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Ethical Issues in Practice

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Ethical Issues in Practice

In this course you will learn some of the most common ethical issues faced by lawyers today. We will address changing ethical obligations related to technology advancements as well as overseeing the actions of third-party vendors and non-lawyers within a law firm. We will also discuss the importance of attorney-client retainer agreements and ongoing duties owed to clients including communication and avoidance of conflicts.

Presenters

Brian Pezzillo
Attorney & Counselor
Howard & Howard Attorneys, PLLC

Transcript

Brian Pezzillo- Oh, good morning. Good afternoon, wherever you might be. Welcome to today's presentation. We're gonna be discussing ethical issues in the practice of law today. My name's Brian Pezzillo. I am an attorney based out of Las Vegas, Nevada. I practice here in Nevada, as well as Arizona, Colorado, and New Mexico. A little bit of background about myself. I've been an attorney, in my 26th year of practice now. I've previously served on the Southern Nevada Disciplinary Panel, dealing with ethical issues when lawyers have complaints brought against them, and there are potential disciplinary matters being brought by the State Bar. So I have some background and experience in various ethical issues, as well as just in general and having practiced law. I've practiced in the area of construction and development for most of my career. And I also now practicing the areas of data, privacy, cybersecurity, and issues like that, which we're actually gonna touch on here today in certain areas with regards to our duty as lawyers to be constantly vigilant in our knowledge of all things that affect the practice of law, including technology as it changes and the privacy rights and privacy concerns of a lot of our clients, as well as third parties.

 So we're gonna cover a lot of topics here today in our one hour together. Obviously you can only cover so much in one hour. And so we're taking a 60,000 foot view of various ethical issues, which we all face in the practice of law. We're gonna touch on some of the bigger ones such as forming the attorney-client relationship, and very importantly, ending the attorney-client relationship, governance of non-lawyers, paralegals, legal assistance, can include runners and anybody else within a law firm. So duties from the point of view of a managing partner or supervising partner, as well as the duties of a brand new associate right out of law school, and what ethical duties do you have because the second you take that oath, you are in fact, practicing an attorney and you are held to the same ethical standards as anybody else will be dealing with how to hopefully not have to deal with online reviews that maybe paint you in a negative light, which you can and cannot do in terms of doing that as well as things such as retainer agreements, fee disputes, that our duty of communication with clients and some nuanced issues along with all of those things. By no means, is this a complete and total overview of every ethical issue we have to be concerned about, but it hopefully will give everybody an idea of things to keep in mind in every case that are common in every case, and will hopefully keep everybody on the right side of any ethics complaints, which may or may not ever get filed, hopefully not, but if you practice long enough, you may very well run into a disgruntled client who decides to take an issue to the State Bar, even though it may not be legitimate.

So with that, let's start with attorney-client relationships. A lot of issues can come about and not understanding when an attorney-client relationship actually exist and when it's formed. So the test for whether an attorney-client relationship does exist is in fact subjective, and it's does the client reasonably believe that the relationship exists? So that's really important. It governs how we behave as attorneys, what statements we make, how we hold ourselves out when we're dealing with people. If for some reason we're talking to somebody and we're giving the reasonable appearance that we are representing them, or we are giving them legal advice. If they subjectively believe that a relationship exists, that the attorney-client privilege exists, it will, even if we don't intend for that to happen, that's why we always have to be careful in terms of who we talk to, how we talk to them, and when we talk to them, those cocktail party conversations, when we're talking with somebody and they hear you're a lawyer and they start asking questions, those can actually be very dangerous, and they're a landmine of potential ethical issues. So be careful, you don't want to form an implied contract because that can and does happen.

When you are talking with other people, one of the most underutilized tools, in my opinion, is the non-engagement letter. We're all familiar with the engagement letter, hopefully we get those when we are representing new clients, but it's just as important sometimes to send a letter clearly stating to somebody, I do not represent you, you and I spoke, you are not engaging my services. And perhaps you have to rephrase that and state I'm not accepting the representation. There's nothing that says that a lawyer has to take everybody who walks in the door. So if somebody comes to you and perhaps it's a potential client, you have a formal sit down, you're sitting in your conference room. That evaluation is in fact protected by the attorney-client privilege.

But if at the end of that conversation, your determination is you're not gonna represent that person for whatever reason, maybe it's an area of law you don't practice in, maybe the case is too big and you just don't have the time for it, whatever the case might be, particularly if you've had a formal sit down discussion with somebody, send them a letter and email something that states pleasure to meet you, unfortunately, I'm not able to represent you. Maybe you send them to the State Bar to a referral service, something of that nature, but confirm you don't represent the client, when you do that, make sure that if you became aware of any crucial information, you put that in the letter. So if somebody comes to you and they have a breach of contract, many jurisdictions are written contract statute limitations of six years, well, if they're at five years and 11 months, you're gonna want to tell them, listen, in one month's time, you will lose your rights or potentially you will lose your rights. You need to go out and find another attorney as soon as possible, don't leave them hanging or with the mis-impression that they still have plenty of time. If you know something, tell them. I always like to warn people about what I term the fair of Bel-Air Butler" scenario If you haven't seen that movie, and it's probably dating me, I realize now that I love this movie and it scares me how long has actually been out now. But if you haven't seen it, it's great. And then there's a line in there, and I've taken the liberty of changing the line a little bit. And the situation we run into oftentimes is, my best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid, who's going with this girl who mentioned you're a lawyer, can I ask you a quick question? It's a family law question, but you'll probably know the answer. Well, if you don't do any family law, you might not know the answer.

If you engage in that conversation which is very difficult not to, right? We go to a family gathering, we go to a party, we go to a social event, we go to a concert and somehow it's brought up you're a lawyer. Somebody's gonna start asking you questions. "Hey, my friend's going through this divorce. Can I ask you a quick question?" You really might wanna say, "Listen, I'm a contract lawyer, I do business negotiations, maybe I'm a mergers and acquisitions attorney, maybe I'm a tax attorney, maybe I'm a criminal lawyer. You really wanna tell them, hey, I can point you in the direction to go get the answers, but I don't know the answers to your family law question. I don't know what child support's gonna have to be paid. I don't know what alimony is gonna have to be paid. It's just not what I do. So stay very general in those conversations. Nevertheless, keep that information confidential, even though it's not gonna result in an attorney-client relationship, when they're talking to you, it could be viewed as an interview, initial consultation. So don't go and tell somebody, God, the guy who was sitting next to me at the concert started telling me X, Y, and Z, and his cousin's getting a divorce. Her name is blank, don't do that. And I bring up the example of a concert, 'cause I've actually had that happen to me, where somebody was sitting next to my wife and I, learned just in casual conversation while we were waiting for the show to start that I was a lawyer and they started bombarding me with questions, and you just really have to be very cautious of that. If there's even a hint of a conflict, if they say, hey, it's a personal injury case, I'm gonna sue this concrete cement company, for me, I would tell them, stop right there, I'm a construction lawyer. I've done that for years. You've mentioned the type of people that I represent and I do represent somebody in that specific injury, I don't wanna know anymore. It could very well be that I am on the other side of that very case. So be careful.

You also, and I mentioned, you could be on the other side of that case, you don't wanna disqualify yourself in any way, in that regard telling somebody don't tell me any more information, may be the best course under model rule 1.18. And I'm gonna refer to the model rules pretty much throughout today, because most jurisdictions have adopted some version of that. You'll see me refer to Nevada law where we've adopted the ABA model code here, just cause it's happens to be where I am. Check your jurisdiction, always double check the rules. A model rules are just that they're models. They do get tweaked by different states. And so sometimes that tweaking can be significant. So always double check wherever you might be and just make sure the model rules can change and sometimes states take a while to adopt it. So always double check your state where you happen to be at.

But for purposes of today, model rules will pretty much be generally applicable and looking at rule 1.18, you won't be disqualified if you took reasonable measures to avoid exposure to more information than what was necessary to determine whether you were gonna represent somebody who came to talk to you. So if they start talking and then maybe they were very, very general explaining the type of case it was. And then they start mentioning names and you recognize the names, stop there. Take reasonable measures, tell them, don't tell me anymore, that person happens to work for somebody who is a client. I can't know anymore information because I may very well have a conflict here. If you keep the conversation going, even if you're just trying to help the person out, maybe, you feel bad for them, but if you keep that conversation going, you may find yourself on the wrong end of emotion to disqualify. And remember, our duty as lawyers is to uphold the rules of professional conduct to make sure that we are instilling confidence in the legal system and any potential conflict undermines that. So that a lot of times those potential conflicts, they're gonna be interpreted against us, and in favor of disqualification.

One area to be really cautious of as well is social media. Everybody's got a Facebook page, they've got a website, there's a ton of different types of social media platforms out there now. One rule to always bear in mind is, don't get too casual. Always remember any communication you have on there is binding on you, it's binding on your firm. You don't want to give specific advice to anybody, 'cause you can form that attorney-client relationship through social media, which is probably not what you really want to do. And you really have to be cautious, 'cause I know there lot of law firms out there, particularly in personal injury that are 24/7, and they actually have popup chat windows if you go to their websites and there's somebody there who can take your information, you really wanna be cautious about that and train the people who are manning those websites very carefully in those chats, such that they understand not to give advice, maybe their sole basis is intake. So they can pass that information along to a lawyer. Because whatever affirmative statements you say will be binding on you.

And again, you may form an attorney-client relationship accidentally there, and there's an American Bar Association opinion on that very issue that was dated March 24th, 2017. On your social media, always make good use of disclaimers to state, that this is not legal advice, I am not giving you legal advice. Anything that you receive through the social media is for informational purposes only, nothing is to be interpreted as creating attorney-client relationship. If you get too specific, you can end up overriding your disclaimer, but it's still very important to have it there, to protect yourself. When you are representing clients and a lot of times on the front end, you need to determine why you're gonna represent that client. There are some much things in many jurisdictions, most of the ones I've personally dealt with, limited representation. So you may represent a client for one purpose, but one purpose only, you're handling their worker's comp case, you're handling their DUI case, you're handling their speeding ticket.

The problem is clients don't understand that when you are a lawyer and you represent them for a specific purpose, that you might only be representing them for that very specific purpose. So they think if you represent me on my DUI case, you're gonna be my lawyer and my divorce case as well. That's a natural assumption for lay individuals who are not lawyers. A lot of people still have that mis-impression that we lawyers know everything. So I mentioned I do construction law. Well, a lot of people make an assumption. I also understand all the aspects of family law or wills and trusts, or I've been asked criminal law questions. The mere fact that I'm familiar with a topic and that it may have appeared on a bar exam 26 plus years ago, doesn't mean I'm qualified to represent somebody or even make very mean representations to them about a certain topic. I'm not gonna talk to somebody about tax law, that's not what I do. I'm really not gonna give advice on criminal matters because that's not what I do. But clients who maybe came to me for a contract matter will just assume that I also know about those things. People still believe that there's a magic book out there that when they ask a question, we lawyers run to it, look up that magic book, and it has all of our answers in it. And we know that's not true, but the general public doesn't know. So be cautious and make very clear that when you represent somebody, if you're doing it for a limited purpose, you make that clear. We'll talk about that a little bit more when we get to retainer agreements.

At the outset, when you're forming that attorney-client relationship, make sure you thoroughly discuss the client's objectives, understand what it is they want to do. Somebody comes to me sometimes and says, I didn't get paid for construction work, I did on a certain job, I want my money. Okay, that's pretty easy, but it's worth discussing more because they may want something that's more than just money, maybe they were badmouthed about that job. And their reputation's actually more important than the dollar figure in that particular case, discuss the objectives with the client. The objectives belong to the client, the goals belong to the client. The means to obtain the client's objectives will fall more to the lawyer. We're gonna tell that client, here's what the law allows us to do to meet your goals, and this is really important, here's what the law says we can't do to meet your goal. It's really important that we understand that and we convey that to our clients. They get emotional, even the most business savvy person dealing with the most dry, boring contract case in the world will get very emotional about that. And they think that you can do things that you really cannot do. So it's important that we explain to our clients as lawyers, what can we do, what can we not do. Create justified expectations for our clients. Don't tell the client that, yeah, I'm gonna get you a million dollars on this case. Tell them what their realistic outcomes are on cases. And that's a tough conversation because people want to hear they're gonna win. Sometimes you've gotta tell clients that you don't know if they're gonna win. There really is no such things as a slam dunk. I have two cases. I try to tell every one of my clients to explain to them the way the legal system can work, 'cause every client who comes to me is they're a dead bang winner, right? Every client who's gonna walk in your door like, I am right, the other is wrong, there's no way I can lose.

Here are the facts or at least hear are the facts I think that are important. I tell clients two stories.

One of 'em is an arbitration that I had not too long ago, less than a year ago, where I sat with a client, we put on our arbitration case, and the other side, it was a contract dispute, the other side actually admitted, no, we did not perform pursuant to the contract. The contract said X, we didn't do X, at the end of that arbitration, my client and I walked out in there and the client looked at me and said, "My God, that went perfect. I can't imagine how it could have gone better. The other side actually admitted they didn't do what they were supposed to do, and they didn't pay me the money they were supposed to pay. What else do we need?" And I told him, "You're right, that's the smoking gun, not often do you get the other side admitting to exactly what you want them to admit to?" We lost that case because the arbitrator in that case took it upon himself to create defenses that didn't exist and were not raised by the other side. Now my client was not necessarily, I don't know, the most likable person, so there could have been a personality conflict there and the arbitrator went out of his way to find for the other side. And needless to say my client went through the roof and was really upset when I informed him what the limited basis for objecting or appealing from an arbitration or filing a motion to vacate that arbitration award is, it's the very, very narrow grounds.

And I tell one other story, which was a client I had where somebody sued my client, it was a construction type case. We went in, filed a motion for partial summary judgment and prevailed just destroyed the other side. They brought in an expert, didn't matter, we won. We beat them so bad on one issue, that they came to me the next day and said, "Hey, can you talk to your client? My client's willing to just to walk away and be done with this. If you can get your client to agree to that." Which I thought was pretty reasonable. I knew my client would be upset that they had to get sued and go through the time and expense of winning on a motion, but nevertheless take the victory, told my client that, my client said absolutely not, I want all of my attorney's fees. The other side, unfortunately had no money to offer, to try and settle on those terms, even though the fees were not outrageous at that point, it was early on in the case. Later on in this exact same case, the exact same judge did a complete 180, and after finding for us on all of the issues and was going to grant us a summary judgment on the entire case, but said, there's a theoretical question of fact on one issue, I'm gonna let it go forward. Suddenly completely changed their mind and said, yeah, I don't know how you're gonna prevail on this. We ended up settling that case for six figures and my client could have walked away, having spent attorney's fees probably in the, I don't know, 10, $15,000 range. And instead, ended up paying a very substantial sum of money to settle the case because the exact same judge changed their mind.

No, you don't wanna see those things happen and they don't happen every day, but they can happen, and warning clients that those things can happen is important. You also wanna make sure that you can reassure your client, that you've got the ability to represent them in a case, you've got the know-how, you're familiar enough with the law in that area, such that you can represent them adequately. And likewise, you've got the time. One of the greatest problems to have as a lawyer is you've got so much work that you don't have time. Nevertheless, as lawyers, a lot of times we just feel compelled to take all the cases, right? We wanna be swamped right now 'cause six months from now, we just don't know, we can hit a low time. That's a very dangerous trap and you need to avoid it. You gotta make sure that you've got the ability to represent the client and you have the time to represent the client. And obviously, I think it goes without saying, you need to avoid any adverse interests.

When you've decided to represent a client, you've gotta decide how you're gonna bill them. Is it a flat fee? That's not done typically with litigation, but transactional type work that could be a workable solution, hourly rates, is it gonna be a contingent case? Is it a hybrid case? People get very creative where it's gonna be part hourly rate, part contingent. So maybe you take a lower contingent amount and you charge one half your hourly rate. Are you gonna charge a retainer? What kind of a retainer? Is it a retainer you keep and the client has to pay all of your bills going forward and you just hold that retainer and reserve? Or do you apply that retainer to all of your bills worked? And it's an evergreen retainer, meaning every month that you bill against the retainer, whatever that amount is, the client has to reimburse the retainer to keep it at a certain level. Costs, who pays them? How are they gonna be paid? Things such as we have costs for an expert witness, maybe you want that expert witness to enter into a direct agreement with the client, not with you, 'cause you don't wanna be on the hook for the costs. There's a group out there who does alternative dispute resolution, arbitrations and mediations. They make the attorney sign on and personally guarantee the bill on behalf of their client. Great for them in terms of trying to get paid, but I do know a lot of lawyers who will not use that group for that very reason and say, listen, I believe in my client, but I'm not their bank, and I'm not gonna personally guarantee anything for them. Discuss those things up front and discuss 'em with your client, and discuss the different options and which one they're most comfortable with.

Always deciding how are disputes gonna be handled with clients, that should be in your retainer agreement. Are you gonna go to arbitration? Is there litigation? Determine what is some jurisdictions may put limitations on what you can do in that regard. Always remind the client and it's important for the lawyer as well that the client has control of the major decisions. The goals of the litigation belong to the client, but minor issues, are you gonna give the other side an extension to respond to a motion or discovery? Typically that falls to the lawyer, but you really want to talk to your client about that, 'cause I've had some clients who don't want any decisions like that made without being run past them. So, be aware of that and know whether that's something that as a lawyer, in this particular case, you're gonna have permission to grant those, even minor extensions, always remember regardless of how you set this up, the client has right to terminate the attorney pretty much at any time. Specify the grounds upon which you can terminate the agreement, 'cause it's more difficult for a lawyer to get out of the case than it is for the client. Client can simply fire you. Lawyers, we can't particularly in litigation, we can't just walk away. Sometimes in other types of cases, it's a little bit easier, it's easier in arbitration, it's easier in transactional type work, always put in there big bold letters, all caps, a disclaimer that says you are not going to guarantee the outcome of the case. No matter what other discussions you've had, you're not gonna discuss it.

So even in that situation, so hypothetical, it actually happened to me, unfortunately, where everything goes perfect. A judge or an arbitrator might still decide against you. Nope, it doesn't happen every day, but it does happen. Always guard against any conflicts of interest. Under rule 1.7, once you've accepted that, well, let me back up. In the course of determining whether you're going to accept representation of somebody and then after you have, always keep guarding against any conflicts. On a rule 1.7, this is a continuing duty. So anything that poses a significant risk, that the representation of one client could materially limit your responsibility to another client. Even if they're not directly adverse, maybe they're competitors in business and that's gonna form an issue, you need to disclose that and then you're gonna have to go and you're gonna have to get consent from the client, making them aware of all the relevant circumstances and anything that's material and reasonably foreseeable, that could have an adverse effect. You gotta disclose that and get the consent of the clients. One thing to always be aware of too, is that it's not possible for lawyers to get consent of clients if it's necessary to reveal confidential information, to get that consent.

So if determining all of the relevant circumstances and telling your clients about all the circumstances would require you to reveal another client's confidential information, you can't see consent, you have to withdraw. This has to be done in writing. You must get this consent in writing and make a very clear record that you have the consent. Don't leave any gray areas here, 'cause it will come back to haunt you. It will be something of emotion in motion to disqualify. And if there's no consent there, basically the lawyer's gonna be dead in the water. One thing I also remember is that clients, they can revoke consent. So circumstances change in litigation, which sometimes they do, just be aware, the client can change their mind. Lawyers, we're in it for the long haul, we're bound by our representation. And we've gotta stick with our client unless some circumstance comes up that allows us to withdraw, but clients can revoke consent as circumstances change. One thing that's comes up a lot of times shifting gears just a little bit is, you get a client and maybe that client's in a different jurisdiction, they're are in a different state, what is the practice of law? Be really careful. Some jurisdictions have limitations such that just the sending of a letter constitutes the practice of law in that state. Other states don't have that, you could send a letter, you could engage in contract negotiations and that would not constitute the practice of law. So be really cautious about that and know the law of the state that you're gonna have to deal with. There is a move now towards a uniform licensure standard. Some states have adopted that, Arizona, Utah, I believe have both adopted that. There's a uniform bar exam. We're not there yet in many jurisdictions, but there is a move towards that. Keep your eye on it.

A lot of different jurisdictions do have reciprocity and that changes all the time. So, if you think you're gonna be doing interstate type of transactions, find out if you, A, need to get licensed to a different state, and then, B, how you go about doing that, five years is still that magic time period where you can wave into another state if you've practiced law for five years and you don't have disciplinary issues, et cetera, et cetera, but check into that. I think there's an increasing pressure right now on these issues because clients do want to have a one stop shop. They do want one law firm and they want you to handle all of their cases. I have some clients in the construction industry who now are contractors, they're licensed in multiple states. When they have a dispute, they want me to handle it 'cause I'm their lawyer here. We've got a good rapport and sometimes they actually get a irritated when I tell 'em, listen, I'm sorry, you're in state, whatever. I'm not licensed there. Maybe I can send a letter, but beyond that, we're gonna have to retain local council or I'm gonna have to get admitted pro hac vice, explain that to clients right up front. So check on licensing. And again, this also goes back to checking on your ability both time and knowledge of the law. Different states on the same topics may have vastly different law. Do you have the knowledge to be able to adequately represent the client and, or do you have the time to learn it? If you don't. Obviously know what the actions are you're gonna undertake, is it transactional? Is it arbitration? Some states have a pro hac, equivalent in arbitration, just like in litigation.

I mentioned demand letters that can constitute the practice of law in some state. Arbitration, I will tell you for instance, here in Nevada, by way of example, any arbitration that is court annexed or court ordered, you have to have local counsel here. If you just had an agreement that a points AAA, for instance, to be the panel that makes the determinations and it's contractual, only you're okay. But if it's related to the court, you do in fact have to go through a pro hac process. When you're trying to get your clients, what do you do? You're out there, you're advertising. Just be aware that any communication regarding attorney services has to be truthful. You can't do anything that's false or misleading, that should go without saying. And most of you're probably thinking, well, yeah, that's a no brainer.

The false part's pretty easy, but we're gonna take a look at a couple of cases here shortly where misleading really comes into play. So if there's any representation that's material or there's an omission of a material fact, that can be deemed misleading. And we're gonna take a look at a couple of examples here in a moment. Model rule 1.7 does make it very clear that any form of communication advertisement applies. So it doesn't matter if it's in person, on social media, on a website, if a third party is acting on your behalf, some firms employ business development individuals. If they're representing you, they're making comments on your behalf. They are your agent. Letterhead, professional designations account. If you're drawing comparisons between you and other firms, number one, I would probably tell you don't do that, but be really, but if you do, for some reason, draw a comparison, make sure that that comparison is fair and it's accurate.

So you can go out there and say, oh, I'm the best, but don't say I'm better than attorney X, Y, Z law firm. Best is a statement of opinion, better is a comparison. And there has to be something objective behind that. It's been the old rule. So be aware of that. Obviously false statements are prohibited. Truthful statements are also prohibited. I mentioned, if you omit any material fact that's necessary to make the statement truthful, the fact you left something out, it's a lie by omission, essentially, right? If any of you have kids, you're always telling them, hey, if you leave out an important fact when talking to you, that's still a lie. It's just a lie by omission, and it's a reasonable standard. So if it's a reasonable person would've been misled, then it's prohibited, particularly in areas like unjustified expectations. Again, use the appropriate disclaimers we've talked about.

I mentioned a couple of examples that come up with regard to statements that are true, but they're misleading and people were actually disciplined for. This first one is a case out of Indiana in Ray. I believe it's Huel Camp, a lawyer said, "Hey, choose a lawyer with 20 years of United States Marine Corps experience and a former assistant professor at Boston University." Everything in that sentence was true in that case. The problem is if you read that, it has an implication that, well, 20 years in the Marine Corps, he was Jack. And so he is 20 years of being a lawyer. Well, he never served a Jack, he wasn't a lawyer at that time. He was in the Marine Corps, that's true, but his job was not in Jack. He had no legal duties within the core. Former assistant professor at Boston University, again, completely truthful statement. However, in an attorney advertisement, that implies that he was like a law professor or at least some sort of legal professor. And he wasn't, as I recall from this case, he was a business professor. So two statements that are absolutely true, but they were misleading and the lawyer was sanctioned.

Another example was from Kentucky. Here, it was a medical malpractice case where the lawyer said, I believe my background provides me a strong basis of knowledge to protect your interest. A very truthful opinion. The guy probably thought he was a great lawyer. He's a problem. He'd only practiced law for two years and he had never handled the medical malpractice case. So he may have been brilliant, he may have really thought, hey, I can get up to speed on whatever legal issues I need to, however, making the statement that he had this background and a strong basis of knowledge, implied experience that he simply didn't have. And again, was sanctioned.

In the ABA model rules, they were done amendments made in 2012. One thing to note is that it used to be, you couldn't make false statements to prospective clients. They broaden that by saying, now you cannot make false statements to the public. So it doesn't even have to be a prospective client you're talking to, we're gonna talk about some other amendments, particularly here in just a second regarding the 2018 amendments, regarding accommodating technology, changes in social media, how those things work, social media again, where you're gonna be doing your advertising. You now have a duty to make sure, particularly if you have a third party acting on your behalf, a marketing company, perhaps, you need to be aware of, what they're doing, how they're doing it. 'cause the model rules have been amended and expanded to include liability for that.

So a rule that's been there for a while, model rule 1.1 has always stated that as lawyers, we have to maintain competence in what we do. This is now expanded and there's a specific comment eight, that states, that this is including the benefits and risks associated with the relevant technology. This can be a lot of different things. This could be dealing with our client's privacy, dealing with attorney-client privilege, how we communicate with them. This could be, nowadays the use of AI, artificial intelligence, like in discovery matters and the use of that, the use of computers, how we're gonna send large files, we have to maintain a certain level of competence to be able to adequately represent our clients. And so protecting their data for instance is critically important. By way of example, in Illinois, Model rule 1.6 there that became effective in 2016, you have to act confidently to preserve confidentiality. And so under common eight 18, it noted that you've now gotta take into consideration things like the sensitivity of information, likelihood of disclosure. What steps do you have to take to provide additional safeguards with regard to that information, and a cost benefit analysis.

A, do you have the ability to protect information? There is some information out there for some clients that is so confidential that it's lawyer's eyes only, you can't even show your staff or your assistant, or it needs to be encrypted at a high level. What's the cost of that? Is that cost gonna be passed onto your client? Is it gonna be difficult to implement those types of safeguards? And if so, can you still represent the client? 'Cause maybe you can't implement the safety precautions that your client information requires. So, if you had to acquire a specific type of hardware or software, that's very difficult to use, if it's necessary, but you can't do it or implement it in your law firm, then you have a duty, an ethical duty to not take that representation, and we all hate saying that, 'cause we don't ever want to turn away representations, but you have to, there was an ABA formal opinion back in 2011 that did say sending or receiving substantive communications via email is usually fine, although you do have to be cautious a lot of times there, but you should warn your client about the risk of receiving any electronic communication, whether that's email or text messaging, direct messaging, private messaging, Snapchat, whatever you want to use, you've gotta warn the client about that. So for instance, if you had a corporate client and you're doing labor and employment law, it's not gonna do anybody a lot of good if you're investigating an employee, but that employee has access to the email of say the CEO who you're taking direction from, you're gonna need to warn that CEO, listen, to do my job, there's a risk, somebody could access this email and see the confidential information and learn about the investigation we're doing, maybe we need to set up a separate email, maybe we need to only talk on the phone, warn the client.

Okay, that's really important. Clients don't always think through those things. As lawyers, we have a duty to think through those things. When we address those issues, always remember we have as lawyers, a duty to oversee the non-lawyers, that includes our peers. It's non lawyers, but it's also lawyers as well, subordinate attorneys, paralegals, legal assistance, the person who's running our IT department, whether that's internal or external, our HR departments, third party vendors, big, big risk area right there, your third party vendors. For a lot of companies, both lawyers and non-lawyers, the weakest link in protecting data is third party vendors. For lawyers, we've gotta make sure our third party vendors are doing the exact same thing at a minimum that we are doing to protect information, and that they understand what is expected to protect attorney-client privileged information. That's why a lot of times when we have document depositories, things of that nature, we will use companies that only deal in the law or primarily in the law that have an understanding of the need to keep that information confidential.

By way of example, with regards to duties, to supervise, rule 5.1 here in Nevada, and it's the same model rule that you would see with the ABA. You have to make sure that you have taken reasonable efforts to ensure the firm's got measures in place to guarantee that the rules of professional conduct are applied to everybody. What that really means is lawyers with a supervisory authority, partners are involved, take steps to know what's going on, stay active. Don't just assume that the rules are being followed. You need to have a system in place to guarantee that they're being followed. Aside from just ethics, a lot of malpractice carriers will require documentation that indicates that those process are in place. Be aware, a lawyer's responsible for another lawyer's conduct if the lawyer orders with knowledge or ratifies conduct that breached our professional rules of conduct. So if something happened and you ignore it and just accept it, you've ratified it, you as a supervising lawyer may be held liable ethically. Potentially, you could have malpractice issues there as well if it harmed the client. Any lawyer who's a partner or who's got comparable managerial authority or any direct supervisory authority has to take action when an event occurs and the consequences can be avoided and mitigated, it's our duty to do that. If we don't take that remedial action, that's a breach of the rules and professional conduct.

Rule 5.2 addresses subordinate lawyers. As I mentioned, day one when we took our oaths to be lawyers, we were bound by the rules of professional conduct. It doesn't matter how inexperienced we may have been, it may not matter that we were a lawyer for three out hours. The rules applied once that oath was taken, the only wiggle room there is that a subordinate lawyer will not be deemed to violate their ethical duties if they consulted with a supervisory lawyer. And on a matter that was maybe in a gray area, the supervisory lawyer made the call and directed the subordinate lawyer to act. But note, and particularly if you're a young lawyer, if something is black and white, it does not matter that you were "Just following orders." If the issue comes up later and your action violated an ethical duty. So if there was a duty not to violate attorney-client privilege, you were told to go ahead and do it, or you know of a definite conflict situation, it's black and white, you know there's a conflict, and you're told to ignore it, you can't, you've gotta speak up. That's an uncomfortable position for a young lawyer, but you have to weigh outcomes. By not saying anything, you're putting your entire career in jeopardy, by saying something, yeah, you're risking the IR of your supervising lawyer, but hopefully you're in a firm where there is somebody that you can go to to discuss that matter with.

I mentioned earlier, one of the issues we have to face all the time is responding to online reviews. It's just so common today, right? Lawyers get Yelp reviews. As a general rule, there's no ethical prohibition on responding to online reviews. My best advice to you, is probably what I would term very practical, but perhaps not legal, but that is think and breathe. I put deeply there in parentheses, really think through whether it's worth the effort in the aggravation to respond to an online review. They may not be, and if somebody posts in some area that quite frankly, nobody of any consequences ever gonna read, decide whether you wanna respond to it because by responding to it, you might fuel the fire and keep something going more than it needs to be.

've had that happen to me. I had a client once who frankly told me right on the phone, he was creating evidence. It was fraud, pure and simple. I told him, I can't represent you. I'm not gonna submit this evidence to the arbitrator in that case, because you just told me you're making it up right now. And he posted a negative Yelp review, I think it was Yelp or one of those review platforms. I had to just let it go. One of the reasons, sometimes you just let it go, is that the rule under 1.6 where self defense is an exception. If a client sues you for malpractice, generally you can then reveal attorney-client privilege information in order to defend yourself, that does not apply in online reviews. You cannot reveal confidential information to defend yourself. Remember, there's no ethical violation in not responding to an online review. And quite frankly, most of the time, they just die away on their own. Los Angeles County Bar Association issued an ethics opinion 525 and they gave some good guidance there. When could you respond? Well, you're allowed to respond as long as you're not revealing any confidential information. And they gave two, I thought good go bys, if you will, that you could actually cut and paste. Somebody posts something about you, you can say the allegation's false, but my ethical duties prevent me from responding any further and just leave it at that. Or if you want to go a little bit further, lower confidentiality, confidentiality obligations prevent us from correcting the factual background in this post. We are very proud of our track record of client satisfaction and favorable results, and leave it at that. Sometimes those things actually work to your advantage 'cause it makes it look like you took the high road and the client was just really upset because they didn't get what they wanted. What should you not do?

There's a couple of examples that I thought were amusing, Georgia lawyer back in 2014, who posted the matrimonial client's name, employer and legal fees that were paid, and then stated that her former client had a boyfriend, which was an issue in the litigation. No, that's not good, very, very bad. I know that's a very legal term, but very bad. In 2015 in Colorado, the attorney there revealed highly sensitive and confidential information and publicly shamed their clients in response to online complaints, horrible decision, okay? The knee jerk reaction to cast stone's back at somebody who cast them at you, always gets the lawyer in trouble. Another case at a Illinois, the client posted some negative publicity, we'll call it online. What does the lawyer do? Went out there and stated that the lawyer's client's own actions and beating up a female coworker are what caused the consequences he was now so upset with, that may have been true, that doesn't give the lawyer the right to go out there and air the dirty laundry of the client. And again, would anybody have actually seen that review? It's very hard to say. And then finally, an example out of Washington, DC, where the attorney got himself in trouble, but then got in more trouble by making a false post, claiming that he'd been cleared of all ethical in disciplinary issues, and that was just a lie. So, don't respond to an online post by lying to get around it, that in the law, I think we just call that really dumb.

So avoid that, be truthful, even when it's very inconvenient. And in many of those instances, just ignoring the review, it may very well be the best course of action. Again, keep really close track on third party vendors. Sometimes online marketers will make statements on your behalf. They've really gotta understand what your ethical obligations are because if they don't and they make a statement that implies that it's giving confidential information away, we, as lawyers are gonna be the ones end up pulling the bag. Always be aware of just other things outside of ethically issues as well, just so that you know, there are things like the FTC regulations that prevent deceptive and unfair trade practices. You make the wrong statement in a response review, you could find yourself not just in trouble with the ethics board in your state, but potentially violating federal or state laws that prohibit deceptive of unfair trade practices.

One of the big hot topics, obviously, it's always been the number one issue for lawyer, complaints still is, is communication. Under the rule 1.4, we have a duty to always promptly consult with the client on any matter in their case. We don't have to talk to 'em about every single thing. If you gave somebody a one day extension on discovery, you don't have to talk to your client about that under the ethical rules, but a client might still wanna know, keep the client informed about their case, respond or request for information, again, something we talked about earlier, conveying limitations on you that exist by virtue of the ethics rules. And always try to explain matters in a way such that the client understands them. My personal opinion on that is, I hate sound like a typical lawyer and saying, do everything in writing, but it's always a really good idea to paper the file so that if the client comes back later and claims you never explained what their case was like, you have something there. Short of that, having a diary of who you've spoken to, or a telephone log, whatever you want to call it, that notes spoke to client so and so on this date, on January, the second 2000, whatever, talked to the client explained the following issues. At least there's something there. It will help you. I once had a client complain about me and said that I hadn't informed them about their case.

Well, I had written documentation where I informed them about their case, including emails and the client actually ended up looking very foolish because I turned everything over to the state bar and said, listen, here's everything. I don't know what else I really could have done. And because the client ended up saying, well, yeah, but look, this person says, me, they say they sent something to me on a Saturday, and we all know lawyers don't work Saturdays, that ended up being their very best argument. And the bar just laughed at it and said, listen, can you send him one more letter? And I said, sure, of course, did, and the thing went away, why? 'Cause it was properly documented, indicating I had been in constant communication with this client, and some clients are very difficult. We all have 'em, I have one of 'em right now who insists on never communicating with me except via text messaging, which I've asked that individual not to do because they send documents that way, and it doesn't work very well. And every time we talk now, I have to send an email explaining what we talked about, 'cause they truly don't understand anything about their case and they have a very convenient memory. And those are the clients you have to worry about sometimes. Again, so the communication is the number one bar complaint. It begins at the intake. So the minute you start talking to somebody about their case, you're communicating, there's always that duty throughout the representation.

 And at the close, I mentioned, we're on the front end and we're on the back end. Communication on the backend is critically important. So when the matter is resolved and maybe the relationship is resolved between the parties, for whatever reason, maybe the case is just over, a closing letter stating that, it's been a pleasure representing you, the matter is now at a conclusion, we have performed all the services for which we were hired. Here is the outcome of your case. We now have nothing open and we'll be taking no further action. Our representation of you is concluded, or something to that effect, right? The lawyers can drafted however you want. And even if it's a client that you're still gonna represent in other matter, send a closing letter on one particular matter, just to clarify, this matter is now closed. So maybe you handled a contract matter, you're not gonna do the collections portion of it, you won, right? Your clients owed the money. Some law firms don't do collections, they farm that out to somebody else. Make sure the client knows that, that you're not going to try and collect on their judgment. Constant communication will minimize the amount of time that clients have to ask lawyers for stuff.

Sometimes clients, you give 'em an update and it does spur on 10 new questions, some of which are irrelevant, that's okay, just respond to them. Always give enough information so that the client can make an intelligent decision. What should be communicated? General strategy, prospects of success, tactics, anything of those nature always need to go to the client 'cause it affects their decision making in terms of what is their ultimate goal. And do they wanna continue to pursue a matter? Sometimes matters get worse as you go forward, and information is discovered that's not good. Sometimes the reverse happens. I've had cases that were, I call 'em marginal when we started. And then we discovered information as we were litigating that actually made the case look better, convey that to clients so that they can determine whether they wanna settle, whether they want to continue to litigate, ultimately, the control of the case is theirs. How you do that, that's where the lawyer comes in.

There are very rare circumstances where you don't communicate immediately to a client. One of the very rare circumstances would be if it would cause some psychiatric or psychological damage to the client, that's not gonna come up very often. And if you do find yourself in that situation, make sure you document the reason why you're not communicating. Do you have a doctor's note that says any bad information to this client could push them over of the edge. They're not mentally stable. Again, that's gonna be rare, but if it does happen, make sure you're covering yourself. Determine how you're gonna communicate. Is it phone, email, cell phone, text, you'll see there in parenthesis, I have discouraged. The reason being is text messaging is not really, it's not lend itself to complex legal discussions in terms of in depth discussion. And a lot of times, it's not viewed as being safe in terms of, is it encrypted? Is it a great way to send a lot of documents? Who's gonna see text messages pop up on your phone? Things of that nature. But again, communication will help manage client expectations, and it is a two-way street, and remind clients of that. Yes, we have an ethical duty to talk to them, but remind clients that they have to stay in contact with you. If they don't, you can't represent them. And that could become a ground to withdraw if the client is no longer communicating with you.

During communications, always remember that there's a privilege, the attorney-client privilege, and there's a duty of confidentiality. Those are two different things and two different ethical obligations. Privileges are very narrowly construed. I've put a case here from 2019, Anderson versus SeaWorld Parks where a media consultant was used. And the lawyer was talking with the media consultant, that was deemed not to be privileged information because it was SeaWorld dealing with a lawsuit regarding their treatment of animals and the media consultant, it was PR, in order to fall into the privilege around it, it must facilitate communication between the attorney and the client. So be very careful who you talk to. Confidentiality is much broader. You can only reveal confidential information after full disclosure to the client, you get permission, you cannot knowingly assist a client with criminal or fraudulent action. You can't use evidence you know to be false, and you can reveal confidential information in a defense to controversies with clients if you got sued from malpractice, not the online reviews though.

Fee agreements, always have one, and have it in writing. Some have to be in writing. Many, many jurisdictions require contingency agreements to be in writing, sometimes family matters have to be in writing in many jurisdictions, but my advice to you is put every type of fee agreement into writing, no matter what. Identify in that fee agreement, what is the client responsible for? What costs are they responsible for? When do they have to pay for them? Again, the type of retainer you want. We talked about that. Is it just an initial retainer? And then once it's depleted, it's gone, is it gonna be held? Is it an evergreen retainer? Will you require an additional retainer for trial? I highly recommend that if you do litigation. Trials get to be very expensive and more and more firms are putting out requirements in their fee agreements that's saying, if this is going to trial 90 days before trial, you must deposit $25,000 because that's how much this trial could cost. Lack of clarity oftentimes ends up creating disputes between attorneys and their clients. So try to avoid that whenever possible. And then designate how is money to be paid at the end of a case? Does it get paid to the trust fund of the law firm, and then from there, it gets paid to the client. Does it go to the client first? Put all of those things in that retainer agreement.

Again, we mentioned at the very top of the hour and it's hard to believe we're almost done, we've been together almost one hour now, be clear on what you're representing a client on and what you're not. If you're representing 'em on the DUI charge state, you're representing them on the DUI charge, and that is all. And that a separate agreement will have to be entered into for other items. So they don't think you're gonna go to family court for them. Update those retainer agreements as they become necessary. These agreements are very closely tied to communication and really form a part of it. Attorney-client disputes, again, we're ending where we began. And so we have come full circle. With disputes, always discuss the client's objectives, determine whether the means to obtain the client's objectives are within your ability to do so as a lawyer, to within the law. This started at the beginning, this continues all the way through the very end of the case and making sure that you avoid any of those adverse interest. So that that slide was there twice, and that was intentional. Always remember that overall goal belongs to the client.

Clients sometimes get really irritated with this one, but remind them any offer to settle has to be conveyed to them. Even if they said reject anything that's below $100,000, you still have to offer that $50,000 settlement that comes through. They may get mad, but do it anyway. Recognize who your client is. Are they sophisticated? Are they an individual dealing with litigation for the very first time? They're gonna have a different understanding of the law, and it's gonna dictate the language you use and the amount of time you need to spend with that client to make sure they have a good understanding of what it's going on. In any attorney-client relationship, there's a lot of different ways it happens. It just runs its course, decide whether the end of the case is the trial. Is it the appeal? Is it collections? Define that, and talk to your client about that. Is it when you're fired? That could be the end of the case, certainly. If you do get fired, some jurisdiction allow you to hold on a client to documents, some do not, some allow charging liens, which is a lien on the file. So that if there's a collection in the case, you get paid, others do not, make sure you know your jurisdiction, whether you have to withdraw due to ethical reasons, explain to the client what the issue is and whether it can be worked out or not. If you're in litigation, remember some times there's deadlines that you need to file, motions to withdraw by with courts, arbitration, they might allow you to simply to withdraw, but at the end, which is happens to be where we are at right now, rule 1.3 places the burden on the lawyer to clarify when an attorney-client relationship has been terminated. So if the case is over, make sure that your client understands that.

 With that said, my contact information is included with this. If you have any questions, any thoughts, anything that comes up after the fact, please feel free to reach out. Actually, I really like hearing about different issues people have had to deal with. I learn as much from these, as hopefully I'm able to impart to others. With that, I'm slightly over my time, but I hope that this has been very useful for you. Wish everybody the best of luck, let's all stay on the right side of our ethical duties. And it's been a real pleasure being here with you today.

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1h 2m 38s

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