant to give legal advice off the cuff. They can play the intermediary the go between, but they cannot be the one critically thinking or drafting or doing those things. Now, with assistance too. Sometimes they get busy as well and they say, oh, I've been doing this for 30 years. I know how the attorney is going to answer it. They say it every time, and so he or she just answers the client that's still up. It does not matter the length of time in non-legal assistance. Been there. They are never transformed into a lawyer just via internship purposes or work purposes. So here are another example. Your paralegal is meeting with a client without to present. The client asks the changes of someone challenging the estate plan about taxes. Your paralegal has sat in on over 100 meetings regarding the same or similar fact pattern that she uses a stock answer. Your paralegal advises the client on the basis of the facts of the situation. Is this. The answer is yes. It does not matter that she's been in over 100 meetings. It does not matter anything. This is legal advice and this paralegal or non attorney assistant should have taken down the notes, contacted the attorney, been the intermediary or call them back later. Another scenario where you could pop up very readily, especially with non-attorney assistants running an office without a lawyer present. Say you're out sick on leave or absence. Then your staff picks up. What they pick up is lawyers duties, including those five categories. So you really have to be cognizant that this affects more solo practitioners or small partnerships, because sometimes there's no one to pick up if you're out, but you need to have another lawyer in the community pick up or have that worked out in advance so that you know what to do in the event this happens. Also, too, I've seen it so many times, an attorney saying, oh, I just don't have time or I'm too busy. Handle that for me to their assistant know if it's one of the five things only a lawyer should do, a lawyer should do it. And so we need to take that ownership. We went to law school for something. We spent tons of money. Let's do the five things that only a lawyer can do. And so watch out for that scenario. I'm just too happy I can't handle it. As an attorney is telling their non attorney assistant to do something. That brings us to ethical blunder number four or excuse me, number three, the electronic asylum babbling people also known as email. So first a quiz question here. Which of the following statements are true? Email is a wonderful tool for a successful practice of law. That's true. Email not only saves time and money, but also allows for prompt communication with clients. That's true. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your inbox with useless information. That's also true. Careless use of email can subject the sending lawyer to embarrassment. Unhappy clients, loss of income. Breach of duty of confidentiality, discipline or claims of malpractice. That is also true. So the answer here would be all of the above. If that is what you answered. You win the prize for the day, which is just listening to the last 15 minutes of the seminar. But yes, it is. All the above are the problems with email. And so how do we draft a respectful email? Because there's too many times they see lawyers drafting emails in haste, drafting emails, just thinking like fluid, thinking down on paper type of situation. And it's never good. You also see emails with disclosure that protected health information. 1.6 that type of mistake there. So what do you do? Well you can't have a fix all end all, be all. But there are things you can do to mitigate and respect emails and make sure they work for you and in benefit of you and not against you to where you're hating your emails. So some of the best practices are. Think before you hit send. Our life is 24 over seven. We're connected to social media. We're connected to all of these things. And. We just operate on a 24 hour basis. But if you think about it, is your brain mentally awake at midnight every night? Some may say yes, some may say no. And are you cognitively at your highest level at every second of every day? The answer is probably no. So why would we want to be sending emails, responding in haste to different requests, responding in anger, even to different requests when we should just set the phone aside? Think about it and not send anything. Where did the old days go? Where you went into the office from 8 to 6. You went home, couldn't take your computer home because it was a big box thing sitting on your desk so you couldn't even work at home. You may have been able to take a client paper file and review it, but you weren't typing out anything. You weren't doing anything like that. You didn't have this constant emails to your phone over and over and over again where you're distracted as you're eating family dinner, where you're distracted doing other things. Then you're responding in haste, and then you're causing ethical violations. Where did those days go? So we really need to stop, slow down, think about different things and remember our obligations. Take off that autofill feature, the misdirected email, that inadvertent disclosure we very briefly talked about is something that can readily happen here as well. Also too. If you have an email where you just got to get it off my chest, I got to answer, I'm so mad. Type it in but leave the two and the CC blank. Save it in your documents or your save documents file. Open it back up after you've slept and if it still sounds good, send it out. Then take time to stop and breathe. Also, I recommend disabling that reply all feature or the autofill feature if that is a huge problem within your practice. You also too need to watch out just so you don't get backups on emails. Some of us get over 100 to 500 emails a day cleaning those out regularly, which while is a task and chore. It's. It's an evil that we have to do. So just make sure you clean up regularly. Obviously, you'll miss things, maybe miss deadlines, communications, and then you're going to be up a creek and you're going to have some ethical violations, let alone potential malpractice claims come against you. Also to you. If you're sending out emails, make sure you have any disclaimers because, you know, sometimes you're not creating that attorney client relationship or this is not legal advice in certain circumstances. You can put those in your emails. If it's something to remain privileged. It's always recommended to put attorney client privilege information in the subject line to kind of protect that privilege or reinforce it even more just in case, and then to just look for guidance in the rules, particularly 1.6 confidentiality, 8.4 kind of the misconduct rule. And you can even throw in the conflict rules in there to look out for those two, 1.72 1.11. But the biggest thing I see with email and the problems is we have to watch our tone, our civility, our grammar, and remember that nothing is funny if it's exhibit A to a disciplinary commission complaint or a lawsuit. So temper back what you're saying. Watch out for those areas of high risk and you'll be fine. That leads us to blunder number two. Slipping and falling. And that attorney client relationship. This is where I tell students that I teach because I teach professional responsibility as an adjunct professor at the law school. Where you really need to say, if I ask you from across the table, you came to me for advice and it's regarding conflicts. The first thing I'm going to ask you is who is your client? If you can't answer that question? We have bigger problems than your ethical concerns because knowing who your client is is the foundation of a lot, if not all, ethics, opinions, ethics questions. And so we really need to know this is an example. There's a couple of examples here where you can represent a company corporation. Then one of the employees has a deposition. The company asks you to go say for instance that employee says you're my lawyer, or my lawyer is here today and you don't correct them. You just created an attorney client relationship. You probably slipped and fell into it thinking, wait a second, we don't have a formal engagement letter. We didn't sit across the table at each other and talk about it. You don't need all those formalities. All that is needed is the person's perception that you're their attorney because you gave them advice on a legal matter you held out or didn't correct them when they said you're their attorney or something like that. You don't need an engagement letter. The only place you need an engagement letter is contingency fees in most jurisdictions, as well as another few exceptions. But that's the big one. So you need to watch out that we don't slip and fall into our attorney client relationships. Same thing with this example. Similar fact pattern. Just changing around a little bit. This one is regarding subsidiaries. So say you represent an organization say in here we have Earrings Limited which is a wholly owned subsidiary of Bracelet Inc.. So the question becomes do you represent the principal parent as well as all the subsidiaries, or do you just represent the one you're actually doing work for? Now, the rules tell us that as the one we're actually doing work for, except if we agree otherwise. And a lot of companies like to slip into their outside counsel guidelines, provisions, what I call all affiliate provisions, where they say, not only do you represent this particular entity that you're directly doing work for, you also represent all of our subsidiaries and affiliates, whether that list be five, whether it be a thousand, they're now all your clients. This is huge when it comes to assessing conflicts. And you would need to know this again. Check those outside counsel guidelines. Look to see if they insert something into the engagement letter with you. If they do a formal one where you agree to represent all the affiliates and subsidiaries, you need to look for those things so we don't slip and fall. Having an engagement letter. Though not required, is always highly recommended in every circumstance. Also to to get clients off the books and keep your system clear and clean. Use declination letters, meaning declining engagements. When you don't hire someone. Send them to say thank you for meeting with me. We're not creating an attorney client relationship. You want to make that attorney client relationship clear? Don't be vague. Don't slip and fall into it, and don't create it unintentionally. And so here the third one. Avoid creating the unintentional evidence. Here's someone's lawyer look for, you know, did you say we're not creating it? Did we say we're not doing this? Did I give legal advice when I shouldn't have? Those things you need to watch out for. Biggest ones come from that parent subsidiary because it hits on our conflicts. Also, too, we confuse who our client is because it may not be the person paying the bills, and that's fine. What rule 1.8 conflicts 1.8 says someone else can pay the bills, so long as the direct client knows that and agrees to it, but it doesn't transform the payer into our client. We're just still another outside third party. They're just paying us. So you need to treat them just as an outside third party. Keeping confidences to your client, only communicating with your clients. And then just let someone else pay the bills. And a lot of attorneys confuse those things, especially in the insurance insured insurer scenario, because the insured or excuse me, the insurer is paying and kind of directing some of the work, but your client's insured most of the time, and you've got to make sure you really understand that scenario. Also, to watch out for the husband, wife and a family law attorney scenario. This attorney for the family, they represent the whole family. During conflicts, on the whole family. Did you agree to that? Don't slip and fall. Also, too, you can actually represent one spouse and not the other if it's defined. You only do work for the husband. Then you're only doing work for the husband if the wife wants to engage you too. She can engage you separately. Just because they're technically one in the eyes of the law, doesn't mean they're one in the eyes of the legal world. On attorney client representation. So watch out for that husband wife scenario as well. And we have to really know who the client is because we have to identify conflicts of interest. We're not going to go in depth of all the conflict rules. But again, these are the ones to consider, particularly depending on the scenario of who is the client. Also, we need to know because that joint representation, sometimes you can represent more than one client in a matter. And that's important too to understand and know who you are. Those duties of loyalty to how confidentiality is going to be assessed or what that looks out like, spell out those advantages and disadvantages and confirm it in writing to be compliant with the ethical rules. Joint representation has a lot of pitfalls, but it has a lot of benefits, and your clients need to know what they're getting into. Brings us to our last blender. Blender number one civility is still alive and well. We need to be civil in what we do. We need to conduct ourselves in a professional manner. It's Illinois Supreme Court. They actually have a civility pledge. I commit myself to service without prejudice, integrity without compromise, and to civility and professionalism in all my interactions. Indiana has not the same pledge, but when we raise our right hand in Indiana, we say we will abstain from offensive personality as part of our oath as attorneys. South Carolina also has a similar pledge. I pledge fairness, integrity, and civility not only in the courts, but in all my communications, written and oral. How many of you have looked at your oath that you took and realized that you agreed to be a civil person, and then think back on your years of practice and you're like, oh my gosh, I have not been a civil person. And the thing about the rules that really gets you is there 24 over seven. It's not just in your professional capacity while you're practicing law, it's also in your personal capacity. How many of you I could go to your spouse, significant other, or close friends and say, hey, have they been civil 24 hours a day, seven days a week? Not many people would probably say yes. So we have to be civil. Civility does not mean your lack of disagreement. You are free to disagree. You're free to have healthy arguments and disagreements, but you're not free to just conduct yourself or say or do anything you want in a rude and insolent manner. There's a code of decency that characterizes our society and how we should behave and professionalism. And then there's just plain outright mean and rude. And it's that fine line between the two that we really look at, and it's that fine line when you're on the mean and rude side that can get you in trouble with the ethical rules which are sited in front of you. And then, of course, just being professional on the other side. And we do have a duty to report any lawyer we see in violation of the rules. Rule 8.3 where self reporting jurisdictions. So if opposing counsel or anyone violates the rules, then you have a duty to report them, including civility. So just keep that in mind. Let's go to some fun examples here. In the last two minutes. We'll go through them pretty quickly. First one here we have an attorney who pretended to be her husband's lawyer, told a telemarketer she represented her husband, and she said on the phone he the telemarketer had a gay or sounded gay or sweet because of feminine sounding voice. 8.4 G talks about. Incivility, discrimination. We can't discriminate in the practice of law, since she said she was her husband's lawyer to practice of law and publicly reprimanded Indiana for it. Another one here, an attorney, was talking to his clients about how he didn't like the judge in which was over the client's case. He told them that he thought the judge had was very feminine, or got beat up a lot as a child going towards that sexual orientation of the judge. Clients fired the lawyer, turned him in for a disciplinary violation. He got suspended for three months for violation of 8.4. Again, civility. Make sure we do it. This attorney didn't use the email that we've talked about here today. Used his email to have derogatory slurs, rude conduct. The email that he sent is there in the second paragraph of this page. He was suspended for 30 days without automatic reinstatement, meaning he had to reapply retest on the different exams to be admitted back to Indiana in 2011. The email just said it was just rude. It was actually just opposing counsel, secretary trying to set up a scheduling conference or a meeting, and he sent back that rude message there on your screen paragraph to civility. We need to match our conduct. This was one where an attorney's in a deposition, she said opposing counsel had been antagonizing her all day, so she slammed her hands on the desk, looked underneath the table at the opposing counsel and said, is there anything between your legs? Civility 8.4 g potentially that discrimination clause that's in there or anti discrimination. We've got to watch what we're doing. Same thing with this one a lead defense counsel bent over and shook his rear end in front of plaintiff's counsel during a deposition, also known as twerking. The conduct was described as vivacious, gyrating of the lower, fleshy extremities. The counsel was sanctioned monetarily. Also removed from the case. Client fired them, new counsel said. Let's just put this matter in the rear view mirror. Probably bad choice of words for the next brief filed. But again, that's what happened. Texas does not have 8.4 G the anti-discrimination rule, but they do have prejudicial to the administration of justice, which this case could have gone under. But the judge said no sanctions were filed because the attorneys suffered enough. Some other various conduct on the screen in front of you. We don't want to be call people stupid idiots, go to ethnicity, racial background, you know where they're from. Religious. All those things can lead to incivility, public reprimand, suspensions or disbarment even. We need to watch our conduct. Always fight up. Never fight down. Outsmart your opponent. Beat them in the courtroom. Not with incivility. Be the type of lawyer you want to be. Those are the tips. And the biggest thing combining everything is that not knowing how to identify ethical issues and ethics, and then also to not seeking out an ethical attorney. We go to IP lawyers for IP stuff. We go to real estate lawyers for real estate stuff. So why don't we go to ethics lawyers for ethics stuff? It could solve a lot of your problems and stop stuff up front. There are probably people in your jurisdiction that do this for a living, just solely ethics. Consult them. I thank you for attending and if you have any questions outside of this, please feel free to reach out.

Presenter(s)

CS
Cari Sheehan
Assistant Clinical Professor
Indiana University Kelley School of Business – Indianapolis

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                                                                                                                                  Available until
                                                                                                                                  Status
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                                                                                                                                  Credits
                                                                                                                                  • 1.0 ethics
                                                                                                                                  Available until

                                                                                                                                  November 13, 2025 at 11:59PM HST

                                                                                                                                  Status
                                                                                                                                  Approved
                                                                                                                                  Credits
                                                                                                                                    Available until
                                                                                                                                    Status
                                                                                                                                    Pending
                                                                                                                                    Credits
                                                                                                                                      Available until
                                                                                                                                      Status
                                                                                                                                      Not Eligible
                                                                                                                                      Credits
                                                                                                                                        Available until
                                                                                                                                        Status
                                                                                                                                        Not Eligible
                                                                                                                                        Credits
                                                                                                                                          Available until
                                                                                                                                          Status
                                                                                                                                          Pending

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