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Legal Ethics Overview and Common Violations

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Legal Ethics Overview and Common Violations

This one hour presentation will provide a fast-paced refresher on the foundational Rules of Professional Conduct governing our daily lives as practicing attorneys. We will also explore the most common ethics violations attorneys make – often inadvertently – to provide guidance on avoiding these most common mistakes.

Presenters

Gerald Connor
Partner
Margolis Edelstein

Transcript

Jerry Connor - Hello everyone, and welcome to today's presentation providing an overview of legal ethics along with some of the most common violations we see. My name is Jerry Connor, I'm a partner in a law firm called Margolis Edelstein, and I practice primarily insurance defense law in the state of Pennsylvania. Today's program, however, will not be state specific and will really focus on the Model Rules of Professional Conduct upon which really every state and jurisdiction's rules of professional conduct, rules of ethics, whatever your state calls them chances are they share an awful lot in common with the Model Rules and are perhaps taken verbatim from the Model Rules. Now, if you look at the material, certainly we always put a disclaimer out there. This is general knowledge, general information based on the Model Rules, and everything we talk about may or may not be exactly the same as the rules you need to follow to maintain your professional licensing. However, across the country, certainly the basic rules of professional conduct apply and all of the same theories and goals that are put out in the Model Rules that have made way down to each state's exact codified rules are really very similar, so we'll talk about some of the very broad principles that are in place and they'll apply really no matter where you are. But of course, always review your own rules in whatever state or jurisdiction you're licensed to make sure you're keeping everything professional and make sure you're maintaining your license and your clients in the way you should.

Now, where did the Model Rules come from? They were adopted by the American Bar Association in 1983. And as I mentioned, they serve as the model for ethics rules for just about every jurisdiction. They're based on a Model Code of Professional Responsibility from back in 1969. And before that, you have to go back to the Canons of Professional Ethics that started in 1908. So, these theories are certainly not new, and some of the basic ground rules for being a competent and professional attorney certainly predate even 1908. This is a great refresher for any of us to spend an hour looking at some of the big issues we need to address just to always kind of keep ourself focused on the ground rules that are really going to help us take good care of our clients, be good attorneys to other attorneys, to the courts, and certainly to our clients first and foremost. The Model Rules are not truly binding, but again, they provide a very good foundation upon which really almost every state has adopted something based at least in part on the Model Rules. In these discussions, what I always like to highlight first and foremost are the two options in the rules. The rules certainly are almost always a shall, a forceful statement that really needs to be taken at face value these are the things you need to do, you must do, you shall do. We'll see as we go through some of the top rules of conduct, some of them are a may, you don't have to do certain of the duties or obligations that are set forth there, but you may. Those are few and far are between, so we'll do our best today to try to highlight where you have any discretion at all in how you move your cases forward and how you conduct yourself, both with the courts and with your clients. But as we read through, most of these are mandatory, there is no discretion whatsoever, they're a shall, and we'll do our very best to highlight that as we go forward.

Well, where do the rules start? Well, as you would expect, 1.1, competence. Literally the very first rule that we deal with sets forth a very simple statement that has an awful lot of power packed into it. A lawyer shall provide competent representation to a client. Simple enough, be competent, and you shall provide that. It's not you if you want or you don't want, you must. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Now, of course, these Model Rules were written by lawyers and law professors. We have a layer of reasonably necessary for the representation, not a whole lot of ground game in the case law and the ethics opinions on what's reasonably necessary, but you really need to know what you're doing before you choose any client or decide to accept any case, but you need to be competent. Clearly, that's the foundation upon which the rest of the rules are based, know what you're doing. And as we'll circle ahead to some of the common violations, competence tends to be one of the most common reasons attorneys get themselves in trouble, they've bit off more than they can chew, they shouldn't have taken the case, they really didn't know their way around the intricacies of the area of law they wish to help their client on, and that is just a recipe for a disaster.

Rule 1.2, the scope of representation and the allocation of authority between the client and the lawyer. Again, a lawyer shall abide by a client's decisions. Again, simple enough statement that really has many layers to it. A lawyer shall consult with the client as to the means by which the client's objectives are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. May, that's our I think our first may. A lawyer shall abide by a client's decision whether to settle the matter, and that's critical. In my world, it's 99% civil litigation related to personal injury cases. When I make an offer to an opposing counsel, that offer I have to be able to rest assured will be communicated to the client because it's ultimately the client's decision whether to resolve the matter. Does that always happen? I'm convinced it probably doesn't, and the attorney may have already spoken to their client about a range of settlement. And if I make a low settlement offer, perhaps that's not being conveyed, but the rules would certainly suggest communication needs to be constant, a flow back and forth, but it's up to the client to decide what to do with their case, and certainly if they wish to settle the matter.

We're really going to limit our discussions here today to the civil side of the legal world, but you'll see, I left in some of the discussions on the criminal world just to really give kind of an outline as to how that may be different than what we're dealing with here. But overall, we're limiting ourselves here to the civil practice. And you'll see though, that these rules are generally very similar, but criminal law does have a few layers that we don't deal with in the world of civil litigation. How do you divvy up the scope of your representation? Well, first of all, it's critical to recognize that your representation of a client, even if you're appointed, again this is more on the criminal side, does not constitute an endorsement of the client's political, economic, social, or moral views.

Now, in my world, which is generally rear-end accidents and people slipping on snow and ice, that's really not something that comes into play a lot, but it's not uncommon that we're asked to represent a bar, a restaurant, an alcohol distributor, a tobacco shop, a club where there are different behaviors going on. Certainly, that's never meant to be that I endorse or don't endorse what's going on there, so that statement really just kind of puts it out there so that every attorney can go to bed at night thinking, "Well, I may not agree with what they do, but I'm here to represent them." A lawyer may limit the scope of the representation if it's reasonable under the circumstances and the client gives informed consent. This happens quite a bit in my world. We're asked to represent a driver who perhaps caused an accident or was at least involved in an automobile accident. I'm hired by the insurance company providing insurance coverage. But from there, that's the limit of my duty, our retainer letter is very clear on that. And again, we'll see as we go forward, written retainer agreements, especially when your representation is limited, are critical to have in place. But in my case, generally, I'm there to defend the client from a personal injury judgment. I'm not there to represent them if they've been injured. I'm not there to represent them if they feel that they have damages or a loss of use, or rental bills, or collision damages, or deductibles that they believe the other side may be responsible for, they need separate counsel for that. Their insurance company won't hire me to do that side of the case.

You can limit the scope of your representation, but do it in writing, be very clear what you're going to do and what you're not going to do. A lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the consequences of that course of conduct. Or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. And that makes good sense, certainly we cannot be used to perpetuate a fraud, certainly not a criminal enterprise, but people certainly need to be able to speak with their attorney open and candidly about how the law may apply to their proposed course of conduct. So, if you're looking for a safe harbor, there's one of the first safe harbors, you can't help someone break the law or commit a fraud, but you can discuss and counsel your client along those lines.

Diligence, Rule 1.3. What a simple sentence that really is so critical and so often overlooked. A lawyer shall act with reasonable diligence and promptness in representing a client. Now, many of you will say, "Yeah, no kidding," but yet many of us probably have a file on our desk that needs a little more diligence or perhaps could use a little boost in the promptness. And that, as we'll see as we go forward, really is again one of the best tools for malpractice avoidance. Keep your files moving, be diligent in responding. Again, if you're the plaintiff, you have the burden of moving the case forward. If you're the defendant, you certainly have a duty to try to get the case resolved in your client's best interests as reasonably as you can, but you need to keep your files moving. Again, one of the top five reasons attorneys get themselves in trouble is they let a case languish. And we're all guilty of it, but it's always good to either on a monthly basis, a weekly basis, a quarterly basis to do a very good diary of your files, take a look at where everything stands, and just write a letter, call the other side, call your client, keep people updated. Some law firms are very good at regular letters going out, many are not, but you have a duty certainly under your local rules and your applicable state rules to keep a file moving, act diligently.

Rule 1.4, communications. Again, dovetails perfectly with diligence. A lawyer shall, and again this is a shall, promptly inform the client of any decision or a circumstance with respect to which the client's informed consent is required. Reasonably consult with the client about the means to meet their objectives. You shall keep the client reasonably informed about the status of the matter. Again, really simple things that generate an inordinate number of complaints to your disciplinary boards. I can't get ahold of my client, my attorney, I'm sorry. I don't know what's going on, he never returns my phone calls. She never replies to my emails. So simple to handle those things, and again, we all have cases that we just don't wanna deal with for what I ever reason. And it could be the client, it could be us, it could be opposing counsel, but the easiest way to diffuse that situation is to pick up the phone, send a letter, and certainly that'll help you down the road if you do have a complaint filed against you. Continuing with 1.4, a lawyer shall promptly comply with reasonable requests for information. If your client writes you, calls you, sends you a letter, if people do that anymore, reply, respond. You may not have any substantive information and that's fine, but you certainly have a duty to respond when they ask you, "Hey, what's going on with my case?" You have a duty to consult with the client about any relevant limitation on the lawyer's conduct. When the lawyer knows that the client expects assistance not permitted.

So, if your client asks you to do something that you are uncomfortable with, that's outside of the scope of your representation, or perhaps simply not permitted under the rules of professional conduct, you need to let them know that and you need to, again, do this in writing. And we'll see the common theme here, writing has been expanded. And again, consult your local rules to see what constitutes a writing, paper and pen may or may not need to be done, but emails may or may not count, text messaging somewhat more dangerous, certainly much more ephemeral, but there's nothing better than a stamp on a letter and you keep a copy, certified mail still exists. I don't know the last time many of us sent certified letters, but that's an option and never forget that that's something that's so easy to do. You know, you have your little green card, they signed for it, they did get written notice. Some of the professional rules have not caught up to the internet so be very mindful as to what truly counts as of writing in your jurisdiction what we take as writings, emails, texting, goodness knows social media website, some law firms have internal communication systems that they share with their clients, kind of a sign in, and you can directly communicate in a protected, confidential manner with your counsel. Make sure if you're doing that, that is actually considered a writing as an acceptable and allowable means of client communication. It certainly may. And again, if you can reproduce those records in written form, you're probably okay.

But again, I can't stress enough, some of the rules haven't caught up with the way things are happening. And let's also throw on the layer of the post-COVID or the current COVID environment. Zoom video, email communications, texting have exploded during the pandemic when you literally could not meet with clients. So, if you've instituted new ways of communicating with your clients, make sure your local rules of conduct have caught up or at least provide an acceptable method that you're using to make sure you're preserving everything and that what you're doing in writing, however you define it is actually acceptable. Fees, again one of the top five reasons attorneys get themselves in trouble. Clearly, a lawyer shall not make an agreement for charge or collect an unreasonable fee or an unreasonable amount of expenses. And how do you determine what's reasonable? Well, the rules give us an outline. The time and labor required, the novelty and difficulty of the questions, and the skill requisite to perform the service properly. If you are coming up with your fee or your hourly rate, the likelihood, if it's apparent of the client, that if you work for this client you will not be able to work for someone else. Courts are regularly look at fees that are customarily charged in the locality, the amount involved, and the results obtained, the time limitations.If someone comes into you last minute and you need to reschedule your entire week and jump in on an injunction hearing, well, you may be able to charge more for that because that certainly is something that perhaps there's a premium that needs to get paid for all the reasons that are outlined in Rule 1.5. The nature and length of your relationship with the client, the experience, reputation, and ability of the lawyer or lawyers performing the services, whether the fee is fixed or contingent. These factors all come into play either with fee disputes or in attorney fee shifting statutes. Many statutes, whether they're federal civil rights actions, in Pennsylvania we have bad faith litigation, or oftentimes there's just contractual rights to attorneys fees that provide an endless dispute for a court to decide.

So, these are some of the factors that are looked at when someone says, "Hey, I'm worth $800 an hour," or, "I always charge $10,000 for a simple divorce." That's fine, but you wanna disclose that clearly in writing, preferably have the client sign off, make an informed decision that those are the fees they're willing to pay. And also, if it does go to court, you want to be able to articulate how you came up with that fee if necessary if there is a dispute. Now, Rule 1.5 goes on to suggest that you need to communicate all of this information to the client, preferably in writing before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis. If you change your fees, or the base rate, or the expenses, that shall be communicated to the client. This is very common in our work, we work with insurance carriers, but we also deal with self-insured entities or folks that simply need to hire us to defend them for any range of civil problems. We need to be very clear what the partner rate is, what increments we charge in, what the associated attorney fee will be, what a paralegal rate would be, do they pay postage? Who pays deposition charges? Do we pay those up front and collect them from the client?

In Pennsylvania, those need to be in writing, we shall do those in writing unless we regularly represent a client. If you have a longstanding relationship where you handle every case for Smith's Market. Well, once you've come up to terms with what that arrangement is, and you've handled 300 cases for them, the rules do allow a regularly represented client to not have to have a written letter every time. No downside to doing it, but there is that escape hatch, there is that safe harbor if in fact act your rules where you work or where you practice allow that. Contingent fees. Many attorneys certainly in the personal injury world operate on the contingent fee model. Generally, in Pennsylvania, attorneys will take one third of whatever recovery is achieved for someone who claims they were injured in an accident. That can be more or less if it's a minor's claim, minor being a young person under 18, those contingent fees are generally somewhat less and they'll need court approval. So again, as a practice pointer, if you're representing a young child or children who are injured, make sure you know what fees are acceptable for a minor's case in your jurisdiction 'cause chances are you're going to need a judge to approve it and it's going to need to pass that smell test. But a contingent fee agreement, any practitioner in personal injury needs to make sure they have a very solid contingent fee agreement. It shall be in writing.

Now, notice that's a little different than what we said previously, but a contingent fee agreement shall be in writing and shall state the methods by which the fee is determined. The percentages, what happens, does the contingent fee go up if there's a trial or an appeal? How is the fee based? Generally, an attorney if they win a $100,000 settlement will take the fee right off the top and then from there deduct all the expenses if the firm has in fact fronted these expenses and then the plaintiff is left with their recovery. That all should be done at the end. Again, and if you read the rule, clearly it says if there is a recovery, excuse me, there should be a written remittance to the client spelling out exactly how that came about. Now remember, that's a shall. So, if you do contingent fee work, have a solid agreement that spells out very clearly exactly how the fee is calculated, what the percentage is, if there's an inflation factor with the fee. Again, many attorneys are a third pretrial. If there's a verdict, some attorneys will take 40%. Workers comp cases perhaps have a lower contingent fee, but you need to know what's allowed in your jurisdiction and need to adjust your contingent fee accordingly. Rule 1.6, and again, it's a good time to kind of take a break and look back at where we've come. We're still in the rule in the ones. 1.1, we started with competence, we've worked our way through fees and now we're at confidentiality of information, 1.6. So, these are again the rules that we're focusing on because they provide the most broad foundation and really a good refresher of the most basic tenants of professional conduct that we're all dealing with regardless of what state or jurisdiction we're practicing.

But Rule 1.6, a lawyer shall not reveal information related to the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation. Now, what does that mean? Well, if you hire me and tell me, "You know, I broke my elbow in this car accident." Well, clearly, when I put my complaint together, you've impliedly authorized me to disclose that in the publicly filed lawsuit, that's what we're here to fight about. Now, your client certainly may share other information with you that it is clearly meant to be confidential. That can be shared, but you wanna have a client give you informed consent. And again, let's make sure we're doing that in writing or some form that will survive beyond the oral stage because it's critical should there be an inadvertent disclosure or a disclosure that you believe was critical to make or at least authorized to make, and it turns out the client disagrees, you wanna be able to clearly show that there was informed consent. A lawyer may reveal information relating to the representation. Now, this is probably the most critical may statement in the Model Rules.

So, when basically, when can you breach confidentiality? Well, you may reveal, you don't have to, it's certainly not a shall, but you may reveal information that you obtained through the confidentiality of your relationship to prevent reasonably certain death or substantial bodily harm, to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another, and in furtherance of which the client has used or is using the lawyer's services. What a powerful statement that is. And every state in the Union certainly has some level of escape hatch from the attorney-client privilege. But most states, Pennsylvania included, have it as a may. And again, look at the mountain you need to climb here, reasonably certain death or substantial bodily harm. You wanna make sure you can articulate after the fact if you decide your client is going to kill someone, harm someone, or cause substantial injury to someone's financial interests or property, you need to be reasonably certain of that outcome. Now, you don't have to be correct, right? How could you ever know? And again, if you prevent it, you'll never know what the ultimate outcome would have been, but you may reveal confidential information, you may breach that confidentiality, that real primary bond you have with a client who's come to you seeking your legal advice if you are reasonably certain that if you don't someone will get killed, someone will experience substantial bodily harm, or substantial injury to financial interests. Be very careful with that, you may wish to consult a legal expert or your local licensing board on a confidential manner before you even take those steps.

But remember, there is always that escape hatch, but again, it's a may, again, look at what your local rules say, make sure you don't have a shall there, much different. But on a may, a may opens up the idea of your discretion and what you reasonably believed provides the basis for that. But again, when we talk the shall and the may, I think this is probably the most significant may example that we'll we'll share as we review today. And again, we're on the may here to prevent mitigate or rectify injury. So, if your client has done something and it has caused injury injury to someone's financial interest or property, and you are sure that it has resulted or will result in the client's commission of a crime or fraud, you do have that escape hatch to go to the authorities or take whatever steps you can to try to mitigate what you are reasonably certain will happen.

You can break confidentiality to secure legal advice about your own compliance with the rules. That may be sharing information with your malpractice carrier, that may be sharing information with an ombudsman perhaps at your licensing board or your Office of Disciplinary Counsel. How else can you seek advice if you're not able to give a full airing of the confidentiality that you believe needs to be broken, or at least not honored as fully as your client might expect? So, the rules generally will provide that escape hatch. You have to be able talk to somebody about what you're concerned about, or it really would be a double-edged sword. You can on a very limited basis, you may breach the confidentiality to establish a claim or defense if there isn't controversy between you and your client. This most often happens with fee disputes, the client doesn't pay you. You have the ability to then on a very limited basis, as limited as possible, to go into court and say, "Yeah, I had a retainer agreement, I was going to charge $200 an hour, the guy didn't pay me." Now, are you breaching confidentiality? Of course, and we'll see as we move forward through some of the violations, there are some ways to at least try to mitigate that damage, but the rules do allow you to defend yourself. And if there is a lawsuit filed by you or against you, you are able to waive confidentiality or at least breach confidentiality. But again, you wanna take every step possible to make it as minimal, and as limited, and as kind of self protecting as possible. You may need to breach confidentiality to comply with a court order.

That's another one though you have to be very careful about that. Certainly, this is something that doesn't necessarily come up a ton, but how else do you check for conflicts if you're not able to at least share who you've represented. So, you know, you need to be able to at least identify your clients to detect and resolve conflicts arising from the lawyers change of employment, or from changes in the composition or ownership of a firm, but only if the information would not compromise the attorney-client privilege. This happens all the time when a new attorney is hired by a firm if they have an established practice, or their own base of clients, or have just worked with a lot of other clients in the past, there is an exception in the rules that allow you to say, "Yes, I represented company A and company B, and trucking company C." You certainly can't get into the details unless it's absolutely critical, but you can certainly share that with your perspective employer so that they can then check for conflicts and make sure you're good to go. And again, protect their client's integrity and their duties to their clients, and eliminate any conflicts that you may have by now working over there.

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential information. That's critical, as a practice point it's really good to on a monthly basis, perhaps on a quarterly basis, always with new employees, some who may have a lot of experience, some who may have never worked in a law office before, but it's critical to make sure your staff is well aware that they're going to be coming into contact with all levels of confidential information. And that information is as confidential to them as it was when it was relayed to the attorney. They can't go home and say, "Hey, guess who we represent? Hey, guess what this trucking company did. Yeah, that guy was on drugs when he had that crash." Completely inappropriate, completely in violation of the rules. And the type of violation of the rules that really rules upwards to the attorney or the firm who are certainly tasked with obeying and honoring the rules of professional conduct. So, the attorney has to make reasonable efforts to make sure everyone working underneath them isn't broadcasting information that they shouldn't.

Conflicts of interest. There are entire seminars that discuss every aspect of conflicts of interest. That's a little outside the scope here, but again, it's a critical discussion to have and to, again, just to kind of alert folks who haven't maybe given this a lot of thought since law school perhaps, but a lawyer shall not represent the client if the representation would involve a concurrent conflict of interest. That basically means the representation of one client will be directly adverse to another client. Or, again this is an or, now we're still a shall, but this is an or, there is a significant risk that your ability to represent one client will be materially limited by your responsibilities to another client, a former client, or a third person, or by a personal interest of the attorney. Now, that says an awful lot, and again, there are entire seminars talking about that, but you have several layers of duty that are spelled out there.

You certainly can't take a client if your representation will be directly adverse to another client. I can't represent Walmart in a slip and fall lawsuit and then tomorrow sue them when someone slips and falls in the same store or a different Walmart store. Completely, completely unethical, completely in violation of the rules, and completely impermissible, I don't care what state you're in. But I also can't represent a client if I have duties to a former client. Perhaps I don't currently represent Walmart, but I did, I represented them two weeks ago, got the case settled. Well, I still had access to confidential information and really just cannot represent anyone against their interests.

I also can't take a case that I know I have a personal interest in. Again, that doesn't come up a ton, but that can happen in business transactions, or if I'm a stockholder of a company to take actions against a company, or perhaps accept a client who needs to file a lawsuit against a company that I own stock in. It may be in my interests that that lawsuit fail or a client not end up with a more aggressive attorney, completely inappropriate. So, your conflict of interest searches need to be very robust, but again, everyone in your firm, certainly all the attorneys need to be well aware of who the firm represents, who it can't. And if you come to the decision that you have a conflict, that may not be the end of the discussion. Not withstanding a conflict of interest, you may, again now we're back in the may grounds here, right, we're back in the land of may. You may represent a client if you reasonably believe that the lawyer will be able to provide competent and diligent representation. It's not prohibited by law, but only if the representation is not a direct claim by one client against another, and each client gives informed consent, confirmed in writing. That's a written requirement. Almost always better to stay away from those type of conflicts. They do come up and they're not always inappropriate.

In our world, in the civil litigation world, that happens oftentimes with trucking cases where we're asked to represent the truck driver and also represent the company. Sometimes we can, more than often we cannot because of the trucking company will try to distance themselves from the actions of the driver, and the driver may attempt to allege mechanical difficulties or some other kind of independent liability against the trucking company so they're both going to have adverse interests, especially if the trucker is named directly. So oftentimes, we just cannot represent both sides. Sometimes we can, oftentimes in those cases though, we will wanna have informed consent. Comes up in snowplow cases where we may represent an entity in one type of case and then we represent a snowplow company who allegedly didn't plow or salt a parking lot properly. Well, the owner of the property may or may not be involved in that case, but in theory, you have a conflict of interest, but that's not uncommon that they'll wave it and say, "Hey, you guys did a good job plowing, our people did a good job salting, we're not gonna point the finger at each other." They'll give informed consent, and then you can represent another person if their interests are separate and apart. But again, that's something you don't have to do, but if you're going to do it, be careful and get it informed consent and do it in writing.

Well, now we've finally left the ground floor, so to speak, of the rules of professional conduct to Rule 2.1. this is just a very nice general statement, I always like to include it. Attorneys can also be considered advisors, a counselor, and in representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to the law, but other considerations, such as moral, economic, social, and political factors that may be relevant to the client's situation. So, before you decide how you wanna handle that type of discussion, take a look at your rules, make sure your rules allow you to factor in, or at least counsel on other topics, right? A lawsuit may be a dead winner, a complete victory, but the social costs, or the risk of bad publicity, or negative business factors may suggest that there's a different way to handle that.

As an attorney, you're generally allowed to kind of give the good, the bad, and the ugly, or at least several options. Someone's gone to you for your independent legal advice and you're able to render that independent legal advice. This provides a safe harbor when you decide to talk about some of the other options that are out there. Expediting litigation, wow. Again, one of the top probably two or three most common violations of the rules where attorneys are reported to their licensing board is failing to expedite litigation. A lawyer shall make reasonable efforts to expedite litigation consistent with the interest of their client. That's a shall and, boy, that makes sense. Again, you'll see that all of these rules kind of connect at some level. The overall goal is to provide competent representation to people who clearly need your advice. We have special training, we have special education, and more importantly, we have a license to do what we're doing. We need to make sure the public, so to speak, are protected and their rights are respected.

Rule 3.3, candor toward the tribunal. Again, a basic state statement, a lawyer shall not knowingly make a false statement of fact, or law, or fail to correct a false statement. We also have a duty to not fail to disclose controlling legal authority. We can't play cute with that. Certainly, a lawyer shall not knowing, now again, there's a little wiggle room there, a lawyer shall not knowingly offer evidence that we know to be false. If we've become aware of the fact that one of our witnesses, or our client, or party has offered material evidence and we know that it's false, we shall take reasonable steps to correct it, including disclosure to the tribunal. A little bit different in the criminal world, but we're not here to talk about that. Candor toward the tribunal continues, we need to make sure that if we know someone is going to engage in criminal or fraudulent conduct related to the proceeding, we need to take reasonable remedial steps, again, including if necessary alerting the tribunal. The minute you do that, you'll certainly then wanna follow-up with a petition to withdraw from the case. It's hard to fix that once that cat is out of the bag, but be very careful of those challenges.

Attorneys can get themselves in a lot of trouble with that, but the rules do provide your duty to the tribunal. And in some of these rules it's actually a little bit greater than to your client. You can't perpetuate a fraud upon the court, and you have a duty of candor to the tribunal to the extent that you need to take remedial measures. And oftentimes that's defined as letting the court know my client is going to lie, my client just lied. Let's sort this out. You wanna make a record of that and you wanna make sure that the client is well aware of what your plans are, and you can discuss that with the client. First, remember, go back to the rules. You can communicate with your client and say, "Hey, if you do this, that's going to force me to do that." You may wanna put that in writing. Again, that's super confidential stuff, but you need to cover yourself at that point because you may have a conflict with your own client and you're opening yourself up to a malpractice suit, but you also don't wanna deal with a disciplinary action if you can avoid it.

Rule 3.4, fairness to opposing counsel. Again, you can't unlawfully obstruct someone's access to evidence, you can't falsify evidence, you can't tell someone to falsify evidence, you can't have them testify falsely. You certainly can't knowingly disobey a court order unless you know you have a valid excuse of privilege or some other safe harbor. Practice point. This is critical, you can't tell your clients to get rid of social media evidence that destroy Facebook photos, anything with social media. Again, Quimbee offers some excellent courses in social media discovery and preservation, and your duties of that. This law didn't exist 10, 15 years ago. There's a huge body of case law now, but be very careful that you're not telling your clients, "Hey, get rid of those pictures of you on vacation when you just said you've never traveled in the last five years since the accident." They can make their settings private, they can't get rid of evidence, you certainly can't conceal documents or have them destroyed. Fairness to opposing party and counsel again, you can't make frivolous discovery requests, you cannot put evidence in or suggest there'll be evidence that you know won't be supported. You can't testify yourself, personal knowledge. All kind of basic things, but again, the world has developed and many of the rules haven't caught up or the case law hasn't caught up yet. So, when in doubt, always seek either guidance from opinions of your local disciplinary board or your malpractice carrier may have a 1-800 number, and your bar association, either at the local level or at the state level may have resources where you can really try to get answers for this. And again, the rules, if you remember, do allow for you to disclose some of these concerns under the protection, which turns out to not be a violation of your duties to your client. Misconduct, here let's end on kind of where this all leads.

Rule 8.4. We all have a duty to maintain the integrity of the profession. Oftentimes, the law is called a self-policing profession, which it is. Judges certainly can report an attorney for misconduct, but separate and apart from your clients having concerns, we all have a varying level of duty to report misconduct that we see. Now, it is a violation of the rules, and again, it's misconduct, to violate or attempt to violate the rules or knowingly assist someone else to do that. Commit a criminal act that reflects adversely on our honesty, trustworthiness, or fitness as a lawyer, engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. These are all things that get us into trouble. Anything that can be considered conduct that is prejudicial to the administration of justice or state, now this is interesting, state or imply an ability to influence improperly a government agency or official. "Hey, I know the mayor, we're good here. Hire me, give me a $10,000 retainer, we'll get your project approved." And you certainly can't do that with a judge's help.

Now, this is a newer rule, Rule 8.4. Let's read it specifically. Your local rules may or may not have caught up with this, Pennsylvania's have. But this is a relatively new one, it's G in the Model Rules. It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. Now, the rule does provide a safe harbor, that doesn't mean you have to accept, or cannot decline, or withdraw from a case. It also doesn't preclude legitimate advice or advocacy, that's again, one of your foundational duties, but it is a definition now that it includes misconduct related to harassment or discrimination. It's caught up to the world we're living in currently that now discusses sexual orientation and gender identity. Your bar rules may not have that specific language, some states have chosen not to adopt this in verbatim form, they may have different rules about certainly some of the more traditional basis of discrimination, but our world is changing, the practice of law is changing, and the Model Rules have now caught up with some of the new battleground issues that we're dealing with. Take that to heart, that's an incredibly important and significant development in the rules of conduct, and it can be easy perhaps to run a foul of it. So, you wanna make sure you understand exactly what your local rules allow or don't allow. But again, it's just a perfect statement of being very careful of your behaviors so you don't run a foul of professional misconduct.

As we discussed at the beginning, the rules provide very detailed analysis. Our goal here today was to review the foundational kind of aspirational rules that we all need to keep in mind more often than not honestly. Never hurts to have a refresher, and I hope we're providing a good refresher here today. But what are the most common ethics violations? So, how do you get in trouble? How do you stay out of trouble? We have about just a few more minutes, but I wanna make sure we at least touch on these important practice pointers so when you leave today you have a better sense of what your duties are, or perhaps a refreshed sense of what your duties are, but also how to stay out of trouble. You do not want a letter from your disciplinary board, you do not want a phone call from your disciplinary board.

Take these, I don't think they're the top 10 'cause they keep expanding every time I do these seminars, how do we get ourselves in trouble? Failure to communicate. You have an ethical duty to keep your clients informed. Put every file on a diary, every 30 days send a letter. We're working on discovery, I'm waiting to hear back on this, that, or the other. Send a letter, keep it, keep a record of it, keep a copy of it so there's no doubt you've done your very best to keep your clients informed. You've failed to return an important document. The documents are the client's property. In this day and age, you certainly can maintain your own copy. But if someone says, "Hey, I need my deed back." "Send me my will." Don't play hostage with documents and don't drop the ball by being unresponsive, get people their documents, their photographs, their items, whatever is the document that is not yours to keep, get it back to the client.

Number three, you've demonstrated incompetence. Well, remember the rule at the very beginning? Be competent, so how do you avoid that? Well, don't be incompetent. Know the cases you're taking, make sure you're only taking the appropriate cases within your comfort zone and within your level of expertise. Common ethics violations included the conflicts of interest, you didn't pay attention, you are gonna get in trouble, you didn't pay attention to what could turn into a conflict down the road. Not uncommon, but again, you need to catch that as early in the process as possible. Financial issues, you're charging excessive fees. Where more attorneys get themselves in trouble are they steal money, or they rob Peter to pay Paul, or they use settlement funds inappropriately and then when the time comes to actually make the client whole, they don't have the money. Financial issues, having bank accounts that are not properly adjusted and kept in account with your local rules of your financial integrity.

Common ethics violations, we talk about competence. Again, I can't stress that enough. Many attorneys are desperate to take work, they say, "Well, how hard could it be?" Well, you don't know, but make sure you're competent when you take a case. Diligence, again one of the foundational rules we talked about. Keep your files moving, make sure you follow up and follow through. Keep your schedule under control and stay organized. Have fallbacks, make sure your schedule and your calendar catch everything, and have backups to your backups. Conflicts of interest again, I don't want to beat that horse dead, make sure you're following your rules and getting informed consent. If you think you can represent several folks, make sure. Financial issues are always one of the top problems for attorneys. Regularly, we see ethics opinions where they commingle funds, they don't keep individual ledgers for each client, they borrow in quotes attorney, or client attorneys borrow client funds 'cause they need to pay their rent. Well, that money should go back to the client, obviously.

This is basic stuff, but boy is it dangerous. Missing deadlines, make sure you have a diary system, a calendar system that everyone has access to, everyone recognizes the importance of it. Perhaps a written calendar, an online calendar, maybe you have a separate calendar. Your secretary has a separate calendar that you don't have access to, and every week you get along on a Friday and say, "Okay, what do I have next week? I have that, I don't have that." Fallbacks to your fallback, safety nets are critical. Don't miss the statute of limitations, almost no way to fix that for your client other than your malpractice claim. Filing deadlines, you wanna make sure you're well aware of what you have to do in order to be proficient, but also not to miss deadlines. If you need more time, ask for more time. In the COVID world, I don't think I've ever seen a judge not give people more time, but boy you need to just ask, make sure your other attorneys are okay with that.



And again, again remember we have a duty to our profession, don't withhold an agreement on giving someone a few extra minutes, or days, or weeks if it's not a critical thing. Always agree to give more time on a case management deadline 'cause you're gonna need that at some point too. COVID has put an entire new level of stress and mental health issues. Substance abuse has been a real challenge that the bar of every state has tried to work through. Make sure you're keeping a work-life balance, but also don't be afraid to put reasonable limits on when you can be bothered by a client. And bother is probably not the correct word, but manage client expectations on communications. You may not jump every time you get a text on a Saturday night that, "God, my son was dropped off three minutes late for our custody meeting," that may or may not be critical, but you need to manage those expectations. And that's always very important from the very first meeting with your client, not just from a communication standpoint, but you need to be candid and make sure they understand how you fit into their life and how you don't necessarily have to fit in. Being mindful of client access to your cell phone or your personal email. Not uncommon, especially with COVID, but it may or may not be something you want to share. Poor client relations, again return calls, emails, texts, keep your clients informed, let your clients know.

Again, how do you avoid problems at the end? Well, it's effective client screening at the beginning. You'll know within five minutes if someone's probably not a client for you. Make sure you're screening for the clients to avoid, keeping an eye on the conflicts. Again, you have a duty of competence so don't take a case that you need to learn about or that you just simply are not competent to handle. Watch your venues. A lot of attorneys now are taking cases in far flung venues because it's all remote. Well, at some point it may not be, and if you're not prepared to travel 500 miles to get to the courthouse, don't take that case. You may or may not have any control over judges, but again, if you know a judge is difficult and you do not belong in front of them for any number of related reasons or unrelated reasons, avoid it. Make sure you're only practicing in the correct jurisdictions. If you're doing research, make sure it's good. Don't get involved with clients on a financial basis, a business interest, a joint venture. Don't lend your client's money, and certainly don't have inappropriate sexual relations with them. We'll try to move forward here, again as we wrap this up, make sure everything is documented, retainer agreements, billing, hourly rates, who's going to handle their file. If you have to sue your client, be very careful about disclosing confidential information.

In Pennsylvania, we're able to put a confidential information sheet on top that says, "Please keep this confidential so the public doesn't have act access to it." That's a matter of course, your jurisdictions may or may not have that, they probably do. If you're going to refer cases out or take a referral fee, the clients need to know that and approve of that. Be careful if you notarize documents or your staff notarizes documents. This became am a little fast and loose with COVID quite honestly getting documents signed, attorneys notarizing things that perhaps they didn't actually see the client sign. Goodness forbid an attorney actually signing something they shouldn't. How do we take away all this information? Well, recognize you may be sued, you may be reported for misconduct. It's not uncommon, and it will probably happen in all of our professional lives sooner or later, it doesn't mean you're gonna get sued. And chances are, I think 90 some percent of ethics complaints are resolved in a phone call without any formal disciplinary action being taken, even at the most low level, but have malpractice coverage. It may be mandatory in your state, it may not be mandatory. You may have to disclose whether you have it or you may have to disclose that you don't have it. That's all fine, but make sure you're doing it.

Remember, I said these rules keep getting longer and longer. We're up to 21 in some of the violations, be careful that you are not practicing law in a jurisdiction which you are not licensed. Zoom and remote technology has made that not common, but make sure that whatever you're doing in another state, if you're taking depositions, if you're giving advice, make sure that that could never be seen as an unauthorized practice of law. Zoom has muddied that up just a little bit. This also affects corporate counsel, in-house counsel who represent companies that have offices in several states. Just be very mindful that you're not practicing somewhere where you're not authorized to do so. Last but not least, inappropriate conduct during remote depositions or proceedings. This is not uncommon, we've actually had this in my home jurisdiction here where remote depositions turned into coaching sessions and it's been established. We have a case pending where a judge specifically was able to watch a video, hear the soundtrack, and conclude unequivocally that the defense attorney was in fact coaching a witness clear as day, couldn't be more clear. That attorney has since been reported to our respective disciplinary board.

So, how do you get yourself in trouble? Well, it just keeps increasing, but the very foundational rules that we reviewed in the very beginning provide a very good set of protections. And essentially, nothing's foolproof, but if you stick to what you know, keep your files moving, play fair with opposing counsel, be straight with the judges, be as concise and clear and candid as you can with your clients, you should do okay. Get things in writing, make sure you do your very best to keep open lines of communication. If your client calls, call them back. If the judge asks you a question, give an honest answer. If you need more time, just ask for it.

With that, I wanna thank you all for participating. I wanna thank you all for giving us your time and attention. This was a great opportunity for a nice, quick, fast-paced refresher on where the ethics rules stand. As always, check your local rules, see if some of the newer developments that we've talked about have actually made it to your respective jurisdictions. With that, I thank you for your time and attention on behalf of Quimbee. Please consider us for all of your educational needs, and I thank you for your time and attention. Take care.


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1h 2m 36s

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