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On Demand 1h 1m 35s

Back to Basics: Sailing the Five C's of Ethical Lawyering

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Back to Basics: Sailing the Five C's of Ethical Lawyering

This presentation will shy away from more cutting edge topics, sometimes of fleeting importance and, instead, will re-center lawyers’ attention to what the presenter has proposed are the five core components providing the “recipe” for ethical lawyering. While limiting its scope to broad topics that are alliterative, this presentation will manage to discuss many more ethics rules than just five, including Model Rules 1.1, 1.2, 1.4, 1.6, 1.7-1.10, 1.15, 1.18, 3.3, 4.1, 7.1, and 8.4 among several others.

Transcript

- Hello everyone, I'm Brian Faughnan. I'm a lawyer in Memphis, Tennessee, owner and founder of my own firm as of October 1st, 2022. I appreciate Quimbee letting me present today's topic, which is called: Back to Basics; Sailing the Five Cs of Ethical Lawyering. Just a very quick background about me before I launch into it. I am in Memphis, Tennessee. I practiced law for 23 years with a variety of mid-size to large firms, and over the years, my practice has morphed pretty significantly to where about four fifths of everything I do involves representing lawyers and law firms, helping them solve problems, handling discipline matters, legal malpractice cases, and doing expert witness work. As a result, over the years, I have done a good bit of speaking and writing on lawyer ethics issues. And today's topic and presentation is one of those things where the origins of the presentation have a little bit of value to discuss. So this entire presentation first started as a blogpost. Since 2015, I have written, shared my thoughts on legal ethics and lawyering at faughnanethics.com. And this concept of sailing the five Cs was one of the better received blog posts I did in the earlier years around 2018 or so. And it was followed up by being done as a three-hour seminar that I presented in Tennessee in a roadshow format, going around the state. Along the way, a gentleman named Michael Kennedy, who is our council in Vermont, picked up on the idea, was one of the people that enjoyed the blog post, he, like me, is a member of the Association of Professional Responsibility Lawyers, which is a large group of ethics nerds that like to talk about these issues and represent lawyers or do things such as be bar counsel. And he took this idea and expanded it a little bit to offer two more Cs that he thinks are important. All that's background, why? Well, so today, you're gonna get all of the valuable nuggets from that three-hour presentation I did a few years ago, updated and distilled down into a one-hour presentation. So if you're ready for that, I think that's good, let's strap in and see if this thing still holds together. So what's today's agenda? So today's agenda is going to involve presenting to you something that is both a hypothesis and a proof all in one. I say that I'm not a scientist, if I had the ability to be a scientist, I probably would've done that, but my brain only works in lawyer fashion. So I think that concept holds up. But the hypothesis is that I can demonstrate for you something of a recipe for ethical lawyer, and it's a recipe that if you make sure to always include these five ingredients, you ought to be safe as a lawyer even if you don't remember the details of all of the various rules of professional conduct that can apply to you. And just as an aside, because of the nature of this format and the presentation and not knowing exactly where you are, we will be working from the ABA model rules as the rules of professional conduct that might apply to you. As is always the case with presentations relying on the model rules, it's very important to make sure to remember, if your jurisdiction deviates from aspects of the model rules, that's a very important lesson and thing to focus on. The nice part of the recipe is that, largely, it culls from five core components that might differ a little bit in the margins, but that do not differ across the United States as core concepts. The recipe is relatively easy to potentially remember for you as opposed to remembering all of the ethics rules, even if it doesn't really lend itself to any sort of catchy acronym or mnemonic, it doesn't stand for something that makes its own word, but it is completely alliterative, and the recipe is made up of five Cs, which leads to the not so funny pun or homonym of the title about "Sailing the Five Cs of Ethical Lawyering." So what is this recipe for ethical lawyering? Be competent at what you do is the first C, recognize and respect your obligations of confidentiality is your second C, communicate appropriately with your clients and with others. And when we say communicate appropriately, that means both appropriate content and appropriate frequency in terms of communication, that's your third C. Employ candor in all situations in your practice is your fourth C. And as we will discuss, when we say candor, if you absolutely can't be truthful in a situation as the lawyer, and you don't have the option to simply say nothing, then don't be false, whatever you do. And then our fifth and final C is avoid conflicts for which you don't have or can't get consent from the parties that are necessary to overcome the conflict. So competence, confidentiality, communication, candor, and avoiding conflicts. Now a quick example to get us started. Because the potential usefulness of this recipe is a placeholder so that you might not remember what a particular ethics rule on a particular area requires of you, but you can, as the hypothesis goes, use the recipe to figure out the right answer to your obligations. So if you, as a lawyer, didn't know what model rule 1.15 required of you, that is the ABA model rule that addresses the lawyer's obligation with respect to safeguarding safekeeping property. So if you know what that rule says, you know that that rule, for example, requires that you not co-mingle your own personal funds with the funds of some third party, whether a client or otherwise, that you're holding. But if you didn't know 1.5 existed, and you didn't remember that it required you to avoid mixing your funds with the funds of other people, how could you avoid commingling? And commingling is a pretty good important example, even though it's a quick one, because some folks might argue that commingling is such a significant, potential, disciplinary hazard for lawyers, often with extreme punishment, that it could be a sixth C. But you can think of avoiding commingling and other trust account offenses like pulling funds out without letting a client know funds are being pulled out or making decisions about what to do if they're competing claims, all of which are things 1.15 addresses specifically. But you could avoid commingling if you think about it as a concept, a subject matter that is made up of three ingredients of our recipe, competence + candor + communication. So if you are competent, and you strive to make sure you know what you're doing, and you avoid anything in the area of falsesty or misleading, and you properly communicate with clients, you're going to avoid trust accounting violations in almost every circumstance, even if you don't remember what 1.15 says. Now, is that the most compelling first example? Maybe not. And I offer that up just as a exercise to remind everyone the value of candor. Another reason why I personally like the recipe example, and as the slide says, it's not just because I've fallen pretty deeply into being a fan of the Great British Baking Show, that started even before the pandemic, but really steered into that in the early days of the pandemic. The other reason I like the recipe example is that I think the analogy holds true, because if you have done any cooking whatsoever, if certain parts of the recipe are missing, you've got ingredients that you have left out, or you have deviated from what the recipe provides, that really can lead more frequently to bad outcomes in the kitchen. And the analogy here holds true, because if certain ingredients are left out of the way a lawyer lawyer goes about doing things, if they are competent and if they protect confidentiality, but if they are not someone who exercises candor and instead engage in misleading communications, or if they do not communicate with appropriate frequency with their clients, then even if they've also avoided conflicts, they can end up in a really bad situation, whether that be a malpractice lawsuit or in position of ultimately legal discipline against. So with most of that as prologue, let's begin our discussion in full. And one of the helpful ways to do that, although more difficult when you're talking to folks on a national setting, is to think about what the mechanism is in your part of the country for learning information about new disciplinary cases that have come down the path. For example, here in Tennessee, if I were not a lawyer who represented lawyers and therefore, had some insight into public disciplinary outcomes just firsthand in Tennessee, those get published by our board of professional responsibility. You can go see them as they come out at their website. We have a bar publication that picks up instances of jurisdiction and includes them as part of a daily news email. You likely have some variation on that framework in your jurisdiction. And if you think back or go take a look back at some of those blurbs that have given you insight about public disciplinary outcomes in your jurisdiction over the past year, or even if you pick a couple years ago, what I think you're going to find are pretty stark examples of lawyers getting in trouble not for a technical violation of an obscure rule that you might not remember off the top of your head that it says what it says, but what they're really getting in trouble for is botching at least one of the key ingredients of the recipe. You may see disciplinary cases that arise out of lawyer dabbling, lawyers that, from the synopsis that's provided, appeared to be practicing in an area of the law that they don't practice it regularly, perhaps a family law practitioner taking on immigration issues for a client they were already representing in their divorce proceedings. Or seeing a business lawyer trying to dabble into aspects of tax law. But those situations all simply boil down to a lawyer handling a matter they weren't competent to handle. They may have covered all four other aspects of the recipe to the best of their ability, but the lack of competence, such a key missing ingredient, that the representation ends leaving a very bad taste in everyone's mouth. Or again, you may see missteps, disciplinary cases that involve highly-specialized areas of practice and missteps by lawyers that otherwise were doing all right, and again, not being competent, missing that piece of the recipe. A disciplinary case out of Kansas, to try to pick the most most middle part, at least geographically, of our nation, is a recent example in the disciplinary framework of another kind of problem, with a lawyer lacking confidence, and that missing ingredient leading to a bad outcome. And this is a matter called In re Borich. It's from, pretty recently, August 5th of the past year, and again, a disciplinary case in Kansas. The facts boiled down for you. This case was the the discipline being sought, the disciplinary matter was against a solo practitioner, and the underlying representation involved representation of plaintiffs in a construction defect case against a home builder. Now somehow, that case went on in various iterations for more than 10 years. So this discipline that came down in 2022 against this lawyer, the disciplinary proceedings started several years ago, and the underlying representation had been ongoing for a long time. So we are talking about a competence issue that can date back to 2012, 2013 or so, if not longer. And the case that the solo practitioner took on and handled started out in state court, was removed to federal court, it also involved a side trip to some arbitration and then the enforcement of the arbitration award and things like that also went all the way up to the appellate courts in Kansas. Now again, in the interest of complete candor on my part, if you read the opinion that was put out by the the Kansas disciplinary body, the Kansas Supreme Court in August, there is no question that this lawyer also had problems with how he charged fees and handled funds with respect to this representation of plaintiffs in the construction defect case. And ultimately, it would be difficult to say that the one-year suspension that's imposed on this lawyer wasn't influenced to some extent by more than just lack of competence, that there were issues associated with fee problems and funds-handling problems. But it's a good example to remind people about competence issues, because the court did explicitly determine this lawyer had violated rule 1.1. And what the court went to the trouble of saying was essentially that the lawyer himself in these proceedings ultimately admitted, whether he thought it was helpful to his case or not, that he had taken on a matter that he did not have the competence to handle. And the court lawyer that's up on the screen for you talks in that context that the lawyer, in talking about the handling of this case, stated at least after the fact that he felt 'overwhelmed,' and he believed that the kind of arbitration and the litigation that was involved against this home builder was 'monster litigation for a solo practitioner' like himself. And he testified that there was no way a solo practitioner could represent or go through that on his own. Now the court puts that in context of, there were failures to timely and properly file appeals on behalf of his two clients. And then interestingly, rather than doing what the model rule 1.1 explicitly tells to lawyers who might find themselves in a situation where they're being asked to represent clients in something they may not be competent to handle on their own, rather than doing what the rule says, which is you can obtain and comply, you can obtain competence and comply with the rule by enlisting someone as co-counsel, who can assist in the efforts, as long as you get your client's consent to do that. So this solo practitioner could have co-counsel with a firm with more resources, once it became clear that it was "monster litigation." But instead of doing that, this lawyer actually accepted assistance from his own clients in the nature of the kinds of things that you would have a lawyer or the lawyer's staff do. And that failing impacted the court's conclusion that the competence component had to be factored into the discipline. And again, we're talking about a lawyer who is now, as a result of really just one case, but one case that spiraled out of control, ended up being suspended for one year, starting in August of this year, it would appear. So let's jump from the first C of competence, and let's jump over to communication. Again, thinking in terms of the disciplinary case review, the blurbs that you see, the stuff that you can go back and pull that show public discipline in your particular jurisdiction, you will sometimes see communication issues that involve certain common threads, like clients who may be very difficult to reach, sometimes those clients are incarcerated clients, sometimes those clients are people who you never quite really had a great pipeline of communication too, perhaps because you took them on as a client in addition to a main client, if say, in a employment law matter or an insurance defense matter or something like that, where you are primarily dealing with the larger company, but you took on the representation as well as, say, a driver for that company, and you always had sort of a loose connection and ability to track that person down. But you will see disciplinary cases flow out of problems associated with when that client becomes difficult to reach. But more frequently, what you're going to see in the disciplinary review context are lawyers who got themselves in trouble simply by not responding to their own clients at all for long stretches of time. It is rare cases, where it is the client who gets away, and despite the lawyer's efforts to reach them, won't communicate with the lawyer. Most disciplinary cases that you will see, when you look at your jurisdiction, are much more likely to involve clients who are repeatedly reaching out to their lawyers, and the lawyers are not responding to the clients for long periods of time. Lack of communication is obviously not the only problem with communication that can botch the recipe. Lawyers saying something they should never say to a client or a third party is a reoccurring issue as well. Along those lines, and since depending on when you may listen to this, there may be elections going on in your jurisdiction, and that's probably pretty evergreen at this point no matter when you're viewing this presentation. But a surprisingly common problem in the communication arena involves lawyers making disparaging comments about a trial judge, and they do it in argument to a court of appeals, which is a primarily communication-based problem, but others can also view that through the lens of competence in terms of the unlikely persuasive element, that if that's the basis of your appellate argument, a more competent lawyer might take a step back and say, "That's not very likely to get very far." Disseminating false information to third parties on behalf of clients is another frequently occurring problematic situation that you will see in review of disciplinary cases that may have come out in your jurisdiction that fundamentally involve a communication problem. Although again, disseminating false information can also sweep the candor in our recipe. As does falsely notarizing a document, which also seems to be a an escalating problem over the last few years either as a result of the issues with remote notarization that may occur or otherwise issues of desperate lawyers having inability to get access to clients or thinking that they can avoid access with clients, sometimes being more willing to indicate the documents had been appropriately notarized when that was not the case. Let's jump over to lack of candor, again, third component of our recipe, the third C, if you're doing a review of disciplinary cases, again, in your neck of the woods, lawyers being willing to deceive their own clients is an incredibly frequent misstep for lawyers, often leading to pretty severe discipline. You're going to see perusing through disciplinary cases in the last few years. You're gonna see instances of lawyers accepting settlements on behalf of their clients without ever telling their clients as a means of taking 100% of the funds. And that of course, that concept is just a subset of lawyers generally, when they find themselves in scrapes, being willing to lie to their clients about the status of their cases. And if you follow the candor component of the recipe, which is being truthful, and if you're in a position where you cannot be truthful and you cannot be silent, then you have to not be misleading. And in almost every set of circumstances where you see a lawyer spinning a bit out of control with their ability to be candid with their clients and others, if you work your way back to the recipe, you would not find yourself in these situations. A very recent Illinois disciplinary case worth discussing for just a little bit, another VAD flavor issue focused on lack of candor, rather than the kind of thing you see more frequently of lawyer lying to a client about the status of their case either lying that they had filed it, lying that they had successfully settled it, lying that it was still in the works. This involves an attorney who was willing to lie to their clients about who the lawyer themself was or what the lawyer themself was going through. And this, again, is from 2022. This case is In re Stone, it's in the Supreme Court of Illinois. And it involves serious ethics charges that are being brought against a lawyer in Illinois, and now made its way back into the news and a press release, because the lawyer wants to consent to disbarment in Illinois. And the issue that brought about the original ethics charges was that the attorney had been accused of neglecting several client matters, so threads of communication problems in terms of frequency. And keeping the feeds that were paid to that lawyer for the work of the neglected clients instead of refunding the amounts. And the ethics charges, while serious, involved around $16,000 of potentially misappropriated funds or refunds that should have gone back to clients for whom the lawyer had not properly communicated. And the underlying fact was, again, this lawyer, like the one we spoke about a little bit earlier, was a solo practitioner, but he had left the private practice of law to take a non-lawyer position with the United States Department of Defense and failed to properly communicate about this to clients, leading to them thinking it had been neglected. And the problem that is now front and center in that case as part of the public effort to consent to disbarment and that puts us squarely in the component of the recipe that's about candor is that in order to get out of representing a criminal defense client, he had lied to that client and to the court, because he filed a motion to withdraw, and the motion to withdraw didn't say, "I'd like to stop representing this client "because I'm getting outta the private practice of law, "I'm taking a position with the government, "and it does not involve being a lawyer, "and so I can't continue this representation." Instead he told the client and then the court that he'd been diagnosed with stage-three pancreatic cancer, and that it was that condition that meant he could no longer practice law. And he did not have pancreatic cancer of any sort, much less stage three pancreatic cancer. And as a result, this lawyer is now hoping to simply be allowed to consent to losing his Illinois law license. So let's jump to our fourth of the five Cs and talk about conflicts problems. Now, admittedly, the disciplinary review history situation is a little bit harder to pour into a discussion of conflict, because if you look through the publicly available information in your jurisdiction on conflicts, you're probably going to have to work a little bit to find something that involves real public discipline on conflicts. Because usually, lawyers who get themselves in bad situations on conflicts of interest, that's usually the stuff, legal malpractice lawsuits, breach judiciary duty lawsuits, and the stuff of disqualification motions gets much more rare than it leads to public discipline. And it's perfectly okay to have some theories about why that is. We've just seen today just in a couple of, again, self-selecting situations, examples are highlighted for you involved the disciplinary authorities going after solo practitioners rather than lawyers at larger law firms. And lots of people noticed that that seems to be the case that lots of times, disciplinary cases tend to be brought against lawyers in smaller firm settings than larger law firm settings. And lawyers in larger law firm settings are more likely to run a foul of conflict problems simply because of larger scope of imputed conflicts among lawyers in their firms, perhaps larger books of business, just more moving parts, more administrative parts. And so, if you buy into anecdotally the notion that oftentimes cases don't get brought against larger firm lawyers because perhaps their firms have the resources to simply make clients whole or make clients feel a little better before the disciplinary complaints are filed. And you pour that into the idea that it is oftentimes easier for smaller firm lawyers to navigate conflicts. You see at least a thread for the possible lack of disciplinary cases. But a common kind of conflict situation that can lead to a attorney discipline, and often does, doesn't involve conflicts of interest under rule 1.7 or rule 1.9, the more general conflict rules, but arises from financial transactions that occur between attorneys and their clients. And under model rules, those situations are governed under Rule 1.8. And a very recent decision from just last month out of Iowa, in the case Iowa's Supreme Court Attorney Disciplinary Board versus Ranniger involves just that, a 1.8 conflict violation situation leading to discipline. It involves a lawyer who ended up receiving a public reprimand for preparing a will for his client, and the will that the lawyer prepared made the lawyer's son a recipient of a substantial gift under the will. Now, the lawyer attempted to defend that conduct by laying out the history the lawyer had with his client, they had had a long close friendship over decades, and the argument that lawyer made was that they were such close friends that he and his client should fall within a family relationship exception to Iowa's version of Model Rule 1.8 . And that argument was unsuccessful because the court pointed out no matter how close the relationship was, it could not be perceived to be as close as family. Now, that same lawyer, again, under this same concept of financial transactions with clients had also purchased a number of items from that client. The client was not in the best of financial circumstances, and all of those purchases were done without complying with the requirements for certain types of writings and certain types of terms that exist under Model Rule 1.8 and that existed under Iowa's version of 1.8 . And that was because the transactions themselves were not standard commercial transactions. And again, even if a lawyer is unaware in their jurisdiction of the margins of what their 1.8 might carve out, the hypothesis is that, focusing on the five components, including the conflicts component of the recipe, would allow a lawyer in this situation to realize that certain things would not be appropriate, including being the person to prepare a will that provides a gift to their own family member. And the notion that because of the fiduciary relationship between lawyers and their clients, unless the client is in the business of doing the thing that the lawyer is doing with the client, then there's going to be requirements of candor and additional communication in order to satisfy the conflict rule, if you enter into a transaction. That's the heart of the rule on 1.8 that it seems like, just because a lawyer represents a bank doesn't mean the lawyer can also bank at the bank, because in that situation, the bank is simply engaging in the same type of activity it would offer to any member of the public. Now, our final C in the five Cs is confidentiality, and particularly with the rapidity of technology and online communication and the the willingness of people to spend lots of their lives online, if you go look through the disciplinary history in your jurisdiction, you are likely to see more and more examples of lawyers in your part of the world getting into disciplinary trouble for saying things about their clients online. Sometimes, it is in response to negative online reviews, which continues to be a tricky area for lawyers, but it is one that, again, if you focus on the concept of the importance of confidentiality and the recipe, you likely get to the correct result of understanding why it is, you cannot respond to a client's negative online review in kind online. Sometimes, the disciplinary cases you see will be problems with confidentiality being violated in responding to the handling of client's cases. Another variety involves lawyers saying too much when they're seeking to withdraw from litigation matters, all of which touches on 1.6 confidentiality under the ABA Model rules. And just to offer an example from disciplinary case, not as recent as some of the other examples we talked about today, but it is a very good reminder of the breadth of the importance of confidentiality in the recipe. And it's a disciplinary case out of Ohio that did take place within the last five years. And it is a stark reminder for folks to remember what confidentiality really means within the recipe. And this is a case involving disciplinary cases against a lawyer by the last name of Holmes and another lawyer by Kerr, last name Kerr, came from 2018 in Ohio. And the respondents, the two lawyers who ended up being disciplined were a married couple, and they were both lawyers, but they were not lawyers in the same firm. They each worked at different law firms. But not only were they a married couple and they were both lawyers, they both practiced the same type of law, the same subject matter. They both were lawyers who handled matters involving school law, and the facts of their disciplinary situation was that on more than about a dozen cases the court actually found. They had exchanged email with each other and exchanged information about each of their separate clients and their clients' situations by way of bouncing ideas off of each other and then commenting on the drafts of each other's work. Something which probably happens more frequently than you might imagine, even for lawyers who are striving to remember their obligations and even might remember the ingredients of this recipe, because lawyers, first of all, think as a practical matter, probably the same thing I thought about when I saw this case, which is: How did anyone ever find out they had done this? And the answer must have been, something got inadvertently shared with someone or some other thing popped up that caused someone to do some sort of digging. Because one way I believe this happens more frequently than you would think is, spouses don't expect that anyone will find out what it is that they talk about. But the core problem here for these lawyers was since they were in different firms, this kind of collaboration is not something they could do without client permission to do it. And these lawyers did not have permission from any of the clients for whose matters they were handling in separate locations. And so, in that case, the outcome was that each of those lawyers agreed to a six-month suspension from the practice of law. Fortunately, for them in Ohio, Ohio in 2018 at least was a jurisdiction that would allow you to have the entire period of your suspension from practice probated. So these two lawyers, as part of that agreement, did continue to actively practice, never had to actually serve a suspension, but they did have to comply with terms of probation along the way during that six-month period, again, as a result of violating client confidentiality, but doing so in a way, that I suspect, both of those lawyers thought they were helping rather than hurting their clients. And as another way of sort of highlighting my hypothesis and moving it towards the concept of proving that hypothesis, I wanna talk a little bit about ABA ethics opinion since we're focused on the application of the ABA model rules, one of the great resources that exists for understanding the ABA Model rules and that sometimes works for helping understand likely applications in your jurisdiction of your jurisdictions rules if your jurisdiction tracks the ABA model rules, involves taking a look at and understanding ABA ethics opinions. And what I want to highlight is, the ABA has put out quite a few ethics opinions over the last several years, but I think what you'll find is, the most valuable of those opinions when they put them out always touch on at least one or more ingredients of the recipe. And so let's try to prove this point by quickly talking about the highlights of some of those opinions from the last couple of years. So if you went and looked at the ABA formal opinions that were issued in 2022, I would posit that the two most important opinions, and spoiler alert, and in the interest of candor again, they may have been the only 2022 ABA ethics opinions issue, but it would be ABA Formal Opinion 502 and 501. Now 502 has been talked about a good bit at least recently among the kind of circles I run in, where it addressed the question of: You have Model Rule 4.2, and Model Rule 4.2 tells lawyers that if they know someone is represented by a lawyer in a matter and they are representing a client in a matter, that same matter, that lawyer cannot communicate directly with the represented client on the other side of the matter unless they have that other person's lawyer's consent. And Opinion 502 addressed whether that rule applies to a lawyer if the lawyer is proceeding pro se. So would that same rule that says when a lawyer is representing a client, would it mean that a lawyer who is handling their own divorce case pro se, does that mean they cannot communicate with their represented spouse on the other side directly unless the represented spouse's lawyer gives permission? And that opinion concludes that the rule does apply equally to a lawyer who is pro se as a lawyer who is representing another client because of the purposes behind the rule. And if you were to read that opinion, you would find that it focuses pretty heavily, and I think for obvious reasons, on what communications look like in that context with a represented party. And so, in terms of our recipe, that is a rule that highlights and applies the concepts of what is an appropriate level of communication and as well as issues of potential pander in the behind the scenes concept, while also working through the notion that the rule is intended to allow the parties to discuss with each other whatever they want, even if they're both represented by lawyers. And then you have ABA Formal Opinion 501 from 2022, which focuses on, at some level, an issue that lawyers might look at and see as being outside of the five ingredients of the recipe in terms of the broad brush, it delves into the weeds of what level of involvement or knowledge or direction is necessary for a lawyer to have responsibility for the efforts of third parties that are out soliciting clients for them. But I would pause it then when you look at that opinion, it really turns on the concept of candor in particular situations, and it turns on how communications should be made ethically. And so, it touches on two core aspects of the five aspects of the recipe. Now, do we get the same sort of concept out of looking at 2021 ABA Formal Opinions? I think so there were more issued in 2021 than in 2022, but I would say, the ones most noteworthy for lawyers out there, all in one way or another, can be reconciled in ways that involve where we started early today, with putting together pieces of the overall recipe to reach the right ethical outcome. ABA Formal Opinion 500 talked about the issues lawyers have to be able to navigate if there are language barriers between them and their clients. And it's obviously a communication opinion when it comes to looking at our recipe. But while it's obviously a communication issue, it is not one that is always easily addressed in terms of ensuring proper communication, but it is a situation that lawyers, if they're focused on the recipe requires that I be able to appropriately communicate with my clients both in terms of content and frequency. It is one in which the lawyers will fully understand that if I'm a lawyer tasked with representing a client who only speaks a language I don't speak, I'm going to have to be able to put something into the representation to allow for appropriate communication that may very well be an interpreter, that may have to be a family member, that may be a piece of technology that allows us to communicate. Or likewise, if you are representing a lawyer who is hearing impaired or site impaired or has some other impairment, the opinion helps walk you through what you have to do to do it. But my proposal is that the recipe would alert you of the need to have to solve those issues even if you did not know the nuance of the ethics rules that were involved and the outcome in ABA formal opinion 500. 498 also issued in 2021 addresses a whole range of issues arising from virtual practice. And it focuses very importantly upon the importance of maintaining confidentiality in virtual practice settings. A key component of the recipe but also a key issue that lawyers focused the recipe would already know has to be addressed during time periods in which they find themselves practicing law virtually rather than in an office and representing and communicating with clients only on virtual platforms. Opinion 497 also issued in 2021 is a noteworthy ethics opinion that just focuses on a conflict issue. Again, one of the pieces of the recipe. And specifically 497 is a deep dive opinion to help explain by example and by issue what types of conflicts really involve materially adverse interests rather than falling into one of the other conflict categories. And ABA opinion 4 96 which I think if I were taking bets, will probably turn out to be the the longest lasting, most important opinion either because it will continue to be the way the ABA model rules are interpreted and will be something that more and more lawyers know and understand and are aware of or its prominence will drive change in the ABA model rules. And that's because 496 is the opinion that lays out the explanation for lawyers about an issue we touched on just briefly earlier, which is how your obligation of confidentiality to your clients under model rule 1.6 and to your former clients even under 1.9 hamstrings you from being able to respond to online criticism in a way that perhaps you might like to respond. And what it explains quite well under the rule as it is currently written is the difference in the parts of model rule 1.6B that give lawyers discretion to reveal, disclose or otherwise use confidential client information in more traditional settings where the language of the rule says there is a dispute, there is a proceeding, there is some sort of formalized situation in which the underlying concept of fairness says: Clients should not be able to use confidentiality as both a sword and the sword and a shield just like it's well established, you cannot do it on the privilege things like client does not pay their fees so lawyer has to bring lawsuit to collect past due fees, or client files bar complaint against lawyer. Lawyer is entitled to disclose confidential information as necessary to defend themselves or things like that. But that the actual language of model rule 1.6 does not work well if what a lawyer is trying to say is, you know, a client has unfairly gone on Yelp and left a negative review and I'd like to respond to that review by explaining why what that client is saying isn't true and why the problem in the relationship was the client and not the lawyer. Because that is not the kind of dispute that is encompassed within the rule as written and the rule as adopted in most jurisdictions probably including yours, nor is it a proceeding. And so lawyers find themselves under the existing rule being in a position where you will see some lawyers have gotten disciplined for going online and responding in kind to online criticism. But the opinion also walks through consistent again with the confidentiality recipe that that analysis becomes different if the person posting something online was never actually the lawyer's client, but is for whatever reason spoofing or impersonating or otherwise because that duty of confidentiality never adhered to someone the client never did business with. So while the concept of the recipe is not a fail safe, having provided you the hypothesis, I think it demonstrates that if all you know is the ingredients of the recipe, if all you know are the five things you have to be alert for an attempt to comply with, you likely can figure out the requirements of a very large number of specific ethics rules. And with the time that we have left today in an effort for better or to try to prove whether this hypothesis works, let's talk about what those rules would be when tied to the ingredients of the recipe. So when we look at competence, if you are focused on the ethical ingredient of competence, you are likely going to be able even without knowing the details to comply with a number of rules. Model rule 1.1 is the most straightforward and it's obviously really what you'd have to start with of what do you even mean when you say competence 'cause that's the rule that requires you to have the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. It gets you to comment two which makes the point we made earlier that that lawyer who used his client to try to bridge the gap between his resources and his opposing counsel's resources that you can get to competence through the association of another lawyer to help. And it also would get you squared away with comment eight, the sort of duty of technological competence that's in the ABA model rules and has now been adopted by, I think more than 40 US jurisdictions that you also have to keep up with and know the benefits and risks associated with relevant technology. Focusing on competence on the recipe will likely help you comply with rule 1.3, which requires a lawyer to act with reasonable diligence and promptness and points out in comment two that you have to make sure that you've controlled your workload so that each matter that you have can be handled competently. An issue that often happens with lawyers in high volume practices where things can otherwise slip through the cracks. And compliance with competence and recognizing that's an important ingredient to ethical lawyering would also get you in compliance with model rule 3.1. Even if you didn't remember that that rule says you can't bring or defend a proceeding or issue in a proceeding unless after a reasonable inquiry you have a basis in law, in fact for doing so that is not frivolous. Communication, in terms of the recipe for ethical lawyering communication. If we break down what communication would teach you is if you're focused on it, you're likely gonna be able to comply with model rule 1.4 , which is really the core rule about communication in terms of timing and content that you have to promptly inform your client of any decision or circumstance where the rules require the client's giving you informed consent. You have to reasonably consult with the client about the means by which you're going to accomplish their objectives. You have to keep the client reasonably informed about the status of their matter. You have to promptly comply with reasonable requests for information. You have to consult with the client about whatever limits there are on what you can do if you know you're dealing with a client who's going to expect improper assistance. And then model rule 1.4 , which is the other key component of the one rule most squarely addressed to communication. 1.4 says: You have to explain a matter to the extent reasonably necessary to permit the client to make informed decisions. And if you focused on that as the ethical ingredient of the recipe on communications, you would avoid many of the problems that you see if you do that review of disciplinary cases in your jurisdiction. There are admittedly a few other rules beyond just 1.4 for example, that tee up special communications issues for lawyers and tell lawyers what they should or shouldn't say like model rule 1.13E talks about how a lawyer representing an organization, what they should be saying to the individuals with whom they interact, who are agents of the organization or constituents but not the client themselves. And rule 4.3 tells you what you should or shouldn't be saying to a person that you know is unrepresented. But again, those special kinds of issues, if you think about them through the lens of the recipe, can become answers that just involve remembering a three ingredient recipe. You know, making sure you don't say the wrong thing to constituents of an organization when you represent them can be viewed as a combination of complying with your duty of communication, complying with your duty of candor and and complying with your duty to avoid conflicts that can't be waived. And the same thing about knowing what you can't say or what you shouldn't say to an unrepresented person versus what you can. Again, that same three ingredient recipe, your duty of communication, your duty of candor, and your duty to avoid conflicts of interest without consent will get you to knowledge necessary to comply with Rule 4.3. Candor to the tribunal as a subset of overall candor. Knowing what we talked about in the recipe about candor will keep you on the straight and narrow and in compliance with versions of ABA model rule 3.3. Those talk about the the lawyer's obligation to speak the truth directly to courts, also not be misleading by omission. So again, if you can't stay silent and you don't have the ability to say the truth on behalf of the client, you have to make sure you are not false in any way, and that includes being misleading by a mission. And at least under the ABA model rule, you even have to be truthful with the court when your duty of confidentiality to the client would otherwise be required. And it is in a candor, again, an example of at least the one flaw in my five part recipe is what to do when two ingredients collide. And this is another example of how important it can be to know if your jurisdiction has adopted the ABA model approach or something different because some jurisdictions will actually say when these two ingredients collide, that your duty of confidentiality supersedes your duty of candor to the court such that all you can do is seek to withdraw because then you are at least avoiding being used as a vessel or submitting false statements of others. Candor again gets you to the right outcome under several other rules involving your duty of candor to others like 4.1, both it's component and its component about not knowingly making false statements of material factor law to any third person. And then the parts of 4.1 that sort of serve as a corollary to the duty of candor to the tribunal, but in transactional situations it would also get you to compliance with Rule 7.1, which is the rule that says: You can't make a false or misleading communication about yourself or your own services. It gets you to compliance with your duties under ABA model Rule 8.1 where you have to be truthful in disciplinary proceeding. And 8.4 the rule that says a lawyer simply can't engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Conflicts, focusing on the conflicts component, as we talked about, will get you into compliance with several aspects of the model rules. 1.7, which lays out all of the general rules of the road owed as to current clients. Where 1 involves direct adversity conflicts, 2 involves material limitation conflicts and explains how material limitation conflicts can involve your relationships and duties to current clients as well as duties to former clients, third parties, and even your own personal interests. And then 1.7 involves that framework for waiving conflicts and obtaining form consent. So important to the recipe and in most jurisdictions under the model rule approach for certain, you've got special issue of addressing joint representation of criminal defendants. We talked about a specific 1.8 situation, but again, focusing on conflicts gets you to the right outcomes under these prohibited situations of business transactions and clients soliciting substantial gifts, which we talked about. And then even things that are more specific to situations. But if you make them parts of this recipe of conflicts, plus you'll realize the right outcome about providing financial assistance to clients ability, inability to limit perspective, malpractice liability or otherwise subtle claims. And these plus you comply with certain communications and candor burdens. Prohibitions on acquiring proprietary interest in subject matter of litigation and even the rule about why you can't acquire literary or media rights in the middle of a representation. And then of course there are additional conflicts of interest issues for former clients and other special circumstances. 1.9 lays out for you all of the issues associated with substantially related tests and independent prohibitions on revealing or using information to any sort of former client's advantage. 1.10 is that rule about imputation of conflicts to other lawyers in the firm that we talked about earlier today about why conflicts can be such a bigger issue even outside the disciplinary context, the larger the size of your firm. And again, there are special rules like 1.11 and 1.12 about government employment and judges and arbitrators. But most of those special rules can still be described as multiple components of this ethical ingredient of, sorry, recipe ingredients of ethical lawyer for conflicts of interest where you put conflicts plus a couple of other components and you're going to get to that correct outcome. And finally on the Cs confidentiality, focus on confidentiality under the recipe it's gonna get you to the correct outcome as long as you remember the places you're looking are 1.6 to start with, which establishes that sweeping breadth of client confidentiality as well as the disclosure parameters for implied and explicit client consent. Again, model rule 1.6 is where you find all of the discretionary exceptions where lawyers are permitted to make disclosures, and 1.6 adds a little bit of the duty of competence and communication with confidentiality about making reasonable efforts to protect against mistakes or malfeasance. And then model rule 1.9 extends that duty of confidentiality to former clients, but with some different rules for permissible disclosure. And then model rule 1.18 also gets swept in by focusing on confidentiality and you would be pretty safe to figure out that it extends certain aspects of your duty of confidentiality to prospective clients, but does tie the ability to reveal or use to the same standard that exists as to former clients. So that's pretty much the end of today's discussion at the higher level. I'll leave it to you whether I have taken the hypothesis and actually made it something worthy of proof. But again, I find that this recipe, at least at a high level, will serve lawyers well. I do again, encourage you, feel free to reach out and read what Michael Kennedy has written as he's added a couple of additional Cs to it. Also, his content's pretty good to start with. But again, just as a reminder, I very much appreciate everybody's time today. I'm Brian Faughnan, I practice law with Faughnan Law PLLC in Memphis. My bio is somewhere on the Quinbee site or provided with your materials. If you have any questions you think I might be able to answer or if you found the flaw in this recipe, please feel free to reach out to me. But otherwise, I hope everyone stays safe. Thanks very much.

Presenter(s)

Brian Faughnan
Sole Practitioner and Owner
Faughnan Law, PLLC

Course materials

Handout

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Pending
    Alaska
    • 1 ethics
    Available
    Arizona
    • 1 professional responsibility
    Available
    Arkansas
    • 1 ethics
    Approved
    California
    • 1 ethics
    Approved
    Colorado
      Pending
      Connecticut
      • 1 ethics
      Available
      Delaware
        Pending
        Florida
        • 2 ethics
        Approved
        Georgia
        • 1 ethics
        Approved
        Guam
        • 1 ethics
        Available
        Hawaii
        • 1 ethics
        Approved
        Idaho
          Not Offered
          Illinois
          • 1 professional responsibility
          Approved
          Indiana
            Pending
            Iowa
              Not Offered
              Kansas
                Pending
                Kentucky
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                  Louisiana
                    Pending
                    Maine
                      Not Offered
                      Minnesota
                        Pending
                        Mississippi
                          Not Offered
                          Missouri
                            Pending
                            Montana
                              Not Offered
                              Nebraska
                                Pending
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                                • 1 ethics
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                                • 1 ethics
                                Available
                                New Jersey
                                • 1 ethics
                                Approved
                                New Mexico
                                  Not Offered
                                  New York
                                  • 1 ethics
                                  Available
                                  North Carolina
                                  • 1 general
                                  Approved
                                  North Dakota
                                  • 1 ethics
                                  Available
                                  Ohio
                                  • 1 professional conduct
                                  Approved
                                  Oklahoma
                                    Pending
                                    Oregon
                                    • 1 general
                                    Approved
                                    Pennsylvania
                                      Pending
                                      Puerto Rico
                                        Not Offered
                                        Rhode Island
                                          Not Offered
                                          South Carolina
                                            Not Offered
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                                            • 1 ethics
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                                            • 1 ethics
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                                              Not Offered
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                                              • 1 ethics
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                                                Not Offered
                                                Virgin Islands
                                                • 1 ethics
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                                                • 1 ethics
                                                Approved
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