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Skills for Success: Basics for the IL Newly Admitted Attorney

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Skills for Success: Basics for the IL Newly Admitted Attorney

This six-credit course is designed to help Illinois newly-admitted attorneys meet their first year MCLE requirement and impart fundamental skills paramount to the practice of law. Taught by expert faculty, the six sessions range from professionalism to time management. They are: Session 1: Strive to Thrive: Not Only Succeeding but Flourishing as a Junior Lawyer Session 2: Leveling the Playing Field Session 3: Conflict Conundrums — An Introduction to Legal Ethics & Conflicts of Interest Session 4: Professionalism: It’s More than Being Ethical Session 5: An Introduction to Legal Malpractice Claims and Related Ethical Issues Session 6: Doing More in Less Time For Lawyers. Please note that this six hour program contains two checkpoints total. There are not checkpoints within each individual course.

Presenters

Daniel Siegel
Attorney
Law Offices of Daniel J. Siegel, LL
Florina Altshiler
Litigation Partner
Russo & Gould LLP
Jan L. Jacobowitz
Founder & Owner
Legal Ethics Advisor
Jeffrey Cunningham
Partner
Goldberg Segalla
Larry Kunin
Partner
Morris, Manning, & Martin, LLP
Tracy Kepler
Risk Control Consulting Director, Lawyers’ Professional Liability Program
CNA

Transcript

Tracy Kepler:  Welcome to the program, Strive to Thrive, Not Only Succeeding, But Flourishing As A Junior Lawyer. My name is Tracy Kepler, and I will be with you for the next hour speaking to this topic. The term lawyer well-being may seem like an oxymoron. For a junior lawyer, the demanding hours, the pressures to bill, and the stressful work environments can be overwhelming and often have detrimental effects. It seems impossible to manage the high levels of stress and combat burnout, while at the same time, finding time for self-care.

    During the next hour, we will look at the data related to the prevalence of mental health issues and substance use disorders in the profession, particularly in lawyers under 30 years of age or 10 years out of law school and discuss certain indicators of burnout. In addition, I will present some best practices, effective strategies, and preventative measures that junior lawyers can implement so that they not only thrive, but flourish in any practice setting.

    The best way to start is to set the stage with some recent data on the health and well-being of the profession, and to get a feel for where the legal profession currently stands in relation to the historically substantial challenges presented by mental health and substance use disorders.

    In 2016, the ABA Commission on Lawyer Assistance Programs and Hazelden Betty Ford, published their study of nearly 13,000 currently practicing attorneys. The study looked at both substance use and mental health issues, and covered all age groups, diversity and geographic and practice settings.

    The research was published in an article entitled The Prevalence Of Substance Use And Other Mental Health Concerns Among American Attorneys and was published in the Journal Of Addiction Medicine. Respondents had to be an actively practicing attorney all across the country, urban, rural, diversity, different practice areas, years in practice and work environments, and different fields and practice areas.

    An interesting side note on the data was that the researchers thought that they would see a higher percentage of distress symptoms with litigators, but they did not. With regard to alcohol use, they used a questionnaire called The AUDIT 10, which has been found to provide an accurate measure of risk across gender, age, and cultures.

    It measures problematic drinking, including hazardous and possibly alcohol dependence. The results really turned preconceived notions on their ears. Rather than being more seasoned professionals with higher rates of problematic alcohol use, it was the younger attorneys, or attorneys younger than 30 that had a greater issue. 32% to 20% for all attorneys, and 6.4 for the general population.

    You can see the breakdown by age group in this table. We see the reverse relationship to ages, years in the field, and positions. Younger, less experienced attorneys working in junior positions had the highest AUDIT scores. Private firm or bar association, and junior Associates also had the highest levels.

    The survey also asked the question, whether you ever thought your use of alcohol or other substances was a problem? If yes, then before, during law school, within 15 years after law school, or more than 15 years out. 22.6 felt their use of alcohol or substances was a problem sometime during their lives. 27.6 reported problematic use prior to law school. 14.2% reported problematic use starting during law school. And of the most concern, nearly 50% reported problematic use that started within the first 15 years following law school.

    The survey also posed question about drug use. The survey used the Drug Abuse Screening Test, or DAST, which has been found to be a sensitive screening instrument for the abuse of drugs other than alcohol. There was a much smaller sample who completed these questions, and this may be the result of concerns about revealing the use of illegal substances, or abuse of prescription medications, all lowering the willingness of people to participate.

    Or it could be markedly fewer engages actually engage in this behavior. The data reflected that 24% were in the immediate to severe range of drug abuse. In response to the question, "What substances have you used within the last 12 months?" You can see the responses on the screen before you, with alcohol being the highest by far, followed by tobacco, sedatives, marijuana or hash, opioids, stimulants, and cocaine or crack.

    Another interesting data point for drug usage was whether or not the respondent had used the prescription drug without a prescription. 15.5% of that group had or was using the medication without a prescription. The good news is that the vast majority of attorneys that use these substances are actually using them legally with the prescription.

    However, think about the risk behavior for those licensed attorneys working in the field, engaging and using medication without a prescription, which means getting and using it illegally.

    The survey also looked at the mental health of attorneys. They use the DAS, which is a 21-item questionnaire, which includes three self-report scales designed to measure the negative emotional states of depression, anxiety, and stress. The percentages are on the screen before you.

    With depression, men had higher levels of depression than females. And interestingly, there was the same inverse relationship to the alcohol study where rates decreased as aged increased and junior positions had higher rates. Females had higher levels of anxiety than men. And the self-report question that was asked, were relates to mental health concerns over the course of a legal career.

    It was interesting that most reported anxiety, even though the instruments picked up depression at a higher percentage. It's possible that some people may interpret their symptoms of depression as anxiety versus depression, with ruminating thoughts, sleep problems, or general unrest.

    Suicide. The study demonstrated that 11.5% of respondents had thoughts of suicide, which is a lot of lawyers. This goes hand in hand with the high rates of depression in the legal profession. 2.9% reported self-injurious behaviors, and 0.7% reported at least one suicide attempt.

    Questions were also asked about why an attorney had not sought treatment or assistance for an issue? And two primary area areas of concern were shown. First, not wanting anyone to know or find out, the stigma. And second, concerns regarding privacy or confidentiality, that it might get out.

    Other reasons for not seeking assistance were the concerns about a negative impact on their law license or ability to practice. They did not have insurance or the financial wherewithal to cover the cost, or they just didn't know where to turn or who to ask. Concerns were not drastically different for the different areas.

    Significantly more people with alcohol and substance use problems, 67%, didn't want others to find out, versus 55% with mental health problems. Privacy and confidentiality also had higher percentages, and I think that this reflects that for lawyers, it may be more acceptable to get help for mental health concerns or to have a mental health concern, than it is an alcohol or substance use issue.

    Based on the study, we can see young lawyers are at risk. The younger the lawyer, the greater the likelihood of a substance use disorder or depression. All of this is opposite or was opposite of the current perception.

    Another more recent study was completed by ALM Intelligence and law.com in 2019. This survey had 3,800 participating lawyers, and more than 50% were at law firms of 500 lawyers or more. An overwhelming majority of legal professions or 74% believed that their mental well-being was worse off as a result of their chosen career. 33% responded that they had a heightened use of alcohol or drugs as a result of their work or their work environment. 44.48% admitted to dealing with their stress with alcohol, and 4% with drugs. And 17.9% admitted to contemplating suicide during their career, which is actually two times higher than the general population.

    Questions were asked about what about their job negatively impacted upon their mental well-being. Answers ranged from a feeling of always having to be on 24/7, 365, not being able to disconnect from work, billable hour pressures, lack of sleep, and client demands.

    Only 36% said that they used all of their vacation time, and even when they did take vacation, they couldn't disconnect or feel that there is an expectation that they should be responding to emails or calls or face negative repercussions for not doing so.

    Lastly, legal professionals said that since the window to disconnect is so small, the easiest and fastest way to relax or get from 60 to zero was drugs or alcohol. Interestingly, this study was just recently completed again in 2021, and showed worsening mental health struggles in the profession.

    In 2021, the World Health Organization published a study on working hours. The results and implications on the legal profession and the kinds of hours they work were startling. The study concluded that working 55 or more or hours per week is associated with a 35% higher risk of stroke, and a 17% higher risk of dying from heart disease, compared to working 35 to 40 hours a week.

    Long working hours led to 745,000 deaths from stroke and heart disease in 2016, which was a 29% increase since the year 2000. Working long hours is responsible for about one-third of the total estimated work-related burden of disease. It is the risk factor with the largest occupational disease burden.

    Sadly, it's not getting any better. The number of people working long hours is increasing. I would love to know the percentage for the legal profession. As you can see, it currently stands at 9% generally. This trend puts even more people at risk of work-related disability and early death.

    Another legal study was just published in May 2021. It is called Stress, drink, leave: An examination of gender specific risk factors for mental health problems, and attrition among licensed attorneys. 3,300 attorneys participated in DC and California. Roughly half of lawyers were found to be experiencing symptoms of depression and anxiety, with approximately 30% falling in the mild range, and just under 20% falling in the moderate to severe range.

    Over half of the lawyers screened positive for risky drinking, and 30% screened for high-risk hazardous drinking, interpreted as alcohol abuse or possible dependence. Women are experiencing meaningfully worse mental health than men and drinking more hazardously. And one in four women is contemplating leaving the legal profession due specifically to mental health problems, burnout, or stress.

    Despite 30% of attorneys screening positive for disorder drinking, only 2% report ever having received an alcohol use disorder diagnosis. The disparity clearly suggests an extreme level of under-diagnosis and treatment for a widespread problem, possibly owing to pervasive denial, the stigma, and a professional culture that normalizes heavy drinking.

    So, in addition to the study data, who are we and what do we face? And more importantly, how does that impact upon our mental health and propensity for substance use? While true that the studies reflect that the majority of lawyers do not have a mental health issue or substance use disorders, that doesn't mean that they're thriving.

    Many lawyers experience a profound ambivalence about their work, and the course we are on is unsustainable. Let's look at the structure in the legal profession that perpetuates unhealthy behaviors, starting with organizational factors, looking at devices. Technology is fabulous. The ability to work anytime outside the traditional 9:00 to 5:00 hours, connect at any time, in any place at the touch of a button is freeing. But the flip side is that the expectations that come with that freedom, you have to be there always to answer the call, respond to the email, respond to the client, file that brief.

    The billing structure. Billable hours and revenue generation are the two key metrics in how law firms compensate attorneys. Partners, including the most senior, have billable hour targets and their compensation may rise or fall with the achievement or missing of those targets.

    The pressure then to work seven days a week, to miss family events, to forego vacations, to miss needed doctor's appointments cannot be overstated. Junior Associates have all of that pressure, coupled with the desire to climb the ranks to partner.

    A 2015 study reflected that those lawyers with higher billable requirements cited less internal motivation, satisfaction, and increased levels of alcohol abuse. Oftentimes, we have a lack of support, lack of autonomy, lack of meaningful work, or professional growth.

    Some individual factors. We oftentimes have a skewed definition of success. We're on that hamster wheel chasing something that may not be in our best interest. Our denial is more entrenched and better defended through the use of our professional skills, our advocacy, our smarts, if you will. We are the advice givers, not takers. People come to us to solve problems, and we should be able to handle this on our own.

    We are not health professionals, but we think we can diagnose and treat a situation. Sadly, many of us are ill-equipped to recognize or address problems that impair our functioning as a lawyer. Embarrassment and weakness. What will others think of me? Think less of me or think I'm less competent. Maybe that means I'm not capable of handling my own problems and the problems of others.

    I think we also have trouble recognizing the symptoms. Stress is a normal part of being a lawyer. If I'm not stressed out all the time, well, then maybe I'm not doing it right, or I'm not good at it. Attorneys are always altering their definition of normal distress to avoid seeking help.

    Lastly, and sadly, hopelessness. No person or program, or doctor can help me. There are some life situation factors as well. Attorneys who are in crisis, their families, colleagues, support staff, are all reluctant to take action and get help. They have a friendship and a loyalty concern. If I say something, I'm betraying my friends.

    They're enablers. This really goes two ways. They are the people who make it easier for the person with the addiction to continue in their destructive lifestyle, or they are the people drinking and getting high with the attorney or judge and are there to reinforce destructive habits. They don't want to seek advice or help for their colleague because the party will end. Fear comes into play in the attorney or third party. "Maybe I'll lose my job." Fear of loss, financially and otherwise. The social stigma and just respect or love for the person not wanting to get involved.

    Client expectations. They are unrealistic oftentimes. They want it now. They experience a range of emotions and vent it all on us. Over time, like other professions, we develop compassion fatigue as a result of managing all of those emotions and solving all of the problems. In addition, there's a certain emotional dissonance. We encounter stress from the workload, yet we are expected to appear and be completely unaffected by it.

    As we are talking about burnout today, it's important to recognize the signs and symptoms of depression, and how the two differ. On the screen before you are a chart with the features of burnout versus a major depressive episode. You can see the core features of both common features, context, which is important because burnout is job-related and situational, versus depression being general and context free. Thought content as well as the course.

    So, let's look at the cost of burnout at work. Another way these issues are hurting the profession is at the bottom line, in the pocketbook. You can see some of the statistics from the cost of absenteeism, presenteeism, lost productivity, turnover rates, all as a result of various substance use and mental health issues.

    It is evident that lawyer well-being can and does contribute to organizational success. And for law firms and corporations, lawyer health and well-being is an important form of human capital that can provide a competitive advantage. We can see the cost of how much law firms are losing annually due to turnover, and $400,000 being the estimated turnover cost per Associate who leaves.

    Let's look at the cost of burnout to you. Looking at the levels of stress and burnout, as the pressure rises and stress level rise, the ability to function to adequately and competently represent clients decreases. And somewhere on that downward trajectory comes a bar discipline grievance, or a legal malpractice complaint.

    And looking at the cost of burnout to those you love, you are exhausted all the time. You've lost joy for the things you used to love. You're not present. If you're putting in long out hours at the firm, and you're constantly buried in your phone when you're not at work, chances are you're not carrying your own weight at home.

    Relationships aren't easy, but a mutually supportive dynamic is very important to a successful union. While that support will rarely ever be equally balanced at any single point in time, when it's consistently tipped to one side, it can cause resentments to build and create a rift in your relationship. Put yourself in your partner's shoes. Would you want to be completely responsible for everything when your partner is chronically absent, whether physically, mentally, or both? It's not exactly the type most of us would want to come home to.

    So that's a lot of negatives. How do we focus on the resilience, the hope, the flourishing, the thriving? And how can we not only succeed in our law careers, but flourish? What is well-being and how do we define it? Let's look at other prominent well-being definitions in social science research.

    They emphasize that well-being is not limited to an absence of illness, feeling happy all the time, or intra individual processes. Context matters. For example, the World Health Organization defines health as a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity. It defines mental health as a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community.

    Social science research also emphasizes that well-being is not defined solely by an absence of dysfunction, but nor is it limited to feeling happy or filled with positive emotions. The concept of well-being in social science research is multi dimensional, and it includes for example, engagement and interesting activities, having close relationships and a sense of belonging, developing confidence through mastery, achieving goals that matter to you, meaning and purpose, a sense of autonomy and control, self-acceptance and personal growth. This multidimensional approach underscores that a positive state of well-being is not synonymous with feeling happy or experiencing positive emotion. It really is much broader.

    Another common theme in social science research is that well-being is not just an intrapersonal process, context powerfully influences it. Consistent with this view, a study of worldwide survey data found that five factors constitute the key elements of well-being, career, social relationships, community, health, and finances. What matters is discovering the path that works for you, not a fad or a quick fix, but a practical, multi-tooled approach that helps you grow over time.

    So what is resilience? Resilience is all about being able to overcome the unexpected. It is your ability to withstand adversity and bounce back and grow despite life's downturns. Resilience is not a trampoline where you're down one moment and up the next. It's more like climbing a mountain without a trail map. It takes time, strength, and help from people around you. And you'll likely experience setbacks along the way, but eventually you reach the top and look back at how far you've come.

    Being resilient doesn't mean that people don't don't experience stress, emotional upheaval, and suffering. Some people equate resilience with mental toughness, but demonstrating resilience includes working through emotional pain and suffering. Resilience is important because it gives people the strength needed to process and overcome hardship. Those lacking resilience may get easily overwhelmed and may turn to unhealthy coping mechanisms. Resilient people are able to tap into their strengths and support systems to overcome challenges and work through problems.

    The next slide has the definition of well-being created by the National Taskforce on Lawyer Well-being. This came out of a group effort, a grassroots effort back in 2017, where the National Organization of Bar Council, the Association of Professional Responsibility Lawyers and the ABA Commission on Lawyer Assistance Programs, just to name a few. Joined together to develop a groundbreaking report called the Path To Lawyer well-being: Practical Recommendations For Positive Change.

    As a part of this report and recommendation, the group, of which I was a member, developed a definition of well-being. We defined lawyer well-being as a continuous process, whereby lawyers seek to thrive in each of the following areas, emotional health, occupational pursuits, creative or intellectual endeavors, a sense of spirituality or greater purpose in life, physical health, and social connections with others.

    Lawyer well-being is a part of a lawyer's ethical duty of competence. It includes lawyers' ability to make healthy, positive work-life choices, to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients. It includes maintaining their own long-term well-being. This definition highlights that complete health is not defined solely by the absence of illness. It includes a positive state of wellness.

    We also need to look at the challenges in our potential to find some equilibrium. We've talked about some of our challenges, but we also need to focus on the thriving, flourishing, and the potential. Things that help to make us well, that we have at our base, being physically strong and healthy is good. We also need to look for pro bono work, volunteer, contributions to society, feeling connected, and a sense of belonging, meaning and purpose in what we do. Willing to seek help, and also be a life-long learner.

    Let's look at five ways to improve well-being and boost resilience. This is in no way an exhaustive list. These are just five ways to get started, ways to focus on well-being and beat back burnout, and also, to strive to thrive. The goal with well-being is to figure out a set of habit building practices you can implement in your own life. Things that work for you.

    Your approach to well-being should be a holistic one. That is to say well-being isn't about making one giant change and suddenly transforming your life. It's about continually working to improve a number of different aspects of your life, so you can build a more or sustainable lifestyle and career. And while there's no one well-being strategy that works for all legal professionals, most worthwhile well-being strategies will incorporate these five elements.

    Gratitude. Why gratitude? Let's step back a minute. The word gratitude is derived from the Latin word [foreign language 00:31:10], which means grace, graciousness, or gratefulness, depending on the context. In some ways, gratitude encompasses all of these meanings. Gratitude is a thankful appreciation for what an individual receives, whether tangible or intangible.

    With gratitude, people acknowledge the goodness in their lives. In the process, people usually recognize that the source of that goodness lies at least partially outside themselves. As a result, being grateful also helps people to connect to something larger than themselves as individuals, whether to other people, nature, or a higher power.

    Gratitude makes us healthier. Studies have shown that people who practice gratitude report fewer health complaints, exercise more, feel better about their lives as a whole, report more hours of sleep per night, and awake feeling more refreshed, and feel more connected to others.

    In positive psychology research, gratitude is strongly and consistently associated with greater happiness. Gratitude helps people feel more positive emotion, relish good experiences, improves their health, helps them deal with adversity, and also builds strong relationships.

    How does gratitude work physically? Well, first, it boosts production of dopamine, similar to taking the antidepressant, Wellbutrin. It boosts production of serotonin, similar in the action to taking Prozac. And even if you can't find something to be grateful for, it still works. The process of practicing still works in that it is the searching that counts.

    What are some ways to build a gratitude practice into your life? There's always journaling, which is a great way to start writing things down. There's appreciative art, engaging in art to express gratitude, whether that be painting, collage, sculpture. You can make a gratitude photo collage, sharing joy pictures depicting the things that make us grateful.

    Writing a gratitude letter. Writing a letter expressing your enjoyment and appreciation of that person's impact on your life, and sharing it with them. Maybe even once in a while, writing one to yourself. There's also a gratitude jar, inviting co-workers to drop notes of gratitude in a jar, that are then read aloud once a week. Some others are to count your blessings.

    Pick a time every week to sit down and write about your blessings, reflecting on what went right or what you're grateful for. Sometimes it helps to pick a number such as three to five things that you will identify each week. As you write, be specific and think about the sensations you felt when something good happened to you.

    Meditation is another great way to improve well-being and resilience. Meditation can give you a sense of calm, peace, and balance, that can benefit both your emotional well-being and your overall health. Spending even a few minutes in meditation can restore your calm and inner peace. Anyone can practice it. It's simple and inexpensive, and it doesn't require any special equipment. And the best thing is you can practice meditation wherever you are, whether you're out for a walk, riding the bus...

 

Tracy Kepler:                                          Where you are. Whether you're out for a walk, riding the bus, waiting at the doctor's office, or even in the middle of a difficult business meeting. And these benefits don't end when your meditation session ends, meditation can help carry you more calmly through your day, and may help you manage symptoms of certain medical conditions. When you meditate, you may clear away the information overload that builds up every day, and contributes to your stress and later burnout. The emotional benefits of meditation can include gaining a new perspective on stressful situations, building skills to manage your stress, increasing self-awareness, focusing on the present, reducing negative emotions, increasing imagination and creativity, and also increasing patience intolerance.

    One thing to remember is, don't let the thought of meditating, the right way, add to your stress. If you choose to, you can learn about it at certain meditation centers or classes led, but you can also practice it easily on your own. And don't give up, it may take a few times to get the hang of it. Here are some ways that you can practice meditation on your own, wherever you choose focus. First, breathe deeply. This technique is good for beginners because breathing is a natural function. Focus all your attention on your breathing. You also want to scan your body. When using this technique, focus attention on different parts of your body, and become aware of your body's various sensations. Repeat a mantra. You can even walk and meditate. Combining a walk with meditation is an efficient and healthy way to relax. You can use this technique anywhere you're walking, such as a tranquil forest, on a city sidewalk, or even at the mall.

    Read and reflect. Many people report that they benefit from reading poems or sacred texts, and taking a few moments to quietly reflect on their meaning. And focus your love and gratitude. In this type of meditation, you focus your attention on an image or a being weaving feelings of love, compassion, and gratitude into your thoughts. You can also practice mindfulness. It's a pretty straightforward concept and word. It suggests that the mind is fully attending to what's happening, to what you're doing, to the space you're moving through. And while that might seem trivial, except for the annoying fact that we so often veer from the matter at hand, our mind takes flight, we lose touch with our body, and pretty soon, we're engrossed in the obsessive and ruminating thoughts about something that just happened or fretting about the future. And that makes us anxious.

    Mindfulness is the basic human ability to be fully present, aware of where we are and what we're doing, and not overly reactive or overwhelmed by what's going on around us. Mindfulness is a quality that all of us already have. It's not something that you have to conjure up, you just have to learn to access it. Mindfulness is also not obscure or exotic. It's familiar to us because it's what we already do, how we already are. It's also not a special added thing we do. We already have the capacity to be present, we just need to use it. Mindfulness has the potential to become a transformative social phenomenon, and the reasons why are anybody can do it, it can a way of living. It's more than just a practice, it brings awareness and caring into everything we do. And it really does cut down on needless stress. It's also evidence based.

    We don't have to take mindfulness on faith, both science and experience demonstrate its positive benefits for our health, happiness, work and relationship. And lastly, it sparks innovation. As we deal with our world's increasing complexity and uncertainty, mindfulness can lead us to effective, resilient, low-cost responses to seemingly intransigent problems. Mindfulness practices also enhance emotional intelligence, or EQ. Emotional intelligence is the ability to understand, use and manage your own emotions in positive waves, to relieve stress, communicate effectively, empathize with others, overcome challenges, and diffuse conflict. A high EQ is arguably as, or even more important than academic intelligence, regular IQ, for professional and interpersonal success.

    Emotional intelligence affects your performance at the firm. High emotional intelligence can help you navigate the social complexities of the workplace, lead and motivate others, and excel in your practice setting. It also affects your physical health because if you're not able to manage your emotions, you're probably not managing your stress very well either. It affects your mental health. Uncontrolled emotions and stress can also impact upon your mental health, making you vulnerable to anxiety and depression. If you're unable to understand, get comfortable with, or manage your emotions, you may also struggle to form strong relationships. This in turn can leave you feeling lonely and isolated and further exacerbate any mental health problems. It affects your relationships. By understanding your emotions and how to control them, you're better able to express how you feel and understand how others are feeling. This allows you to communicate more effectively and to forge stronger relationships, both at work and in your personal life.

    And lastly, it affects your social intelligence. Being in tune with your emotions serves a social purpose, connecting you to other people and the world around you. Emotional intelligence implies competency in self-awareness, your I ability to identify emotions and how your emotions affect your actions, self-regulation, motivation, empathy, social skills. You have empathy, you can understand the emotions, needs and concerns of other people, pick up on emotional cues, feel comfortable socially and professionally, and also recognize the power dynamics in a group or organization.

    Let's look at some basic stress management strategies. The first is to track your stressors. Use a journal to identify which situations create the most stress and how you respond to them. You also want to consider boundaries, setting limits. List the project and commitments that are making you feel overwhelmed, identify which commitments are priorities, and cut back on anything non-essential. Refrain from accepting anymore commitments until you feel your stress is under control. You also want to tap into your support system. Reach out to family or friends or mentors. Your friends or family or mentors may have tackled similar challenges, and have useful ideas and perspectives. There's no need to face this alone.

    Make one health related commitment. Do what you can to boost your health so that you have the energy and strength to tackle the challenges you are facing. One small step, like cutting back on excessive snacking, can have a positive effect. Along with boundaries, manage your devices. People who report constantly checking email or social media, typically report more stress. Give yourself a break over the weekend and in the evenings, put your phone to bed before you go to bed. Also, enhance your sleep quality. People who are chronically stressed often suffer from a lack of adequate sleep, and in some cases, stress-induced insomnia. Begin winding down an hour or two before you go to sleep, and engage in some calming activities, such as listening to relaxing music, reading a book or practicing relaxation techniques like meditation or mindfulness.

    And then lastly, seek additional help. If you continue to feel overwhelmed or are having trouble getting through your daily routine, seek help from a licensed mental health professional, or reach out to your state lawyers' assistance program. Remember the six R's of self care. Responsibility, taking personal responsibility for our own mental health, well-being, and resilience. The firm you work for may have a duty of care for you, your family and friends care about out you, but the person who has to live with you for the rest of your life is you. Taking care of yourself isn't selfish, it's sensible. Reflection, reflecting on how you are, what is happening, and how you're feeling about things. Relaxation is a way that suits you. Jogging, reading a book, mindfulness practice. Relationships, building supportive relationships with friends, family, or a partner. Know who to turn to when times are difficult.

    Refueling, eating a healthy diet, being conscious of alcohol intake. And lastly, recreation, engaging in regular exercise and having fun. So let's talk about how to engage in authentic and sustainable self-care. Many people never take the time to understand how their jobs affect them emotionally, be kind to yourself and put your own oxygen mask on first. Some ways to do this, we've talked about mindfulness, living intentionally, creating personal boundaries, exercise, decompressing, learning to say no, physical activity, engaging in hobbies, taking a vacation or a staycation, simple humor and laughing, as well as sleep.

    Self-compassion. It's easy to be tough on yourself. We tend to do it way too much, much more than we realize, but what if there was a better way? When we forgive of ourselves, accept our perceived flaws, and show our self kindness, we practice self-compassion. It's often a lot harder than it sounds, but with the right techniques, we can learn to make it a habit that sticks. Self-kindness. Self-kindness is about showing kindness and understanding towards ourselves when we fail at something, or when we're hurt. Rather than being critical or judging ourselves harshly when we already feel pain, we can recognize the negative influence of self-judgment, and treat ourselves with warmth and patience instead. Giving yourself the tenderness and care you need when you're going through a tough time, trying to understand and show patience regarding your own perceived personality flaws, and being tolerant of your own shortcomings.

    We have to remember that common humanity, that we're part of something bigger. These connections make a difference. And part of this is accepting and forgiving ourselves for our flaws. We're not perfect, but we show self-compassion when we go easy on ourselves for having limitations. Another part of our common humanity is realizing that we're not alone in being imperfect or feeling hurt. Rather than withdrawing or isolating ourselves, we need to appreciate that others feel the same at times. Perceiving your shortcomings as a natural aspect of the human condition and viewing your difficulties as part of a life that everybody goes through it, reminding yourself that others feel inadequate at times, and that you may feel the same way. Giving yourself permission to be human once in a while is a way to accept your flaws and remind yourself that you're not alone in it.

    So if you hadn't heard, there's been an amazing breakthrough. Scientists have discovered a revolutionary new treatment that makes you live longer, enhances your memory, makes you more creative, makes you look more attractive, keeps you slim, lowers food cravings, protects you from cancer and dementia, wards off colds and flu, lowers risks of heart attacks, stroke and diabetes. You will feel happier, less anxious and less depressed. Anybody interested? What is that breakthrough? It's about sleep. According to the National Sleep Foundation, the average adult requires between seven to nine hours of sleep to per night. Getting too little sleep has been linked to various adverse mental, emotional, and physical side effects.

    In addition, the American Bar Association reports that attorneys are among the sleep deprive groups of professionals. Over time, the effects of sleep deprivation compound, affecting an individual's ability to concentrate, reason and make sound decisions, all skills that are essential when practicing law. The result of this poor sleep is your mind isn't as sharp and focused, facts and information that were previously recalled easily now escape you, you have trouble concentrating and are forced to reread important case documents, and quite frankly, you're physically worn out and often feel unwell. For attorneys, poor sleep habits are often born in law school, as an all-night cram session. Upon passing the bar, the pervasive, undervaluing of sleep persists as young associates sacrifice precious hours of slumber to prove their worth to firm partners.

    Before you know it, you're a law firm partner who hasn't enjoyed consistent or quality sleep in years. And whether you realize it or not, you're paying the price. From anxiety and depression to diabetes and heart disease, over time, chronic sleep deprivation takes a tremendous toll on your body, and can lead to serious health conditions that severely diminish your quality of life. Thankfully, this doesn't have to be your reality. As millennial attorneys demand a better work-life balance, the cultural pendulum at many law firms is shifting. Leadership is actually beginning to recognize the vital role their attorney's wellness plays in the health and prosperity of the firm.

    What are some things you can do to help get better sleep? First of all, turn off your screens. Turn off the TV, your cell phone, your iPad, at least one hour before bed. Develop decompression rituals, go to bed earlier, skip the nightcap. Again, according to the National Sleep Foundation, alcohol interferes with your body's normal chemical production, and affects your ability to sleep soundly and to stay asleep. And work through worries, carve out 10 to 15 minutes earlier in the day to think about work and personal matters, so you're not lying awake, ruminating, thinking, when you should be sleeping. Lastly, if you need help, reach out to the lawyers' assistance programs. The mission of lawyers' assistance programs across the country take a broad-brush approach. They assist attorneys, judges, law students, and bar applicants, who suffer from physical or mental issues that result from disease, chemical dependency, or mental health problems, that impair or could impair their ability to practice.

    They assist impaired legal professionals. LAPs also seek to educate the bench and bar about these impairments with outreach CLEs. And by tackling these issues, LAPs seek to reduce or minimize the potential harm that an impaired attorney can cause to themselves, the public, the profession as a whole, and the entire legal system. The lawyers' assistance program staff and volunteers are generalists. They're attorneys and licensed members of state bars, they're also licensed clinical social workers and licensed clinical professional counselors. They're certified alcohol and drug counselors, sometimes they're even doctors who specialize in addiction medicine. On staff, they also have nurses, psychologists, marriage and family counselors, and sometimes it's a combination of all of those people, even people who are in recovery themselves. They offer all sorts of services, from consultation, to referrals to neuropsychologists, psychologists, psychiatrists, treatment facilities, education, intervention, and supports.

    Many lawyers' assistance programs have an AA or an NA, or other individual and group support meetings right on site. LAPs also monitor attorneys who are involved with bar counsel or who are on probation. They help with therapy, assessment, triage, and sometimes they're just a hotline or a phone call away for an individual with a question, concern about themselves, or a concern about another. If you hear nothing else in this portion of the program, the most important part is that lawyers' assistance programs provide confidential help. By court rule, by American Bar Association policy and by state rules. The information and actions taken by a lawyers' assistance program are privileged and held in the strictest confidence.

    Information shall not be disclosed or required to be disclosed to any person or entity outside the lawyers' assistance programs, unless there has been a release or a waiver by the attorney. They are also exempt from the reporting requirements of the Model Rules of Professional Conduct 8.3 (a), the duty to report specifically exempts disclosure of information gained by a lawyer or judge while participating in an approved LAP program. You can trust a LAP professional to keep your information confidential. It's also important to remember, to get medical treatment if you need it, to relieve symptoms that are interfering with your daily functioning. If you've gone through all of the tips that we've suggested to combat stress, anxiety, fatigue, and ultimately burnout, it may be necessary to get professional help to get back on track.

    In addition, you might want to try some well-being technology. There are a lot of apps out there that can help you in this regard. Pip is one of them, where it provides feedback on your stress levels. There are also all kinds of meditation apps, such as Headspace, InsightTimer, Calm, Ten Percent Happier and Happy Tapper Gratitude Journal. You could even try a treadmill desk, walking while working. Or even a desk that raises and lowers, so you can stand because standing is the smoking. A Fitbit or some sort of tracking watch that measures steps and heartbeat and heart rates, or the Spire Mindfulness Tracker. That actually clips on and detects breathing, and sends an alert to you if you're tense. And the last one to consider, and these are not exclusive, there's tons of them out there, is Muse. That's actually a brain-sensing headband that helps to increase and helps you develop meditation practices.

    Some other resources are to take a look at the Well-being Toolkit for the Legal Profession, published by the American Bar Association, and also available on the Institute for Well-being in Law and the ABA Commission on Lawyer Assistance Programs' websites. There's a lot of great information there on how to increase your well-being and resilience. And in addition, they have all kinds of worksheets that you can process yourself, work through yourself at your own timetable, or you can even bring them into the firm or your practice setting, for group participation. Some other concepts to consider to boost resilience and improve well-being, we'll look at now. The first ones relate to autonomy and relatedness.

    The strongest predictor of positive well-being was a lawyer's sense that they had supported autonomy and agency in the work. Finding a workplace that applies your talents to the work, rather than being told what and how to work. In addition, combating social isolation, searching out interconnectivity. Think about how you go to work, go to your office, shut the door, don't talk to anyone, and don't even send emails, or you send emails to somebody down the hall, we should be getting up and connecting. Social support, which is important for coping with stress and preventing burnout. And socializing helps individuals recover from work demands and stave off emotional exhaustion.

    The other thing that we need to do is emphasize and focus on a service-centered mission. At its core, law is a helping profession. And I think this gets lost in the rush of practice and the business aspects of law. We need to focus on what brings value and meaning, rather than competition, power and monetary rewards. When organizational values evoke a sense of belonging and pride, work is experienced as more meaningful. Experiencing work as meaningful is the biggest contributor to working engagement, a form of work related well-being. You also want to find your sensei, your mentor, someone who can support and be an advocate for you as you advance your career. How can you do it? Be in a formal program at your workplace, organically, where a relationship just develops, connect via email and set up a coffee date to pick brains about well-being strategies, or reach out to professionals you admire to ask for career advice.

    There's some other resources that talk about how you might tap into boost resilience and improve health and well-being. One resource, as I've mentioned, is the Well-Being Toolkit for Lawyers and Legal Employers, and it has all kinds of ideas, worksheets, and templates to get you started. Another great resource is the ABA Commission on Lawyers' Assistance Programs. The Commission has all kinds of resources on mental health and substance use disorders, and you can find the number for your state's LAP on the site. Lastly, the Institute For Well-Being In Law is dedicated to the betterment of the legal profession, by focusing on a holistic approach to well-being. The advocacy research, educational, technical, and research support, and stakeholder partnerships, show that the Institute is driven to lead a culture shift in law, to establish health and well-being as core centerpieces of professional success. There are lots of resources on their website as well. And lastly, remember it is okay not to it be okay. No one expected you to save the world. Otherwise, you would've been born wearing a cape and tights. Thank you for listening and be well.

 

Florina Altshil...:                                    Leveling the playing field. Hello, my name is Florina Altshiler and I am a litigation attorney with the law firm of Russo & Gould. Today, I'll be talking to you about ways in which we can level the plain field to create more inclusive environments across litigation fields. Our learning objectives include the development of a toolbox of negotiation tools, a toolbox for use in interviewing, salary negotiations, managing office relationships, receiving credit for the work that you do, engaging in mediations, your interactions with judges and other court officials, legal and ethical considerations, knowing what to expect, and strategizing accordingly when negotiating with opposing counsel, as well as for yourself, as well as a potential employer.

    So I'm going to start by talking about RBG, Ruth Bader Ginsburg, one of my all-time heroes. She said, "When I'm sometimes asked when will there be enough women on the Supreme Court? And I say, 'When there are 9.' People are shocked. But there'd been 9 men, and nobody's ever raised a question about that." This was during an interview with the 10th Circuit Bench & Bar Conference at the University of Colorado, in Boulder, via CBS News. And it's very true. We have these preconceived notions about where gender norms place us, where racial norms place us. And at the suggestion of altering those norms, there's shock. But really, should there be? Of course, I believe not, certainly it's time to alter what those preconceived notions are, and attempt to level that playing field to reach equality.

    RBG also said, "You can't have it all, all at once. Who - man or woman - has it all, all at once? Over my lifespan, I think I have had it all. But in different periods of time, things were rough. And if you have a caring life partner, you help the other person when that person needs it." This was in an interview with Katie Couric that she did. And that's very true, right? Everybody needs to have supportive, not just partners, but law partners, law associates, support staff, management. When our work community, as well as personal community, supports the professional goals that we are pursuing, it's a lot easier to be able to have it all, all at once. But certainly, without that external support, it would be impossible. Now, the last quote that I have from RBG is, "Women will have achieved true equality when men share with them the responsibility of bringing up the next generation." This is a quote via The Record.

    And of course, this is what I was talking about when I was saying we need support from partners, and in our personal lives, because especially with the pandemic, where everyone became essentially a stay-at-home parent, without childcare, without the infrastructure in place to allow people to go to work and actually work, it is impossible to have it all, all at once because it's impossible to be able to work full time while also, at the same time, raising children full time. And traditionally, child rearing happens to fall upon a majority of the female gender versus the male gender. Equality, of course, and a truly level playing field would be a gender-neutral approach to child rearing.

    Now, aside from those issues, there certainly are many, many more issues that affect not just gender inequality, but racial inequality. And that begins with an information gap. So most successful employees, attorneys, professionals, will leverage information that they obtain through traditional networks, like the golf course, for example, fraternities, tennis clubs, country clubs, neighborhood associations, organizations that they belong to, in order to get ahead. Whether it's getting ahead in the case management of their cases, getting ahead professionally, getting ahead by leveraging positions, whether it's new career opportunities, moving up within a firm, moving up to a different firm, bringing business into the firm. All of that happens through social network opportunities. And historically, places like golf courses were traditionally male oriented, white male oriented organizations. Traditionally country clubs were white male-oriented organizations. Many clubs historically would purposely exclude women. And certainly, many clubs historically were very much so not race-neutral. Those of course created information gaps between the groups.

    And so put one group at a disadvantage versus the other, in exchanging information, building relationships, and then leveraging those relationships for new business opportunities. And of course, to be successful as an attorney, there needs to be business opportunity and business growth. The partners who are very successful financially are the ones who bring in business. The only other way for attorneys to truly get ahead at a law firm is if they are truly exceptional, either appellate attorneys, who write outstanding appeals, or trial attorneys, who take a significant amount of cases to a verdict, and have good results at trial before a jury. But neither of those are opportunities where one may really be all that exceptional and not easily replaceable because for every trial attorney, there are thousands of other trial attorneys. Just think about how many people come out of the DA's office with trial experience and go into private firms.

    So the information gap is what really puts females, Black attorneys, other minorities, at a disadvantage from developing business opportunities and growing within a firm, to have a book of business, and to leverage that book of business, for better pay and better opportunities. Now, in addition to the information gap, there is also a power and understanding gap a s-

 

Florina Altshil...:                                    ... also a power and understanding gap. A sole female attorney or a sole minority attorney that is negotiating against a panel of older white male partners is going to be problematic because there's a dearth of women in executive management at many law firms. There is a dearth of minorities at executive management positions across law firms. And so you have a lack of understanding of the position of that solo attorney that's in the position to have to negotiate.

    Other issues are perceptions of femininity. Failing to be aggressive as one's instinct may suggest for fear of being perceived negatively is a common issue amongst female litigators, and it puts them at a disadvantage. Now, men who are aggressive tend to be praised. They appear to be zealous advocates. They appear to be fighting for their client. When a woman does the same thing, they're called all sorts of unattractive names and are perceived negatively as a result. And this is a perception issue, of course. The best way to address this is to address the perception and to question why the perception exists.

    Now, if we look at statistics in terms of institutional barriers that women face, women in the legal profession actually make up 36% of the legal profession with, of course, men making up 64%. Female lawyers' weekly salaries as a percentage of male salaries are just that, a percentage. They are not on par with male salaries. Now, if we look at statistics comparing female salaries to male salaries, same year, same level, same type of firms... So we're not comparing apples to oranges here. In 2005, female attorneys' weekly salaries were at 77.5% of that of their male counterparts. It has gone up since then, but it's gone up and down. If we look at 2006, it went down. Female attorney salaries were only 70.5, not 75, but 70.5% of male attorney salaries. At its peak in 2015, female attorney salaries reached 89.7%. So they're still losing just over 10% in weekly salaries compared to male attorneys.

    Now, if we look at that in terms of dollars, what does that translate to? Well, in 2015 when they were as close to on par as they've ever been, that meant that every single week a female attorney doing the exact same thing in the same similarly situated position as the male counterpart was making $197 on average less per week. Of course, that does add up over time. In 2006 when that gap was greater, that translated to a female attorney making $558 less per week for doing the same exact thing.

    Now, if we look at some other statistics, the American Bar Association has, certainly, female members. And the female members make up 34.6% of the Bar Association membership. The board of governors does have 43.2% females on it. Their section and division chairs are at 42.9%. The presidential appointments are almost... They're actually better than equal. They're at 51%. And committee chair appointments are at 39.8%.

    Now, why is it that it's not completely equal? Why isn't the playing field equal? Well, part of the issue is that women sometimes ask for less. What does that mean? The average college-educated woman earns $713,000 less over the course of her working life than her male counterpart. Now, we're not talking about attorneys. We're talking about college-educated professionals, so across the professions. Women are earning $713,000 less across their lifespan.

    So why does this happen? Well, female employees' awareness that they could be penalized for negotiating assertively on their own behalf is one factor. There's a fear of backlash. In a study where male and female students were engaged in a simulated negotiation, before that negotiation, women but not men reported believing that they might be punished if they were perceived as being too pushy or demanding. So interestingly, men had no problem advocating for themselves and being pushy, and they were not perceived as being pushy. Women, on the other hand, hesitated and did not take an aggressive approach in negotiating on their own behalf because they did not want to be perceived negatively.

    This fear was unique to women negotiating their own salaries as opposed to those negotiating salaries for a friend. So women were comfortable taking an aggressive position on behalf of a friend, likewise, on behalf of a client. But they were not comfortable doing so if it was for themselves. The old asking for a friend default, right? We're a lot more comfortable saying, "I'm asking on someone's behalf," than standing up for ourselves and asking on our own behalf. Men, on the other hand, did not have that hesitation. And so part of the reason why the male gender is able to make over $700,000 more in similarly situated positions across their lifespan is because these simply ask for more. And if you don't ask, you're not going to get it. Now, the fear of backlash that many women face is warranted. There's another negotiation study that suggested that the fear held by women negotiating their own salaries is actually warranted. In that study, women and men alike penalized the female job candidates who initiated salary negotiations. Men, on the other hand, were not penalized for doing so.

    So how do we fend off the backlash? Well, part one means we should connect to others. In order to close the gender gap and avoid a backlash when negotiating on their own behalf, women should try to link those aggressive demands to the needs of others, such as that of the organization. What does that mean? Well, for example, saying, "I need a faster printer," is asking for something on your own behalf, putting yourself first. Phrasing that same demand differently prioritizing the needs of the organization could get the same result quicker and in a way without backlash. So how do we phrase that differently? Well, instead of saying, "I need a faster printer," we could phrase it to say, "Wouldn't it be better if our organization had a faster printer that would really prioritize employees' time and allow us to more effectively manage our time by spending less time at the printer?" Essentially, we're saying, "I need a faster printer," but we're phrasing it in how it would benefit the organization versus how it would benefit me.

    And almost any demand that is one that would benefit the individual can be couched in a way where it would benefit the organization. Requests made on others' behalf are always likely to be better received. So connecting with others in a way that fends off backlash for negotiating on your own always helps achieve the same end result, but in a non aggressive way. In fact, the listener may think that you are thinking of the organization's needs ahead of your own and that you're really trying to help the company by thinking of the needs of that organization.

    Another way to fend off backlash is to stay vigilant. Both men and women need to audit their judgements for the subconscious tendency to view assertive women negotiators as unlikeable and overly demanding. Using objective measures is very helpful. When making requests, women should reference relevant standards that would be difficult for the other side to ignore. What does that mean? Well, think about settlement negotiations, right? If we take the position that a case is worth $700,000, what is that based on? Well, we're going to look to relevant standards that are going to be difficult for the other side to oppose.

    In settlement negotiations, we'll do a jury verdict search. We'll look for settlements that have been reported. We will make sure that the same type of body part was injured in a similar way. And we're going to see what the verdict value was in that type of case. And we're going to argue that it's analogous to our case. And we're going to then argue that based on that relevant standard, the same results should exist here. If we look at legal research and appellate briefs, we're essentially picking facts from prior cases that are similar to our facts, and we're arguing that our case is just like those other cases. And therefore, the same results should be reached.

    That's no different than in personal situations, right? We're going to reference those relevant standards to attempt to reach the result that we want, and making it difficult for the other side to ignore. We're not looking to appeal emotionally. We're not looking for sympathy. We're not saying things like, "I want $700,000 for my client." Nobody cares what you want. What we're saying is, "Look, in the case of Smith, there was a verdict of $800,000, and it's the same body part that was injured in the same manner. In the case of Jones, there was a $750,000 verdict. Same body part, same jury, right? Same venue." We're not going to compare apples and oranges. We'll lose our credibility and our argument will be discredited. So what we do is we make a factually relevant argument by applying an objective measure and saying, "This should be the result because of these similar situations." It's going to be very difficult for the other side to then ignore what sounds like a very reasonable request.

    Now, organizations should attempt to control the effects of gender stereotypes by instating salary benchmarks based on objective, gender-neutral, and race-neutral performance measures. So similarly to looking at settlement values and what verdicts have come before to come to the conclusion of what a case is worth, salaries can be tiered based on clear, objective performance markers. Years of experience, number of verdicts, dollar amount of receivables generated, number of hours billed. Whatever objective measures may exist that are neutral to race and neutral to gender will be objective performance measures that should result in salary benchmarks, versus Jenny getting a raise of X dollars and John getting a raise of Y dollars simply because we felt like it. Even if we're not consciously thinking that there's a gender divide there, there may well be a subconscious gender divide. And when you eliminate that by having clearly objective standards, it's going to eliminate any race bias and any gender bias.

    Now, another issue is one of leadership. And the question is how do minorities have an opportunity to become leaders? Well, people become leaders by internalizing a leadership identity and developing a sense of purpose. Internalizing a sense of one's self as a leader is, of course, a process. A person asserts leadership by taking purposeful action. So for example, convening a meeting to revive a dormant project, taking the initiative to change something that's problematic within an organization. Seeing a problem and offering a solution to that problem is an example of taking ownership in a project and taking a leadership position to make that project become a reality. A person is going to assert leadership by taking purposeful action for whatever end goal they may have. A person's leadership capabilities are going to grow, and opportunities to demonstrate them will likewise expand as they take on these leadership roles. High-profile challenging assignments and other organizational endorsements are going to become more likely as people are viewed as leaders. And the way they're going to be viewed as leaders is by taking initiative in different projects.

    So what does that mean? That could be as simple as organizing a softball team for your firm, initiating the replacement of an old copy machine that results in people losing constant time of restarting it, finding a problem that's organizational and finding a solution to that problem. The problem may be a lack of employee morale and organizing happy hours for the employees to get together. Or the problem could be as big as millions of dollars of lost revenue due to either billing errors or use of third-party vendors that can be eliminated or whatever the identified issue is. Of course, the larger the issue that's identified, the bigger and more important the results.

    That being said, you can start with small projects and work your way up to, of course, bigger projects. Affirmation is going to give the person the fortitude to step outside of their comfort zone and experiment with unfamiliar behaviors and new ways to exercise leadership. And of course, as more challenging assignments come their way and as they do better, they're going to grow and grow as a leader. Of course, it's going to take some initiative and drive by that person to first set out to gain those leadership opportunities.

    How do we support minorities' access to leadership? Well, first, we should educate both genders about second-generation gender bias. We should educate races about racial discrimination. We should create safe workspaces to support transitions to bigger roles for minorities and for women. We should anchor women's development efforts in a sense of leadership purpose, rather than in how women are perceived. The actions will give women insight into themselves and their organizations, enabling them to more effectively chart a course to leadership.

    Pay and benefits may attract women and minorities, but it's a lot more important not just to attract women and minorities, but to have women and minorities stay in those organizations. And the best way to have employees stay is not just pay and benefits, but the flexibility of a work-life balance. Employers who allow employees to have flexible hours to address childcare needs, to address family needs, to be able to work from home when necessary, to be able to work in the evening, not just 9:00 to 5:00, will create an environment that is more conducive to nontraditional employees to be able to stay and work, and work full-time and produce results for the company.

    So if a parent is the main parent, which unfortunately in our society still heavily falls on women, they may have childcare issues during the day. That does not mean that they're not able to meet the billable requirements of 2000 hours annually, but they may put those hours in from 10:00 PM to 4:00 AM. And the smart employer who recognizes that will allow those women to put those hours in on their own time, rather than penalizing them for not putting in face time during the 9:00 to 5:00 hours that traditional employers want to see their employees in the office.

    You also want to focus on succession planning. So a law firm that wants to survive and be profitable and be around for the next 100 years needs to think about what's going to happen 10 years from now, 20 years from now, 50 years from now. Who is in the associate class that's likely to take on leadership roles and take over this firm in 10, 15, 20, 30 years? And so those are the people that the firm wants to attract and keep.

    The single most powerful thing that an organization can do to promote more minority leaders is to create a culture of conscious inclusion. So not just saying that the firm is inclusive, but consciously creating opportunities for women and minorities to take on substantively challenging work and succeed with that substantively challenging work. Don't just plant somebody as third chair on a trial to carry the binders to the courthouse. Actually allow that attorney to participate in the trial by questioning witnesses, by helping prepare witnesses, by preparing cross examinations of experts, by working with senior partners together in a substantive way so that they are meaningfully engaged in the trial.

    Don't just have an attorney prepare a memo of legal research for a brief, and then have the partner copy and paste that into the brief that's submitted in that partner's name for the partner to then argue it. Have the associate that did the legal research participate in oral argument. Put that associate's name on the brief if they substantively drafted a good portion of that brief. Consciously include the younger attorneys who are doing substantive work in that substantive work. That is a very powerful way for an organization to promote female and minority leaders into the future.

    If, of course, the only opportunities that are given to females and minorities are non-substantive, non-leadership opportunities, then five and 10 years from now, you're going to turn around and you're going to say, "Oh, well, that person didn't really do anything that's creditworthy." Of course not. Those opportunities were given to their white male counterparts. And so the white male counterparts, of course, were able to succeed. So shifting the mindset of organizational leadership to conscious inclusion and purposefully creating opportunities for those who maybe previously were not afforded those opportunities will help with the overall success and succession planning of the organization.

    Educating everyone about bias is also particularly important. More than 25 years ago, the social psychologist Faye Crosby stumbled on a surprising phenomenon. Most women are unaware of having personally been victims of gender discrimination, and they deny it even when it is objectively true and they see that women in general experience it. This is called second-generation bias. It does not require an intent to exclude, nor does it necessarily produce a direct or immediate harm to any individual. Rather, what it does is creates a context akin to something in the water in which women fail to thrive or reach their full potential.

    Understanding second-generation bias is key. Without an understanding of second-generation bias, people are left with stereotypes to explain why women as a group have failed to achieve parity with men. If they can't reach the top, it must be because they don't ask or are too nice or simply opt out. Those are great examples of second-generation bias. The message tells women that those women who have managed to succeed are actually the exceptions. Women who have experienced setbacks are told that it's their own fault for failing to be sufficiently aggressive or committed to the job. And so this continues to now prevent future women from succeeding.

    The same is true with racial discrimination and race bias with this expectation that those who don't succeed simply don't try hard enough, don't ask, or opt out. Recognizing the biases are a first step towards eliminating those biases. So when women recognize the subtle and pervasive effects of second-generation bias, they do feel empowered, not victimized, because they can take action to counter those effects. They can put themselves forward for leadership roles when they are qualified but have been overlooked. They can negotiate for work arrangements that fit both their lives and their organization's performance requirements.

    Now, the next question is, is work done by women valued? New research suggests that work done by women simply is not valued as highly as similar work done when done by men. So another study shows that women enter fields in great numbers, the pay for that field actually declines for the very same jobs that more men were doing before. So when women moved into occupations in large numbers, those jobs began paying less, even after controlling for things like education, work, experience, skills, race, and geography.

    So what is the value? Well, there's substantial evidence that employers placed a lower value on work when done by women. It's not that women are always picking lesser things in terms of skill and importance. It's just that the employers are deciding to pay it less financial value. So yes, women sometimes voluntarily choose lower-paying occupations because they're drawn to work that just so happens to pay less, like caregiving or nonprofit jobs, or because they want less demanding jobs because they have more family responsibilities outside of work. Pure discrimination may account for 38% of the gender gap. And what's interesting is the job itself does not matter. Women and men are paid differently not just when they do different jobs, but when they do the same work. In the April 2017 issue of The Atlantic, Liza Mundy published an article called Why Is Silicon Valley So Awful to Women? I highly recommend reading the article. And it highlights the pay disparity between the genders for the same work in the same field.

    Now, there's institutional disadvantages that women face. There's the fear of being perceived as overly aggressive or bitchy. There's negative impressions of women who speak up too much. There's negative impressions towards women who appear overly prepared. There's not being welcomed in traditional male environments where connections are made and information's exchanged. Being mommy tracked or battling an assumption that a female attorney will be less valuable because she will be taking maternity leave, whether or not she has even expressed the desire to take maternity leave. Lack of support for attorneys of both genders with young children or family obligations, creating a perception that female attorneys are less focused on their careers and therefore should be depended upon less because they're going to be taking time off for childcare, regardless of whether or not they've expressed the desire to do so.

    A lack of female mentors and advocates in senior leadership is a problem. There's an article also in The Atlantic in the September 2018 issue by Lara Bazelon, B-A-Z-E-L-O-N, titled What It Takes to Be A Trial Lawyer If You're Not a Man. In more than a decade of arguing cases in court, she describes the stubborn cultural biases that female attorneys must navigate to simply do their jobs. She talked about one judge who scolded her saying, "Don't do it again," struck her on the back of her hand hard enough to leave a mark. She talked about filing a motion seeking to preclude emotional displays during a trial by opposing counsel against her. There's a social science research article referenced within her article that has demonstrated that when female attorneys show emotions like indignation, impatience, or anger, jurors may see them as shrill, irrational, and unpleasant. Interestingly, those same emotions when expressed by men are interpreted as appropriate to the circumstances of a case.

    The New York State Bar Association in the 2017 report titled If Not Now, When? referenced several concerning examples of gender-based issues. Female attorneys account for just 25% of all attorneys appearing in commercial and criminal cases in courtrooms across the State of New York. The more complex the civil litigation, the less likely a woman is to appear as lead counsel, with the percentage shrinking from 31.6% in one-party cases to less than 20% in civil cases involving five or more parties. The conclusion that the New York State Bar Association drew was that the low percentage of women attorneys appearing in a speaking role in courts was found at every level and in every type of court, upstate and downstate, federal and state, trial and appellate, criminal and civil, ex parte applications and multi-party matters.

    The American Bar Association Commission on Women in the Profession in a 2006 report titled Visible Invisibility noted some very disturbing statistics. Nearly 2/3 of women of color said that they had been shut out of networking opportunities. And of course, if you can't network, you can't bring in business. And if you can't bring in business, you can't move up in a firm. 44% said that they had been passed over for plum work assignments. 43% said that they had little opportunity to develop client relationships.

    And again, at the end, the question is are you going to be a leader? What have you done to demonstrate that you are a leader? Well, how can you do any of that if you have no opportunity to develop client relationships, you don't get the substantive work assignments, and you're shut out of networking opportunities? Many attorneys who responded to the Visible Invisibility report described female attorneys as feeling lonely, perpetually on edge, anxious to avoid race and gender-based stereotypes. One respondent said that she was treated like an exotic animal trotted out for photo opportunities at diversity and recruitment events, but otherwise sidelined. An Asian American woman recounted being asked to translate a document written in Korean and having to explain that she was in fact Chinese. The Unfinished Agenda - Women and the Legal Profession written by Deborah L. Rhode highlights the problem-

 

Florina Altshil...:                                    Written by Deborah L. Rhode, highlights the problems that are compounded by the lack of conscious and the lack of consensus that there are in fact serious problems. Only about 25% of female lawyers and 3%, just 3% of male lawyers believed that prospects for advancement were greater for men than for women. So 97% of male lawyers do not believe that there's any gender issue for prospects for advancement. Think about that for a minute. Most attorneys equate gender bias with intentional discrimination and the contexts in which they practice produce few overt examples. Yet a wide array of research finds that women's opportunities are limited by factors other than conscious prejudice.

    Now, what are those major barriers if not conscious prejudice? Well, one unconscious stereotypes, another, inadequate access to support networks, another is inflexible workspace structures. So the inability to be able to afford or manage childcare as the same time as employment in flexible work structures, sexual harassment and of course bias in the justice system.

    So what's the lesson? Well, the lesson from these examples and the focus of the remainder of this presentation is not that women are bad negotiators or that they need to change their personalities in order to avoid being perceived negatively when negotiating, but rather that there are institutional disadvantages that women and minorities face when they are negotiating with potential employers, negotiating with opposing council, negotiating with the bench. Women should be given tools for navigating and effectively managing these institutional barriers to achieve maximum success.

    So what are the negotiation tools? Well, let's go through the steps in a negotiation. Step one is assessing the situation. Is this a situation where I can influence the outcome? If yes, let's go ahead and try, if no, well, I guess we're stuck with the situation, right? If we can't change the outcome, why are we even involved? So step one is to assess, step two, assuming that we can somehow influence the outcome, let's plan. How might I influence it? What is it that I want to achieve? What is important to them, to the other side? Why are they making this decision or creating this problem?

    Next we're going to ask, here is what I need to help solve this problem that makes me better off and at least keeps my counterparty whole. Next, we're going to package the proposal. So take the information you have and your counterparty has to find a better solution, no one is going to have perfect information, but do that with a communal view. Think about what's going to benefit all of us versus what's going to benefit just me, phrase the proposal as a way that's going to benefit both sides, don't be afraid of asking.

    So what is a communal view? Well, the male gender can easily talk about their competencies, women address their competencies with a communal concern. So the theme is, what can I do for company X and what can I do to help solve the problems that that company has? This kind of communal orientation is not about yourself, it's about what I can do for you. It mitigates the negative reputational effects.

    How do we negotiate an offer? package, package, package. So if you go issue by issue, you make it adversarial. And part of the frame you want to bring is, here are the recourses that I need to be effective. Prepare, use your network to get insight. You're as good as your other options, the more options you have the more in demand you're going to be. It's like dating, the more competition there is for your attention, the more valuable people think you are. So if you think back to applying to law school, the minute one school gives you a full scholarship and you let the other school know, now the other schools are willing to give you full scholarships. If no one's interested in giving you a full scholarship, you have nothing to leverage or wage against the other. Same thing with salaries, same thing with jobs, once you have one offer and you go to another employer, you're going to have multiple.

    Some common mistakes are a lack of preparation. So oftentimes, even when women say I should negotiate, they don't do a good job preparing by knowing how much more they want and more importantly, why? They don't know how to tell their counterparty persuasively why they should get exactly what it is that they want. You need to do research and be prepared with facts that are objective. So if you want to be paid $145,000 a year, because you're seven years out of law school and took 15 verdicts before a jury, that's what you say, not, I want to be paid $145,000, because that's what I need to pay my mortgage, very different explanation.

    So come up with actual concrete facts in terms of accomplishments that warrant whatever it is that you're asking for. If you're able to make comparisons based on what you know other similarly situated individuals are making, then you're able to make those like arguments as you would in a motion.

    Low expectations are another issue. Women have systematically lower expectations resulting of course in systematically lower outcomes, because expectations drive behaviors. Negotiate strategically not instinctively, prepare, write down your goals, brainstorm to expand your strategic thinking, keep track of your lessons learned, be disciplined and do this every single time. Be formulaic in your approach so that you can achieve results. You want to protect and preserve your reputation. You are already developing a reputation with your coworkers and your superiors, it matters. Be kind, be sincere, be credible, be trustworthy, giving, be a decent human being, people will remember that.

    This is going to benefit you many times over in negotiations in life. A reputation for the opposite is going to make life and negotiations far more difficult, because once you have a reputation of not being trust worthy, no one will want to negotiate with you. Rely on facts that are objective and true and represent those facts accurately so that you have a reputation of being credible.

    Relationships matter, the importance of good relationships is going to change who people deal with and how they deal with each other when they negotiate, it moderates extreme value claiming behavior, why? Because future transactions of real value are anticipated, being too greedy today is going to risk losing those valuable transactions. Reciprocity by the other side is expected, you give a little in this transaction and the expectation that the other party will help you later. A good relationship engenders trust, trust reducing the cost of modern monitoring compliance and nitpicking adherence to the terms of an agreement.

    Information is power, so go get it, be prepared, get your hands on all the information you can. The biggest mistake that people make in negotiations is to consider the negotiation a forum in which to argue and persuade. I offer that you should take the opposite approach, ask questions and listen to your counterparts, use the negotiation as an opportunity to learn as much information as possible, we have two ears and one mouth so we can listen twice as much as we can speak. Of course lawyers have a very hard time with this, since they all love to hear themselves speak and I say this as I'm in the middle of a one hour monologue here. So listening is going to get you information and the information is power.

    Explore interests underlying positions and find out why, the primary principle of interest based negotiations is to emerge or get a good understanding of your and the other party's interests and to develop or invent creative options that will meet those interests, interests include the motivations, emotions, drivers or hidden agendas behind someone's position. You know someone is going to be asking for money, but their end goal may in fact be an apology. Maybe they want restitution, maybe they want to be placed back in the position that they lost, maybe they want specific performance. You have to understand what their motivation, emotion or driver is to be able to reach a solution that's going to be one that they want.

    And that solution is not necessarily always just dollar bills, this approach increases the change of establishing a good relationship with the other party and achieving an outcome that may be mutually beneficial. Maximize your leverage, develop a better plan B. So what will happen if you don't negotiate an agreement? What is your plan B? The better the plan B the stronger your leverage, right? If you're not all in on plan A and you have a good plan B, then you're going to be able to more easily walk away from plan A and there is your leverage.

    You always want to employ fair objective standards, so what is the market value of a product? What is the precedence that's been established in the workplace? What reciprocity, scientific judgment or engineering judgments exist? Is there professional judgment? What is the efficiency of a product or service? Is there a tradition that has been established? Are there verdicts that will establish value? What is your competition doing? What is the replacement cost of a product or service? What would a court decide in similar fact patterns? What are the moral standards or equal treatment? Those are questions that you should have answered in order to have the facts to support your objective standards even before beginning the negotiation.

    You also want to consider psychology when making your moves. So the parties should get and feel like they got something in almost all negotiations. Help both parties walk away feeling good. How? Design an offer concession strategy that's going to include room for you to move when it's customary to make a move, your agreements will also then be more secure, parties that feel screwed over often will find a way to undermine or get out of the deal and that's a lose, lose situation.

    You want to control the agenda, don't discount the true power of the in person meeting, it's a lot harder to say no in person than any other way. Strategically consider how, when, where, weather and what to discuss and how long to meet for purposes of negotiations, most importantly don't give up, one of the most undervalued negotiation skills is perseverance, stick to your guns and don't give up on achieving your goals even if it appears highly unlikely. Many deals close due solely to the party's willingness to keep working at it.

    Understand your value and don't be afraid to discuss it. Negotiation is where the rubber meets the road, be prepared to implement warrior like confidence and communication skills. Tap into your executive presence, command the room, flexibility is useful, but don't be afraid to name your price, state your terms and stand your ground.

    Now, there are some ethical considerations that you should be aware of, in terms of employment applications, can the lawyer demonstrate a job related necessity for asking the question? The EEOC is going to examine the intent behind the questions asked for purposes of interviews, as well as how the information is used, to determine whether or not any discrimination has occurred. So employer should ask applicants only job related questions, before asking the question the interviewer should determine whether this information is necessary to judge the applicant's qualifications, level of skills and overall competence for the position.

    In terms of employment hiring discrimination, there are state and federal equal opportunity laws that are going to prohibit pre-employment inquiries that disproportionately screen out members based on protected status, unless some business purpose justifies the questions. The EEOC and state agencies take the position that the information obtained through pre-employment inquiries should be aimed solely at determining qualifications without regard to criteria based on irrelevant, non job related factors like gender or race. Selection decision should be well supported and based on a person's qualifications for the position. Agencies have viewed inquiries that reveal information bearing no relationship to the job qualifications. For example, year of graduation from high school, childcare arrangements, country of origin, as evidence of an employee's discriminatory intent. So employers, if you're listening, don't do it, don't ask those questions during an interview screening.

    During a pre-screening phone interview, you could have one that lasts 20 to 30 minutes, include questions designed to eliminate candidates who are not eligible for consideration. Examples of these questions can include, is the salary range for this position within your acceptable range? Why are you searching for a new position? What are the top three duties in the job you now have, or in your most recent job? What is your highest earn degree? What do you see as your wrongest skills and what are your key challenges? Within a relatively short period of time for a minimal investment employers can decide to schedule a face to face meeting or determine that they have no further interest in the candidate. Notice how these questions are specific to the job that the candidate would be doing and are not based on any sort of discriminatory intent.

    Use of social media is of course growing, online technology is increasingly bringing one's private information to the public's sphere. So if you type a person's name into an online search engine such as Google, you may pull up a video from YouTube, a profile on Facebook, photos, all sorts of pieces of information that are basically a person's social resume. Do they belong to professional organizations? What type of volunteer activities is this potential employee involved in? What type of other organizations do they align themselves in? Will they represent the organization well in the community?

    Depending on the privacy settings, hiring managers may be able to view pictures of the job candidates and information about their education, politics, work experience, geographic location, hobbies, interest, people that they're friends with. But be careful, there are pitfalls to social media. Key reasons that many employers give for not using social networking include concerns about the accuracy of the information gained, invasion of privacy of the applicant and creating an inadvertent issue of job discrimination, because now you may potentially have been exposed to a lot of information that's not specific to their job qualifications.

    Criminal records are also something to consider, courts are increasingly challenging employers use of criminal background checks. The EEOC has stated that an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful. Yet the agency has observed that Title VII does not wholly bar the use of criminal records in employment decisions, instead the EEOC has provided a framework for assessing criminal records when making an employment decision.

    An employer's consideration of criminal records may pass muster under Title VII, if an individualized assessment is made, taking into account the nature and gravity of the offense or offenses, the time that has passed since the conviction or completion of sentence and the nature of the job that's either held or sought.

    For further reading I have some books and articles cited, who will lead and who will follow a social process of leadership identity construction in organizations, also women and leadership defining the challenges as well as impossible selves, image strategies and identity threat in professional women's career transitions. And I also recommend negotiating in the shadows of organizations, gender negotiation and change. And of course if anyone has any questions or would like to reach out to me, my contact information is posted and I thank you all for joining me.

 

Speaker 1:                                             Hello and welcome to Conflict Conundrums in introduction to legal ethics and conflicts of interest. A few question for you, representing both the husband and wife in estate planning, assisting with the divorce of your favorite friends, ouch, asked to represent co-defendants or multiple family members in a criminal, personal injury or immigration case, how about new clients want to pay you with stock in their enterprise? Conflicts of interest exist as a fundamental concern in the practice of law, if ignored or misunderstood, fundamental concerns can create significant problems for the unwary lawyer.

    So what's a lawyer to do? Step one, assess whether there's a conflict of interest. Step two, analyze whether it's consentable or impermisible. Step three, proceed accordingly. This course will explore these steps in the context of the conflict of interest rules and their applications in the everyday practice of law. Although we've previewed the simple sounding three steps to determining whether there's a conflict, let's break it down further.

    And I think the easiest way to understand conflicts and how they apply is to first define the type of client that you're talking about or rather the status of the client. And what do I mean by that? We can divide clients into three main status types, the prospective client, the current client and the former client. And depending upon which type of client you're dealing with, the conflict rules apply somewhat differently.

    Now, we're talking about legal ethics, so before we get to the actual numbers of the conflict rules, let me just lay out to begin with the fundamental rules for effective practice of law, effective and ethical, I usually point out are 1.1 and I'll be using the model rules here which is competence, 1.3 which is diligence and 1.4 which is communication and 1.6 which is confidentiality. Now there are many other important roles, but the bottom line is competence tells you, you have to understand what you're doing, what type of client you're taking, the area of law that you're practicing or be able to learn it.

    Diligence requires you not only to remain diligence in your ongoing education in the law, but it's focused on being diligent with your clients and your clients cases. So you can see how the two kind of go hand in hand.

    Confidentiality is one of the underlying tenants of the attorney-client relationship, some would say the most important. And confidentiality extends beyond the attorney-client privilege which is of evidentiary in nature. Confidentiality has to do with everything you learn as part of a representation. And in that way you can see that it's going to play a large role in determining conflicts of interest and how to proceed with them.

    So with those few rules as a foundation, let's proceed to discuss and define the three status types of client. The first type of client is referred to as a prospective client, meaning someone that is seeking advice perhaps, but may not become a full fledged client. The description for prospective clients is found in rule 1.18. And it talks about someone who may be seeking advice initially, but doesn't ultimately retain the lawyer or the lawyer doesn't actually take the case.

    Now, why am I mentioning a prospective client in a conflicts of interest discussion? That's because back to confidentiality being a primary tenant of even a potential attorney-client relationship it turns out confidential information that may be learned from a prospective client cannot be used in the future to the significant harm of that potential client. So what you ask, well, this is a person who is consulting about the possibility of forming an attorney-client relationship. And in that consultation about that possibility may share confidential information. And because of that the lawyer is not allowed to use that information against that prospective client in a case to hurt them.

    So you can see the can be a problem and the problem is even indicated in the rules, there's two main problems here to look out for. One is, the rules do make clear that a client who unilaterally sends a bunch of information, maybe leaves it on a voicemail, sends it through a website without the lawyer's invitation or even knowledge sometimes that it's coming, that is not a prospective client and that's why you'll see a lot of law firms have disclaimers on their websites to that effect.

    The other situation to be aware of is sometimes referred to as the beauty contest. What that means is someone may interview a lot of lawyers in town, say someone is getting divorced and they go to the top divorce lawyers in town and tell them an hours worth of their details of their marriage and why they want to get divorced and they do that intentionally to prevent their spouse soon to be ex from hiring that person. So the rules indicate if there was never any intention or a potential client or prospective client to hire the lawyer, they're not deemed a prospective client. On the other hand, lawyers want to be careful about this, so there is ways to limit those conversations to prevent even being in this situation.

    So when this is analyzed, whether it's by a court, a disciplinary agency or just a law firm or lawyer trying to figure out whether an attorney-client relationship was actually formed, which will get us to our next status of current client, some of the variables that are looked at are this exchange of confidential information, more importantly the prospective client reasonably believe that he or she was consulting the attorney in the attorney's professional capacity and the attorney in turn provided some legal advice and, or otherwise acted or indicated that he or she was representing the prospective client. And also was this a new prospective client or had the attorney represented this prospective client in the past and of course whether there were any fees exchange.

    So all of these variables help define whether a prospective client actually became a current client and formed a relationship with an attorney. And it's important to note that in the rules and in the ethics opinions, whether there is an attorney-client relationship, the analysis places primary focus on the reasonable belief of the client. So it has to be reasonable, but still it's more about how the client thought about it than what the lawyer thought about it.

    So those variables provide a nice segue to our discussion of a current client. If we assume that a relationship has been established using those variables and also best practices, having a retainer letter in writing, not required by all states, especially if it's not, for example, a contingency case, but it is the best practice to have it in writing. And this just to throw in a few more of the ethics rules, obviously involves communication with the client to explain what the representation is about and what the client can expect, that's why it's better to have it in writing and it also brings up rule 1.2, which is scope of representation. I didn't mention it, it's sandwich between diligence and competence, but it becomes important in general and also when we're analyzing conflicts that you've discussed with the client, again, communication exactly what the scope of this representation is. In other words, what you are representing the client for and what is the limit of the representation.

    Along with this, there should be a discussion about fees, what type of fees, again, in writing or not and depending on the requirements of your state, but the client should understand. Okay. So assuming we have our current client, we've checked all the boxes on the other ethics roles, it's time to figure out whether there's any conflict of interest or to be on the lookout in general. And what does that mean?

    So the current conflict of interest rules, 1.7 provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest and it defines concurrent conflict of interest as, and this is right, I'm reading from the rule, the representation of one client will be directly adverse to another client or number two, if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by the personal interest of the lawyer.

    So we have what the shorthand for part A1 and A2 as they're referred to, A1 is direct adversity and A2, sometimes a little more nuanced to figure out or understand, is shorthand material limitation. Now, the rule also provides that not withstanding a conflict, a lawyer may be able to represent a client if number one, the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. Two, the representation is not prohibited by law. Three, the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or another or other proceeding before tribunal, meaning you can't represent ...

 

Speaker 1:                                             They're proceeding before a tribunal, meaning you can't represent both sides of a lawsuit. And four, each affected client gives informed consent confirmed in writing. Before we do some further analysis on this 1.7, it's worthwhile to know that the conflicts of interest rules were enacted and updated to address and secure the undivided loyalty of lawyers to their clients, to enhance the effectiveness of representation to safeguard client's confidential information. To assist and assure that lawyers would not exploit their client and to protect the legal system in general in obtaining adequate presentation to the tribunal. These are the rationals provided by the restatement of the law governing lawyers. And if we keep them in mind, it's, I think, beneficial to understand the underlying policy to rules in analyzing whether you conclude if any of these tenants or underlying policies are being violated.

    The two types of conflicts we identify directly adverse and material limitation. Directly adverse, as I mentioned in the descriptions, is most clearly defined as being on both sides of a case, a lawyer cannot represent both sides of the case, and they typically cannot be suing a current client in any matter. Generally direct adversity pops up in the litigation setting, but it has been also found in transactional situations where a lawyer's attempting to represent both sides in a transaction that supposedly arms lend, the courts have found that that is a clear conf like of interest. Also in representing multiple clients in a situation, for example, in a criminal representation, there was a lawyer disciplined for representing clients together who were stopped in a car when they were arrested. And they were charged with the possession of firearms by a felon, they were both felons previously, and the court, in this case, it was a Florida Supreme court, found the lawyer guilty of representing clients with a direct adverse interest to one another because they each had an interest in showing the other possessed a firearm.

    So direct adversity, while lawyers certainly miss it sometimes, from an analytical or academics standpoint is easier to identify, especially after the fact. Material limitation is a bit more difficult to identify and remember, it's a substantial risk that the representation of one or more clients will be materially by the lawyer's responsibilities to another client, a former client, a third person, or the personal interest of the lawyer. So these type of conflicts can range from perhaps a positional conflict, where, although permissible, you can be arguing two different positions in unrelated cases for unrelated clients but one of them is one of the biggest clients at your firm and that client isn't very happy you're representing the other client. A lawyer can feel pressure in that situation and it can impact his judgment, remember it's supposed to be an undivided loyalty.

    So sometimes lawyers have to decline those type of cases. Also, if a lawyer has a really strong political belief and a client wants representation, that is at the opposite end of the political spectrum, it may be that the lawyer can't do his or her most effective job for that client and has to realize maybe let someone else handle the case. There's also situations where perhaps a lawyer has or had stock in one of the companies, there's an interesting case in Florida where an associate in a law firm was moonlighting as a sole practitioner and the court found that the material limitation conflict rule was violated in two ways, his duties to his own clients might have limited his duties or his effective to the firm's clients, or the other way around. And by taking clients on his own that the firm didn't know about, they couldn't conduct a proper conflict analysis so they didn't even know if they had an impermissible conflict by having this lawyer work on a case that might have been in conflict with one of his cases in his solo practice.

    So you may recall, I mentioned that the rule also has a notwithstanding section that allows a lawyer who reasonably believes he or she can provide, effective representation to obtain informed consent from clients and proceed. And I'm saying clients, because often this occurs in representing multiple clients. There are various patterns that emerge, some of which become impermissible conflicts when analyzed by the courts or ethics advisory opinions, or a disciplinary commission and others which allow for informed consent.

    So let's knock out a couple of those that have been found to be impermissible and those are typically when there are two plaintiffs suing a single defendant, and they both sustained injuries that exceed 50% of the defendant's insurance policy. So if they're suing them individually and it's the same lawyer, an ethics advisory panel concluded that that was mandated withdrawal from representing one of them, because it would be a race to the proceeds of the policy. And again, if we're going back to a lawyer's undivided loyalty, it would be difficult to sustain in representing both plaintiffs, both injured, not enough money to go around, so to speak. So several state bar ethics opinions have determined that if there's insufficient assets likely to pay an aggregate judgment, then the attorney must decline represent, or he or she may determine whether it's possible to obtain consent. Sometimes in this situation, consent can be obtained and again, we'll get to the elements of consent, if there's an agreement that the plaintiffs will divide the available assets in proportion to their respective judgements or in accordance with some agreement regarding the allocation of resources from the outset.

    Now in a couple different cases where plaintiffs were generally aligned, but then a counterclaim arose, there's been a couple court decisions. One came out of Michigan, it was a securities case where all the plaintiffs were alleging that the defendant committed fraud. And the defendant filed a counterclaim pointing out one of the plaintiffs and saying that that plaintiff was responsible for all the other plaintiffs' misfortune. But the court in that case said that the attorney could continue to represent all of the plaintiffs, so long as all of the plaintiffs consented to the joint representation after full disclosure of the impact or effects of multiple representation and getting the advice of independent counsel. And this is also in the particular facts of this case, by the way, conflicts cases are always, as you can imagine, extremely fact specific, the court said before even the consent, all of the plaintiffs had to also be aligned in their feelings that the defendant committed fraud and not one of the plaintiffs, regardless of what the defendant's counter claim was attempting to assert.

    In another case from the state of Washington, there was a married couple that was in a car accident and at a certain point, the driver of the other car filed a counterclaim saying that actually the husband who was driving was contributorily negligent. And there was a debate about whether the lawyer could continue to represent the spouses and the Washington Court said, in accordance with the direct adversity rule, that they could continue to be represented jointly so long as there was informed consent, they understood the repercussions of having a joint representation. And the court took that opportunity to say, "By the way, whenever there's a passenger and a driver, there's always a potentially conflicting interest and so this should always be a discussion when representing clients." Meaning informed consent should be obtained.

    Let's move on to understanding and defining informed consent, before we get to the third type or status of client, which is former client because informed consent runs across the board. So there's four different attributes of informed consent that have been written in the literature. One, all of this is explained to clients, the ways in which their interests could come into conflict. Two, the possible hampering of their respective claims, if they were to agree not to take conflicting positions, the possible increased cost and disruption, if it were necessary for either or both clients to retain new counsel later. And four, the implications concerning compensation, if it's a contingency fee case. There's court decisions talking about whether informed consent had actually been obtained, and they range from a client having studied a consent form for 20 minutes prior to signing it and the form including an explanation of potential conflicts and legal right being upheld, that's a California case. And that case also stress that attorneys are not required to disclose every possible consequence of a conflict in order for consent to be valid so long as the clients understand the general issues with joint representation.

    Then maybe to the other side is a court case where there were 40 plaintiffs suing over the death of a relative and a magistrate judge found a conflict of interest between the heirs and non-heir plaintiffs and ordered the plaintiff's law firm to fully disclose possible future conflicts to all the plaintiff. And while the law firm obtained statements from the plaintiffs saying that the conflicts were explained to them, after amply discussing the matter that they had all consented the generalized language that that law firm used and council's refusal apparently to acknowledge the severity of the potential conflict had a district court judge reject all of the statements and order individual questioning of each plaintiff. So very costly and time consuming. So the degree of explanation to a client is important, or maybe extremely important if it's challenged.

    Going about getting informed consent becomes really important and the district of Columbia bar has endorsed what they call a joint statement of facts tests to evaluate whether consent is informed. And by the way, a court may, in its discretion, determine, even if it was informed consent, that they think a conflict is impermissible. But backing up, let's visit the district of Columbia's test because we want to equip ourselves with the best possible chance of obtaining informed consent.

    So it's a seven part tests, actually, it's a nine part test. Let me just read it to you. Number one, the co-parties agree to a single comprehensive statement of facts describing the occurrence. So we're making sure, just from the outset, that the plaintiffs agree on what their case and what their claims are. Two, the attorney reviews the statement of facts from the perspective of each of the parties and determines that it does not support a claim by one against the other. So their facts line up and they're not even subtly pointing a finger at one another. Three, the attorney determines that no additional facts are known by each party which might give rise to an independent basis of liability against the other or against themselves by the other.

    So this is where being a lawyer comes in, because even if the clients come in and believe they're aligned, if they're in an area of law where the lawyer can anticipate a claim may be viable as between the two, especially as facts develop, the lawyer needs to understand that and is a position to understand it better than the parties that have come in for joint representation. So we're up to number four. Number four, the attorney advises each party as to the possible theories of recovery which each may be foregoing through this joint representation based on the disclosed fact. So if they might have proceeded somewhat differently, if they filed independent lawsuits, that's what number four is about. And number five follows with each party agrees to forego any claim or defense against the other, based on the facts known by each at the time. So the lawyers now determine whether they could, possibly under the current facts, have any claims against one another and they agree they're not going to pursue those. Again, on the facts known at that time.

    Number six, each party agrees that the attorney is free to disclose to the other party at the attorney's discretion, all facts obtained by the attorney. And this is important because this highlights. Again, confidentiality and the importance of it in relationships and if you are going to have confidentiality and you have joint clients and you can't share information, it becomes problematic, which is a whole nother subtopic. But for this test, we're having the clients agree that this information can be shared. Number seven, the attorney outlines potential pitfalls and multiple representation and advises each party of the opportunity to seek the opinion of independent counsel, as to the advisability of the proposed multiple representation. And each, either consult separate council or advises that no separate consideration is desired.

    This is another really important provision and it's a best practice, regardless of the fact we're reviewing it in the context of this D.C analysis because if you advise a client to seek independent counsel, it's great if they do, or if they knowingly decline, you've given them an opportunity to explore all the potential advantages but disadvantage of multiple representation to the extent they exist in a particular case. Number eight, each party acknowledges that the facts, not mentioned now, but later discovered may reveal differing interest, which if they do not compromise these differ, may require the attorney to withdraw from representation of both without injuring either.

    So we may see this when we do some hypotheticals at the end, but this is just giving the clients essentially a heads up to say, "Look, as we get into discovery and we find other facts, if it turns out that there's facts that reveal themselves that show that actually the parties have divergent interests, the attorney may need to step out." And then the final one is just that each party agrees the attorney may represent both in the litigation. So that's sort of the obvious one, but also obviously necessary. So assuming a lawyer has informed consent, what might arise later? One frequent example is settlement issues that arise, so when one party wants to settle and the other doesn't or there could be several plaintiffs, that creates a problem. Sometimes a plaintiff wants to make a statement and wants to go all the way to trial and co-plaintiffs want to settle.

    Sometimes there's a mediation where one person wants to settle and the other two don't and so this creates a conflict among clients, and it's actually addressed in rule 1.8, which is an other conflicts role that talks about not making an aggregate settlement without the consent of clients. So if clients don't agree, sometimes the lawyer must withdraw. If it's a mediation and the mediation fails because it's an all or nothing proposal, then the courts have held that a lawyer can go forward and represent all of the plaintiffs in trial. So just something to keep in mind as, again, mentioned in rule 1.8, but in the context of informed consent and problems arising later, and problems that should be explained to clients when you go through whether it's the D.C nine-part series of steps for informed consent or another method.

    Okay. So a mini mid game recap, we've talked about prospective clients, we've talked about current clients, which is the real meat of the conflict rule 1.7, and attempted to distinguish direct adversity and material limitation and learning that is something is consentable, it's very important to develop a method of establishing informed consent, not only for the good of the client, but to protect the lawyer if there's any challenge later on. So let's move on to our third status of client, which is the former client and talk about what obligations under the conflict rules are attributed to the former client. And we'll circle back and distinguish what's owed to the former client from what's owed to the perspective client, because they are neither clients of the lawyer, presumably, at this moment at time when the lawyer is dealing with taking a case for a current client and whether there is a conflict that implicates a former or prospective client.

    So what is a former client? Well, just as a best practice note, a former client is best defined by a client who has received a case closing letter. Just as there is best practice to have an engagement letter or retainer letter, it is best practice to terminate a case. The termination rule, for those of you keeping score of the rules, is 1.16 and it discusses both reasons where a lawyer may, and in some states must, withdraw from a case and so if you have to withdraw in a conflict situation, you may look at that rule. But the point I'm making here is a former client is someone you're no longer representing and that client should be aware you're no longer representing them. That sounds obvious, but sometimes it's not, so one last time, send a closing letter to the client.

    The rule that applies to former clients for conflicts purposes is rule 1.9 and that rule essentially dictates that at a lawyer who's formally represented a client in a matter shall not, thereafter, represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client gives informed consent confirmed in writing. So we've gone over informed consent and it would be a variation on that theme, what is tricky to define is materially adverse to the interests of the former client and the term substantially-related matter. So often when I've taught this in law school, students initially think, "Well, it's a completely different matter so it not substantially-related." Meaning you represented somebody in their business and later their husband comes to you to divorce them.

    And so the divorce has nothing to do with the representation you did in the business and again, we'll do some hypotheticals later, but it is substantially related in that the information that you learned about the business and the assets is likely something that you could use in a material adverse way against the wife, it's her business if you represent the husband. So substantially-related can be tricky because it doesn't necessarily mean the same type of case, it means information that you received or are presumed to have received by virtue of your former representation of the client that might be used adversely against that former client in a current client proceeding. So that may sound a little bit like who's on first, but we're going to flush it out in a few minutes with some hypotheticals.

    First let's just go back and compare a lawyer's obligation to a former client as opposed to a prospective client, and to help us, fortunately, the ABA standing committee on ethics and professional responsibility released Formal Opinion 492 in June of 2020, so pretty recently, and distinguish former client from perspective client in terms of obligation. So while rule 1.18, as you may recall, pertains to prospective client and that rule says a lawyer who has learned information from a prospective client shall not use or reveal that information except as rule 1.9 would permit with respect to information of a former client creates a bit of confusion.

    So we understand that a lawyer who's met with a prospective client has to protect all the information learned during the consultation, unless the lawyer has otherwise gotten informed consent of the perspective client that it won't be me maintained, but the difference stems in the words significantly harmful. So rule 1.18, and this is in sub C, says a lawyer subject to paragraph B, which we just went over, shall not represent a client with interest materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the person in that matter. The comment to that rule further explains that perspective clients should receive some but not all of the protection afforded to clients. So that means current or former clients, and the way the opinion explains further the distinction is a former client need not reveal confidential information to satisfy the substantial relationship tests.

    This is a quote from the opinion matters are substantially related for the purposes of 1.9, if they involve the same transaction or legal dispute or if there's otherwise a substantial risk, the confidential factual information as would normally have been obtained in a prior representation would materially advance the client's position in a subsequent matter. So what they're saying here is there's a presumption for a former client that does not exist for a prospective client. A prospective client is tied to information actually given to the lawyer, this avoids a detailed investigation or a breach of confidentiality into what was actually obtained in that former client's representation. There's a certain presumption there, whereas the prospective client had to have actually communicated information that could be significantly harmful in a subsequent matter.

    And this part of the discussion, if you're wondering, "Well, what's significantly harmful, because the former client has a presumption? So a perspective client, some of the information designated to be potentially significantly harmful are things like views on various settlement issues, including price and timing, personal accounts of relevant events and the perspective client's strategic thinking about how to manage the situation and an outline of potential claims against the defendant and specifics as to the amount of money needed to settle a case. So you can see where this could be significantly harmful if a lawyer then opted to represent the opposing side. So just want to make that distinction and I also want to point out at this point, this is an introduction of conflicts of interest.

    And this is one of the most difficult nuanced areas, I believe, in the ethics rules, where there are [Bates 02:52:23] among experts on various fact patterns and where we're going to look at some more basic fact patterns and we're trying, in this course, to give you the fundamentals and to increase awareness so that perhaps you can develop that gut instinct that says, "Maybe this is a conflict, maybe it’s not.” And before we get to the hypotheticals, let me also just mention, I mentioned rule 1.8 before in terms of aggregate settlements and 1.8 is a whole ‘nother conflict role that's sort of a catch all of miscellaneous conflict situations. The other two I just want to highlight for today are transactions with clients and third-party paying legal fees. So the third-party paying legal fees is a more simple one in that, yes, someone else can be paying your client's legal fees, it could be a relative, it could be a friend. And the main requirement there is the confidentiality remains between the client and the lawyer and the person paying the fees has no right to call the shots, so to speak.

    They're not the client and they're not to impose their will on the professional independent judgment of the lawyer. The other one, transactions with clients has to do with if you're going to take stock or fees, or if you're otherwise going to go into business with a client. And this could be a whole nother broad topic, but the nutshell version is that the situation has to be fair and reasonable. It can't be an interest in something you're litigating over on behalf of the client. So it could to be another business or perhaps you're taking stock in lieu of fees. Again, fair and reasonable. Reasonable, if you're taking something in lieu of fees, ties back to rule 1.5, that all fees must be reasonable and not excessive and encourages again, like in the other conflict situation for informed consent, to encourage your client to seek independent legal counsel or at least ensure that the client has the opportunity to do so, and then get-

 

Speaker 1:                                             Opportunity to do so, and then get consent in writing for what you're doing. So again, we could do a three, four, five part series on conflicts, but I just want to mention those two and then we're going to look at a few hypotheticals.

    Okay, here we go. Hypothetical one, family law, friends as clients in the good times and the bad. Larry and Frank have been friends since childhood. When Larry opens his own law office, Frank, a high school teacher offers immediate support. Frank's wife, Wendy is starting a new business and needs legal assistance. Larry has known Wendy since she and Frank met in college and is thrilled to have Wendy become a client.

    10 years later, Larry and Frank are at a dinner celebrating Frank's teacher of the year award when Frank shares that Wendy's business has become extremely successful but their marriage suffering. Wendy works long hours and they seem to have grown apart. Larry sympathizes, offering him words of comfort, offering Frank that is. As they leave, Frank asks if he can count on Larry's support and assistance, and Larry replies, "Of course."

    The next week, Larry receives a panicked phone call from Frank, who shares that he saw a text between Wendy and her friend, in which Wendy is asking for a referral to a divorce attorney. Frank sounds distraught and asks Larry to file a divorce complaint immediately so that Frank can attempt to save face and gain some leverage. Larry offers a referral to another lawyer and explains that he does not want to get in the middle of the marriage due to his longstanding friendship with both of them. Frank sounds close to tears and begs Larry.

    Frank says that Larry promised to represent Frank at the celebration dinner. After extended pleas and Frank's near breakdown on the phone, Larry agrees to represent Frank so long as the situation remains cordial. Larry adamantly states that if Frank decides that he wants to play hardball, then he will have to retain another lawyer. Relieved, Frank thanks Larry and assures him that the process will remain cordial.

    The next day, Wendy calls Larry to schedule an appointment to discuss a referral to a family lawyer. She informs Larry that she plans to file for divorce and says that she knows Larry cannot represent her on this matter because of his friendship with Frank. Larry explains that he is uncomfortable providing a referral. Wendy sounds upset and says that she only wants to discuss options for representation, not any of the details. Larry says that he's sorry, but he cannot meet with her. Wendy starts screaming, "You have been my lawyer for years. I have paid and confided in you. You cannot refuse to see me in my time of need."

    Larry turns the volume down on his phone and calmly responds, "I will call you back." Larry decides to call Frank first and explains, "I would really love to help you, but because I have represented Wendy and her business, it's not a good idea." As Frank begins to unravel, Larry thinks of another approach. "How about this?" He says, "I'm a certified mediator in family law. If Wendy agrees, I will try to mediate your divorce. We can all get together, have a few drinks, and try to work out a separation agreement." Frank sounds relieved again and agrees to ask Wendy.

    So, let's unpack this fact pattern and let's apply our what's the status of the client definition. So, we have Larry the lawyer, now we have Frank. They've been friends. So, the question is, is Frank a prospective client, is he a current client? We know he is not a former client because Wendy is the one that Larry has represented. So first, let's deal with Frank. When Frank goes out to dinner and they're celebrating his award and he bemoans his marriage, the state of his marriage, and asks if he can count on Larry's support, and Larry says, "Of course," does that make him a client, does that make him a perspective client?

    It's debatable, right? Because perhaps that's just two friends talking and of course you're going to support and help a friend out who's got marriage troubles. If we go back to our prospective client analysis, it's not really clear that he was asking for specific legal assistance, there's no indication Frank gave him any... I'm sorry, Larry gave Frank any legal advice, obviously no money has exchanged hands, and it looks like it was a pretty brief conversation. So, you can argue he's a client. I would say at most, perhaps he's a perspective client, or maybe he's just a troubled friend.

    But, the following week when the panicked phone call comes from Frank, and Larry initially offers to refer Frank because he doesn't want to get in the middle of their marriage. And then, Frank gets so upset that he moves Larry to represent him, but Larry puts a condition that it must remain cordial and says, if he wants a really tough lawyer, he'll have to get someone else. At this point, we can deem Frank to be a current client. Larry's agreed to represent him.

    Now, we might wonder at this point, before we even get to Wendy, whether there's already a material limitation here because Larry telling Frank that it has to remain cordial, no matter what, makes one wonder whether he is going to be as aggressive as may be necessary. And by aggressive, I don't mean in civility, I just mean being as strategically aggressive in a negotiation. But, before we go along with Larry representing Frank, let's discuss Wendy.

    Wendy, is she a current client, is she a former client? We don't really know from this fact pattern. We know, at a minimum, she's a former client, but Wendy, when she's screaming says, "You have been my lawyer for years." So, if shes a current client or she believes she is, and there's been no closing letter sent to her, and presume that he's helped her sometime relatively recently within the past year and on an ongoing basis, she's going to be a current client. So, he now has two current clients, if we deem her current client, that are adverse to one another.

    If we deem her a former client, and perhaps she is, we don't know, if she's a former client this is exactly the type of situation we discussed before, where Larry no doubt has information that he obtained or we can presume he obtained about her financial situation, the assets of the business that are going to be part and parcel of any type of settlement agreement in divorce and so he cannot use that information against her. And basically, he's got a problem.

    Perhaps he belatedly realizes, or maybe all along kind of realized, but emotions got in his way, and suggests in the end, "Okay, I'm a certified mediator. Let's go out for drinks and work this out." Well, this isn't a course on mediation, but I'm here to also tell you that mediators cannot mediate when there's a conflict of interest. And even if they disclose it, even if the client's consented here, in a mediation in most states, the code would provide that this would not be consentable because really how can you be in the middle of two friends and remain neutral in a mediation setting? So, hopefully Larry hasn't lost both of his friends here, but really Larry can't represent either one of them.

    And it's a very good hypothetical I think for the part that we all have friends and even in law school, friends and relatives start asking legal questions even before we're able to technically answer them. And so, it's best both from a direct adversity standpoint, in this case, and material limitation, your feelings for one friend or another to avoid these situations.

    Okay, so let's move on to a few more shorter hypotheticals. Hypothetical two, estate planning, keeping secret husband's new bequest. This is a classic fact pattern that has occurred repeatedly and actually forms the basis for a Florida ethics opinion. Larry Lawyer has represented Howard and Wilma for 15 years in several personal matters, including estate planning. Howard and Wilma each maintains substantial individual assets and also own substantial jointly held property. They have three children and have been married for 30 years during which they have become extremely financially successful.

    From time to time Howard and Wilma visit Larry to update their wills. Each time, the goal is to leave everything first to the surviving spouse and upon their death, then equally to their three children. They meet with Larry and share all of their financial information. Neither Wilma or Howard have ever asked for a separate meeting or considered any information to be confidential from one another.

    However, unbeknownst to Larry or Wilma, Howard recently retained another lawyer to draft a codicil to his will in order to make a substantial bequest to a woman with whom Howard is having an affair. Once Howard executes the codicil, he informs Larry about it and asks how it will impact the distribution of Howard's assets if he should pre-decease Wilma. He explains that Wilma does not know about the codicil or the affair.

    So this time presumably, Larry's not in the middle of friends, Howard and Wilma, but they are longstanding clients and they've always had until now their interests align in that they have similar goals, they wanted their will and perhaps any trust they have to operate similarly. So, while Howard did get another lawyer to draft this codicil, he's now put Larry in a conflict. What the Florida opinion held and what is generally the case is that Larry can't really represent either of them anymore because he now has information that Howard doesn't want Wilma to know, that impacts the trust and estate document of Wilma and Howard, and so best advice is to withdraw from representing both of them.

    He can maintain Howard's confidentiality because he asked him to and tell Wilma a conflict has arisen, and let Wilma pursue it with Howard I suppose. But, he can no longer represent either one of them now that he has this knowledge, because it's obviously adverse to Wilma and telling Wilma is adverse to Howard, whatever's going to happen there.

    Under the immigration law category, conflicting stories. Miguel and Bella Morales are married, undocumented citizens. After running away from their country, they move to the United States with the intention of staying. A friend of Miguel recommends lawyer, Luciana Perez, to help him stay here legally. Luciana meets with Miguel and Bella and asks them what their motive is for coming to the United States. Miguel nervously responds, "We fled because I was tortured. The government was trying to kill my family."

    Luciana explains to them that with all the proper documentation, they will be able to apply for asylum. Luciana assists Bella and Miguel in applying for asylum. She works with them for several months to gather the necessary information for the interview. Miguel provides all the documentation regarding the kidnapping and the torture. A few weeks before the interview, Bella calls Luciana crying and tells her that she cannot attend the interview. Luciana responds, "Why not? This is your best shot at getting legal status." Bella pauses and tells Luciana, "I cannot remain married to someone who is abusing me. I actually fled our country because of Miguel, but he found me and told me that if we didn't apply for asylum together, he would kill me. Miguel fabricated his story." Bella then hangs up.

    After the troubling conversation, Luciana tries contacting Bella again, but fails. Confused by Bella's statement, Luciana decides to do some digging. Luciana verifies Bella's accusations and finds out Miguel was never tortured, but rather fled the country because he was involved in a financial scam. So unfortunately, it's not an unusual fact pattern in immigration law for one party, generally the female, to give wind to the fact that she is being abused by her partner or her husband. It can sometimes be a foreign or an undocumented person getting married to an American citizen.

    So, without getting too caught up in the facts of Miguel and Bella, the problem here is one, of course, of conflict because if Bella is being abused, there is another way for her to seek relief in the state under a victim's act and it's called a VAWA petition. But, in order to obtain that she would need to call the police and complain about her husband. So, Luciana can't advise Bella as much as she might like to help her, if she is in fact the victim of abuse, and she can't go forward with their case now that she has somehow learned that their case is not based on the actual facts.

    In other words, and this is another rule 3.3 candor to the tribunal that we don't want to get sidetracked here, but the bottom line is she has clients telling two different stories and one client, Bella, saying that her husband's story, Miguel's, is not true. And so, Luciana needs to withdraw from this case and refer them to other counsel, assuming she can get in contact with both of them.

    And that brings us to the end of this introduction to conflicts. And just in conclusion, you can see that it's a really important fundamental area of the practice of law, and it's extremely important to be thinking about conflicts to in a law firm have a system for checking conflicts when you take in a new case if you have a large client base, and to avoid trouble, both with clients, with the courts, with the other side asking to disqualify you, with disciplinary agencies. And remembering because conflicts goes to the basic underlying principle of loyalty to the client and protection of the client and the client's confidentiality, it's really yet another fundamental area of legal ethics. Thank you for listening and bye for now.

 

Jeffrey Cunning...:                                    Hello. My name is Jeffrey Cunningham. I'm an associate at Goldberg Segalla LLP. Today, we'll be discussing introduction to legal malpractice claims and related ethical issues. Overall today, we're going to be talking about these two major sources of risk to attorneys and how they overlap. And at that overlap is the most dangerous period in an attorney's practice, that's where most of the claims come from. Today, I'd like you keep in mind what I think of as the dart board, with the attorney at the bullseye. If you think about a dart board, there's multiple colors, right? The standard dart board has black and white spaces for the larger target, and then there's the smaller double and triple scores, even if you're not that familiar with dartboards. Just trust me on this, there's double and triple scores, which are typically red and green, and those are smaller areas. And that's sort of where the overlap is.

    And what I really like about the bullseye dartboard analogy is that the attorney is at the target. The attorney's at the bullseye and that's important to keep in mind. We'll discuss a little later on what makes attorneys particularly vulnerable, but also particularly valuable targets to legal malpractice claims and dissatisfied clients. Just a brief course overview: we're going to talk about obviously ethics and malpractice, an introduction to just the standard nuts and bolts of a legal malpractice claim, we're going to look at a 50 state survey essentially. I'm not going to hit on every state, but we'll talk about nuances from each state and examples from each state, and throughout the presentation we'll use actual cases to sort of dive into the various aspects of a legal malpractice claim and the related ethical issues. And today, we're going to be using the ABA model rules typically to discuss the various ethical obligations and how they interact with legal malpractice claims.

    Obviously, each state's rules are going to be a little bit different, but most states have adopted at least the major model rules we'll be discussing today anyway. And just generally speaking, ethics versus legal malpractice, ethics involves professional ideals, sort of an academic approach, while malpractice claims really tend to cut towards the common practice, what an attorney in your jurisdiction, in your city, in your practice area, does. Ethics generally involve intent and malpractice generally involves negligence, almost always involves negligence. So, there's a split there in the motivation behind the attorney.

    Now, you could certainly have a negligent, ethical violation as well, but typically there's some aspect of intent or more than negligence involved. Ethics violations generally are conduct base, so a course of conduct over time, an attorney fails to do this or that for an extensive period. That's not to say one instance couldn't prove to be a terrible ethics violation, but typically it's a course of conduct. Whereas malpractice is sort of the other way. Malpractice generally involves one mistake, one instance where the attorney fails to adhere to the standard of care and causes damage. Ethics complaints are handled by state bar associations typically, whereas malpractice claims are dealt with in state court, federal court, but primarily in state court.

    Jumping right in, I like to start with the duty to disclose malpractice and what sort of obligations the attorney owes the client when malpractice occurs or when malpractice may occur. According to the model rules, which is contrary to most jurisdictions, the attorney does owe a duty to disclose potential malpractice to a client. ABA model rule 1.4 provides for client communication, 1.7, the personal interest of the lawyer and how it cannot impact the representation of the client, and ABA opinion 481 dives into rule 1.4 and requires the attorney to inform the client if the lawyer believes an error is "material."

    Now, whether the error is material, here's plenty of room for discussion there, but the thrust of the ABAs opinion is that if the mistake, or the issue, the act, omission could arise to malpractice, that would be material, that could cause damage to the client, that's something that ethically the attorney is required to disclose. The Restatement of Third, governing lawyers, section 20, again puts the obligation on the attorney, and a minority of jurisdictions find there is a common law duty to disclose malpractice, such as in Texas.

    There's also a risk for not disclosing malpractice, where you may not be committing an ethical violation per se, you may not be committing malpractice, but you could expose yourself, the attorney could expose himself to a breach of fiduciary duty type claim. And this is seen in Pennsylvania and a series of other jurisdictions, usually where it's an issue of first impression where there isn't an obligation on the attorney to disclose malpractice, but it rises to some other claim, some sort of breach.

    There's also in the duty to disclose cutting the other way, serious, significant malpractice insurance consideration. So, before any sort of disclosure is made, you should certainly contact a competent attorney who can help guide you through the ethical issues, the legal malpractice issues. But, you also want to be in touch with your malpractice carrier because you don't want to jeopardize the potential insurance because you jump the gun on disclosure.

    Diving in, as I said, we'll be discussing case studies throughout the day and sort of illustrating points with actual cases. So, the case study for disclosure, there's a large trust and estates firm with significant client wealth, billions of dollars. I mean, really incredible amount of money this firm is dealing with. It's a midsize firm. The managing partner tragically develops significant mental health issues, and being the managing partner of the firm, there's an absolute lack of oversight over this partner's work. So, after eight years of suffering from these mental health issues, the firm discovers that there was a series of improprieties impacting dozens of clients, and over about $150 million at issue when you take into account all of the clients.

    Now, the money wasn't being stolen or anything, the money was being moved around to cover up lack of activity and a lack of progress on various cases. There were allegations made by the various plaintiffs of the former clients, of falsifying court documents and misappropriating the client's money to hold off other clients and dupe other clients into thinking everything was proceeding normally. The firm contacted private counsel, their insurance company, they obtained insurance counsel, and insurance defense counsel, that's where I stepped in, and conducted a forensic accounting to figure out what exactly happened over this eight year period.

    We were able to settle six claims and defeated two claims that could not settle via pre-answer motions. And again, it was over $150 million at issue, and the firm was able to get ahead of all of that settled for a fraction of that 150 million, and was able to meet their ethical obligations to their various clients.

    Some of the clients even, once they were informed, once the firm disclosed the issues and attempted to make them whole, some of the clients didn't proceed to litigation, we didn't even need to settle, they were okay. And even some kept their work there and appreciated the disclosure, some didn't. But again, the duty to disclose, in a ethical standpoint, the attorney does have a duty to disclose malpractice or potential malpractice if the error is material. Now, most states, there are a minority of jurisdictions that mirror this, but most states do not require that, and recognize that the attorney has dual interest to the client, but also in preserving the attorney's self-interest as well. And that really does conflict with the model rules and most state's rules.

    Okay, so a malpractice overview, not to scare you, but 80% of attorneys are sued for malpractice during their career. That's from the ABA's Around the ABA, December 2016 issue. The article is Ways to Avoid Legal Malpractice as Claims Rise Industry-wide. I can tell you in the five years since that article has come out, claims have gone up significantly, and continue to increase exponentially. So, 80% of lawyers face some sort of malpractice claim during their career. 70% of all claims are against firms with one to five attorneys. Now, that doesn't mean if you're at a big firm, you don't need to worry. Obviously, there's still the 30% of the claims. But, claims against attorneys at larger firms continue to increase as well and tend to be on the significantly higher dollar amounts.

    Legal malpractice claims have continually climbed about 20% since 2012. And here's kind of the biggest shocker of the statistics, and the ABA compiles these statistics and does reports, but a third of the errors reported, and this is for the past three or four cycles, about a third of the errors reported involve preparation filing and transmittal of documents. So, this is not substantive legal work, but this is work that is generally delegated to support staff, paralegals, assistants, even younger associates, but work that the attorney is not handling directly is a third of the sources of claims. So, legal malpractice, kind of the nuts and bolts overview.

    Most of you have probably heard of the case within a case, and inevitably you've heard someone say, "No, if we did that, if we did X, Y, and Z, that would be malpractice." People tend to conflate malpractice with the negligence element, understandably so, but there's more to malpractice than just making a mistake thankfully. The elements are, and this is across the jurisdictions, you need to have an attorney-client relationship, privity is key. And we'll talk about that a little bit more, there is a privity spectrum, but generally the only person, the only entity that could sue an attorney for legal malpractice is the client.

    The second element is negligence, a breach of the standard of care. The third element is proximate causation, and that varies jurisdiction to jurisdiction, but typically it's but for causation, and then actual ascertain damages. Now, some jurisdictions allow for broader damages than others, but there has to be actual damages, a breach of the duty is not enough. And typically dismissal of a legal malpractice claim can occur pre-answer if any of the elements are missing. And throughout the day, we'll talk about related claims, breach of fiduciary duty claims, other duplicative claims that are often brought against attorneys, breach of contract, fraud, regular negligence, all sorts of other claims that that are typically brought in an attempt to usually evade the statute of limitations, but otherwise expose the attorney to what really is a garden variety legal malpractice claim. So, that's our legal malpractice overview.

    The ethics overview, again, we're using the model rules. And the model rules, preamble and scope, specifically holds that a violation of the model rules does not give rise to a cause of action against a lawyer. The rules are not meant to civil liability. Most jurisdictions have a similar disclaimer in their ethical rules. The ethics rules are not meant to be a legal malpractice claim. There are professional standards independent of the legal ramifications of a mistake. You have to know the rules of each jurisdiction, of course.

    It's important to remember that the rules for your jurisdiction are likely admissible to establish the standard of care. So, the jury does get to hear the rules, whether or not, and we'll talk about this a little more in a bit, but whether or not it's admissible, dispositive. I mean, that's jurisdictional, but typically the jury will hear the actual rules at issue.

    All right, so jumping right into the elements. The first element, the attorney-client relationship, the privity, that's where the duty is created. Most states have a strict privity requirement. They require something in the nature of an explicit undertaking to perform a specific task. So, if you're a real estate attorney and you're representing a client in a house closing, and the client gets arrested and doesn't contact an attorney or something goes wrong on the criminal end, the attorney typically can't turn around... I'm sorry, the client can't typically turn around and sue the real estate closing attorney for malpractice related to the criminal action if the attorney was not representing the client in that criminal action.

    Most jurisdictions allow a unilateral reasonable belief of the client. So, it's unilateral, it's the client's belief, but it does have to be reasonable so it adds a subjective nature to the privity calculus. And this is related to, but distinct, from issues of standing, so issues of standing still need to be dealt with as well. Payment for services does not matter. Typically, West Virginia is a great example where anyone can pay the attorney, that doesn't impact the attorney-client relationship at all, and most states follow that idea across the board. There are exceptions and it really does deal with in the criminal context and some other specific context, but typically payment for services doesn't impact the attorney-client relationship or alter who the client is or expose the attorney to a broader risk of legal malpractice claims.

    There's a privity spectrum. I like to think of it as California being on the end where privity is the loosest and New York state is on the end where privity is the strictest. States fall in between, but in California, they've opened the door somewhat to intended beneficiaries, known beneficiaries, potential non-clients who the attorney's aware of, and that are relying on the attorney's work, could potentially bring a claim against the attorney. That's pretty rare, and most states tend to go towards the New York side of the spectrum, where there's an absolute privity requirement and only the attorney's client can sue from malpractice.

    This is where the scope of the services is so important. And again, using the example of the real estate attorney and criminal situation, to have a written retainer and make it a living document that's updated and reflects the understanding between the attorney and the client is so important. And there's a major problem of jury perception here. Many clients will say, "The attorney was taking care of it," no matter what the it was, even if it was something that attorneys don't care of or this particular attorney was not supposed to take care of.

    Juries tend to agree with clients that when you have a lawyer, the lawyer's supposed to handle everything, and it's a major issue. People always say, juries don't like attorneys.  I really haven't found that to be the case anymore than anyone else, and who knows exactly what a jury will do, but there's a real problem of jury perception that they will broaden the scope of the attorney-client relationship as the client will, and think the attorney's there to handle everything. So, the scope of services, a written retainer agreement that's updated, constant communication in writing. I mean, email's wonderful for keeping the scope of services in writing. And that's really key because when problems arise inevitably, the scope of the service is going to be a major issue.

    Ethical considerations in privity, you have to know the jurisdiction you're in, you have to know the professional rules, the retainer agreement is key, client communication is key, particularly vulnerable clients, incapacitated, incompetent clients require special care. It's important to know rules in your jurisdiction when dealing with clients, such as those. Also, unrepresented parties and witnesses, there are ethical issues that are way, way broader than legal malpractice. Where only your client can sue you for legal malpractice, there are ethical obstacles that attorneys face when dealing with unrepresented-

 

Jeffrey Cunning...:                                    There are ethical obstacles that attorneys face when dealing with unrepresented parties and non-party witnesses. Arbitration clauses and informed consent, especially in the retainer agreement, but arbitration clauses with clients can be used. Often many states require another attorney to be involved to represent the client's interest. And in Michigan, for example, an arbitration clause can preclude a malpractice claim. So again, know your jurisdiction. Conflicts of interest are a major source of legal malpractice claims and whether or not the waiver of the conflict of interest could bar a legal malpractice claim is, again, state by state, but it's something to really consider and to be aware of and anytime there's a conflict of interest, even one that's waveable, that's a huge source of risk to attorneys. Finally, the attorney client privilege, the ethical considerations around that. Many states have an at issue doctrine where if a client sues the attorney, they waive the attorney client privilege for any material that's at issue to representation such as New York state.

    It does not allow the attorney to simply disclose all privileged communications. What it does is allow the attorney to disclose privileged communications to the extent it's required to defend the claim. So it prevents the sword and shield problem. It doesn't let the client hide behind the privilege while prosecuting a malpractice claim against the attorney. A case study in privity. The attorney's client was a custodian, injured while working at a commercial building. The attorney failed to name the proper entities and the case was dismissed. It was a very, very serious injury and there was a web of entities that rented this particular space. It was an admitted failure on the attorney's part at the end of the day. The client and the client's wife sued the attorney from malpractice and we were able to get the wife's claims dismissed due to a lack of privity.

    She was never represented by the attorney, even though she was involved in the discussions. She sort of worked as a translator for the plaintiff. They were both non-native English speakers. She had solo phone calls with the attorney and marital funds were used to pay the attorney, but the retainer agreement was only signed with the client, not the wife and the case was dismissed as against the wife. It was settled with the client. The next element, breach of the standard of care. Attorneys must exercise the care skill and diligence commonly exercised by attorneys in similar conditions and circumstances. Each state has a slightly different standard, but typically it's not across the board a standard of care for all attorneys. It has to do with the attorney's practice area, the attorney's experience level, the attorney's area of practice, the geographic area of practice.

    So in a major urban area, a real estate attorney will be held to a slightly different standard than in a rural area where a real estate attorney would be held to the common practice of an attorney in their area. The professional attorney judgment rule and qualified immunity states tend to call it different things, but the basic idea, as Virginia is a good example, an attorney will not be held liable, exposed to legal malpractice, for the exercise of professional judgment. So if it's a reasonable professional decision that the attorney makes, then there's some sort of immunity provided where it would borrow malpractice claim. Now it has to be a reasonable professional decision. It doesn't have to be a perfect decision, but it does have to be reasonably based on the law and within the standard of care. Attorney experts, some states like New Jersey require an affidavit of merit for a legal malpractice claim to proceed.

    Some like New York rely heavily on expert testimony. However, the judge can also be an expert of the law in many instances, and it tends to cut both ways. It sort of depends on the legal issues at issue. Ethical considerations in the breach of standard of care, the ABA model rules and most state rules recognize the distinction between ethics and malpractice. A majority of jurisdictions allow, as we discussed before, allow the ethics violations to be used as evidence of a breach. Arizona is a good example, where the ethical rules can be brought in as evidence. A minority like Arkansas provide for the ethical rules to be a presumption of malpractice, a rebuttable presumption. Some states will hold attorneys to a higher standard of care in the instance if they're allowed to specialize.

    So in certain states, attorneys can say that they're a specialist in an area of the law. And states like California will hold the standard of care higher to an attorney who specializes, again, if you're holding yourself out as a real estate specialist, you're held to a different standard of care than a general practitioner. Be wary of practice in other jurisdictions and the exposure that could bring, pro hac vice admissions or even just conducting transactions with property in other jurisdictions than ones you are admitted in, that can increase exposure to the attorney.

    Now case study for breach. Client led a red strike against a landlord. This is a very, very high end luxury building. It resulted in seven different litigations over about 11 years. The attorney attempted to resolve all of the litigations with a statutory technique, but tweaked the language in order to try to cover the client and resolve all of the litigations. The court determined that the statutory tender was invalid and the client sued the attorney. We used a professional judgment rule to show that not only was the statutory tender approach appropriate and reasonable, but the client was also, a sophisticated client, was aware of the strategy and approved of the strategy and was involved in provided informed consent in writing. I mean, it was really involved in the decision. The case settled after opening for our pretrial offer, but it was impressive how strong the professional judgment rule argument was, that our attorney had a reasonable plan.

    It didn't work, but that alone didn't provide for a strong malpractice claim against the attorney. The next element, approximate causation, negligence is not enough. Again, people always say that would be malpractice. A mistake does not equal malpractice. It must approximately cause damage. And in the criminal context, most states have an innocence requirement, which goes to the approximate cause element. If the client criminal defendant is guilty, provides an allocution or a confession, then that will generally bar a malpractice claim because the client plaintiff needs to be innocent of the crime in order to argue that. But for the attorney's act or omission, they wouldn't have gone to jail. It's typically but for causation and it's important to think about prior subsequent co-counsel when analyzing approximate cause in the legal malpractice context.

    The sophisticated client doctrine is available in many states and it essentially holds that each client is unique and that a client who is a sophisticated business person, real estate person, or in fact a lawyer, will be held to a different standard than a non-sophisticated client. Client satisfaction, speculation about how an outcome should have played out is not enough to establish approximate causation. And the ethical issues and approximate causes. It's always important to consider the agency principles that attorneys have both actual and apparent authority to bind their clients and especially in the settlement context.

    This can be a major source of risk, both for legal malpractice claims, but also for potential ethical issues. Most mistakes do not cause recoverable damage or amount to an ethical violation, but still a professional failure. And we owe duties to our clients not to commit even minor failures, whether or not they cause damage. But it's important to keep that in mind, that proximate cause is a key element of legal malpractice, but a mistake alone, even one that doesn't cause actual dollar damages, is still a failure of our ethical obligations to our clients. Case study in proximate cause. Client purchased $110 million commercial building. The major tenant did not renew the lease two months after the purchase. The client thought the tenant was going to renew for 20 years. The client sues the lawyer, alleging the lawyer told him he would get the tenant to sign an extension.

    The contract of sale for the building included the rent rolls, the leases. The client admitted he reviewed all of that before signing and he knew he didn't have a lease extension, but he maintained that the attorney was going to get it for him somehow. Our motion for summary judgment was affirmed on appeal. The client was bound by the contract and nothing the lawyer did or said could have forced the non-party tenant to extend the lease after the contract was signed. And here this sophisticated client doctrine popped into the case because this client was purchasing $110 million commercial building. He owned dozens of multimillion dollar, hundred million dollar buildings, and he was a very sophisticated real estate investor and that definitely helped get the case dismissed. Again, the client was sort of held to a different standard of care in that he wasn't a babe in the woods. This wasn't his first time home purchase.

    This was a substantial commercial investment and he had significant experience. The last element, damages. Generally only pecuniary loss is available. Must be actual ascertainable and not speculative. Emotional distress, loss of liberty. Things like that are not generally recoverable. Some states allow it. Washington state, for example. If the emotional distress can be tied to the malpractice closely enough, then it could potentially be recoverable. There's sort of a push to expand damages beyond pecuniary loss, but most jurisdictions still require actual dollar damages. Issues of collectability, such as in Arkansas. If the client lost a hundred million dollar lawsuit, but the underlying defendant was insolvent and had no money, then that lawsuit is actually worth nothing. If the client lost a hundred million dollar lawsuit, but the underlying defendant only had a million dollars, then that lawsuit is only worth the million dollars. So whether or not the underlying judgment would be collectible goes to damages in many states. Other considerations are interest and attorney's fees, pre-judgment interest, and attorney's fees to cure malpractice.

    Most jurisdictions allow some of those. Some like Massachusetts provide fees to cure malpractice. Some do not. And it's really important to get a handle on whether interest is pre-judgment, whether it's statutory, and what the accrual date is because that can be substantial. The ethical considerations and damages are really pretty deep here because non-pecuniary damages are still damages. So emotional distress, loss of liberty, things like that, reputational harm. They may not be recoverable in a legal malpractice claim, but they are certainly ethical obligations we have to our client, to protect our clients from such damages. Those are real damages. They're just not damages that are afforded a dollar amount. In the matrimonial, family law, criminal law context, these are especially acute concerns. A case study in damages involves an underlying criminal case.

    The underlying client was involved in a kidnapping and received a 15 year sentence. There was a series of appeals over about 20 years and ultimately the conviction was quashed. Our attorney client was sued for malpractice. He missed a new issue with speedy trial time calculation and arguably, but for that calculation, the criminal defendant client would not have been convicted. The client was unable to show actual pecuniary loss. The jurisdiction we were in did not allow for non-pecuniary recovery, such as loss of liberty. And the client beforehand had been an off the books restaurant manager with ties to organized crime. We had an expert that showed his time in jail was actually financially better than when he was free. Now that would've been a tough sell to the jury, but there was a split in the appellate decisions and during the pendency of dispositive motion practice, the highest court in the jurisdiction decided to stick with the idea that non-pecuniary loss was not recoverable and we were able to settle the case following the high courts decision.

    And again, this goes to show that this man spent 15 years in jail. One, he shouldn't have. So while it wasn't necessarily a recoverable damage and his legal malpractice claim was really hamstrung by the fact that he didn't have dollar damages. He was damaged and we, again, owe that obligation to our clients. So that's the four elements, ethics and malpractice wrap up here. The elements of a malpractice claim and the ethics rules overlap all the way. Each aspect of the representation presents risks and challenges to the attorney. You have to know the rules of your jurisdiction and the best risk avoidance tool an attorney has is contemporaneous communications in writing. Email is so important and to save those emails. So important. And I don't think of it as a CYA type approach, but just a best practice. Keep your client updated.

    And the best way to keep your client update is to provide that in writing. Other key points of risk I want to talk about to attorneys, threats of ethical violations as malpractice, duplicative claims. We touched on early on. I want to go into that in a little detail. Fraud claims, conflicts of interest, statute of limitations considerations, releases, and statutes in your jurisdiction. So threats of ethical violations by other lawyers. You have to know your jurisdictional rules, but in most jurisdictions, threatening or mentioning an ethics violation by an attorney is in itself a violation. You're not supposed to threaten an attorney with an ethics violation. You're supposed to report an ethics violation if you see one. Once you start hinting that if the attorney does this or does that you won't report, that's a huge problem by the client. If a client starts talking about ethics violations, that could be used to terminate the representation and it's something you really should consider.

    And it goes along with the next idea. If you have a client who starts talking about ethics violations about another lawyer, often the other side's lawyer, that's a good time to sit down and think about continuing representation of this client because that's probably leading down a road of trouble. There's also criminal implications to consider. And again, threatening ethics violations can oftentimes lead to criminal complications such as extortion. I mean, it's something that attorneys sometimes open the door to without really thinking things through. Duplicative claims that often tag along with legal malpractice claims, negligence, breach of contract, fraud, breach of fiduciary duty, negligent misrepresentation, discouragement of fees or other claims aimed at attorney's fees that were paid such as unjust enrichment, things like that. Generally speaking, if it's the same set of facts seeking the same damages as the legal malpractice claim, most jurisdictions will dismiss the claims as duplicative.

    A lot of the times these duplicative claims are used to seek otherwise unrecoverable damages such as emotional distress and things like that, or, and/or I guess, are used as an end run around the statutes of limitation because in many jurisdictions fraud based claims will have a longer statute of limitations or contract claims will have a longer statute of limitations than a legal malpractice claim.

    Jumping into conflict of interest, the ABA model rules 1.7 to 1.11 discuss conflict of interest in detail. And again, you have to know your jurisdiction, but a conflict of interest alone is not generally a basis for a cause of action for legal malpractice, unless the divided loyalty establishes the four elements of malpractice that we discussed before. Regardless, unlike most legal malpractice claims, it's very difficult to defeat these claims early with a pre-answered motion to dismiss or even at the close of discovery.

    They're usually very fact intensive and tend to survive. Statute of limitations consideration. I mean, the timing, you have to know your jurisdiction. Certain jurisdictions have legal malpractice claim is based in contract, some in tort, some have a specific statute of limitations for claims against attorneys, some have discovery rules that are involved and it really varies depending on your state. And just a bit of a warning, in my practice, fee claims amount for about a third of the legal malpractice claims. So the attorney sues the client for outstanding fees. The client then goes to another lawyer to defend the fee claim and that other lawyer comes back with a legal malpractice claim, which is typically 10 to 20 times the amount being sought by the attorney. Sometimes you need to bring a fee claim, obviously, but anytime you do, it's an important time to stop and consider the cost benefit analysis of bringing a claim against that client and to review the file and make sure that there's no problem areas in the representation.

    Many states, not all, but many states employ a continuous representation idea where if an attorney is representing a client in the same or similar matter, the statute of limitations won't run until that representation is done. And that's borrowed usually from a medical malpractice approach as well. The idea being that while the client has faith in the attorney and relies on the attorney, they shouldn't be a stop from bringing a claim until the representation's over. Not all states have a continuous representation idea. New Mexico is one of them, where the attorney can continue to represent the client and the statute runs from the act or emission. Because of the statute of limitations considerations, engagement letters, retainers, and closing letters, or turn down letters, are really key. So when a file's over, when a case is over, when the file's closed, sending out a letter is really important to establish the end date of the representation.

    Turn down letters for prospective clients who don't end up being accepted by the attorney or don't engage the attorney are also key to establish that one, there was no representation, but two, even if there was, the end date was at the date of the turndown letter. Releases between attorneys and clients prior to or contemporaneous with the engagement. So having a pre-retainer release will almost certainly be held invalid. Without an express recommendation to consult outside counsel, again, probably invalid. In exchange for a reduction or waiver of fee, that's usually the strong. And I often recommend before bringing a fee claim, again, sit down, review the file, but a really strong idea is to cut the fee claim down and accept a reduced fee or completely waive the fee in exchange for a release so that you can put any legal malpractice claims to bed in exchange for fees that you may not recover anyway.

    And again, in the criminal context, an allocution, an admission, a confession of the crime, often bars a claim against the attorney. And an interesting thing, I have a client who builds releases into the real estate transactions that they perform. And it's been very helpful in related claims. It can be a little challenging. And again, you want outside counsel or at least the recommendation to seek outside counsel for the client to review it, but it's an effective risk mitigation technique that I recommend, especially in the real estate context. As I said, fee claims often result in counterclaims for malpractice. The important issues there are to weigh the pros and cons of bringing a fee claims. Sometimes it has to be done. And using the closing letters, using the scope of services, and the living document of a retainer is really going to be key in bringing fee claims without having a legal malpractice claim result.

    Third party claims are a consideration. Attorneys have to make contribution indemnification claims and attorney's are often targeted by contribution indemnification claims. Some states like Maryland specifically provide for such claims against attorneys. Subpoenas are also a major source of risk for attorneys as non-clients seek privileged communications or the attorney's non-privileged documents. Privilege considerations are key. We talked about the ad issue doctrine, how the attorney can waive the privilege in order to defend against legal malpractice claims. And other professionals, co-counsel, common interest counsel, coverage counsel, accountants, insurers, other professionals that also represent the client could also be a major source of risk and those considerations should really be paramount while representing a client who has other professionals involved in representation.

    I want to briefly touch on out of office risks, like in advertising, social media, personal or shared email accounts, even casual conversations. All of those can be a source of legal malpractice risks and ethical concerns that attorneys really need to one, know the jurisdiction and the rules for your jurisdiction, but two, be aware. Be aware of casual legal conversations or providing legal advice to friends or family via text message. Be careful about what is sent to or from a shared or personal email account. That email account may be the source of litigation in the future. And there are privilege issues with a shared email account. Obviously that's a huge problem. Pro bono risks are a major source of both ethical and malpractice risks to attorneys. And the key is to remember that a pro bono client enjoys the same standard of care for legal malpractice and the same ethical obligations as a paying client.

    So pro bono organizations, non-legal charitable work, condo, co-op, religious boards, they all present risk to attorneys and the standard of care, the ethical standards are the same. There's also malpractice insurance considerations. So if you are going to be on a condo board or a religious board or doing charitable work that's even borderline legal, you probably want to notify your malpractice carrier in advance. Pro bono work, as I said, is a major source of risk for attorneys and it's about 20% or so of the cases I see. They stem from pro bono work that turns sour. A major developing source of risk, especially these days, is cyber risk to attorneys. The ABA put out the 2016 legal technology survey, which essentially comes to the conclusion that more lawyers using more tech makes more risk. Firms with over 500 attorneys amount for about a quarter of the cyber claims against lawyers. The danger zone, which is another quarter of the claims is firms between 10 to 49 attorneys.

    And I call it the danger zone because I think that's when a firm is growing. It's no longer a small firm and they're starting to bring on more practice areas, more attorneys, and more technology. And that use of more technology when maybe not all of the lawyers are familiar with the technology, maybe there's not staff to support the attorneys using that technology, creates huge areas of risk. The ABA cyber security handbook, which advises attorneys a bit of a dry read, but advises attorneys on the use of technology, states that if a lawyer is not competent to decide whether to use a particular technology such as cloud storage, public wifi, et cetera, reasonable measures need to be used to protect client confidentiality and the lawyer must get help, even if that means hiring an expert information technology consultant to advise the lawyer. So not knowing how to use technology is not a defense for ethical obligations and it generally is not going to be a defense to a legal malpractice claim.

    There's no clear standard and it's developing, but each state and each state bar is trying to work out the ethical considerations with cyber risk. Firms face challenges complying with varying and evolving state laws and bar ethics opinions. Look to the model rules, look to the jurisdictional rules. The ABA puts out the cybersecurity handbook, as I mentioned, and is continually attempting to address these risks. At the end of the day model rule 1.6 part C has a reasonableness standard and that seems to be the overwhelming approach that attorneys need to use a reasonable approach to employ technology in a way that will protect their clients. And by utilizing an expert, an IT expert of some sort, that's a great step in the right direction. By hiring someone who is actually an expert and not saying, "We handled this ourselves," that really helps satisfy both the ethical obligations and the legal malpractice concerns.

    And again, the courts and each state bars grappling with the ever increasing use of technology. But it really is a major source of risk that attorneys must stay ahead of. Legal malpractice and cyber risks. So it's very limited still, but very developing area of case law. The truth is it's extremely under reported. The ABA is constantly conducting studies, but it seems that most law firms are one, unfortunately not notifying clients when there are cyber breaches, when there are areas of concern and two, if the clients do become aware, these cases are often settled very early on. Now there's other insurance components to this. Most firms have cyber risk insurance and if your firm doesn't, you should definitely explore it. But these are very expensive cases to defend and the reputational damage that can result to a firm is really exponential.

    The good news is that the elements of legal malpractice remain the same. There's still the privity element. Only the client can sue for legal malpractice based on these cyber risks. The duty is still the same. It's based off the prevailing practice and customs, have an attorney practicing in that area, that jurisdiction. And there has to be proximate cause leading to damage. So oftentimes a simple cyber breach and the loss of sensitive data doesn't necessarily result in actual damage and that can be a real burden to prove that the client was damaged by the breach.

    Something that I'm surprised, attorney's who are typically not as tech savvy as our counterparts in finance and other areas, I'm surprised attorneys don't use telephone communications in meetings more to confirm electronic communications. It's something I highly recommend. And a quick case study in the cyber breach area is the attorney settles a few hundred thousand dollar claim on behalf of his client and sends the payment information to the other side. A hacker gets into the system, either on his side or the other side, the forensic IT people were still determining it when we settled the case, but a hacker gets in and they spoof the email and send an email from my client lawyer's email address, it looks like his anyway, providing new wire information and the other side wires the settlement proceeds to this bad actor who we believe is in Pakistan, or at least that's where the IP address is. Who knows where the actual bad actor is.

    And the money's gone. And law enforcement is not particularly helpful and there's really not much else to do except the resulting lawsuit. Now the issue here, again, only the clients able to sue the attorney for malpractice. So if the settlement falls apart, then the attorneys exposed to a malpractice claim there, but the other side had attorneys and had insurance and we were able to work it all out, but it was a very complicated negotiation about who owed who what duties. And did our lawyer owe the other side any duties in having a secure email server? Did the other side owe us any duties in having secure email? Should the other attorney have picked up the phone and confirmed the wire instructions had changed? I mean, these are all issues that don't generally get played out in court yet and are typically settled early, but they're a source of risk to attorneys.

    All of that being said, there are so many resources available to attorneys. I mean, most firms have a general counsel's office or someone that is up to speed on these issues. Also, your malpractice insurance carrier can be a great resource, not when an actual claim arises, although they're great then too, but they can be a source of advice and will have resources to help attorneys mitigate risk that really should be explored and I think are often overlooked by attorneys and firms. The ABA provides a hotline, the lawyers professional liability hotline. I'll give you the number. 1 800-285-2221, extension 5754. It's a really great resource. It's free, it's easy, and it can provide peace of mind. Most state and local bar associations have similar hotlines or similar resources where you can get sort of quick advice. Other attorneys, judges, law professors, mentors are a great resource, and as you would say to your client, it's better to get ahead of these issues before they become a problem.

    And of course, I'm always available. Please reach out. Again, Jeff Cunningham at Goldberg Segalla. I like to talk about this stuff, but it's also what I do. So I certainly see myself as another resource for you. To recap, the great risk to attorneys is in the areas of overlap between ethics and legal malpractice. So going back to that dart board idea, the attorneys at the bullseye, but the source of risk are really those overlapping double and triple point areas where the danger zone to attorneys really exist. It's not just the bullseye, right? The lawyers the target, but our ethical obligations and the legal malpractice claims are really the areas of concern, where those two risks overlap.

    And again, ethics involve our professional ideals. A bit academic, the intent side of things is there, it's generally a course of conduct, and the state bar associations are the ones that enforce and regulate ethical violations. Malpractice on the other hand as we talked about. It's the common practice of what attorneys in your area, in your practice area, your geographic area, do. It's negligence based, typically involves an instance. So one mistake, one instance of malpractice, and it's handled by state courts, federal courts to some extent. And keeping in mind that we owe these ethical obligations and these legal obligations to our clients. They're also meant to protect attorneys and give us guidance in representing our clients in a way that also protects our practice and our firms and ourselves.

    So use the ethical obligations and the legal malpractice standards really as a resource as well to protect you against claims and running a foul of our obligations.

    Growing area of cyber risk is in our new normal with COVID-19. Every aspect of our lives has been impacted, but the practice of law in particular has been impacted in every jurisdiction. Executive orders, administrative orders have been in place that impact all aspects of the practice of law. Remote practice and virtual courts are new and challenging uses of technology. The-

 

Jeffrey Cunning...:                                    Are new and challenging uses of technology. The actual risk from these new ways to practice are yet to be seen. And I think in a few years they'll be coming to the forefront, but there's new risks that are developing in our new normal. It's sort of a perfect storm for bad actors. And from the cyber example before, pick up the phone, confirm communications through technology with meetings, if possible, or a phone call. The new normal is forcing attorneys, courts, and clients to use technology that they're not necessarily comfortable with. And firms and courts are dealing with reduced staffing. So as we discussed before, the danger zone for mid-size firms tends to be where they're embracing technology without having the support staff to help attorneys use that technology. And it could be a real source of risk. The uncertainty of deadlines, impact to the statute limitations.

    I mean, it's really jurisdictional and needs to be closely tracked by firms. It's really going to be a problem, I think. Especially coupled with the economic instability that the COVID-19 pandemic has had on our economy. As the economy drops, lawyers tend to be a nice target, because we're insured, and because claims against attorneys by clients are usually valuable. Remote practice issues are a major problem, from the ethical standpoint as well. Attorney-client communications through platforms such as Zoom that have already had issues with security can be a real issue. And I can't stress enough as I've probably stressed today, pick up the phone, use older methods of communication. New technology isn't always the best. And it really does present risks. Not to pick on Zoom, but the various video chat providers we have. The new technologies that are being used are wonderful.

    But when you're talking about attorney-client communications, using something that's tried and true is probably much safer. There's issues with remote depositions. I recently had a deposition for... It was a slip and fall case, and the plaintiff's counsel was on Zoom. I don't know exactly what he was doing, but the Zoom video showed his computer and he was working on something during his client's deposition. Now, that raises issues. One, of whether he was competently defending his client, but two, presumably he was working on some privileged issue. Some client's case, and he was doing something that he shouldn't have been showing to a bunch of other attorneys, the court reporter, and maybe even his client. I interrupted and let him know we could see his computer. He turned his camera, it was no problem. But it's something that really needs to be thought through in the new normal. There's all sorts of ethical risks with client coaching, recording of depositions. And remote practice in general really presents problems for attorneys that we don't have clear answers on.

    Just like with cyber risks in general, the thought is these are going to be held to a reasonable standard. And that's going back to the ABA rules. That's really what we have to keep in mind. If you're not competent to use these remote platforms or to handle a paperless practice or anything like that, there really is an obligation to hire an expert to help you. Someone that can help you with the new normals' heavy use of technology. Not necessarily rising to ethical violations and certainly not an issue of malpractice, but there are... And I'm sure we've all experienced it. There are issues of professionalism that come up, which we are ethically obligated to maintain. People appearing in court from their bedroom sort of lack the professionalism that they would otherwise have if they were standing in court.

    I highly recommend putting a suit and tie on, the equivalent for ladies, and getting yourself in the mindset of appearing in court, even if you are in your basement or your bedroom. It's a different day, but our obligations remain the same. And I think it's really important to maintain that level of normalcy. Just a virtual courts example. There's a virtual ADR. The client agrees settlement in principle, in a breakout room, in the Zoom rooms. We've all done that now. And the client agrees and is on board with the settlement. The case is settled, discontinued. Everybody goes their separate way, but the client changes his mind. It turns into a he-said-she-said, or he-said-he-said in this case, because both the client and attorney were male.

    The attorney saying that his client agreed. The client said, "I never agreed to settle." The mediator, they're almost always immune anyway. But our mediator here was a retired judge who in no uncertain terms told us that he would be extremely upset if he was subpoenaed. He did speak to us and told us generally his impression, but we weren't able to use any of that. The big takeaway here is, consider recording if a settlement is reached. Obviously, you're not going to record the mediation, but if a settlement is reached, put it on the record of sorts. And that's something you can do easily in a remote setting that you couldn't do before, just at a mediator's office. Follow up in writing. That contemporaneous writing really is the key, but consider making a record to protect yourself in remote settings when you can. The risk management techniques here parallel the traditional approach. You want to continue to use that reasonableness standard and attempt to develop risk management techniques for a remote, paperless practice.

    It's likely going to be the way we practice going forward, regardless of when we get to return to offices and things like that. But it's still going to be a major source of risk. The big takeaways, I think, are that, while it's the new normal, it's still the old risks. And you still have to go through and be sure you are meeting your ethical obligations to your clients and consider the legal malpractice risks. Those four elements are going to be key to protecting your firm. And utilizing best practices, keeping things in writing, keeping the retainer agreement as a living document that's updated to reflect the actual scope of services is going to gigantic step in mitigating all of the risks you face. But especially these new developing cyber risks from the pandemic. The ABA is providing a coronavirus resources. There's a COVID-19 task force, and many firms have... I'd be remiss if I didn't mention Goldberg Segalla's coronavirus resources and rapid response taskforce.

    Many firms are putting out resources related to COVID-19. I particularly like Winston Strong's COVID-19 client resource center. State bar associations and courts are also continually putting out resources. And it's a bit overwhelming, which is why I think it's helpful to pick a firm and use their resource center as a great guideline. But it's a very useful resource for risk mitigation for attorneys that I think many lawyers are overlooking at this point, simply because they're overwhelmed with the dramatic shift in practice. But use the COVID-19 resources that are available and consider those risks in the context of the larger ethical obligations that are owed and the legal malpractices, the traditional legal malpractice concerns that arise in representation of clients. So in conclusion, the overlap between ethics and legal malpractice continues to be the main source of risk to attorneys and it should be addressed together for risk mitigation purposes. Thank you for joining me. Again, Jeff Cunningham from Goldberg Segalla. Please feel free to reach out. I look forward to speaking with somebody. Thank you.

 

Tracy Kepler:                                          Welcome to the program regulation, risk, and resilience. The nexus between professional liability, duty of competence, and attorney wellbeing. My name is Tracy Kepler, and I will be with you for the next hour speaking to this topic. Mental health issues and substance use disorders can affect any attorney in any setting and at any time. Left untreated, they can destroy careers and lives. For the next hour, we will discuss where the legal profession currently stands in relation to the substantial challenges presented by the untreated mental health issues and substance use disorders. And examine the nexus between ethical competence under the model rules of professional conduct and attorney wellbeing. We will cover how to recognize the signs of an impaired attorney and how to approach the colleague and begin a conversation. We will also consider the possible disciplinary and professional liability implications of an impaired attorney's conduct.

    Lastly, we will talk about best practices and effective risk management strategies, preventative measures, and proposed policy and wellbeing initiatives. That attorneys in any practice setting may implement to protect clients, themselves and other firm members, as well as save careers. The best way to start this discussion is to set the stage with some recent data on the health and wellbeing of the legal profession. And get a feel for where the legal profession currently stands in relation to the historically substantial challenges presented by mental health and substance use disorders. In 2016, the ABA commission on lawyers assistance programs and Hazelden Betty Ford published their study of nearly 13,000 currently practicing attorneys. The study looked at both substance use and mental health issues and covered all age groups, diversity and geographic and practice settings. The research was published in an article entitled The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys and was published in The Journal of Addiction Medicine.

    That same year, another law student survey entitled Suffering in Silence, The Survey of Law Student Wellbeing and The Reluctance of Law Students to Seek Help was published in The Journal of Legal Education. The data for the law student study came from 15 law schools and roughly 3,400 law student respondents. It covered a diverse student body, and one third of the respondents were from each year of law school. There were some pretty startling data points. When looking at alcohol use, 90% of the respondents had had a drink of alcohol in the prior 30 days. But then you see 53% got drunk in that same period, 43% binge drank at least one time in the prior two weeks. Other questions were asked about the use of marijuana and cocaine, reflecting increases in usage as well.

    Data also showed that 13% of respondents with a prescription have given away their prescription drugs in the last 12 months, with stimulants being the most frequent followed by sedatives and pain medication. And 14% of respondent used prescription drugs without a prescription in the last 12 months. The study asked law school students about their mental health. The data reflected that students were reporting symptoms of depression at 17%, severe anxiety at 14%, mild to moderate anxiety at 23%, and 6% had suicidal thoughts within the past year. When analyzing the data, the researchers found some comorbidity in that respondent with frequent binge drinking also showed frequent use of street drugs and misuse of prescription drugs. Respondents screening positive for depression were much more likely to screen positive for anxiety, and respondents screening positive for anxiety were much more likely to screen positive for depression.

    The study also asked questions about certain factors that discouraged help-seeking by law students. Many said that they did not seek assistance because they perceived a threat to their job or academic status. They believed it might hinder their ability to apply or be a potential threat to bar admission, social stigma, and not wanting anyone else to know. And they believed that they could handle it themselves. Further, roughly half of respondents reported that they had a better chance of getting admitted to the bar if a mental health or substance use problem was hidden. With regard to the lawyer study, as I mentioned earlier, over 13,000 respondents participated. They had to be an actively practicing attorney. The data was taken from all across the country, urban, rural, diversity, different practice areas, years in practice and work environments. And the number of participants, the percentage of participants with years in the field. They also looked at different firm positions, hours worked, and hours of litigation.

    One interesting side note from the data was that the researchers believed they would see a higher percentage of distress symptoms with litigators, but that proved not to be true. With regard to alcohol use, they used a questionnaire called the AUDIT 10, which has been found to provide an accurate measure of risk across gender, age and cultures. It measures problematic drinking, including hazardous and possibly alcohol dependence. The results really turned preconceived notions on their ear. Rather than being more seasoned professionals with higher rates of problematic alcohol use, it was the younger attorneys or attorneys younger than 30 that had a greater issue, 32%. To the 20% for all attorneys and 6.4% for the general population. In this side, you can see the breakdown by age group. We see the reverse relationship to ages, years in the field, and positions.

    Younger, less experienced attorneys working in lower or junior positions had the highest AUDIT scores. Private firm or bar association and junior associates had the highest levels of problematic alcohol use. The survey also asked the questions whether you ever thought your use of alcohol or other substances was a problem. If yes, then before, during law school, within 15 years after law school, or more than 15 years out. 22.6% felt their use of alcohol or substances was a problem sometime during their lives. 27.6% reported problematic use prior to law school. 14.2% reported problematic use actually started during law school. But of the most concern, 47.7, nearly 50% reported problematic use started within the first 15 years following law school. Only 14.5% reported problematic use started more than 15 years after law school.

    The survey also posed questions about drug use. They used the drug abuse screening test or DAST, which has been found to be a sensitive screening instrument for the abuse of drugs other than alcohol. There was a much smaller sample who completed these questions. This may be the result of concerns about revealing the use of illegal substances or abuse of prescription medications, lowering the willingness of people to participate. Or it could be markedly fewer lawyers engage in this behavior. And the data reflected that 24% were in the intermediate to severe range of drug abuse. In response to the question, what substances have you used within the past 12 months? You can see the responses on the screen before you, with alcohol being the highest by far.

    Another interesting data point for drug usage was whether or not the respondent had used a prescription drug without a prescription. 15.5% of that group had, or was using it without a prescription. The good news is that the vast majority of attorneys that use these substances are actually using them legally with the prescription. However, think about the risk behavior for those licensed attorneys working in the field, engaging in using medication without a prescription. Which means getting it, and then also using it illegally. The survey also looked at the mental health of attorneys. They used the DAS, which is a 21 item questionnaire, including three self-report scales designed to measure the negative emotional states of depression, anxiety, and stress. The percentages are on the screen before you. With depression, men had higher levels of depression than females. And interestingly, we see the same inverse relationship to the alcohol study. Where rates decrease as age increases and junior positions have higher rates.

    Females have higher levels of anxiety than men. And the self-report question asked relates to the mental health concerns over the course of a legal career. It was interesting that most reported anxiety, even though the instruments picked up depression at a higher percentage. It may be possible that some people interpret their symptoms of depression as anxiety versus depression, with ruminating thoughts, sleep problems, or general unrest. Suicide. The study demonstrated that 11.5% have had thoughts of suicide, which is a lot of lawyers. This goes hand in hand with the high rates of depression with the legal profession. 2.9% reported self-injurious behaviors and 0.7% reported at least one suicide attempt. Questions were also asked about why an attorney had not sought treatment or assistance for any issue, and two primary areas of concern were shown. First, not wanting anyone else to know or find out the stigma, and concerns regarding privacy or confidentiality, that it might get out.

    Other reasons for not seeking assistance were concerns about a negative impact on their law license or ability to practice. They did not have insurance or the financial wherewithal to cover the cost, or they just didn't know where to turn or who to ask. Concerns were not drastically different for the different areas. Significantly more people with alcohol and substance use problems, 67%, didn't want others to find out versus 55% with mental health problems feeling that way. Privacy and confidentiality also had a higher percentage when concerned with alcohol and substance use problems versus mental health. This may reflect that for lawyers, it is possibly more acceptable to get help for mental health issues or to have a mental health concern than it is an alcohol or substance use problem. The survey also wanted to know if there was much, if any, exposure to alcohol and substance use or mental health topics in law school. About 70% said no, 12 to 15% said yes, and the rest just couldn't recall.

    Another more recent study was completed by ALM Intelligence and Law.com in 2019. It had 3,800 participating attorneys, and more than 50% were at law firms of 500 lawyers or more. An overwhelming majority of legal professionals or 74% believe that their mental wellbeing was worse off as a result of their chosen career. 33% responded that they had a heightened use of alcohol or drugs as a result of their work or work environment. 44% admitted to dealing with their stress with alcohol, and 4% with drugs. And 17.9% in this study admitted to contemplating suicide during their career, which is actually two times higher than the general population. Questions were asked of the participants about what about their job negatively impacted upon their mental wellbeing. Answers ranged from a feeling of always having to be on 24/7, 365. Not being able to disconnect from work, billable hour pressures, lack of sleep and client demands. Only 36% said that they use all of their vacation time. And even when they do take vacation, they cannot disconnect or they feel that there is an expectation that they must respond to emails, calls, or face negative repercussions.

    Lastly, legal professionals said that since the window to disconnect is so small, the easiest and fastest way to relax or to get from 60 to zero was through the use of drugs and alcohol. Interestingly, this study was just recently completed again in 2021 and showed worsening mental health struggles in the profession. In 2021, The World Health Organization published a study on working hours. The results and implications on the legal profession and the kinds of hours they work were startling. The study concluded that working 55 or more hours per week is associated with an approximately 35% higher risk of stroke and a 17% higher risk of dying from ischemic heart disease compared to work 35 to 40 hours a week. Long working hours led to 745,000 deaths from stroke and heart disease in 2016, which was a 29% increase since 2000. Working long hours is responsible for about one third of the total estimated work related burden of disease. It is the risk factor with the largest occupational disease burden. And it's not getting any better.

    The number of people working long hours is increasing, and it currently stands at 9% generally. I would love to know that exact percentage for the legal profession, and this trend puts even more people at risk of work related disability and early death. Another legal study that was just published in May of 2021 is called Stress, Drink, Leave, An Examination of Gender Specific Risks Factors for Mental Health Problems and Attrition Among Licensed Attorneys. That study consisted of 3,300 attorneys in the district of Columbia and California. Roughly half of lawyers are experiencing symptoms of depression and anxiety, with approximately 30% falling in the mild range and just under 20% falling in the moderate to severe range. Over half of the lawyers screened positive for risky drinking and 30% screened for high risk hazardous drinking, which is interpreted as alcohol abuse or possible dependence. Women are experiencing meaningfully worse mental health concerns than men and are drinking more hazardously.

    Further, the survey revealed that one in four women is contemplating leaving the legal profession due specifically to mental health problems, burnout or stress. Despite 30% of attorneys screening positive for disorder drinking, only 2% reported ever having received an alcohol use disorder diagnosis. This disparity clearly suggests an extreme level of under-diagnosis and treatment for a widespread problem. Possibly owing to pervasive denial, to the stigma, and to a professional culture that normalizes heavy drinking. So in addition to the study data, who are we and what do we face? And more importantly, how does that impact upon our mental health and propensity for substance use? While true that the studies reflect that the majority of lawyers and law students do not have a mental health issue or substance use disorder, that doesn't mean that they're thriving. Many lawyers experience a profound ambivalence about their work, and the course that we are on is unsustainable. Looking at the structure in the legal profession that perpetuates unhealthy behaviors in the workplace.

    Devices. Technology is fabulous, and the ability to work anytime outside of the traditional nine-to-five and connected anytime and in any place at the touch of a button is freeing. But the flip side is that the expectations that come with that freedom, you have to be there to answer that call, respond to that email, file that brief. The billing structure. Billable hours and revenue generation are the two key metrics in how law firms compensate attorneys. Partners, including the most senior have billable hour targets and their compensation may rise or fall with the achievement or missing of those targets. The pressure then to work seven days a week, to miss family events, to forego vacations, to miss needed doctors appoint cannot be overstated. Junior associates have all that pressure and the desire to make partner on top. Client expectations. They're unrealistic, they want it now, they experience us with a range of emotions. Happy, sad, mad, frustrated, and they vent it all on us. Over time like other professions, we develop compassion fatigue as a result of managing all those emotions and solving all the problems.

    There also is a certain emotional dissonance. We encounter stress from the workload, yet we are expected to appear and be completely unaffected by it. Oftentimes we have a lack of support, lack of autonomy, lack of meaningful work or professional growth. We face the stigma and no one can know. And the pressure to consume alcohol at work functions can't be overstated. Within ourselves, we oftentimes have a skewed definition of success. We're on the hamster wheel chasing something that may not be in our best interest. We are the problem solvers. People come to us to solve their problems, so we should be able to handle any issue without any assistance. And perfectionism always enters our world, where perfect is the enemy of good. We're not sleeping, we wake up tired, we're struggling to get to work. We often feel like we are working harder and accomplishing less.

    We have ruminating thoughts, we procrastinate. We have strange aches and pains, and we lose the separation between personal and professional life. Another way you can look at these issues and the way in which they are hurting the legal profession is at the bottom line, in the pocketbook. You can see some of the statistics from the cost of absenteeism, presenteeism, lost productivity, turnover rates, all as a result of various substance use and mental health issues. It is evident that lawyer wellbeing can and does contribute to organizational success. And for law firms and corporations, lawyer health and wellbeing is an important form of human capital that can provide a competitive advantage. Absenteeism on average was associated with 2.2 days of absence from work and 7.5 days of presenteeism, which is being at work but not being productive per employee. 9.1 billion is roughly how much law firms in the US lose annually due to turnover and $400,000 is the estimated turnover cost per associate who leaves.

    Looking at the bottom line from another angle, lawyer malpractice claims. This data is taken from the ABA standing committee on lawyers professional liability, 2020, profile of legal malpractice claims. And it reflects the general type of error, whether it be administrative, substantive, client relations, or intentional wrongs. Broken down even further, you can see the errors in the administrative category, from failure to calendar, clerical error, procrastination, failure to document or lost file. The largest area or 51.93% comes in substantive areas errors. Failing to know the law, inadequate discovery, planning and drafting errors, conflicts of interests, and on and on. Other areas are fairly failure to follow client instructions, failure to obtain client consent, not withdrawing properly, and the intentional wrongs. Things such as malicious prosecution and fraud. We can also see the connection between attorney conduct under the model rules of professional conduct, attorney impairment and disciplinary sanctions.

    This chart taken from the Illinois attorney registration and disciplinary commissions 2020 annual report, reflects the impairments identified for lawyers disciplined. You can see the substances as well as the mental health concerns. It is frequently seen in discipline cases that an attorney respondent is impaired by addiction to alcohol or another substance, or suffers some mental illness or disorder. These statistics reflect only those cases in which one or more impairments were either raised by the lawyer or otherwise known by staff counsel. It is likely that many cases involving impaired lawyers are never so identified. We also know that the most common disciplinary violations stem from poor attorney client relations, failure to communicate, neglecting a case, fee disputes, which often lead to a legal malpractice claim. We know that lawyer wellbeing influences ethics, malpractice, and professionalism. Many of the rules of professional conduct require competence, diligence, and communication. And these aspects are critical to protecting clients. In fact, as suggested by DB Marlowe in his paper published in Stress Management for Lawyers, data shows that 40 to 70% of all disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, or often both.

    So what have we learned from all the data, studies and statistics? We know about higher usage rates, higher incidences of anxiety, stress, burnout. We know that younger lawyers suffer at greater rates, and we know about stigma, that lawyers don't seek help, that they are afraid someone will find out. They are the problem solvers. They can help themselves. They don't want to appear weak, and they certainly don't want their insurance carrier or the regulatory authorities to find out.

    We have seen from various law school studies that we don't have time to consider today, that law students are suffering in silence and have similar levels of distress. We know there's a relationship between substance use and mental health issues and malpractice disciplinary claims. We also know that unhealthy lawyers hurt the bottom line and that there is a business case to be made for promoting health and well-being in law firms and corporations.

    We also know that from a humanitarian perspective, promoting well-being is the right thing to do. Untreated mental health and substance use disorder ruin lives and careers. They affect too many of our colleagues. Though our profession prioritizes individualism and self-sufficiency, we all contribute to, are affected by, the collective legal culture. Whether the culture is toxic, or sustaining is up to us. And our interdependence creates joint responsibility for solutions.

    By looking at a hypothetical scenario, we're going to flesh out what steps we can take and some best practices at the individual level, firm level and lawyers’ professional liability and regulatory levels, as well as discuss initiatives that have already been put into place and that are on the horizon for improving the health and well-being of the profession. And also, proactively working to reduce insurance claims and disciplinary actions.

    So, let's take a look at our hypothetical. Lisa is the managing partner in a midsize law firm in Anytown, USA. A junior associate informs Lisa that he believes Tom, a senior associate, has a serious alcohol problem. The junior associate has seen Tom slurring his speech when speaking to his administrative assistant, smelling like alcohol after taking a two-hour lunch and behaving inappropriately with some of the support staff when discussing the status of cases.

    The information the junior associate provides is credible, detailed and alarming. It also points to the potential for neglect of many of Tom's cases. When Lisa confronts Tom about these issues, Tom denies having any substance abuse problems and he attributes his work performance to stress caused by marital discord and promises to improve.

    For the remaining part of the program, we will cover the following questions. What steps should the firm take to help Tom deal with his problems? What are the next steps that Lisa should take with respect to dealing with clients, the court and other members of the firm? Would the answer be different if the clients also complained about Tom's representation? Can you even tell the client? Does Lisa have a duty to report Tom to the regulatory authorities? What confidentiality issues arise and does the firm have a duty to investigate potential malpractice with regard to Tom's matters?

    So, what to do about the situation? Let's talk about identifying signs in others and ourselves and best practices for starting a conversation with a colleague who may be impaired. So, what to do? I think that a friend, associate, supervisor, employer, spouse has a problem and is not dealing with it in the best way. First, I think we all have to remember that JD does not mean MD. We are not providing a diagnosis. We just need to recognize the signs and changes from baseline behavior.

    Well, how do I know? And what am I noticing? To borrow a phrase from my colleagues at the Illinois Lawyers' Assistance Program, what you should do is read the MAP. M, standing for mood or attitudinal disturbances. A bright, engaging, and energetic coworker becoming withdrawn, less cooperative, blaming others, and a general, I couldn't care less attitude. A is for appearance or physical changes. A fastidious person becoming unkempt, glazed over, bloodshot eyes, unsteady gaits, flight of ideas or tangential speech. And P is for productivity and quality of word deterioration. Not just doing the work, but inconsistency, tardiness, diligence.

    Certainly, this is not an exhaustive list, but it's a start. Also, everyone can have a bad or off day. The difference here is to notice changes from the baseline or from the normal. On the slide in front of you are things to look for, the signs, symptoms, and behavior in others that you should pay attention to. Things like irritability, short temper, withdrawing, isolated, confusion or difficulty focusing, disregard for the well-being of others, poor motor coordination.

    On the next slide, or on this slide, I should say, we've been talking about recognizing the signs in others, but what about some self-awareness or recognizing signs in ourselves when there might be a problem. Certain signs, symptoms, and behaviors in yourself are on the slide. Things like feeling tired or having little energy, feeling bad about yourself, trouble concentrating or relaxing, feeling dread, hopelessness or depressed, isolating and avoiding people.

    So, the next question then is, how do I overcome the barriers and approach the attorney about the issue? I think the first thing is to remember that it's usually a process. It's not going to be a "I think you have a problem, and you need to get help," and then tada, the attorney agrees and at that moment leaves his, her, their office to go to a LAP or a treatment professional. It is really slow and steady wins the race. Impaired attorneys initially resist attempts to discuss concerns.

    Remember, attorneys are masters of not answering the questions asked. They are amazing at the art of spin and the masters of redirection or misdirection. Following the first conversation the impaired attorney may have you believing that you are the one who's impaired. Do your homework. Don't go into the situation or conversation unprepared. Gather information, consult resources, contact a local LAP, and then take action.

    It may sound silly, but make sure that you are in the right mood, feeling calm, confident, and not too emotional. And then when you are ready, approach the lawyer. A legal assistance program can help you with some tools. It's often about waiting for that critical moment. When something comes along that makes your friend or colleague want to start thinking that they may need help. This critical moment may catch you off guard. It may well have been prompted by a well-timed open-ended question you asked, such as "What would you like most to achieve in the next two months?" Or, "You don't seem to have been yourself recently, is something wrong?"

    The other thing to remember is you want to arrange to talk in a quiet, private environment when they are sober. If you feel more comfortable partner with the people, the lawyer trusts and who have witnessed the behavior of concern. Approach the lawyer as a respectful, concerned colleague. Think about how you would feel, not judgmental but with empathy and coming from a place of, "I care." Avoid criticisms and labels.

    These are some things that are likely to do harm rather than help. Most of these involve being judgmental or accusatory in some way and then basically telling them that you're judging them. Things like, "You've got an alcohol problem." Or "I think your drinking's out of control," are examples of an approach that is highly unlikely to succeed. The response is predictable, "No I haven't," or "No, my drinking's not out of control." And it may be followed up with, "I can stop anytime I want to."

    Aim to get the lawyer to talk. You want to hear what they have to say. Review strengths and accomplishments. We don't want this to be a "You're a failure," type discussion. Provide kindness, dignity, and privacy. Offer to stay involved. Suggest an assessment with a professional and have a name ready. There's nothing worse than saying, "I think you should meet with someone," and then not have someone identified and ready to go to take that next step. And remember, this is a process.

    Some good dos and don’ts for these conversations. Avoid circular conversations and use open-ended questions. Simple, specific, and concrete, statements that cannot be disputed. Lawyers like to argue. Remarks like, "Everyone is disgusted with you," or "Linda thinks you have a real problem," lead to arguments about Linda's problems and who everyone is. Identify two or three instances, specific instances, that clearly demonstrate the problems that you have concerned. Talk about what you have observed. "I see," and "I feel," and restrict your comments to what you see and feel and have experienced.

    So, for example, "The other day, when you appeared before judge so-and-so, I heard you slur your words and I saw you swaying and almost fall over at the counsel table." What you saw, what was said, what was done, where it occurred, when, who else was there and make clear how, in your mind, the alcohol or substance played a role in the events. Don't be afraid to say how it made you feel. And also, don't try to diagnose.

    If the person denies that they are drinking or the substance use is causing them any problems, cite the things when you drink, or when you use. For the purposes of peer intervention, a successful conversation is one that happens. Do something. Don't ignore it and hope that it will go away. Also, remember it's possible and even probable that the person you're talking to is going to become angry. Expect it, accept it and you will not be harmed. Respect the anger and to the best of your ability, try not to personalize it and don't give up.

    Here are some bad starters. "You're a drunk. You don't know how stupid you acted and sounded last night. If you loved me, you'd stop." Some good starters. "I care about you. I want to talk to you because I'm worried about you. Our relationship means a lot to me. I don't like to see what's been happening."

    Be sure to distinguish between the person and the behavior. "I think you're a great person, but the more you drink or the more you lose, the less you seem to care about anything." And lastly, present options. Don't just leave them hanging. "I would be happy to go with you to a counselor. We could even call together now to make the appointments. Here's the name of a treatment provider."

    Question two, what are the next steps that Lisa should take with respect to dealing with the clients, the court, and other members of the firm? We have to consider that Lisa needs to follow the rules of professional conduct with regard to supervisors or partners. In that respect, Lisa shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that all lawyers in the firm conform to the rules of professional conduct. The same goes for lawyers who have direct supervisory authority over another lawyer. They also shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.

    On the slide before you, I have included new Mexico's version of Rule 5.1 as an example of a state who has written into the rule specific instructions with regard to what a supervisor or a partner needs to do under the rules. Partners have a duty to take prompt action to address any concern that a lawyer in the firm is exhibiting signs of a severe impairment or of the lawyer's cognitive function.

    The rule goes on to describe the action to take as making a confidential report or seeking assistance from the Lawyer's Assistance Program. You can also report the matter to the Office of Disciplinary Counsel to consider disability inactive status or an attorney appointment, or just speaking with the lawyer and encouraging the lawyer to seek appropriate medical care and/or testing. And as you can see, confidentiality is key.

    Lisa may also have a duty under the Model Rule of Professional Conduct, 8.3(a), to inform the regulatory authority of the matter when an attorney's conduct raises a substantial question as to that lawyer's honesty, trustworthiness, or important for our discussion today, fitness as a lawyer in other respects.

    Rule 8.3(a) provides the why. It could be an apparently isolated violation that may indicate a pattern of misconduct that only a disciplinary investigation can uncover, mostly because the victim or oftentimes the client is unlikely to discover the offense. Reporting is not required if it violates the duty of confidentiality, but a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interest. The appropriate professional authority is the highest court in the jurisdiction or the attorney regulatory authority.

    The duties of a partner or supervisory lawyer are further spelled out in the American Bar Association's Formal Ethics Opinion, 03-429 from 2003. The opinion talks about the firm's paramount obligation being to take steps to protect the interests of its clients. There are two other relevant legal opinions from Virginia and also from DC, which talks about a proactive approach to intervention and taking precautionary measures before any misconduct or client harm occurs.

    So, what are Lisa's obligation to the firm clients, the courts, and other members of the firm? Based on the scenario presented, we can't really tell if Tom has neglected any matter and if any error notification needs to be made. Certainly, at this point, Lisa is in an investigatory stage, but she also needs to determine whether Tom can continue in the practice, needs to seek treatment, or take a leave of absence. HIPAA concerns and confidentiality issues are triggered as well as to what can be said, and care needs to be taken when discussing the issue with courts, clients, and other members of the firm.

    Some other questions to consider in this scenario are, would the answer be different if the clients also complained about Tom's representation, and can you even tell the clients? The first step here would be to determine any harm to the legal rights of the clients. Again, confidentiality is key. Does the firm have a duty to investigate potential malpractice with respect to Tom's matters? Due diligence starts now, looking at case files, examining calendars and dates to ensure compliance and filing a notice of potential claim with the carrier, if warranted.

    So, let's look at Tom's responsibilities. What are the impaired lawyers’ responsibilities? Certainly, compliance with Rule 1.1, competence, compliance withdrawal 1.16(a)(2), self-reporting any violations and to obtain treatments or take other step steps appropriate under the circumstances. Let's start with a lawyer's duty of competence. Rule 1.1 says a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

    No mention of well-being there, none in the comments to the rule either. Lawyers who are impaired due to substance use or other mental health disorders create an extraordinary risk of harm to their clients and the public, adversely affecting not only their own well-being, but also their ability to serve clients capably, competently, and responsibly. By encouraging the legal community to prioritize lawyer well-being and promote the importance of lawyer self-care our profession can embark on the process of reinforcing the public's confidence in its members and repairing the damage many lawyers endure because of stigma, fear of retribution and other professional barriers.

    Recognizing the importance of lawyer well-being, states such as Vermont and Virginia have added comments to Rule 1.1, reflecting the importance of a lawyer's mental, emotional, and physical well-being. Having these types of comments to the rule is critically important to informing lawyers of the nexus between maintaining their well-being and their duty of competence. California has actually added the well-being language to the black letter rule of 1.1(b) and the ABA's Center For Professional Responsibility is currently looking at revisions to the comment section of the ABA Model Rule 1.1 in this respect.

    Tom may need to consider withdrawing from the representation and you can see the Model Rule of Professional Conduct, Rule 1.16, declining or terminating representation, on the screen in front of you. Of importance for our perspective today is subsection two, the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. In that case, the lawyer shall withdraw. Another step Tom needs to take is to seek help.

    The mission of Lawyer Assistance Programs across the country takes a broad-brush approach. They assist attorneys, judges, law students, bar applicants who suffer from physical or mental disabilities that result from disease, chemical dependency or mental health problems that impair or could impair their ability to practice. They assist impaired legal professionals, which has been defined in the ABAs Formal Opinion, 03-431. They educate the bench and bar about these impairments. And by tackling these issues, LAPs seek to reduce or minimize the potential harm that an impaired attorney can cause to themselves, the public, the profession as a whole and the entire legal system.

    The LAP staff and volunteers are generalists. They are often attorneys and licensed members of state bars, licensed clinical social workers, certified drug and alcohol counselors, doctors who specialize in addictions medicine. Oftentimes, the staff themselves are in recovery. They offer all sorts of services from consultation, referrals to treatment facilities, neuropsychs, psychologists and many Lawyers' Assistance Programs have AA, NA, and other individual and group support meetings.

    They monitor attorneys who are involved with bar counsel or are on probation, and sometimes just a hotline or phone call away for an individual with a question, concern about themselves or about another. If you hear nothing else in this portion of the program, the most important part about a Legal Assistance Program is that they provide confidential help. You can trust a LAP professional to keep your information confidential.

    So lastly, what steps should the firm take? It's a difficult nut to crack for the reason Dr. Daniel Angres, professor of psychiatry at Northwestern Feinberg School of Medicine states on the screen in front of you. He has observed that law firms have a culture of keeping things underground, a conspiracy of silence. There's a desire not to embarrass people. And as long as they're performing, it's just easier to avoid it. And there's a lack of understanding that addiction is a disease.

    So, looking at all the data, can we, are we making a difference in the well-being of the legal profession through the law firm? And the difference is, are we taking baby steps? Are we putting bandaids on a bigger problem or are we making big leaps? I think it comes down to the ease with which we can change rules and regulations. It's easy to implement new policies, but much harder to change hearts and minds. Are we paying lip service to the subject matter but not practicing what we preach?

    To be sure, things are changing for the better. 32 states have well-being task forces or committees that have been started through a state bar or court agencies. We can see small steps starting around various rules and regulations. The ABA has encouraged all legal stakeholders to develop, promote resources that advance well-being in the entire legal profession. Changes are happening to curriculum and admissions standards in law schools. Changes are also happening with regards to continuing legal education where they're having classes in mental health and substance use disorders become mandatory. We've seen changes in Rule 1.1, the duty of competence. We've also seen questions around mental health and substance use disorders changing on bar applications.

    Additionally, over 200 legal employers have become members of the American Bar Association's Well-being Pledge, which calls upon legal employers to support a healthy work environment. Rules, policies, and procedures are easy to implement. Put them in place and then just enforce compliance. But what about this changing hearts and minds, changing the culture of a law firm? Recent data out of the International Bar Association well-being study showed that globally, 82% of law firms say mental health is a priority. 73% actually have well-being initiatives in place, but then only 39% involve a majority of managers in policy implementation. Only 29 actually measure the impact of the initiatives. Only 27% collect wellbeing data. And then only 16% have training for managers and firms.

    We need to change this. We are beginning to see law firms start to incorporate well-being business plans, impairment policies and well-being templates. They provide information and tools for confidentiality provisions, templates for work restrictions and supervision of the impaired attorney, periodic reviews of activity, procedures for leave of absence, referral and treatment, and even conditional employments and return to work provisions.

    Again, all of this is a good start, but is it just putting a bandaid on the gaping gash? How do law firms make the big leaps? How do they change the culture and how do they change the hearts and minds? How do we transform this well-being business plan into something that's not just rules and policy, but something that really changes behaviors? Collectively, small steps can lead to transformative cultural change in a profession that has always been and will remain demanding.

    So, what are some of the next steps that we can take? What can the law firm do to change behavior? I think leadership is key. Broad scale change requires buy-in and role modeling from the top. Leaders in the courts, regulators office, legal employers, law schools, and bar associations will be closely watched for signals about what is expected. Leaders can create and support change through their own demonstrated commitment to core values and well-being in their own lives and by supporting others and doing the same, model behavior and be willing to show vulnerability, share stories.

    Twitter has a great program called the Mental Health Allyship Program, where they are destigmatizing through awareness and education. They have an Owls program where they have volunteers, listening circles, where people are available for office hours. They have to go through a training on fundamentals in listening. I'm heard and validated. What to do in a crisis, how to be an ally, and how to listen and educate, not solve problems. The goal is empathy, compassion and affirmation, destigmatizing struggles around mental health issues.

    Taking mental health out of HR. Many employees are not comfortable talking to the HR or human resources departments. They're better with their managers and networks who are also the best equipped to respond. Making sick days wellness days and branding around it. Taking culture assessments, legal employers can and should assess the state of well-being among lawyers and staff about whether the workplace supports well-being. One assessment strategy might include an anonymous survey conducted to measure lawyer and staff attitudes and beliefs about well-being, stressors in the firm that significantly affect well-being and organizational support for improving well-being in the workplace.

    Really looking at the organizational climate for support for mental health or substance use disorders. Asking things about whether lawyers perceive that their employer values and supports well-being. Are resources available? Do you feel expected to drink alcohol at organizational events? Can we suggest improvements to better support well-being? Knowledge is power, not only training and education in the workplace, changing MCLE rules and looking at data. Having well-being advocates. The advocate or committee should be responsible for evaluating the work environment, identifying and addressing policies and procedures that create the greatest mental health distress among employees, identifying how to promote a positive state of well-being and tracking the progress of well-being strategies.

    They should prepare key milestones, communicate them and create accountability strategies. They should listen. Also, cultivating partnerships, reaching out to other groups and an emphasis on a service centered mission. At its core law is a helping profession and this can get lost in the rush of practice and the business aspects of law. There's a lot of research that reflects organizational cultures that focus chiefly on materialistic and external rewards can damage well-being and promote a self only focus.

    Legal employers might evaluate what they prioritize and value and how those values are communicated. When organizational values evoke a sense of belonging and pride, work is experienced as more meaningful. Experiencing work as meaningful is actually the biggest contributor to work engagement, a form of work-related well-being. Interconnectivity, as jobs' demands have increased and budgets have tightened, and we all entered a COVID lockdown, many legal employers have cut back social activities. This could be a mistake.

    Social support from colleagues is an important factor for coping with stress and preventing negative consequences like burnout. It inhibits lawyers feeling isolated and disconnected, which helps with law firm branding, messaging and may help reduce turnover. What else can firms do? Incorporate well-being education in new lawyer orientation programs, offer education on well-being topics, provide resilience related training. And again, educating on the signs and symptoms of impairment common in the legal profession.

    They can also establish policies and practices that actually encourage well-being, monitor for signs of work addiction and poor self-care, avoid rewarding extreme behaviors, encouraging lawyers to take vacations, to care for themselves and loved ones and promote physical activity to aid in health and cognitive functioning.

    If you would like to implement some of these culture changes in your firm one great resource is the Well-being Toolkit For Lawyers and Legal Employers. It has all kinds of ideas, worksheets, and templates to get you started. Another great resource is the ABA Commission on Lawyers' Assistance Programs. The commission has all kinds of resources on mental health and substance use disorders. And you can also find the number for your state Lawyers' Assistance Programs on the site.

    Lastly, the Institute For Well-being in Law is dedicated to the betterment of the legal profession by focusing on a holistic approach to well-being. Through advocacy, research, education, technical and resource support and stakeholders' partnerships, the Institute is driven to lead a culture shift in law to establish health and well-being as core centerpieces of professional success. The Institute has many fabulous resources on their site as well.

    With that, I thank you for listening and be well.

 

Larry Kunin:  Hello, this is Larry Kunin of the law firm of Morris, Manning and Martin located in Atlanta, Georgia. And it is my pleasure today to present Professionalism For Lawyers. To give a little bit of background on myself, I've been an attorney for approximately 25 years, beginning my practice in Miami, Florida in an all-litigation firm, which is now known as Day Pitney. And for the last 21 years, I've been at Morris, Manning and Martin in Atlanta, all litigation work, which means that I get to deal with trial judges. I get to deal with appellate judges and numerous of opposing counsel, including in-house appellate judges and numerous opposing counsels, including in dispute resolution and negotiation matters. In addition to my experience as a practitioner, I've also served as an adjunct professor at Emory Law School, which included elements of professionalism. And I'm a member of several Florida bar committees that also include many professionalism elements to it. And I've spoken frequently to students and attorneys alike with regard to the aspiration to be a professional. As an initial matter, it is very important that attorneys understand that there is a big distinction between being an ethical attorney and a professional attorney. Ethics is something that attorneys will learn in law school. They will likely need to take an ethics exam. They will need to agree to various state bar ethical rules. Sometimes they are called the rules of professional conduct, not to be confused with the word professionalism. And attorneys who, for example, appear out of state, appear in different courts may even need to sign documents asserting that they have in fact learned what the ethical rules.

    Professionalism sits on top of that. A lot of what I'm going to present today rely on the Georgia rules simply because I live and work in Georgia and also the Florida rules due to my involvement in Florida. But the rules that I am going to cover apply in just about every state and I will also be referring to certain ABA, American Bar Association model rules of ethics. Again, those are ethical rules, not professionalism rules. During the course of this hour, we are also going to talk about guidelines for professionalism that do exist in written form in certain states. They are generally rules that are enacted by state bar organizations, as opposed to Supreme Court, for example, or a requirement to become a barred lawyer. And they are rules that are aspirational but are expected.

    This is especially for litigators because we have to deal with judges and courts who generally do not have a tolerance for lawyers who are not professional with each other or the court. It's still important for corporate lawyers and transactional lawyers because they are still dealing with an opponent, and they are still trying to serve their client while serving the profession of the practice of law.

    I'm going to start this presentation by reading a quote from the former chief justice of the Georgia Supreme Court, Harold Clark. And he said, " ... the idea that ethics is a minimum standard, which is required of all lawyers while professionalism is a higher standard expected of all lawyers." That may sound like a partial quote, which it is, but the point of it is, is that ethics is the minimum standard, which means this is what a lawyer is supposed to do, while professionalism is a higher standard, which essentially says treat others with respect and expect that they will treat you with respect as well. So exactly what I mean by this distinction is that the rules of professional conduct, which are also called the rules of ethics, establish minimum standards of conduct, but they do not define the criteria for the actual behavior of the lawyers between themselves and with the court or any other third party, as the case may be.

    Acting lawfully or within the bounds of the codes of ethics is measured by honesty, integrity, and fairness. Professionalism, which sits on top of ethics is measured by respect, dignity, compassion, courtesy. Probably everybody who has encountered the practice of law have heard the terms I want a lawyer who's a bulldog or lawyers who take on the persona of their client in carrying their client's interest forward and almost identify themselves with the client. Well, this is actually proper to an extent. In fact, there is an ethical rule that says it is a lawyer's job to zealously represent the interests of their client. However, there still are boundaries on how you do that with regard to respect to the opponent.

    Speaking for myself, I can give numerous stories of where I have been referred lawsuits or I have referred lawsuits to lawyers who are a former opposing counsel. This is one of the greatest compliments a lawyer can get. It means you did a terrific job for your client, and you were very professional in the ability to do so and in carrying out your duties for the client, such that the other lawyer created or had respect for you and was willing to then give future cases to you. Again, being professional to your opposing counsel is not only expected, it actually could benefit your career.

    So, to understand professionalism, since it sits on top of ethics, there are certain basic ethical rules that an attorney should understand. Rule number one, and this is in the preamble of the Georgia Rules of Professional Conduct, but you'll also find it in the preamble of the American Bar Association Model Rules and the rules of many states. Number one, a lawyer is a representative of clients, an officer of the legal system, and a citizen having special responsibility for the quality of justice. Two A, as an advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. Two B, as an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.

    Preamble 2C, as a negotiator, a lawyer seeks a result advantageous to the client, but consistent with the requirements of honest dealing with others. Preamble 2D, as an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor, and to be, to a limited extent, he or she is a spokesperson for each client. Preamble E, as an evaluator, the lawyer examines a client's legal affairs and reports about them to the client or to others.

    Importantly, the rules of ethics apply to any lawyer, regardless of who their employer is, whether it's a sole practitioner, a partnership, a large law firm, a multi-national law firm, or even in-house counsel. There was a presentation I once gave to a large multi-national corporation, to an in-house department and the topic was certain ethical obligations of a lawyer that are not at issue in this particular presentation. But to set the stage, I asked the approximately 75 in-house lawyers that were present, how many of them worked for a law firm? Not a single hand went up in the air. The answer actually is every single one of them worked for a law firm. In the in-house counsel context, the client is considered to be the legal corporate entity. And that is important for purposes of grounding that lawyer into the rules of ethics and then professional conduct on top of it.

    There is an important distinction here as well. A corporation is made up of individuals, people that somebody reports to, vice presidents, chief financial officers, general counsel, salespeople, maybe developers. The client is not the corporation's individual officers, directors, shareholders, or employees. The client is the entity itself. That would open up a different topic on how a lawyer deals with that and conflicts of interest. But the point for purposes of this presentation is simply to understand that the individuals in a corporation are not the client, the corporation and the interest of the client is what is important. For a specific reference, the rules of ethics of just about every state and ABA Model Rules, and this is included in your materials, Rule 1.0 usually covers terminology. And a firm or a law firm is defined as a lawyer or lawyers in a partnership, professional corporation, sole proprietorship, or other association authorized to practice law, or lawyers employed in a legal services organization or the legal department of a corporation or organization. That is the hook that brings every practicing lawyer into the rules of ethics and the desire to be professional.

    Part three of the preamble states, a lawyer should A, be competent, prompt, and diligent. B, maintain communication with a client concerning the representations. C, keep in confidence information relating to representation of a client. And then 0.4 is, a lawyer should demonstrate respect for the law, the legal system, and those who serve it, including judges, other lawyers, and public officials. I want to pause on that 0.4. Everything I've read in the preamble is in some shape or fashion in the actual rules of ethics themselves with further detail. Point number four raises an issue of respect, respect for law, the legal system, and for those who serve it, including judges, other lawyers, and public officials. That's the one thing that touches on the need for professionalism.

    The preamble then continues with a 0.5. And this point is sort of a mix of ethical obligations, as well as implicit professionalism within it. 0.5 says a lawyer as a citizen and member of a learned profession has multiple responsibilities, improvement of the law and administration of justice, cultivation of law beyond its use for clients, strengthening of legal education, be mindful of deficiencies in the administration of justice necessitating the devotion of professional time and civic influence to those who cannot afford adequate legal assistance. That last point may sound like it's solely going to what we call pro bono or service to people who cannot afford legal services, but it also goes to the fact that we do not have a perfect system, and it is up to lawyers to try to make the system as perfect as we can. This will include ethics, service to the community, and once again, the keyword professionalism.

    And then finally, the preamble talks about aspirational goals, which is that a lawyer is guided by conscience and the approbation of professional peers. The goals include, attain highest level of skill, improve the law and the legal profession, and exemplify the legal profession's ideals of public service.

    Now turning more to a pure professionalism topic. As mentioned earlier, there are no specific rules that apply to professionalism similar to the rules of ethics, rather professionalism, ideals arise from many different sources. They arise from state Supreme Courts. They arise from commentary from the federal courts. They arise from bar guidance rules. They arise from orders of court. They arise from your own conscience. They arise from your own experience.

    Next, I would like to go into some lawyer creeds, and I'm going to be using this Georgia Supreme Court as an example. I'd first like to go into some background stories and examples of what professionalism is so that you could see how the creeds line up. I was one of the fortunate lawyers, amongst thousands and thousands, which had a really good mentor who the very first day on the job said, you need to understand will what professionalism is, and you need to understand that your opposing counsel is not your enemy. They are the advocate for their client, but they are not your enemy, and you are not to treat them as your enemy. They are somebody who you may need a favor from one day and so you should be open to giving favors to them as well.

    And the best way to get along with your opposing counsel and become friends with your opposing counsel is to actually talk to them and meet them. What I found in my career is that email is the root to all professionalism ruthlessness. What I mean by this is people think that email is a substitute for a conversation when it is not. Email is a substitution for a writing. People will say things in an email, intending it one way, and instead, it comes out callously the other way. The other part or problem with an email is that email is impersonal. Now to be clear, email is not something to be avoided. Email is a very useful tool. Email is a very good way to reach an opposing counsel or a colleague very quickly. Maybe they're not available. Maybe it's just a quick question. However, it is best that the email be used after there has already been some type of introduction. Even on the telephone sometimes it can be difficult to get along with an opposing party, but it is more personal than an email.

    The best way is to meet somebody in person. Now, this particular presentation is being given when we are still coming out of the COVID-19 pandemic and that has been a blockade for a lot of people to meet with each other. You can't, or for a period of time, fly in an airplane to an out-of-town meeting. Your offices may have been closed. There might be instructions in meeting somebody at a restaurant. I know that my firm when we received limited access in the middle of last year, we were not allowed to use conference rooms, we were not allowed to have people in our offices and so it made things very difficult. A substitute was Zoom. And Zoom, whether everybody likes it or not, and I believe that most people like it, is here to stay. And when I say Zoom, I mean, WebEx and Microsoft Meets and anything of a similar nature that you may use.

    And why this is a useful tool is you still get to see somebody; you get to see them as a person. And even though it's not a professionalism point, it's ironic that there are clients as a result of the electronic Zoom/WebEx world that I have now seen their faces having talked to them for years over the telephone and never actually seen what they looked like because they happened to have been an out-of-town client. So, Zoom has brought a sense of personality back that didn't exist on telephone alone and brought also people together, notwithstanding the fact that we were separated by COVID. But there is still no substitution for actual getting together with somebody.

    In my experience, it is mostly young lawyers who are first challenged with professionalism. I was one of those young lawyers. I was somebody who on occasion had trouble getting along with somebody because of how strongly I thought I needed to prove myself as a lawyer and show how much knew about the case, about my client's case, about why the other side was wrong, sometimes leading even to raise voices between counsel. Today, I find some of those situations embarrassing and I find almost all of those situations educational.

    So let me give you some examples of things that occurred, especially when I was a young lawyer and they still exist to an extent even today after 25 years of practice, but they give an example of things that lawyers can do for each other to make things easier. There was a lawyer that I knew in North Carolina, an opposing counsel on a case that I thought was fairly clear cut, that I had a very hard time getting along with when we would get on the phone and then we would send emails, and every now and then the emails would tend to get a little angry, mostly on my part. And then one day he came into town for a deposition, and he was one of the friendliest, most professional, smart, and quick lawyers I have ever met.

    And when the whole deposition was over, I remember calling him into the next conference room and I told him, and his name was Rob, I said, Rob, completely off the record, and if you want to put it on the record, that's okay too, I just wanted to thank you for what I found to be a very enjoyable experience in a deposition that was professional, getting what we needed to out of the witness, representing our opposing clients. And from that moment forward, not only did we have a terrific relationship, but Rob became one of the lawyers who sent me a couple cases and I sent him a couple cases. And we got together the last time I was in North Carolina, maybe 10 years later, shortly before COVID hit, and we sat down, and we had dinner and had to terrifically enjoyable experience all because we ultimately recognize we are part of an honorable profession and learned how not to take anything personally.

    Another example I will tell is there was a lawyer back probably in the middle of my career, maybe the earlier part of his career, he was located in the state of Florida, I was up here in Atlanta, and we and a senior partner of his were having a very difficult time getting along because of not just the polarity of our clients, but they represented, at the time, a fairly large client and I represented an individual who basically the attorney's fees were just about killing him and it led to some hard feelings. When that lawyer came in town for a deposition and it was on a Sunday, I called him up before he left town or before he came to to Atlanta before he left Florida, and I said, since you're coming in, I already know that you have no plans on Sunday because you don't live here, and I'm going to take time off of my Sunday, and can I meet you at a restaurant that was located in the Buckhead area of Atlanta, and just the two of us sit down and talk?

    Long story short, we got to see each other as people. And as we talk today, he and I have become really good friends. We have served on common and committees together. We have traveled together. We share football tickets together. Basically, by humanizing the opposing counsel, we became really good friends, and to the benefit of our clients, we were able to cut through the very next day, the more serious issues in the lawsuit and actually had the entire thing resolved within 24 hours. All it took was time for lunch.

    Similarly, I had another issue with a lawyer, this time located in Atlanta, very difficult time getting along. I had heard a reputation about this lawyer that frankly I thought was undeserved about difficulty. And I called him up and I said, can you and your associate meet me for lunch, I'll come down by your office so you could walk, and we're going to have one rule, and one rule only for lunch. And that rule is we are not allowed to talk about the case at all. All we were going to talk about is family, where we came from, where'd we go to school, how did we end up in the practice we're in, a very personal conversation. And we left that particular luncheon having developed an entirely new relationship.

    Now that one did not result in a resolution of the lawsuit immediately thereafter. There was still a lot of activity that needed to occur and did occur, but it became more of a professional level and easier to cut through the issues and present them to the court. That was extraordinarily helpful.

    Now I'll give you an opposite story. I'm actually going to give you two opposite stories and I will not go into, of course, not name anybody. But I had a litigation with a lawyer that was very difficult. It was the third lawyer representing my opposing party. The lawyer had a case, again, the lawyer took over the case from somebody else that was in a state court. We were not willing to further extend the case that had already gone on for numerous years, but we were willing to give some accommodation, but not a full annual extension of the case. So, the case was dismissed, refiled in federal court as a whole new case, and that person then moved for an emergency injunction on a case that at that point had been several years old.

    In addition, I was going on vacation immediately before this happened, and the last communication I had received on a Friday afternoon, and by the way, as a side note, I personally do not like sending or receiving large demands on Friday afternoon. Nothing is going to happen over a weekend. All you're going to do is call as a lawyer to think about it. Sometimes it's inevitable. Sometimes you have a court deadline that is on a Friday, and you've got to comply with the court deadline and you're still working late in the day. And in this day of e-filing, you can actually file up to midnight in just about any jurisdiction. And sometimes that just happens, and you can't void it. But just sending long demand letters that could wait until Monday, there's not much of a reason to do it on Friday. And if you do, you're probably going to get something back.

    So anyway, I'm getting ready to go on vacation. And one of the cardinal rules amongst lawyers is I will not disturb your vacation if you don't disturb mine. And we all understand that. And most of us are willing to work around even court schedules that may interfere with vacations. And the last thing that was stated to me on this Friday afternoon after a very, very long letter was whatever actions I take, don't worry, they will not interfere with your vacation. On Monday of my vacation, I get an email with a brand-new complaint that gives me until Wednesday of my vacation to accept service of that complaint. Obviously, that did not go over well with me. I asked for an extension to respond to the new complaint, and I was told no. And I'm going to come back to this extension issue a little bit later in this presentation, but I was very surprised that I could not even get what would be a courtesy extension because I was on vacation.

    So, I filed, for the first and probably only time in my career, a unilateral opposed motion for extension to respond to a complaint that on top of everything else was the second lawsuit in a dispute that had a prior history of three years in a state court. We were called to the courtroom, and I remember the day vividly, and gave our arguments on a substantive issue that had come up. And then the judge called the lawyers up to the front and had my motion for extension in front of her. And motions for extension are usually perfunctory, they're handled by a magistrate, maybe a law clerk looks at them, gives an order to the judge. I had never seen a judge previously, much less a federal judge, pay attention to a motion for extension.

    And the judge had the motion in front of her and asked my opponent to stand in the middle, and the judge basically gave a speech to the lawyer about professionalism and how the lawyer said that my vacation would not be disturbed, and then with a big bang of her fist on the bench said, first day of his vacation, you sent him a communication giving him two days into his vacation to respond. And when she tried to speak, the judge said, you're not going to speak. You're just going to learn professionalism. This is the kind of thing that should never happen in your career, whether you're on one side or the other.

    Lawyer courtesy is not only something that makes our career easier to do, it not only serves our clients in the long run, but if you lose the confidence of a judge or gain the anger of a judge over something that should be a matter of simple courtesy, then in the end, you may have inadvertently prejudiced your client at least by some kind of bias for being difficult. And that is just a very simple thing to avoid.

    Another example and this actually occurred only in the last few months, I had a case that was out of state. It was a case that was ultimately decided would be better off handled by a lawyer who was in another state. But initially, we were trying to get the lawsuit worked out, and there were some very lengthy, angry communications via email between the lawyers because I could not get the lawyer to actually set up an appointment to talk to me, leaving email and letters as the only option. And when it became clear that this thing could not be worked out and we made a decision to turn it over to somebody else, the lawyer first said to me, he demands that I withdraw from the lawsuit and get different counsel. That's obviously a very direct insult towards myself and frankly, towards the profession. It is not up for a party to demand that the other party change counsel just simply because they perceived that that counsel will not buy into their arguments.

    We decided it wasn't worth the fight, and then, in fact, we would turn the case over to the lawyer that was working with us in the other state. And when we made this announcement or actually, I think it was just prior to the announcement, the lawyer sent an email that I've got pasted on my wall. And I'm not going to read the entire email, but in the middle of the email was a statement, "I do however wish that you would stay in this case so that I could give you the legal education you sorely need." If any associate who works for me ever writes an email like that, they'll go through some serious training if it doesn't result in actual departure from the law firm. That is no way to talk to a lawyer. And in our particular case, we were actually in the right, and that lawsuit does not exist anymore, and I will not go any further into that particular example. But those are bad examples.

    Back to some good examples. There is a process that's very similar to what I described about the two lawyers that I got together for lunch and work things out. Here in Atlanta, the Atlanta Bar Association, completely unrelated to the experience that I had, has a contest every year called Meet Your Adversary, or I think it actually means Lunch With Your Adversary. And the encouragement is you have to pick up the phone and call your adverse lawyer and invite them to lunch. And then when you sit down and you have lunch, then you submit to the Atlanta Bar Association that you in fact did so. And for every lunch you have with an adversary, you get entered into a drawing for a gift certificate, of which they give out quite a few.

    The point and the outcome is brilliant. We are in a profession together. Our lawsuits and our corporate deals, they come and go, and clients come and go, but lawyers will always be in the industry. This is not intended to be a political presentation at all, but there are times I wish our politicians would take lessons from lawyers because we as lawyers know how to represent the interests of our client, at least the professional lawyers, which is most that I have met, the vast majority that I have met. And we know where to draw the line between representing our client and treating the other side with respect and talking to them with respect and treating them with consideration of their opinions. And it is something that I wish our politicians would actually take a lead from. And a lot of our politicians are lawyers, but when they're politicians, they're not actually in the practice of law. And lawyers actually do a much better job when it comes to meeting your opponent, consulting with your opponent, working things out with your opponent.

    Now I'd like to turn to some court enacted rules in which professionalism is either requested or implicitly required. First, for any practitioner that is practiced in court, there are Rules of Civil Procedure, and within those rules, there will be requirements related to discovery. It is almost universal that when it comes to discovery motions, before the filing of a motion, counsel are requested to meet and confer in an attempt to either resolve or narrow the discovery dispute. In that meet and confer, that is the perfect platform for the expression of professionalism. Again, the object is to narrow or resolve the dispute. This is not possible if all the attorneys want to do is be combative.

    Similarly, if you practiced in federal court, most federal courts, or I say all federal courts have local rules. So, there is a local rule for the Southern District of Florida. There are local rules for the Central District of California. There are local rules for the Northern District of Illinois, and basically every district. Most local rules require that before the filing of any motion, with exceptions, the counsel is to meet and confer and then must actually certify in their filing that they in fact have met and conferred. So, the movement would it say, pursuant to a rule, whatever is the number of the rule, counsel have conferred in an attempt to resolve the motion and have been unable to do so, or at least have been able to resolve certain issues but the issues in this motion are not resolved. The only way to accomplish that meet and confer is also professionalism.

    I'm also going to give you an example of a standing court order, and this is in your materials. The state of Georgia has created what is known as State-wide Business Court. States across the country have created business courts. These are courts that generally have the same power as any other state court but are specific to business disputes. And Georgia is, at least to my knowledge, the first one that created a state-wide court that has concurrent jurisdiction with every district across the entire state. And that court was established in late 2019. It is still in what I would call an upstart stage. But when you file a lawsuit in that court, you will get a standing order. It's called in your materials in re cases assigned to Judge Walter W. Davis, who is currently the judge of the state-wide court. He is the first judge of the Georgia State-wide Court.

    And you may see similar orders in other courts across the country, especially in federal court. And let me read you some language that is located in paragraph 1(a), so right in the beginning of the order. It's titled Protocols for Court Proceedings and Interactions Between and Among the Court and the Parties. So, the court first has a statement about the fact that there's a dispute here, and sometimes those disputes can be difficult. So, the court says, and I'm quoting now, "Understandably, such disputes are hard-fought and highly contentious and the potential certainly exists that emotions will run high on occasion. Even so, Judge Davis and his staff take their roles in the judicial process seriously and will do everything in their power to make your experience litigating in the Court, a positive one, the end result notwithstanding."

    Well, that's a nice statement from the court. And I've met Judge Davis and I can virtually guarantee that that is a 101% true statement. But the paragraph then goes on further and it says, "the Court expects counsel and litigants to take their roles in this process seriously as well. As such, in the context of hearings, conferences, oral arguments, and the like, interruptions, reactive facial expressions, and other disturbances have no place in this Court and will be looked upon with disfavor." That might be the most direct statement I have seen from a court with regard to-

 

Larry Kunin:                                           ... be the most direct statement I have seen from a court with regard to what it expects from counsel, and anybody who has ever seen a judicial based movie or TV show, I hate to mention things like The Practice, LA Law, these things are made for TV and you see people rolling their eyes and dropping pencils on the table and muttering, oh my God, under their breath and things like that. These are things that do not work in the real world and in a worst case scenario may actually cause the judge to interrupt whatever argument or proceeding is going on in order to give a speech. This is not the way a professional lawyer conducts him or herself. Rather, show deference to the court and opposing counsel. Those people who have taken moot court or been on a moot court team have been taught that in the beginning of the argument, you step in front of the court, and you say, may it please the court, and you turn to your opposing counsel and say, counsel, and then you proceed with your argument. It is a matter of respect and respect equals professionalism.

    Now I'd like to go back to some court direction that is not specifically within an order to the parties, but something more to strive for. Again, I'm going to use an example from the Georgia Supreme Court, although many courts have issued very similar if you want to call them proclamations or creeds. This was issued in 1992 and to read what it says, and it's a little bit lengthy, but it all has meaning.

    What the Georgia Supreme court stated as a lawyer's creed, "To my clients. I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust. To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified. One to the courts and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to search for justice. To my colleagues in the practice of law, I offer your concern for your welfare. I will strive to make our association a professional friendship. To the profession, I offer assistance. I will strive to keep our business a profession and our profession a calling in the spirit of public service. To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients."

    That is the end of the official order from the Georgia Supreme Court. However, the Georgia Supreme Court also issued what are known as General Aspirational Ideals, and those ideals are stated as follows," To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution processes. To preserve the dignity and integrity of our profession by my conduct. Good lawyering should be a moral achievement for both the lawyer and the client. Counsel clients about the value of cooperation as a means towards the productive resolution of disputes".

    I want to pause on that particular statement, counseling clients of the value of cooperation. Clients have a very individualized interest in mind, which is their side of the dispute, and clients are not the ones who actually practice in the industry, but it is our job as attorneys to represent those particular interests. It is sometimes a challenge of a lawyer to counsel a client of the need to cooperate with the other side, because a client will often see the other side not as the lawyer, but as the party, and the reason they're in a dispute and the first place, or if you're in a corporate deal, this still applies, because in the corporate deal you might be able be unable to find common ground on an issue. They see that they are in the right and the other side is in the wrong, so why is there a need for cooperation?

    Sometimes it becomes difficult, other times, not to convince a client because cooperation and resolution, or at least an attempt to resolve or being professional, is the best avenue. This, again, we'll come up with, and I mentioned this a couple times and I'm going to come back to it, as I mentioned before, a simple request for an extension of time on something that maybe the client wants you to handle very quickly, but in reality may take extra time for the lawyer to be prepared or maybe there's some conflict or some third party influence that can't be controlled.

    Let's go back to the aspirational ideals. They continue. "Maintain the sympathetic detachment that permits objective and independent advice to clients". That I would like to pause on very quickly. Sometimes telling the client, because they're your client, you're in the right and I'm going to do what it takes to push that forward is not always the best advice for them. For example, it is not worth $100,000 of attorney's fees to win a $20,000 case. Sometimes the case law does not support the client. Sometimes the contract does not support the client. It is our job to advise the client as to what their risks are. That's not really professionalism, but it's then making sure that once they understand, you know how to present your side to your opposing party in a way that still draws your client in the best light.

    Back to the aspirational ideals that go along with what we just discussed. "Communicate properly and clearly with clients. Notify opposing counsel in a timely fashion of any canceled appearance. Grant reasonable requests for extensions or scheduling changes. Consult with opposing counsel in the scheduling of appearances, meetings, and depositions. Treat opposing counsel in a manner consistent with his or her profession, obligations, and consistent with the dignity of the search for justice. Be courteous and civil in all communications. Respond promptly to all requests by opposing counsel. Avoid rudeness and other acts of disrespect in all meetings, including depositions and negotiations".

    Another example, and you will see the guidelines of professional conduct from the Florida bar in the materials, there is a section regarding scheduling continuances and extensions of time. There are a lot of rules in the guidelines generally that are important to read and there are a lot of parts of even this Section B that are important to read, but there are a couple things that I want to highlight. Paragraph one says, "Attorneys must and accept an extraordinary circumstance, communicate with opposing counsel before scheduling depositions, hearings, and other proceedings, and to schedule them at times that are mutually convenient for all interested parties". Going back to what I discussed with vacations, for example, nobody wants to hear about a deposition scheduled in the middle of their vacation, or when they have a child's graduation or some other personal thing going on, or even a client conflict that simply can be done a week later or at a mutually convenient time. There is also a rule in here or a guideline in here that requests for extensions should not be made just simply because you want to delay. That is considered to be unprofessional.

    Then come two rules that I have found very few lawyers actually know about. When I say rules, I mean guidelines. These are aspirational guidelines, and they're in paragraphs eight and nine of that paragraphs eight of the Florida Bar Guidelines for Professional Conduct. Paragraph eight says, "A lawyer should exceed to all reasonable requests for scheduling, rescheduling, cancellations, extensions, and postponements that do not prejudice to client's opportunity for a full, fair and prompt consideration and adjudication of the client's claim or defense". Paragraph nine continues, "First request for reasonable extensions of time to respond to litigation deadlines, whether related to pleadings, discovery or motions ordinarily should be granted between counsel as a matter of courtesy, unless time is of the essence.

    The reason I find this to be a very difficult guideline is again, because most people don't know about it, and again because you're trying to serve the interest of your client who may want to move faster than is appropriate than you can do, than opposing counsel can do. If you'll notice, when I read those guidelines, I did not say that a client should exceed to reasonable request for scheduling, rescheduling, cancellations. I did not say that first request for reasonable extensions of time should be granted between clients. I said, those are things that should be done between lawyers. The bottom line is it's actually up to the lawyer to make that decision, regardless of what their client believes. However, anybody who has been in a client-based service knows that the client still should be consulted, which creates a balance that people are not always cognizant of because they just want to, as a knee jerk, respond to whatever or proceed with whatever the client wants.

    At the same time, it really is between lawyers, and there is a saying that everybody who is listening to this has heard; what comes around, goes around. If you give that request for extension, even over client objection, there will be a time where you need the same extension. Something I've also found surprising the practice of law, and I've mentioned some of these guidelines, I've run into very few lawyers who are actually aware that guidelines like these exist, unless they've heard a conference like this or unless they have been to a Supreme Court seminar or actually happen to have read certain court orders. Very few people know about these because they are not things generally taught about in law school, at least outside of a professionalism class. They are not things that are generally tested on a bar exam. There is not a professionalism exam like there is an ethics exam, but these are guidelines that are very important for lawyers to be aware of.

    Speaking for myself, there's certain ground rules that I establish with opposing counsel right out of the box. It's something that helps reduce stress, I believe, for all lawyers if all lawyers can actually live by these particular, very simple rules. There are deadlines that occur. There are emails that are missed. In the iPhone stage, there are emails that get accidentally deleted by double hitting on your iPhone. There are sometimes calculation errors made when calendaring something. Sometimes things come up at the last minute that are just beyond our control or opposing parties’ control, and what I generally tell opposing lawyers in the beginning of a case, and by the way, I mention getting together with opposing counsel. Almost every lawsuit that I have, whether I filed it or whether I'm the defendant and I'm responding to it, will start with a phone call from me, if it's not an opposing lawyer calling me first, to do nothing thing more than just simply introduce myself. Say hello, this is who I represent, want to let you know you can communicate with me about this particular dispute, and then I'll also establish some ground rules.

    The most important one is, listen, a court deadline's a court deadline and we need to comply with court deadlines, but if there is ever a deadline that is not mission critical, a court deadline, I am not the one who's going to hold your feet to the fire. If you have a request for production response that's due to me on a date particular and something happens that day, don't wake up in the middle of the night and say oh, I missed that deadline, I'm in trouble, I'm going to be in trouble with my client.

    I am not that guy who is going to hold your feet to the fire, because again, I know that one day I may need that same courtesy and I am not surprised at all that what I mostly hear back from lawyers in response to that is, that's terrific to hear because I'm exactly the same way. Now, whether that lawyer would've been the same way, I don't know, but we established those ground rules in the beginning and it makes litigating a much easier process and not a gotcha process, because I could tell you that judges I know like nothing less than lawyers who basically try to trick somebody and create a gotcha process.

    Now, going back to in-house counsel issues, if you're an outside lawyer, one of the challenges of dealing with a corporation that has an in-house counsel, which is when I say challenge, there's actually a benefit and a challenge. One of the challenges is that you're often twice removed from who is actually the client, because the in-house lawyer is the direct lawyer representative of the client, which is the corporation and the representatives of that corporation. Then that in-house lawyer will be communicating with the outside lawyer, so the outside lawyer may not have direct communication with what essentially is the decision maker on the inside. Sometimes it is the in-house counsel as the decision maker. It can sometimes be a challenge when you've got that extra step between who might be the decision maker and the outside lawyer.

    At the same time, your in-house counsel is often your greatest ally because the in-house counsel, assuming that they are also a professional counsel of which almost, and I shouldn't say almost; I should say every in-house council I've dealt with, understands ethics and the rules and guidelines of professionalism. They become your advocate to the inside client who may not have as much patience for the legal system and the negotiation process as a lawyer would. The in-house council becomes your advocate, but then there are certain guidelines that apply to the in-house council as well.

    Let me give you a few of those. In-house counsel obligations will include mental health of their lawyers and staff during a time of crisis. That applies to outside counsel as well, but in-house council is dealing with large organizations, and mental health has been an issue recently. Well, I should say always, but has come to the forefront recently, maybe even more so during COVID for a lot of people in the law and beyond, that they need to be aware of. In-house counsel also has obligations of justice in a time of crisis and balancing the right of the organization to protest and speak freely. This exists when I say the organization, within a law firm, between a partner and associates, and partner and associate and staff and paralegals to understand that everybody is a person on the inside. That is just expanded when it's in house counsel, who are now dealing with people who are not in the legal profession in a larger organization.

    Then something that's really challenging, and we read about this in news, and I'm not going to take any position on this, but it is something that we all have to deal with. In-house counsel roles have to balance free speech right, which includes social media posts against professionalism, obligations, and company policy. We live in a social media world and lawyers themselves are part of this social media and need to be careful what they say on social media because that could be seen. I have heard stories of judges who have checked up on lawyers on social media and said, it's interesting that you made a request for a particular extension because of some reason, even though this was mission critical, and then I saw posts of you hanging out in the bar that night. The same thing has to do within counseling your clients as well, and also talking to opposing counsel about the truthfulness of certain needs you may have, because you don't want your opposing counsel also seeing you on social media.

    Well, in-house counsel also has to deal with this with regard to employees, and it's an entirely different presentation to talk about what are the company policies regarding social media, et cetera, but these are considerations that in-house counsel have to take that have been amplified over the last few years, not only given the political climate, but just the mere existence of social media, whether it's Facebook, Twitter, Snapchat, Instagram, you name it. These are all things where your professional conduct can be reflected on a different forum.

    I'm going to give an example of my own post that was actually towards professionalism and got a lot of positive comments. I had mentioned that I'm heavily involved in the Florida Bar and many of its committees. Around the time of a Florida Bar election and various committee activities that occur, I made a post that said lawyers have it right. Lawyers know professionalism. Lawyers how to treat our opponents with respect, while at the same time creating friends and constructive dialogue. I received positive responses, including from the President of the Florida Bar at the time with regard to the fact that this is actually a positive statement about professionalism and something that we all should strive to me.

    I'm going to leave this presentation with a couple quotes, but before I get to that quote, I'm going to make a pitch for state bar organizations. One of the best ways to foster, develop and spread professionalism is indeed bar service. Many of us are interested in developing clients as we should. That's how outside lawyers make a living. In-house lawyers develop the trust of their corporations by developing relationships within the corporation, so we all like to attend events and things like that where we could meet people in the industry. If things inside the company or inside the law firm where we foster relationships, but what bar service does is you get to meet other lawyers and sit on committees with other lawyers and talk about things that help the legal profession. That only has... well, I should say two results. Serves the public, serves the profession and fosters and grows professionalism.

    With that, I would like to leave everybody with a couple quotes. One of these is from the Georgia Supreme Court Retired Justice, Norman Fletcher. He says, "I have concluded that professionalism in a legal sense is to a great extent practicing the golden rule. It is not do my opponent in before my opponent does mean in, but rather, it is due unto your fellow attorneys, the judges and society as you would have them do unto you".

    We've all heard a quote like this; due unto others as they would do unto you, but it is easily forgotten when you are practicing law, especially when you're an adversarial relationship. Again, whether it's litigation or negotiating a deal that may even be mutually beneficial, it's easy to forget, but it is important not to. Then the final quote that I'm going to leave you with is by Retired Justice, Sandra Day O'Connor, of the United States Supreme Court. Justice O'Connor said that professionalism is a delicate balance, quote, "Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system, which strives, however imperfectly, to provide justice for all".

    In conclusion, professionalism can be summarized as follows. Ethics is the base of conduct and is strictly required by state bars and many times by the courts. It tells lawyers what they must do in the conduct of their practice. Professionalism sits above ethics and is aspirational to how lawyers should interact with clients, opposing counsel, the courts, and society. Whereas ethics is grounded in mandatory state bar rules, professionalism is grounded in expected conduct and sometimes state bar guidelines, and as mentioned, many people don't know that those guidelines exist. You should check your state to see if it does have such guidelines, which would be published on the state bar website.

    Take the opportunity to build relationships with opposing counsel and bring it to a personal level. It pays off, not at the issue and hand alone. It can pay off in future matters. Professionalism can also positively build your reputation within the community, including within the legal community. Many state, local and national bars even give professionalism awards. This is how important professionalism is to our particular career. Think of professionalism as sportsmanship. Being a good athlete and a fan is important, certainly, but being courteous to others makes it a more enjoyable experience for everybody. All lawyers should strive to be professional.

    It has been a pleasure talking to everybody about professionalism, and I hope that everybody becomes a professional lawyer and builds the courtesy and respect of everybody that they encounter within the profession, within their clients, and within society. Thank you very much.

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6h 14m 48s

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