On demand 6h 15m 11s Basic

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 creating a purposeful and inclusive practice. They are:

Session 1: An Attorney's Top 5 Ethical Blunders
Session 2: Lessons to My Former Self: A New Attorney's Guide to a Purposeful Practice
Session 3: Working From Home Ethically: Technological Competence for Lawyers
Session 4: Email Communications for Lawyers: Strategies and Ethics
Session 5: Ensuring Access to Justice for Neurodivergent People
Session 6: Best Behavior: Ethical Strategies for Dealing with Bullying and Bias in the Profession.

Please note that this six hour program contains two checkpoints total. There are not checkpoints within each individual course.

Transcript

Hello everyone, and welcome to today's presentation of top five Ethical Blunders. Today we are going to be talking about different things in the realm of ethics, especially attorneys ethics. And we are going to probably have some fun. We are going to go over various topics, some very relevant, some that happen all the time and you not even realize it. And we may have some fun, some jokes, and some great examples along the way as well. I wanted to introduce myself briefly though, before we get started. My name is Cari Sheehan and I'm a conflicts attorney at Scopelitis Garvin Light, Hanson and Feary in Indianapolis, Indiana, where I practice in ethics and conflicts. I'm also assistant clinical professor of business law and ethics at IU Kelley School of Business in Indianapolis. I do both roles and I work very hard at both roles. So you can say ethics, particularly attorney ethics, is my life. 100 every day of the week, 24 hours a day, seven days a week. And I also teach over at the Robert H. Mckinney School of Law, the professional ethics course there as well. So you can say I'm fully immersed in this topic, fully immersed in everything that we do, um, in the world of ethics. And so let's get started on our different blunders. If you have any questions along the way, you can always put them in the Q&A. Um, as part of the zoom. If I do not see them right away, I do apologize, but I will get to them at the end of the seminar as well. If I don't answer them throughout the seminar, you could also put them in potentially the chat feature too. But there is a particular a special Q&A feature if you do have those questions. So let's get started on blunder number five. I call this the everyone take cover blunder because this is regarding cyber security, spyware, different viruses, different Trojans that can come in and attack our computer systems, attack our confidentiality of our clients, and attack our law firms just in general. And we do have to guard against this in today's day and age of AI and different things is getting harder and harder to have robust cybersecurity because it's coming at us at all angles. And we really do need to have security on our systems, security on our computers, on our cell phones, and everything that we use that has client confidential information on it. Because if we don't, then we are at a high risk of being attacked by the cyber criminals and also our client confidential information being stolen, which as we will see as violations of our ethical rules. And it was actually Robert Mueller, FBI director, in 2012, so that he is convinced that there are only two types of companies, those that have been hacked and those that will be, and even those are converging onto one category, companies that have been hacked and will be hacked again. And he is not just talking about businesses and the business world, but he's also in talking about law firms and general, because we are businesses. If you work at a big law firm, I guarantee you that large law firm has an internal management system, has an internal system just for its non-legal employees and then one for its legal employees. We operate like businesses. We operate like big companies and corporations, especially as we get into the bigger law firm model. And so we are at risk for being hacked. So we're at risk because we have the client files, we have the data, the HIPAA data, the protected health information, social security numbers, trade secrets, analysis strategies. We have everything that is right for a cybercriminal to steal someone's identity. And guess what? We have it in mass volumes. If you think of all the clients in your firm and the information you have on them, and just think of what a cyber criminal could do if that landed in their hands, is a pretty high volume and a lot of damage that could come from it. We also maintain financial information not just of our clients, but of our law firm as well. And we have financial information of our employees, again, ripe for security crimes, ripe for theft, ripe for infiltrating those accounts, stealing credit card numbers, bank account information. We have it all in our databases. And not only that, we also have human resource records of our employees with Social Security numbers, dates of birth. Again, anything that's ripe for that cyber attack, for the theft of identity, all of those things are housed right here. You're in our firm and we have to protect them. Now, what kind of protection depends on the type of data we're housing. How big of a law firm we are? The different risks that are imposed or could be imposed, you know, coming at us. And it's not a one size fits all model, as we'll see. But the things that we do have to remember are, first, our competency under rule 1.1 of the rules of professional conduct, we have to remain competent in all things that touch the practice of law. Now, the rule itself says this requires the legal knowledge, skill, thoroughness and preparation necessary for the representation. Common eight says that, you know, we have to keep abreast of changes in the law and its practice, including the benefits and risks of technology. So that could include our cybersecurity threats. That can include. You know, different areas like that. We also have to maintain that duty of confidentiality, prevent the inadvertent or unauthorized disclosure of or unauthorized access to certain information that we have. We have to keep confidences. Rule 1.1 tells us that 1.6 D our duty of confidentiality tells us that we have to prevent that unauthorized access to disclosure. So when we put those two things together, we have to take a reasonable approach of how to protect our clients confidences. And you may think to yourself, well, the client's confidences are just those communications between the attorney client, the attorney client privilege. That's easy. We talk verbally. There's nothing there that's not right. Confidentiality and protecting our clients confidences not only includes the things that are subject to the attorney client privilege, which are those communications directly between the attorney and the client, but also anything else that touches and concerns the representation, which is that big red circle on the screen in front of you. So our duty is way broader than just the attorney client privilege. We're just not trying to protect and guard against cyber attacks regarding those communications between us and the client directly, but everything that we learn in furtherance of the representation, everything that we collect, every witness statement, every piece of evidence, everything that's told to us, written to us in an email from our clients, that is all confidentiality. Attorney client privilege is just a little subsection, but not the big overarching what we have to keep confidential. So you may think, okay, well, this got a little more complicated because that's a lot of information sometimes depending on what case you do. But there are ways to make sure that you are protected and that you do protect that confidentiality. And you just have to use reasonable measures. Like I said, when we combine those rules, rules 1.1 and 1.6, it kind of comes to the summary that a lawyer must act competently to preserve or safeguard confidential client information against the unauthorized disclosure by the lawyer or persons under his or her supervision. So we just have to act competently to safeguard information clear as mud, right? Aren't the attorney rules great when it comes to being clear, being precise, telling us exactly what we should and shouldn't do. As we all know, they are not that. So we kind of have to interpret, you know what this means based on those two rules, 1.1 and 1.6 and so common 18 of rule 1.6 gives us a little more insight, just that reasonable efforts. But again, it doesn't advise on what reasonable efforts are. But there are certain things that the ABA has said are included in reasonable efforts. And what attorneys can use as reasonable efforts in looking or trying to protect client confidential information. Client data. And it was ABA opinion 4.77 R that stated, it isn't that one size fits all model, that there's actually factors you have to look at to determine what your law firm, specific, reasonable obligations are to keep client data confidential. The first of those factors is the information sensitivity. Is it something like HIPAA health information? Is it Social security numbers? Is it medical records or is it just a witness statement? How sensitive is the information? Obviously the more sensitive the information, the more emphasis that's going to be put on this factor, and probably the more robust confidential information or confidentiality system and more robust security system, you're going to have to have, you know, to protect that client data. You also, to number two, the likelihood of disclosure without additional safeguards is another one. So you have to make sure that, you know, you're trying to assess the risk. This is kind of like what an insurance company does. They assess risk of how often someone's going to file a claim based on their questionnaire, based on their risk analysis that they have in the background. And we have to kind of decide that, too. We have to look at the information we have. How sensitive is it, the likelihood that, you know, disclosure or hacking would occur without additional safeguards? Then we have to take those and balance it with factor number three, the cost, the difficulty of implementing a system on top of the cost. And then two, does the new system or security basically prohibit or inhibit the lawyer's ability to actually do their job and represent clients effectively? Because sometimes we can have too much data protection and too much. Security features that we can't do our job effectively. So we have to balance all these things together. The information sensitivity, the likelihood of disclosure without additional safeguards, the cost associated therewith, difficulty of implementation. And then to can we still do our job? Think about it this way. How many of you have had a firewall blocker where you can't get to the sites you need to get to to adequately represent your client? That's a problem. So that is why this balancing act is there. Now there are a few things that an ABA formal opinion force seminar said that are usually considered reasonable under any, if not all circumstances. Our email encryption, it's a thing in Microsoft or whatever email platform you have. You can encrypt emails to where only a certain person can open it. That's who you directly send it to. Or they have to have a password which you would send to the person separately in a separate email or communication to where they would have to use that password to open the file attached. So that's kind of an encryption type of thing to guard against. This has seen a lot when you send medical records via email, when you send that more highly sensitive information. And so something as small and inexpensive or part of the program you already have is that email encryption. Now there's other guidance to what reasonable measures would look like. If you are a broader firm, you may have to have backup where a full IT department, you know, firewalls, tracking systems, different things. If you're a smaller firm or a solo practitioner, reasonable may not be those things just because that cost of implementation factor number three, the difficulty of implementing it would far outweigh any benefits. So you really have to look at the factors and take them all together to determine what's best for your firm and your fit. But we don't stop there. On top of that, we have duties to communicate with our client regarding our cybersecurity, and especially if we were hacked into by one of the hackers that are coming our way. And so rule 1.4 tells us that a lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required. Reasonably consult to accomplish objectives. Keep the client informed of the status, respond to requests for information, and consult on any relevant limitation of the lawyer's conduct. So your security protocols, if there is a breach, would require communication under rule 1.4. So you need to make sure you give that communication. And this is going to come in the form of you have a cyber event where maybe you were hacked or something happened to where some of your client's data was taken, disclosed, or there was a violation of rule 1.6. And so your duty is not just to plug the hole, figure out what went wrong, and do better next time. On top of that, you have to follow this rule and communicate what happened to the client. Now, this is probably going to be done simultaneously with reporting the the cyber attack to your general counsel internally, or you're going to consult with your general counsel or ethics group that's in your firm. Figure out what happened. Figure out where the holes are, figure out what client data was taken and which clients that belong to. Then you're going to figure out how to effectively report that out to the client. But I will remind you that bad news does not get better with time. I repeat that bad news does not get better with time. So you need to make sure you make prompt communications as prompt as possible. After a cybersecurity event, I would recommend advising the clients of what was taken, what happened, and how you were going to move forward to make sure this doesn't happen again, or at least reduce those risk. And so you're going to have a plan of action ready to go when you make that communication. And you should have a plan of action. On if a cybersecurity event happens way before it ever happens, you may need to consider a policy of the steps you're going to take, who's going to do what, have that on the books. Because when it happens, time is of the essence. The longer you let them into your system, the more data and information they're going to keep extracting. So once you've found that you've been hacked, cutting off that access immediately, having that plan of attack in place, having the protocols in place for when it does happen is vital to stopping the bleeding of the confidential information. So you need to make sure that you do that. Then when we communicate out to the client, we can tell them what we did. We can tell. Tell them of the risk and how we're moving forward and what this looks like for their particular case and their particular information. Now, in that communication to the clients, I probably would apologize to saying we're sorry to have to have this communication. However, here's what's happened. We're fixing it and move forward again. So we need to make sure that we do that. Now. The type of communication is the form it comes in that varies from client to client. Some clients like a form filled out. Other clients prefer just a phone call. If your client does have what's called outside counsel, guidelines, terms and conditions they want you to follow, look into those because they probably have a cybersecurity policy in them, and then you can see what your duties are after that. Just some examples here as we close out this blunder. Number five John works at a large law firm. One afternoon he clicks on a link that says change your password in an email. John really did know that. You know, usually you have to hit control, lock, delete, then change the password. But he thought it was being nice and just sending the link directly to him. It was a phishing email and his system got hacked and 3000 client files were stolen. What did he do wrong? First he clicked on an unknown link. He should have looked at the email, seeing if it had any of the common signs of a phishing social engineering email such as misspellings, odd pasting, odd spacing, different font. The characters in the email are off, maybe just by 1 or 2. It says attention to detail that help us spot those phishing and social engineering emails. Once John had clicked on the link, if he realized that thereafter, he should have immediately reported it to the general counsel and started figuring out how to stop the leak and also advising the clients thereafter. Since he did not. The ethical response now is to stop the hack, figure out what client data is affected, communicate out to those clients, and then of course do better next time. John probably needs some phishing social engineering training through it and through the law firm. Another place we can have cybersecurity attacks, and we not even realize it is the misdirected or email that goes out to opposing counsel, meaning you use that autofill feature on your phone or on your computer and your email and you know your opposing counsel's name. John, you have a lot of John's. He just wasn't the last one you emailed. So you populate in the wrong name, but when you send it to that person that was not intended for and you have client confidential information attached to it, we have a breach of security and we have a violation of rule 1.6. Now, what do you do in this instance? Well, there's some guidance in modern rule 4.4, the rules of professional conduct, which tells us if there is an inadvertent disclosure, the sender of it, once they realize it needs to notify the recipient and advise them what to do. Normally it's please stop reading it. If you have not read it, please discard it. Confirm that you've discarded it. Now, the thing about rule 4.4, it's different jurisdiction by jurisdiction, and some jurisdictions require that the the the receiver of the inadvertent disclosure comply with the sender's request. Other jurisdictions say they don't have to comply, that they can take it to court, try to use it for their client if it's sent to, you know, opposing counsel, which is the wrong person or whatever the case may be, that they don't have to follow the instructions. The rule just says the sender gives instructions. It doesn't say anything about what the recipient is supposed to do necessarily and some of the rules. So you do have some ambiguity there. But this is another scenario where we could see an inadvertent disclosure. And then obviously our good old devices, our cell phone, our laptops, they need to be password protected if we leave them in a taxi cab, as our friend Dan did here while he was on vacation or doing business in the city, they're ripe for being hacked. If your device gets taken, you need to immediately notify your internal IT or internal general counsel or whoever you would report to within your law firm structure, because there are ways to remote turn off a phone so that it can't be hacked into. And you may think, why would anyone hack my phone? And why is that a work thing? Do you have your email coming directly to your phone? If the answer is yes, then it's a problem because that's client confidential information and we have to protect it and use reasonable measures. One of the first reasonable measures is making sure all your devices are password protected. A second reasonable measure is don't allow family members, children or anyone outside that law firm on the phone, because that's also a disclosure in violation of rule 1.6. There is no exception to confidentiality for family members, spouses, significant others, or anyone of that kind. It's unfortunate, but there's not. In a lot of times, parents let their teenage children get on the phone. They rifle through emails, they rifle through confidential information, especially if their parent is working on high profile cases. And that's a violation of rule 1.6. You need to keep a work phone and a personal phone. If you do let your children on it, or you do let others on it, or don't want it password protected, or you need to take those reasonable measures to make sure it is password protected. That brings us to blunder number four, the domestication of attorneys, also known as remote work and the unauthorized practice of law. This picture probably looks all too familiar to some people over the past now three years, and it's maybe not the norm 100% anymore. But you still have those days where we still have remote work working from home, and so we have to be cognizant of those the things that could be implicated. The biggest one is the unauthorized practice of law that can be present. And this is because some of us, when the pandemic hit, moved to other states in which we're not licensed and then continued to work with when we're physically in one state, but working within a different state. So that scenario, while it seems common sense, as long as you're only doing work in the state in which you're practicing, why does it matter where you're, you know, physically located? And a lot of jurisdictions said that it is common sense. It's okay. But you still have to do the analysis because within the jurisdiction you're physically located, you need to make sure you don't advertise, hold out as a lawyer, anyone misconceives you as a lawyer there or could practice there just because you're physically there. You have to take those additional safeguards to basically say, no, I'm not a lawyer in the state. I'm only doing work in Indiana or in Illinois or whatever state you're only licensed in. Otherwise you can run into that rule 5.5 types of violations. We also do see with remote work, failure to supervise or non non-attorney personnel, failing to author, you know, failing to keep up on the technology and the security protocols and that reasonable things we just talked about. And then also to some other rules that are implicated with remote work, diligence, confidentiality, communication, it all starts to fall to the wayside because we're disconnected. We don't see our staff every day. We don't connect and talk to our attorneys, our fellow coworkers every day. So we get this disconnection. And we also don't have that sense. You're not going to invite a client necessarily over to your house for a meeting. So then you start lacking that diligence and communication because of the separation, because of the informality of the remote work structure. So you do have to watch out for all these things. And I did cite two formal ABA opinions regarding remote work and just particularly supervision in that one there at the bottom of your screen. These are things you really do need to look out for when it comes to remote work or that domestication. Then I did want to give you some material on slides, just particularly on the unauthorized practice of law, since it's a big one and it's ABA formal opinion 4.95 that talked about this in depth, particularly when a lawyer is licensed in one jurisdiction but physically located in another. That scenario I was talking to you about. And when you look at that, you may think, common sense, okay, I don't need to do anything like I said previously, but it still sparks a determination on the on if the representation is UPL. And so like I was saying, we cannot hold out or establish an office or systemic and continuous presence in a jurisdiction where we are not admitted. So if we're physically in one but practicing in another, then we got to make sure that when we are physically located in. Um, is, you know, we don't hold out. We don't set up an office there. We don't do those certain things because otherwise we could be hit with that systemic presence that, you know. Presence there that we don't really want. That could trigger rule one point or excuse me, 5.5. Some factors to consider when looking at a rule 5.5 potential violation. You always want to check the local jurisdiction in which you're physically located, and the one in which you are doing your practice. Rule 5.5 differs from all jurisdictions. Um, some there's obviously majority rule with the model rule, but then some jurisdictions don't view it the same as the model rule. So you want to check the jurisdictions in which physically located and those that you're holding out practicing in or that you are licensed. You also then too as that factor analysis regarding any remote work situation in this scenario, not establish an office in the places you're not located, not hold out as a licensed attorney there. Don't be passing out your business card in church. Don't be passing it out on those events to neighbors unless you have those disclosures that said, not licensed in X, Y, Z. That's a good way to guard against some of this UPL or the appearance of UPL because say for instance, you're physically located in a state you're not licensed in, you go to a church event, you go out with friends, you go out to a bar association event, but you're not licensed there. People are going to presume your license there if you're acting like you are. And you have to correct that misconception because it's how people perceive it, not how you actually intended it. So you need to make sure you kind of disclaim those, not give off that perception. Otherwise we may have a rule 5.5 violation. Also to watch out for doing webinars. Two groups residing in jurisdictions in which you're not licensed, particularly if it's something from a local bar. I am only licensed in Indiana, Illinois, which is why I say, look at your particular jurisdiction. I'm not advising you on things you should and should not do. I'm not giving you legal advice. This is for educational purposes only. And so you need to have those disclaimers. You need to make sure that everyone knows where you are licensed, especially in seminar settings and, you know, social settings where people are asking things. Disclaimers can be your best friend. Make sure you put it on there. Make sure you hold that out. Make sure everyone knows. So here's a common scenario or scenario that sometimes comes up, particularly in the area of estate planning. Can an Ohio attorney draft a will for an out of state resident? So say the couple lived in Ohio. Pandemic hits. They up and moved to Indiana. Now, in the past they'd used this lawyer for services, you know, while in Ohio. But now they're in Indiana and they want to redo the will or they want to do a new will. They reach out to their long terme attorney. You know, the one they've used for other things in their family back in Ohio and say, hey, can you do this for us? We'll throw a little different, it seems now obviously will statutes by jurisdiction are different. And what they require for the signing of the will and different things. And so the question here would be, can this Ohio lawyer draft a will for a couple that lives in Ohio? While this lawyer is only licensed. Excuse me, can a Ohio lawyer draft a will for a couple that lives in Indiana? While the lawyer is only licensed in Ohio. And so that is the question. And a lot of times it perplexes estate planning. Now there is an exception under rule 5.5 or 1 of the different provisions of it. It's I think it's 5.5 E. I think it is, um, that says that so long as the practitioner is doing work that he would, he or she would normally be doing in their jurisdiction with their license, then they can do it in the other or the different jurisdiction without it being UPL. But again, this is jurisdiction by jurisdiction, which is why on those steps of factors, we have to look at, you know, what your particular jurisdiction says with your particular jurisdiction is doing and to what is included in their. And so. Is actually rule 5.5. C as in cat four and it says. If. A lawyer who is not admitted to practice in this jurisdiction shall not, you know, do any of these things unless the matter arises out of or reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice? So if you hold out as an estate planning lawyer in the jurisdiction in which you're practicing or licensed to practice, then in your jurisdiction has this section of rule 5.5. You could be okay to do this out of state will for the lawyers or for the couple in Indiana. You just have to look at the particular jurisdictions. And so sure, you can draft a will for a non-resident. Um, but just don't sign your name to it. That's what one local practitioner how they answer this question, which is kind of wrong. You don't want to ghostwrite legal work and not say you wrote it. That's can be still the unauthorized practice of law. Another practitioner told me. No, they answer the question in the last screen. No. Drafting your will for a non Ohio resident would be a violation of the unauthorized practice of law. They're on the right track. They just may have forgot that exception. So difference of opinion leaves a 50, 50, 50 chance um, business as usual or potential disbarment. Meaning if you don't check the rules, you don't do the things, then maybe you could. But the answer really depends. It depends on if the jurisdiction has adopted rule 5.5. Particularly. See for that one I just read to you or what it deems as the practice of law. Or is there an exception? So it's jurisdiction by jurisdiction. When we really look at what is the practice of law, what is the unauthorized practice of law, and then how do we guard against those things? And the modern rule does give us kind of a definition of what the practice of law is. It says a person is presumed to be practicing law when engaging in any of the following conduct. On behalf of another person. The first one is giving advice or counsel to persons as to their legal rights or responsibilities, or those of others. This second thing that could be deemed the practice of law selecting, drafting, or completing legal documents or agreements that affect the rights of others so that ghostwriting where that attorney answers. Let me go back a couple of slides. Sure, you can draft a don't cite your name to it. That could still be the practice of law in UPL. So we need to not do what that one attorney told us. Then number three here representing a person before an adjudicative body, including but not limited to preparing or filing documents or conducting discovery, or for negotiating legal rights or responsibilities on behalf of a person. These are all things related to the practice of law. So some of the things you may have thought of, some of the things you're like, oh, that's not the practice of law. These are broad definitions. It could fit into them. So you need to be very careful when you're giving any type of advice or anything to anyone outside the jurisdiction in which you are or licensed to practice, even though you're physically located someone else somewhere else. So here's an example. We have a few examples here in the next few slides. In another case, an individual gave a client legal advice and practice law by aiding the client in designating probate and non probate assets, selecting a form of a trust, designating various beneficiaries, and determine tax treatment. The conduct was also considered the practice of law. So here the the person did all these things the lawyer did and they were saying this really isn't a practice of law because I'm not doing very much. I'm not drafting something necessarily like I'm not signing my name to it, but it was considered the practice of law. So anything really that touches probate, that touches estate work is probably going to be found in the broad definition. This was also considered to be the practice of law giving legal advice concerning the application, preparation, advisability, or quality of any legal instrument or document or forms thereof in connection with the gift of property is the practice of law. So you can see there's varying forms of how the practice of law is really defined. Drafting a will for an out of state resident likely falls within one of the examples as the practice of law. But then we go to that exception which I already talked to you about, which is now cited on the screen in front of you. 5.5 C for the exception. To provide legal services on a temporary basis in a jurisdiction under circumstances that do not create an unlikely or, excuse me, a risk of reasonable harm. And then that fourth exception down there highlighted in red anything arising out of the reasonably related to the lawyer's practice in a jurisdiction which the jurisdiction is admitted. So if the jurisdiction you're physically located in and I would also look to it, the one you're actually licensed in have this provision because you can get in trouble in either jurisdiction for UPL. Then you're okay to go and do this will. But if they don't then you need to take and step a pause and really figure out is this UPL and what does that look like? And so taking that you got to see what's reasonably related, what cannot be to your practice. You have to do that analysis to because estate planning lawyers okay. You do estate planning work. You can kind of define what that is or what's reasonably related. But is now the personal injury accident reasonably related to your estate planning work? Is a tornado damage reasonably related? Like, what significance does it have and how do we really define reasonably related when it comes to those things? We can look at different activities. We can try on our experience. We can draw on what practice groups or how we hold ourselves out in different areas. But we do need to do the analysis because that rule 5.5 always comes into play. In 5.5. Never allows us, though, to have that systemic, continuous practice in a place that we are not licensed. It only has to be the temporary basis or fit within one of the exceptions within the rule that we were just talking about to not meet UPL or to not get sanctioned with it. So you have to look at everything when it comes to it. And in addition to that too, another thing that could be UPL to. His failure to supervise. Um, they go hand in hand with UPL because UPL is not just attorneys practicing in jurisdictions in which they're not licensed. Upl has also been found, or attorneys have been found in violation of it. When they allow their non-attorney staff, such as paralegals or secretaries, to do legal work. They're not lawyers. There are certain things solely reserved to what a lawyer can do. So not only do you have to watch out for UPL in the sense of, you know, you being physically somewhere or practicing law somewhere in which you're physically located but not licensed or in which you're, you know, not licensed, just in general. You don't have to be physically located there either. But you also have to watch out for UPL concerns when it comes to supervising our non-attorney assistants and or knowingly assisting someone else to violate the rules, such as the Non-attorney assistant. Because a lot of times we get busy, we ask our assistance to do things and those things are actually considered legal advice. There are five things solely reserved for lawyers to do that constitute legal advice. The first one is initiate that attorney client relationship. The second one is to provide legal advice. Only lawyers can do that. Then we have prepare any legal papers or pleadings on behalf of a client, and they must be signed by the lawyers. Only a lawyer can sign your legal pleadings. Unless you're pro se, then you don't have a lawyer. A lawyer can also be the only one to carry out legal proceedings in a court of law. For a third party, anyone can represent themselves, but not anyone can represent someone else. A lawyer is usually solely reserved for them to do that. Lawyers can also charge a fee for their services, but not attorneys usually cannot unless it's negotiated up front and communicated to the client. So failing to supervise having those oversights and remote work breeds into that. This separation, this not connecting every day, not seeing the person as you walk outside your office leads to a disconnection and then also to to ethical violations. So we have to be very careful with what we do. This is an example. You task 15 paralegals with evaluating client matters. Accepting cases, signing up clients with a retainer fee, an agreement. In other words, the paralegals doing everything on the case until that final court hearing or that transactional matter comes in. The only lawyer, that's all 15 paralegals. So you've got a massive staff of paralegals, and you're tasking them with all these things which you view as administrative work. But if you look at this, they're drafting engagement letters. They're signed. They're negotiating and signing that engagement letter with the client. They're evaluating cases based on legal analysis, and they're accepting cases without the attorney's permission. Is that UPL? The answer is yes. This attorney overstepped its bounds over gave or gave stuff to the paralegals that they shouldn't be doing, no matter how long a paralegals been been practicing paralegal studies or within a firm, it does not ever substitute needing a law degree to do those five things right here that only a lawyer can do. And that's scenario the attorney was having the paralegal. Create the attorney relationship. Give legal advice along the way because the attorney only saw the person at the hearing. Probably drafts some pleadings along the way to and then charge fees. So this paralegal and this a lawyer are violating rule 5.5 by doing several things. Now, the beauty or the downside of rule 5.5 is the employee does not get in trouble. The lawyer gets in trouble. The employee may be fired from their job. The. The lawyer, though we can be disciplined for it because we hold the license, we are subject to the disciplinary rules and we cannot counsel or assist someone else to do it. That's at 8.4, and if they do, then we have to counsel them and train them on the rules. Another one of our obligations rectify the situation. If none of that's done, then of course the paralegal doesn't have a license, so the commission can't come after them or the disciplinary commission. So they're going to come after the lawyer. So again for the non assistant roles we need to do certain things. Obviously start every client relationship by identifying your roles I'm the attorney. This is my paralegal. This is my assistant. Don't be afraid to say that. They need to know who everyone's roles are and where they need to seek the advice from. And if they forget, then you and your staff need to remind them. If they call and say and ask your paralegal legal question, he or she needs to say, I'm sorry, you're going to have to talk to a lawyer about that. I can't answer it. You need to establish that understanding of who is who and what they get from each person. You also need to remind the clients of those rules regularly. Like I said, when they forget. And then two, if you if you're a non-lawyer and you send out a communication, including your signature block, that you're not licensed to practice law. Also watch out for that firm letterhead. Don't use it for anything that you are not pre-approved to use it for. Now it is okay for a non-lawyer assistant to relay advice between the lawyer and client. It is not okay, though, for that assistant to give legal advice. Off the cuff. They can play the intermediary the go between, but they cannot be the one critically thinking or drafting or doing those things. Now, with the assistance two sometimes they get busy as well and they say, oh, I've been doing this for 30 years. I know how the attorney is going to answer it. They say it every time, and so he or she just answers the client that's still upl. It does not matter the length of time and non-legal assistance been there. They are never transformed into a lawyer just via internship purposes or work purposes. So here are another example. Your paralegal is meeting with a client without to present. The client asks the changes of someone challenging the state plan about taxes. Your paralegal has sit in on over 100 meetings regarding the same or similar fact pattern that she uses. A stock answer. Your paralegal advises the client on the basis of the facts of the situation. Is this UPL? The answer is yes. It does not matter that she's been in over 100 meetings. It does not matter anything. This is legal advice and this paralegal or non attorney assistant should have, you know taken down the notes, contacted the attorney, been the intermediary or call them back later. Another scenario where UPL could pop up very readily, especially with Non-attorney assistance. Running an office without a lawyer present say you're out sick on leave or absence. Then your staff picks up. What they pick up is lawyers duties, including those five categories. So you really have to be cognizant of that. This affects more solo practitioners or small partnerships because sometimes there's no one to pick up if you're out, but you need to have another lawyer in the community pick up or have that worked out in advance, um, so that you know what to do in the event this happens. Also, too, I've seen it so many times, an attorney saying, oh, I just don't have time. I'm too busy. Handle that for me to their assistant know if it's one of the five things only a lawyer should do, a lawyer should do it. And so we need to take that ownership. We went to law school for something. We spent tons of money. Let's do the five things that only a lawyer can do. And so watch out for that scenario. I'm just too happy I can't handle it. As an attorney is telling their non-attorney assistant to do something. That brings us to ethical blunder number four. Or excuse me, number three, the electronic Asylum Babylon people, also known as email. So first a quiz question here. Which of the following statements are true? Email is a wonderful tool for a successful practice of law. That's true. Email not only saves time and money, but also allows for prompt communication with clients. That's true. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your inbox with useless information. That's also true. Careless use of email can subject the sending lawyer to embarrassment, unhappy clients, loss of income, breach of duty of confidentiality, discipline or claims of malpractice. That is also true. So the answer here would be E all of the above. If that is what you answered. You win the prize for the day, which is just listening to the last 15 minutes of the seminar. But yes, it is. All the above are the problems with email. And so how do we draft a respectful email? Because there's too many times I see lawyers drafting emails in haste, drafting emails, just thinking like fluid, thinking down on paper type of situation. And it's never good. You also see emails with disclosure that protected health information. You know, 1.6 that type of mistake there. So what do you do. Well you can't have a fix all, end all, be all. But there are things you can do to mitigate and respect emails and make sure they work for you and then benefit of you and not against you to where you're hating your emails. So some of the best practices are. Think before you hit send. Our life is 24 over seven. We're connected to social media. We're connected to all of these things. And. We just operate on a 24 hour basis. But if you think about it, is your brain mentally awake at midnight every night? Some may say yes, some may say no. And are you cognitively at your highest level at every second of every day? The answer is probably no. So why would we want to be sending emails, responding in haste to different requests, responding in anger, even to different requests when we should just set the phone aside, think about it and not send anything. Where did the old days go? Where you went into the office from 8 to 6. You went home. You couldn't take your computer home because it was a big box thing sitting on your desk, so you couldn't even work at home. You may have been able to take a client paper file and review it, but you weren't typing out anything. You weren't doing anything like that. You didn't have this constant emails to your phone over and over and over again, where you're distracted as you're eating family dinner, where you're distracted doing other things. Then you're responding in haste and then you're causing ethical violations. Where did those days go? So we really need to stop, slow down, think about different things, and remember our obligations. Take off that autofill feature, the misdirected email, that inadvertent disclosure we very briefly talked about is something that can readily happen here as well. Also too. If you have an email where you just got to get it off my chest, I gotta answer. I'm so mad. Type it in but leave the two and the CC blank. Save it in your, you know, documents or your save documents file. Open it back up after you've slept and if it still sounds good, send it out. Then take time to stop and breathe. Also, I recommend disabling that reply all feature or the autofill feature if that is a huge problem within your practice. You also too need to watch out just so you don't get backups on emails. Some of us get over 100 to 500 emails a day cleaning those out regularly, which while is a task and chore it's. It's an evil that we have to do. So just make sure you clean up regularly. Obviously you'll miss things, maybe miss deadlines, communications, and then you're going to be up a creek and you're going to have some ethical violations, let alone potential malpractice claims come against you. Well, so too, if you're sending out emails, make sure you have any disclaimers because, you know, sometimes you're not creating that attorney client relationship or this is not legal advice in certain circumstances. You can put those in your emails. If it's something to remain privileged. It's always recommended to put attorney client privilege information in the subject line to kind of protect that privilege or reinforce it even more just in case, and then to just look for guidance in the rules, particularly 1.6 confidentiality, 8.4 kind of the misconduct rule. And you could even throw in the conflict rules in there to look out for those two, 1.7 to 1.11. But the biggest thing I see with email and the problems is we have to watch our tone, our civility, our grammar, and remember that nothing is funny if it's exhibit A to a disciplinary commission complaint or a lawsuit. So temper back what you're saying. Watch out for those areas of high risk and you'll be fine. That leads us to blunder number two. Slipping and falling. And that's attorney client relationship. This is where I tell students that I teach because I teach professional responsibility as an adjunct professor at the law school. Where you really need to say, if I ask you from across the table, you came to me for advice and it's regarding conflicts. The first thing I'm going to ask you is who is your client? If you can't answer that question? We have bigger problems than your ethical concerns because knowing who your client is is the foundation of a lot, if not all, ethics, opinions, ethics questions. And so we really need to know this is an example. There's a couple examples here where you can represent a company corporation. Then one of the employees has a deposition. The company asks you to go say for instance that employee says you're my lawyer. Or you know, my lawyer is here today and you don't correct them. You just create an attorney client relationship. You've probably slipped and fell into it thinking, wait a second, we don't have a formal engagement letter. We didn't sit across the table at each other and talk about it. You don't need all those formalities. All that is needed is the person's perception that you're their attorney because you gave them advice on a legal matter you held out or didn't correct them when they said you're their attorney or something like that. You don't need an engagement letter. The only place you need an engagement letter is contingency fees in most jurisdictions, as well as another few exceptions. But that's the big one. So you need to watch out that we don't slip and fall into our attorney client relationships. Same thing with this example. Similar fact pattern. Just changing around a little bit. This one is regarding subsidiaries. So say you represent an organization say in here we have Earrings Limited which is a wholly owned subsidiary of Bracelet Incorporated. So the question becomes do you represent the principal parent as well as all the subsidiaries, or do you just represent the one you're actually doing work for? Now, the rules tell us that it's the one we're actually doing work for, except if we agree otherwise. And a lot of companies like to slip into their outside counsel guidelines, provisions, what I call all affiliate provisions, where they say, not only do you represent this particular entity that you're directly doing work for, you also represent all of our subsidiaries and affiliates, whether that list be five, whether it be a thousand, they're now all your clients. This is huge when it comes to assessing conflicts. And you would need to know this again. Check those outside counsel guidelines. Look to see if they insert something into the engagement letter with you. If they do a formal one where you agree to represent all the affiliates and subsidiaries, you need to look for those things so we don't slip and fall. Having an engagement letter, though not required, is always highly recommended in every circumstance. Also to to get clients off the books and keep your system clear and clean. Use declination letters, meaning declining engagements. When you don't hire someone, send them to say thank you for meeting with me. We're not creating an attorney client relationship. You want to make that attorney client relationship clear? Don't be vague. Don't slip and fall into it, and don't create it unintentionally. And so here the third one. Avoid creating the unintentional evidence. Here's someone's lawyer look for, you know, did you say we're not creating it? Did we say we're not doing this? Did I give legal advice when I shouldn't have? Those things you need to watch out for. Biggest ones come from that parent subsidiary because it hits on our conflicts. Also, too, we confuse who our client is because it may not be the person paying the bills, and that's fine. What rule 1.8 conflicts 1.8 F says someone else can pay the bills, so long as the direct client knows that and agrees to it, but it doesn't transform the payer into our client. We're just still another outside third party. They're just paying us. So you need to treat them just as an outside third party, keeping confidences to your client, only communicating with your clients, and then just let someone else pay the bills. And a lot of attorneys confuse those things, especially in the insurance insured insurer scenario, because the insured or excuse me, the insurer is paying and kind of directing some of the work, but your client's insured most of the times, and you got to make sure you really understand that scenario. Also, to watch out for the husband, wife and a family law attorney scenario, this attorney for the family, they represent the whole family during conflicts, on the whole family. Did you agree to that? Don't slip and fall. Also to you can actually represent one spouse and not the other. If it's defined, you only do work for the husband, then you're only doing work for the husband. If the wife wants to engage you too, she can engage you separately. Just because they're technically one in the eyes of the law doesn't mean they're one in the eyes of the legal world on attorney client representation. So watch out for that husband wife scenario as well. And we have to really know who the client is because we have to identify conflicts of interest. We're not going to go in depth of all the conflict rules. But again, these are the ones to consider, particularly depending on the scenario of who is the client. Also, we need to know because that joint representation, sometimes you can represent more than one client and they matter. And that's important to to understand and know who you are. Those duties of loyalty to how confidentiality is going to be assessed or what that looks out like, spell out those advantages and disadvantages and confirm it in writing. To be compliant with the ethical rules. Joint representation has a lot of pitfalls, but it has a lot of benefits, and your clients need to know what they're getting into. Brings us to our last blender. Blender number one civility is still alive and well. We need to be civil in what we do. We need to conduct ourselves in a professional manner. It's Illinois Supreme Court. They actually have a civility pledge. I commit myself to service without prejudice, integrity without compromise, and to civility and professionalism in all my interactions. Indiana has not the same pledge, but when we raise our right hand in Indiana, we say we will abstain from offensive personality as part of our oath as attorneys. South Carolina also has a similar pledge. I pledge fairness, integrity, and civility not only in the court, but in all my communications, written and oral. How many of you have looked at your oath that you took and realized that you agreed to be a civil person, and then think back on your years of practice and you're like, oh my gosh, I have not been a civil person. And the thing about the rules that really gets you is there 24 over seven. It's not just in your professional capacity while you're practicing law, it's also in your personal capacity. How many of you I could go to your spouse, significant other, close friends and say, hey, have they been civil 24 hours a day, seven days a week? Not many people would probably say yes. So we have to be civil. Civility does not mean your lack of disagreements. Um, you are free to disagree. You're free to have, you know, healthy arguments and disagreements. But you're not free to just conduct yourself or say or do anything you want in a rude and insolent manner. There's a code of decency that characterizes our society and how we should behave and professionalism. And then there's just plain outright mean and rude. And it's that fine line between the two that we really look at, and it's that fine line when you're on the mean and rude side that can get you in trouble with the ethical rules which are cited in front of you. And then, of course, just being professional on the other side. And we do have a duty to report any lawyer we see in violation of the rules. Rule 8.3 we're self reporting jurisdictions. So if opposing counsel or anyone violates the rules, then you have a duty to report them, including civility. So just keep that in mind. Let's go to some fun examples here. In the last two minutes. We'll go through them pretty quickly. First one here we have an attorney who pretended to be her husband's lawyer, told a telemarketer she represented her husband, and she said on the phone he the telemarketer had a gay or sounded gay or sweet because of feminine sounding voice. 8.4 G talks about um. Incivility, discrimination. We can't discriminate in the practice of law since she said she was her husband's lawyer. The practice of law and publicly reprimanded Indiana for it. Another one here, an attorney, was talking to his clients about how he didn't like the judge in which was over the client's case. He told them that he thought the judge had was very feminine, or got beat up a lot as a child going towards that sexual orientation of the judge. Clients via the lawyer turned him in for a disciplinary violation. He got suspended for three months for violation of 8.4. Again, civility. Make sure we do it. This attorney didn't use the email CLI that we've talked about here today. Used his email to have derogatory slurs, rude conduct. The email that he sent is there in the second paragraph of this page. He was suspended for 30 days without automatic reinstatement, meaning he had to reapply retest on the different exams to be admitted back to Indiana in 2011. The email just said it was just rude. It was actually just opposing counsel secretary trying to set up a scheduling conference or a meeting, and he sent back that rude message there on your screen. Paragraph two civility. We need to match our conduct. This was one where an attorney's in a deposition, she said opposing counsel had been antagonizing her all day. So she slammed her hands on the desk, looked underneath the table at the opposing counsel and said, is there anything between your legs? Civility 8.4 G potentially, that discrimination clause that's in there or anti-discrimination? We've got to watch what we're doing. Same thing with this one. A lead defense counsel bent over and shook his rear end in front of plaintiff's counsel during a deposition. Also known as twerking. The conduct was described as vivacious, gyrating of the lower, fleshy extremities. The counsel was sanctioned monetarily. Also removed from the case. Client fired them, new counsel said. Let's just put this matter in the rear view mirror. Probably bad choice of words for the next brief filed. But again, that's what happened. Texas does not have 8.4 G the anti-discrimination rule, but they do have prejudicial to the administration of justice, which this case could have gone under. But the judge said no sanctions were filed because the attorneys suffered enough. Some other various conduct on the screen in front of you. We don't want to be called people. Stupid idiots go to ethnicity, racial background, you know where they're from, religious. All those things can lead to incivility, public reprimand, suspensions or disbarment. Even. We need to watch our conduct. Always fight up. Never fight down. Outsmart your opponent. Feed them in the courtroom. Not with incivility. Be the type of lawyer you want to be. Those are the tips. And the biggest thing combining everything is that not knowing how to identify ethical issues and ethics, and then also to not seeking out an ethical attorney. We go to IP lawyers for IP stuff. We go to real estate lawyers for real estate stuff. So why don't we go to ethics lawyers for ethics stuff? It could solve a lot of your problems and stop stuff up front. There are probably people in your jurisdiction that do this for a living, just solely ethics. Consult them. I thank you for attending and if you have any questions outside of this, please feel free to reach out. Hi. Uh, this is a presentation by Louis Grimm, a partner at Jones Day. And the title of the presentation today is Lessons to My Former Self and New Attorneys Guide to a Purposeful Practice. And the reason why I'm giving this presentation is because I wish that someone had given me some of these guidelines or guidances, uh, when I started, because a lot of this, uh, was stuff that I ended up learning on the job. By way of an overview. Um, I'm going to go through nine lessons in the course of the next hour. Um, and I've got a slide here that goes through what we'll be talking about. And uh, some of the topics, uh, may not be intuitive, but, uh, hopefully as we go through them, they'll make a bit more sense to you. Um, as for me, um. This whole process started with a LinkedIn contact. I'm very active on LinkedIn who reached out to me and asked me what I wish I had known when I was a law student, and I gave her a set of bullet points, but I felt that just a few bullet points really wasn't enough, and so I thought maybe I would prepare a series on, on, on LinkedIn that would would give some of my thoughts in more detail. And so this presentation is based on that series. But if you, uh, want to know more of my thoughts, feel free to reach out to me. Um, and I've included, uh, my LinkedIn, uh, address if you if you want to connect with me or follow me. So let's start with the, uh, first topic. Um, and, uh, it's a bit of a sensitive one when you think about it. People don't care about you as much as you think they do. And and that's a great thing. And why is it a great that, uh, that that people, people don't, don't care about you? Um, I'm not saying that people don't care at all, but, um, and there was a former Notre Dame coach, Lou Holtz, who was quoted as saying, never tell your problems to anyone because 20% of people don't care and the other 80% are glad you have them. But that's that's not the point I'm trying to make here. Um, the point that I'm really making is that many lawyers who are who are starting off their careers have a high level of what's referred to as imposter syndrome in that they think that they aren't good enough or they don't belong where they are. And certainly when I started my career, I had, um, a high level of imposter syndrome. And I remember getting on the on a call to my uncle and saying, I don't belong here. I, I, I can't handle it in. His response was. Now you're good enough or else you wouldn't be there. That was that was a really, um, nice, nice comment and gave me a little bit more, uh, um, confidence that I could take on the world, but, uh, yeah, the imposter syndrome didn't go away straight, straight away. And and certainly, um, I was in a big law firm, and, and I was surrounded by, by overachievers. And so, um. It's very easy to think that everyone else is better than you and you somehow don't belong. And for me, it went away after I realized from doing a few deals that I could handle the workload. And some of the people that I was, uh, have concerned about that weren't, weren't, weren't as good in practice as they may have been in law school. And some of them were were fantastic, too. But, uh, I felt like, uh, I was I was certainly positioned well enough to be able to handle the work that I was getting. Um, and so what, what helped me get to that point. And so for me, it was understanding the spotlight effect. And, um. And I'll get to the I'll get to the spotlight effects soon, but, um, I thought I'd, um. Talk a little bit more. About what? What are the downsides of of of imposter syndrome. And and certainly if you if you feel like you don't belong, then you know, you as a lawyer, you may get stressed about it. Many people will work extra hard to prove that they are good enough, or to try to compensate for their perceived deficiencies, and as a result, a lot of lawyers end up, uh, burnt out, particularly in the first 2 or 3 years. Um, and because you may be concerned about not being good enough, you may miss out on real opportunities to do interesting work because you're concerned that you're not good enough for it. And as a result, the missing, the good opportunities to to do high level work may result in you not getting future, uh, high quality work and, um, having a lack of job satisfaction because other people are doing more interesting work than you. And so it becomes a very vicious and reinforcing cycle. Um, and so also you may have, uh, be an ineffective leader and, and, um, not be able to be a team player because you're so concerned that other lawyers will think that we'll realize that you're not, not good enough. And so, you know, these fears of of inadequacy can, can lead to, um, not getting your work done or trying too hard to get it done perfectly, which is also, uh, a difficulty, because it's very hard when you've got hundreds of pages of documents to, to go through to make sure that every single detail is perfect and still get everything delivered in a timely manner. So in the long run, um, imposter syndrome can really be harmful to your, uh, mental health, your general well-being, and your and your relationships with your colleagues and your loved ones. Um, and so, uh. In terms of, uh, the the, um. The spotlight effect. Um, one of my favorite all time movies is, uh, called Rashomon by Akira Kurosawa, and it talks about the rape and murder of a person through multiple witnesses, including including the victim themselves. And, um, each narrative is told in a different way, and sometimes the narratives didn't agree with each other. And I guess the highlight of that is that. When you think about it, you're the star of your own movie, and many people feel like everyone's watching us and looking at us the whole time. But the truth of the matter is, you're not the star of everyone else's movie. They are the star of their movie, and you're just a background actor. And when you realize this, um, you then it might dawn on you that that. What other people are thinking about is not necessarily whether you're good or not good, but more how do how does what you do impact them and everyone else? So, um, once, once you realize that that they're not hyper focused on you and every single thing that you get wrong. Then. Then maybe it's easier to, um, accept that, uh, that you don't have to worry too much about whether you're an imposter and just focus on just doing the best job that you you can do. Um, and, and that's how I was certainly able to get past my imposter syndrome, so. In terms of suggestions. If you do, if you are dealing with imposter syndrome, the first thing is recognize that you have it because, um, the first. First step to, uh. So dealing with imposter syndrome is, is is is, you know, realizing that there's a problem to deal with. And, uh, once you realize that you have it, maybe the next step might be to, uh, educate yourself on what? What does that mean? And, and and, um, how you can better understand what you are going through and how to deal with it. And then recognize the whole spotlight effect that. You may think that the whole world is focused on you and your inadequacies, but but they're not. And, um, and everyone seems to be focused generally more on, on themselves and the challenges that they're facing and the opportunities that they're dealing with. And, uh, and not so much on, on you and as long as and as long as you're not getting in their way, they tend not to. Um, be too, too obsessed with what what what what you're doing. Um, and so if you do feel inadequate, talk, talk about it. Talk about your feelings, whether it's with friends or with professional help or with mentors or sponsors. You know, there are there are people who can help you walk through your, your challenges and, and maybe, maybe, um, explain to you that you're actually better than you realize or give you guidance as to how to improve. So, um. There's that. And, uh, then then work on your how it how it impacts you in terms of mindfulness and being focused on being in the moment. And. Being able to relax through meditation and other relaxation techniques because, uh, definitely being being mindful is, um, a very helpful way of, of of, uh, focusing yourself on, on not worrying about whether you're an imposter or not an imposter, but really worrying about the task at hand and what you need to do and, and how you are, um, more able to focus on, on, on, on your key objectives rather than things that might distract you from them and just generally be kind to yourself. Uh, don't beat up on yourself. Uh, if you can. Um. Not be your own worst enemy than then and be a friend of yourself, then maybe you can help. Deal with setbacks and and failures and everyone has them. I don't know anyone who started off their career without messing things up. And and so when you do make mistakes, don't feel like, oh, this is more proof that I'm an imposter. Don't don't let the the the good be the enemy of the perfect treat. Treat your mistakes and failures as learning experiences. And don't, don't try to compare yourself with others. You don't necessarily know every mistake that everyone else makes. Some people make some pretty bad ones along the way and won't necessarily tell other people about it. So just focus on, you know, making sure that you don't make the same mistakes again. Try to identify how you ended up making those mistakes, whether it was a lack of guidance or a lack of knowledge or or lack of training or experience, and see if there are ways that you can, um, improve yourself so that, uh, your communications channels improve or your knowledge or, uh, ability to deal with certain situations may, uh, may improve so that you don't have the same, uh, things happening again. So. Also try to change your focus more generally on not looking at the negative and looking at the positive, because you are more than your deficiencies, you're more than your failures or your mistakes. You bring value to the table. They're paying you good money because they think that you can add value. So focus on the value that you can bring, rather than on any of your weaknesses, and try to be the best you that you can be because, um, you are a valuable person or you you wouldn't be hired there if you if it were otherwise. You deserve to be where you are, and you deserve to be doing what you're doing. And and just important to, uh, to take that and do the best job of that, that you can. So the next topic I have is birds are overrated and I like birds generally, but. I'm talking about specific type of bird. So British American scientist Freeman Dyson, uh, at one point divided the world of mathematicians into birds and frogs. And his quote is birds fly in the air and survey broad vistas out to the far horizon. They delight in concepts that unify our thinking and bring together diverse problems from different parts of the of the landscape. Frogs live in the mud below and see only the flowers that grow nearby. They delight in the details of particular objects and they solve problems one at a time. And so, in the practice of law, people often refer to big picture lawyers and little picture lawyers. And there was always a sense that the big picture lawyers were the ones that everyone wanted to be. You didn't want to be a little picture lawyer. You didn't want to. You want to be the one who who pays attention to the commas and the details. You know, you don't want to be fighting over things that don't matter. You only want to be fighting over, over important things. Um, you know, the the big picture lawyers, you know, they're the ones who solve the big issues for the clients. They they don't need to worry about the details because they they they they they're like the birds. They soar over the grand vistas. They, they see everything from a from a 30,000 foot view. And they solve problems that, that no one else is able to solve. But the truth is, the world's not really like that. Um, most unfortunately, the truth, the truth is actually a lot more boring and but but but in some ways helpful. Because once you realize that the best lawyers do pay attention to the details. But can also see the big picture. Then you realize that, um. You know, the details do matter. And there have been so many cases where a case has been decided on the basis of a of a comma or an extra zero that was missing, um, or a filing that people forgot to make or a deadline that was missed. The details really do matter, and if you miss the important details, then you cannot be, you know, a top lawyer and potentially you can get sued, um, or fired. And the truth is that all of the really top lawyers that I've seen are also big picture lawyers. And, and they became that way by starting small and paying attention to the, to the details. And, and then as they paid more attention to the little details, they gained a better understanding of the bigger details. And then the big picture. So I don't think it's really even possible to become a big picture lawyer, uh, without first paying attention to the details. So. You don't want to be a big a bird that soars over, over the vistas, and you don't want to be a frog that just pays attention to the every small detail. You want to be a frog that can fly. You want to be able to do the small, small, detailed stuff and get it right. Particularly as a junior lawyer, because the more senior lawyers who charge a lot by the hour are expensive and, um, they don't, they can't justify spending the amount of time to be on top of every single little detail. And so it's important, as a junior lawyer, for you to be the one who's on top of all the all the details, as well as using that understanding of the details to try to get a better picture of of of the big picture and the things that really matter. So for example. Like his. A tangible example of big picture versus little picture. You could spend a huge amount of time negotiating the formula for calculating the purchase price for a particular asset, and then you can work out exactly how to draft it in the most eloquent way, so that the formula is very clear as to how the price of the asset is calculated. But what if what if the client shouldn't be buying the asset? Maybe it's got environmental issues. Maybe it's maybe. Maybe the asset has defects. Maybe the asset isn't isn't something that the client needs for their business. And if if your only focus is on calculating the formula for the asset, and you haven't given any thought as to should the should the client be buying the asset at all, then you may miss a great opportunity to be able to tell the client. Are you sure that this is something you even want to buy? Um, because that sort of value add can really make a big difference when you realize that, you know, you've been negotiating over, over the, over the how. And really the question is more fundamental of, of of whether or why. And so, um, that's just one example, but there are plenty of examples where people get bogged down on, on negotiating something without realizing that there is a, you know, a broader context that they're missing. So the next one is get yourself a rabbi. And I don't mean this in any religious sense. Whether whether your rabbi is a Christian, Jewish, Muslim, atheist or something else. I'm not talking about religion. I'm talking about getting yourself a sponsor. I have here a quote from, um, from from Game of Thrones. When the snows fall and the white wind blows, the lone wolf dies, but the pack survives. And Michael Lewis, who's a fantastic author, if you have the chance, wrote a book called Liar's Poker that talks about how junior bond traders at Salomon Brothers had to find managers who would take them under their wings, and they he referred to those. Those managers as as rabbis. Some people use some people use that use the terms sponsor. And I'm not wedded to any particular terms, but the idea behind it is that everyone needs a, a parental figure, trusted figure, a counselor, a trailblazer, a sponsor, the shirt tales you could write at the top, someone who'll tell you something you you need to know or need to hear. But maybe you won't want to hear it. Someone who really cares about you and cares about your your success enough to tell you some hard truths to make sure that you are you are looked after, and who will back your career and say the right things to the right people about you. Um, it it's important to not just have a mentor who will train you. Because mentors are important, because you need to be trained and you need to be mentored and need to be developed. But a sponsor is something more than that. A sponsor is someone who actively takes a vested interest in your success, and having a sponsor can make a huge difference as you try to climb up the the ladder of success. And it can be someone in in your own firm. It can be a client, it can be a, uh, a someone at another firm even. But but as long as you have someone who, who, who can support you on your on your way to, uh, success and give you real hard truths. Um, you know, it's really as Stephen Covey, who also used the firm Rabbi and Seven Habits of Highly Effective People, stressed, it's important to have someone to look up to and learn from when you're seeking personal and professional growth. And, um, so certainly when I started out as a lawyer, uh, I thought it was the opposite. You can only really succeed as being an independent if you're asking for help or if you're asking for guidance, and clearly you're not good enough. But that's wrong. I was wrong, and so I just celebrated 25 years as a lawyer. And one of the things I'm proudest of is, is how I've been able to sponsor and develop young lawyers. Um, because. In order to succeed as a lawyer, you need to have a support network. You need to have people who have your back. Certainly. Um, I'm I'm very grateful to the people who who who had my back. Um, and, um, if you can find them and they've helped you and you've climbed up the the ladder of success, and maybe along the way you can be someone else's, um, rabbi or or sponsor, uh, because, um, you know, there will always be a younger generation of people who who you might be able to help. And so, um. How do you find, uh, the rabbi there? There are lots of lots of, uh, potential, uh, areas where you can get mentors. Uh, you can certainly find people from your bar association. Um, there are a lot of lot of states have mentorship programs. Um, and most firms have associate development programs. Yeah, there are certainly others. And the truth is, if you find someone that you think could be a sponsor, just ask them. Uh, you'd be surprised how how many people are often prepared to give their time and, and, uh, expertise to people who are discerning a certain level of enthusiasm. But, yeah, there are, um, affiliate affiliation groups within firms, um, for, for different types of, um, groups, uh, whether it's religious or based on race or gender preference or sexuality, there's lots of affiliation groups that might be able to help you. And certainly the more you have in common with someone, the more they'll understand exactly where you're coming from. So the next one I have is tit for tat. It's where it's at. What do I mean by that? Um. So. When I was young, I was taught the Golden rule. Um, do unto others as you would have them do unto you. Um, and then the joke was that the Golden rule really means that whoever has has the gold makes the rules. Uh, unfortunately, I'm not that cynical. But, uh, in short, it's it's treat others the way you want to be treated. Um, and that that's a great way to. Um, to to go through life and in terms of your career. And I'll just add that, um. Don't necessarily expect it to be reciprocated. If someone if you treat people well and they then in turn treat you badly. In some ways that's on them. That really shows who they are rather than who you are. And I wouldn't I wouldn't stop treating people well just because not everyone reciprocates in kind. But what do you do in a in a lower environment when the lawyer on the other side is, is, uh, you know, is acting in an unpleasant manner? Um. And, uh. You know, I often think of this in terms of what people refer to as game theory. Um, and the classic game theory paradigm is what's known as a prisoner's dilemma. And in the prisoner's dilemma, you have two, two people who've been accused of committing a crime. Uh, and and they were both together. And one one's put in one cell, one's put the other cell. And if one of them confesses and the other one doesn't, then the one who confesses, um. Can can walk, um, and vice versa. And then if both of them confess, they both end up with a. With a, um, with a small penalty. Uh, and if neither of them confesses them, both of them can walk. And so what do you do? The, um. If both of both of the prisoners do the right thing by each other in terms of remaining silent. Yeah, both will walk. But but the but the strategy that most game theorists agree has the best payoff, assuming that you don't know whether the other person is going to confess or not. Um, is is to, uh, is to confess, because that would minimize, you know, the likely amount of time that you'll end up spending in prison. So how does this translate in terms of opposing counsel acting like like a jerk? Um, you might think that if if acting in a way that hurts the other side. By confessing it's meant to produce the best expected outcome. Then maybe. Maybe the best expected outcome is for for both both sides to act like jerks and be horrible to each other. But what's interesting is that this particular prisoner's dilemma assumes that there's only one event. There's only one opportunity to confess or not confess when you play, when you play the prisoner's dilemma out in a series and it's more than just a single event, what they find is that what works best is what's known as a tit for tat approach, because. If you treat someone badly. The first time, then the. The strategy that makes most sense for them is to treat you badly the next time. And similarly, if you treat them well the first time, the strategy that works best is for them to treat you well. So in some ways. The in terms of the iterated prisoner's dilemma. Um, you know, that's that's a more realistic real life situation. What comes around goes around the lawyers that you're dealing with today, uh, who are representing the borrower, maybe represent the lender the next time around, um, or maybe representing a different borrower. And so, um, you know. The legal community, even in a big market like the United States, is in some ways smaller than you realize. And so. Uh, yeah. The economists and the mathematicians, through analysis of game theory, have dedicated their lives to proving that bad juju will come back to bite you. And it does. But it's amazing how how many lawyers forget that and and act inappropriately when they feel like they have, uh, the upper hand and have more, uh, negotiating leverage. I mean, it shouldn't it shouldn't come as a surprise when, after acting badly to opposing counsel, the, you know, the the tit for tat happens and and they get treated badly when the shoe's on the other foot and not necessarily even just in a transactional setting. I've seen in the leveraged finance world that that, you know, these things do come back to bite you. So a lawyer that treats, um, their opposing counsel badly may end up having to apply to the law firm of the opposing counsel. And you can imagine what what that conversation is like. Uh. Why would you hire someone who is horrible to other lawyers on opposite them on transactions? Because you can just imagine that they wouldn't necessarily be the most pleasant people to to have as colleagues. Um, similarly. If people if people don't like working with you, then, um. Then, to the extent that they have a say in who, um, will be opposite them on a particular transaction, they may choose not to work with you because they don't like working with you, because it's unpleasant. Um, and maybe they'll end up working in house and, you know, having a choice of which counsel to work with. And why would they work with you if you've been horrible to them? So, um. Uh, also, uh, if, if you're negotiating a future deal with them and, uh, or even. The borrower that you represented when they had a whole lot of leverage and were buying into the transaction. Maybe that borrower is struggling to pay its interest now, or struggling to meet its obligations under the under the credit agreement. So what does that mean when you when you go cap in hand to the lender and say, please, can you give me extensions and waivers and, and indulgences and you're talking to this person that you're horrible to, you know, six months earlier and saying, can you be nice to me? Well, why would they? So. The flip side is also true. I've I've had various referrals from uh, clients uh, uh, from, from borrowers who are opposite me or law firms that were opposite me, who liked working with me so much that they ended up asking for me to work opposite them on, on unrelated matters and sometimes, sometimes, uh, an opposing, um, an opposing, uh, borrower or opposing, uh, entity that, that, that, uh, has hired their own lawyers sees, sees how you're conducting yourself on the other side and thinks, wow, I want them to be working for me next time. And so the next time they have a choice to to select counsel, maybe you'll get mandated because they they see. What you're capable of and see who you are. And. And want to work with you. And I've even seen, um, clients tell their own counsel. You know, the way you've acted is inappropriately. Um, you know, you need to apologize for for your behavior. And frankly, once the lawyer apologizes, they they lose a lot of credibility, including in negotiations. So, um, you definitely don't want to see both sides lawyers acting like, uh, jerks during negotiations. Um, that's that's what I refer to as mutually assured destruction. It's the worst case scenario from a client's perspective, because then, you know, they end up spending huge amounts of money to, to, to, to fight fights that achieve very little value for their clients. And they spend lots of money for very little results. So it's important if you are facing opposing counsel that's being acting inappropriately to, you know, to try to de-escalate things rather than escalate them, even though you may be tempted to, to fight back. Um, but yeah, I definitely try to de-escalate when dealing with rude lawyers and, and doesn't mean you have to roll over either. I, I've certainly told lawyers who have been acting inappropriately that, you know, having further discussions while they're, uh, acting so rudely is unproductive. And we'll need to need to take instructions before proceeding further and just hanging up on the call. And, um, and often that will result in client to client conversations and, uh, hopefully the next, uh, next time we get on a call, the, you know, the conversations will be more productive. Um, because, you know, as I said, the legal world is smaller than a lot of people realize. Uh, down the street from me are two people that I've known for decades. Um, and, uh, you know, when I connect with people, uh, in the law, I often notice I have 100 or 200 people in common with them. It's it's it's, um, it's a it's a small sand pit. And you need to learn. You need to learn to play nice in the sand pit. But if you're dealing with other lawyers who are not playing nice, maybe tit for tat is, uh, something worth considering. Next one. And this is a this is important. Advise your clients. Um. And you think that that goes without saying that your lawyers shouldn't be told that they need to advise their clients. But, uh, what do I mean with by by that? So imagine you go to a doctor, you've got a sore arm and it's really hurting you. So the doctor runs some tests and the doctor says, well, I looked at these tests and something came up. So, um, what do you want to do about it? So what do I want to do about it? What are my options? Uh, shouldn't you be telling me what I should be doing? You're the expert, not me. But as silly as this sounds, junior lawyers do this all the time. So they'll they'll they'll produce an issues list and they'll say here is problem one, here's problem two, here's problem three. And they send the issues list to the client and say, can you please advise me on how you'd like to respond? Well, the clients, the clients, uh, may have some ideas on some of them as to how to respond, but. They're paying you for you for for for your ideas. They want to know what you think. Um. And, um. And so just producing issues list and not not giving your thoughts is not really advising the clients. It's spelling out the problems without giving any advice as to how to how to deal with the problems. And you don't necessarily the clients aren't necessarily going to agree with your answers all the time, and in fact, they may disagree most of the time, but they still want. They're still paying you for your advice, and they want to know what you think. So when you know when you email a client with with a problem and and ask how they would like to respond, but you don't have any suggestions at all as to potential options, then you're you're leaving everything in the hands of the client. Clients love it when you produce an email saying, here's the problem. Here are potential solutions A, B, and C. Uh, let me know. If you'd like to adopt any of any of those, or if there's anything else you'd rather do, so you've given them some ideas. They may take none of them or take one of them or multiple ones, but at least you've given them some food for thought and showing that you are actually thinking about the problem and how to solve it, rather than just passing on the problem as if it's not yours. Similarly, you know, often lawyers will receive markups from, uh, lawyers from opposing counsel and just forward them on to the client and say, just receive these comments from the other side. Let me know if you, uh, have any thoughts. Well. At that point, you're not advising, you're just a conduit. You're just a mailbox. And, you know, if you want a client to to to pay your fee, your legal fees and feel that you're adding value, and that's a great opportunity to do so, and to say, well, I've looked at this markup, and here are the five things that I think are most important to focus on. And here are the ways that I would address those. I would recommend addressing those, but let me know what you think. Much more valuable in terms of adding value. You want to you want to be more than just an intermediary. You want to be more than just a conduit or a mailbox. You want to be advising the clients. So there are some lawyers who feel like they're advising the client. If if the client asks, can I do this? And your response is no. Or yes, sometimes yes is a good enough answer. But if you can answer, if no is the is the answer. Then you only really partially doing your job because the clients not often not really asking whether. Whether they can do the specific thing that they're asking for, they're really asking for how do I achieve my objective? And they may not even state what that objective is. If you can identify what what the client is trying to achieve, then a response along the lines of, you can't do this the way you wanted to do it because of whatever reason, but there are 2 or 3 other ways where you might be able to get to where you want to be. And so if you present those other ways, then again, the client may may think, well, I like one of those. And I'll, um, we'll do that instead. Or, you know, thank you for your suggestions, but I prefer an option that you didn't suggest. But at least you at least there's a perception that you're adding value. And maybe you can't give the client. Exactly. Maybe there are no options that you can think of that will be able to achieve the client's objectives 100%, but maybe you've got some option that can get them 90% of where they want to be. And if you can give them a suggestion and say, look, I can't give you exactly what you're asking for, but maybe if you do this, you can get close. And again, if you can get them 90% of what they want, shouldn't you be pointing that out and offering it to them? So, um. That's what constructive negotiations are all about. It's a constructive lawyer. Constructive lawyer will will try to find ways of getting to. Yes, uh, without necessarily hurting the client's objectives. So if it doesn't hurt your client, why not say to the other side, I can't give you what you're asking for, but I can give you something else that's pretty close to what you want. So, um, but yeah, you need to think about not just what's being said, but what what's what's intended to be achieved by what's being said. And if you and if and if you can work out what the objective is, then the next step is actually. Advising to the best of your ability to try to help them get their. So next one and this is probably of all the things, it's smack bang in the middle, but it's probably the most important thing. And I've, I've written a detailed article on it's very personal about me and how when I was a young lawyer, I didn't look after my own health. And I'm not going to go through it in a huge amount of detail. But I just, I think, I think it's really important for, for, for lawyers to focus on. On the mental and physical health because. A lot of a lot of junior lawyers especially, feel like these are things that can be sacrificed in order to, uh, make the best impression at the firm and, um, and be the most successful lawyer. But the truth of the matter is. Your career is not a sprint, it really is a marathon and you need to be able to last the distance. So, um. You. There are plenty of law firms that that will not intervene when a lawyer is, is is hurting themselves by pushing their body and their mind harder than they can handle. So but it's really important for you to reflect on yourself and talk to the people who care about you, about, you know, whether or not, uh, you are. Um, burning yourself out or hurting yourself physically. And, um, maybe, maybe it's your, your, your loved ones or relatives or friends or personal trainer, but you do. You should you should talk to people about, um, how you're progressing and people who actually really do do care, uh, about you because. You can't have a strong long terme practice. If your body falls away, you only get one body and once once, once once it's broken, it's very hard to put back together. And you only have one mind. And once you, once you burnt out. It can be very hard to come back from that. And it's not just for your own self. It's for for for the people that that are dependent on you and the people who care about you. It is a tough balance, but it can be done. So I've got a whole list of of bullet points here on things that you can focus on in terms of, uh, improving your mental and physical health. I'll just go through some of them very quickly. Sleep. I can't begin to tell you how important sleep is, and it's the one thing that junior lawyers seem to want to sacrifice the most. Oh, yes. I pulled an all nighter last night, and I'm pulling another all nighter tonight. You know what's what's what's there to brag about that I'd much rather say? You know what? I've worked really hard yesterday, and I went to bed early because I felt like I deserved it. Uh, try that one for size. You know, the truth is, you don't necessarily need to be on call all the time. You don't need to be working all all through the night. If you're efficient. And there will be times where you may need to work late, maybe even through the night, but try to keep them to a to a bare minimum. And and to the extent that you can tag team with other lawyers who can cover for you or take over from you. And, and, you know, delegation is really important, particularly if you want to take a vacation. You need to be able to take breaks and clear your mind and relax, develop interests and friendships outside of work. Um, learn how to relax if necessary. Develop techniques such as yoga or mindfulness training and meditation. If necessary, get therapy. Um. There's nothing, nothing, nothing negative about getting therapy. If you if you can be mentally stronger because you, uh, you're getting, um, treatment and whether it's medical or, or, um, therapeutic or psychological, why not? I mean, you want to be the best person you can be if if other people can help you get there, do it. So, um. Warren Buffett is famous for keeping big chunks of his calendar blocked out so that he can just think about things that are important, and I recommend that you do the same. Take some time, uh, out of your of your day, of your week and, and block out some time where you can spend that time thinking about your career development, your goals, and what you need to do, you know, take a step back and just think about. Your needs and priorities. Um. What else? As a junior lawyer, you want to say yes to as many people as possible. But the truth is, you need to learn to say no. Because the truth is. In five years time, no one's going to really remember how many hours you build as a first year lawyer. But they will remember is the time when you took on too much, and as a result, your work quality suffered and you made stupid mistakes. They'll remember those mistakes far more than they'll remember how many hours you billed. So particularly as you're starting off as a lawyer, try to take on the amount of work that you can handle comfortably and do really, really well. Because once you've made a good impression, those impressions last. And then then it becomes a reinforcing thing where people will want to work with you because they know you do high quality work. Don't don't focus on the hours because. Um, you know. Yes, you bill by the hour, but you're not. You're not at a factory that sells widgets. You're you're you're being employed because you provide high quality legal advice, and you want to make sure that the advice that you're giving and the work that you're doing is, is remains high quality. And if that means saying no, um, then say no. Or if you don't like saying no, maybe say I'm really busy at the moment. But if the partner that I'm working with thinks that I have capacity, then I'm happy to take it on. Maybe you might want to talk to that other partner and let let that partner be, uh, your, your gateway so that, uh, and protect you, particularly if you have a good relationship with them so that they can say no on your behalf so you don't have to worry about whether it makes you look bad. Um, emails are can be a real challenge to deal with as a lawyer. You know, the number of emails that I get on a day to day basis, uh, always seems to be increasing and never seems to go down. And so I have to develop all these mail rules that, uh, take some of the mails that I know are not going to be high priority and puts them into folders, and I can check them. So some of them I check daily. Sometimes I check some of them I check weekly, and some of them I check maybe monthly, if at all, because I know that they're probably not relevant or not. Not, uh, time sensitive at all. So those are some ideas. Um, hopefully some of them will be helpful to you and hopefully some of them you can, uh, also, uh, work out as to what works best for you. So the next one, causality and career progression are complex. And they are um. And so we live in a world where, um, a lot of people like to think of things as, as black and white and, uh, things are either career enhancing or, or the opposite. And the truth of the matter is. Life is just not that simple. Some people talk about squiggly careers and, you know, my my career has been, you know, interesting. I practiced in Australia and New York and now now in London. And so, um, if you told me at the beginning of my career that it would take some. Really weird paths. Some of them at the time would have seemed like backward steps, but in the end, we're not. Um, I would have been amazed. Um. I never expected my career to turn out the way it did. And the truth of the matter is, it's not a linear thing. Um. Everyone has ups and downs. And again, some of the things that you may think of as being a negative may end up ultimately being a positive. My first year as a lawyer, uh, was in, uh, mergers and acquisitions, and I just struggled. I didn't enjoy practicing in that area. It wasn't for me. Um, and I felt in some ways like a failure because it wasn't for me. But the truth is, I discovered banking and I really enjoyed it. And if it hadn't been for me saying that I didn't like working in a different area, I would have never found my true calling. And similarly, um, you know, there have been various steps along the way where things didn't work out the way I had wanted them to, but, uh. But they worked out in the end. So don't think of your career as being solely, you know. A step in the right direction or a step in the wrong direction, because sometimes the best steps may be a sideways move. Sometimes what you think is of as a negative move actually will be the be the best thing that could possibly have happened for you in the long run. You just don't see it at the time. Um, and so I think every step in your career, you have a chance to, to navigate and control your future. Um, your your, um. Your past does not dictate your future in the way, like some the way that some people might think it does. And I see life as being like a palimpsest, which is one of those ancient forms of writing on, on, on animal skins that you know, when you when you finish writing, you can scrape off the most recent layer and rewrite the page, and you can see bits and pieces from the previous layer. But but the truth is, if things aren't going the way you want them to, scrape off the top layer and start again, you know your past doesn't and shouldn't dictate your your your future and your destiny. It's just how you got to where you are. And there are some people who who started off slowly and then skyrocketed, and there are some people who skyrocketed and then finished off slowly. So. Don't don't assume that that your your hands are tied because of, you know, how your career has developed to this date. Your your future is very much within your control from here on. Grab it with both hands. And so at some point. No one asks what university you went to. It didn't matter. No one, certainly no one asked me anymore where I went to university. Um, and frankly, the, you know, the mistakes I made as a junior lawyer, no one even thinks about them anymore. No one cares. You know, the embarrassment that I suffered as a junior lawyer because people asked me questions and I didn't know the answer, or I didn't know how to respond. You know, I developed capabilities back then that I don't need anymore. And no one's ever going to ask me about it again. And that's fine. I don't I don't know whether I'm ever going to practice this an Australian lawyer again, but that, that that experience certainly made me who I am. So don't think of the, uh, of the world as being just a decision tree where, uh, a decision, a particular point in your, in your early career will change the entire future. So, so that you, um. If you get it wrong, you know, that's it. You're the most important decisions that you make aren't the ones that were made ten years ago. It's the ones that you that you made five minutes ago. And the ones that you're making now and the ones that you're making in ten minutes, because those are the ones you have control over. Those are the ones that are going to guide what happens to you right now. So if you make a mistake, pick yourself up, scrape off the most recent page of that little palimpsest and start again. Don't don't, don't. Don't be despondent. Uh, you have a lot more control over your career progression at all stages of your career than you probably realize. So you can shape your own career. The last one led into this one. And I give a Rolling Stones quote. Can't always get what you want, but if you try sometimes, well, you might find you get what you need. And so, um. There are lots of different paths that your career might follow in terms of a squiggly career. And there are a lot of people out there who will give you, whether it's your career guidance counselor at your law school or or your your peers or your your professors will love to tell you this is what makes a successful law graduate or a successful lawyer. But at the end of the day, if you want to be successful, the first question is, you know, what do you define as success? What what what will make you happy? What are what are your own personal career objectives? Because there are plenty of people who will tell you if you want to be successful, you need to work at a big law law firm, or you need to make partner or or whatever the whatever the, uh, advice d'Azur is. But. You know, if someone tells you, take that well-worn career path or someone says, avoid that well-worn career path. You know, take all of that with a grain of salt. What's important is what's important to you. You're not right or wrong because people agree with you. You're not right or wrong because people disagree with you. You're right or wrong because you thought about it, and your facts and your reasoning are right. And maybe what's right for you is to be a partner of a big law law firm. Maybe what's right for you is being, uh, uh, a non partner of a country law firm or working in-house or, or working outside the law altogether, or working in legal tech or or going on becoming a private equity, uh, hedge fund or investment banking person. You know, what's right for you is what's right for you. And so don't let other people tell you what's right. You need to think through what makes sense in your particular circumstances, what your goals are and, uh, what what you think would make you happy. So identify what you want to do, identify how you're going to get there and back yourself. Um, and ignore the consensus because. The consensus isn't always right. And, um, if you really believe that what you're doing is the right thing for you, then, um, then you should follow through on it. Uh, and I gave the example of Albert Einstein, who, who, um, had a, an important thesis on, on general relativity that changed the way scientists thought about the world. But the but the Nazi, um, you know, didn't like him primarily because he was Jewish. And they published a book entitled, uh, A Hundred Authors Against Einstein. And it was intended to discredit him. When, when, when when he was asked about his response was, if I were wrong, then one of them would have been enough. And it's true. Uh, you don't need a it doesn't matter if a hundred people think that you're wrong. You know, it's a matter of are you wrong? Have you thought it through? And if you've thought it through and. And you're convinced that after after listening to the critics and and the naysayers, if you're convinced that you're right, definitely back yourself. So your legal education doesn't teach you how to be a lawyer? Well, it teaches you some things about how to be a lawyer, but it doesn't teach you everything. So what does it teach you? It teaches you legal skills. It teaches you how to apply laws to facts. It teaches you how to do legal analysis, to how to do legal research. Maybe, um, if you're lucky, you might, uh, learn some drafting skills. Um. And you learn, you know what the laws are and what the cases are. But, um, you know, when I started my career, uh, just over 25 years ago, uh, the joke was that first year law students come start off thinking that they know everything. And, uh, when they end up graduating, they end up as, uh, as trainee lawyers or, um, new lawyers who are who are starting off, uh, with, with the assumption that they know nothing. Um, so, yeah, I mean, law, law, law, law students in their first year are often convinced of their own brilliance. And and why wouldn't they be? They've they've received top grades their whole career. So, um, so why wouldn't they think that they're smart? But but by the time they graduate, they have often a better sense of how much they still have to learn. And so there are lots of skills that you can learn as a lawyer that you won't necessarily learn in law school. And I've listed a bunch of them here. So communication skills, client service, time management, project management, how to use technology effectively I have to tell you that's a really important one, because I have seen lawyers who are extremely productive and extremely capable, not because they were brilliant at law school, but because they know how to use technology extremely effectively. Interpersonal skills, you know, as AI becomes more and more capable at doing, um, drafting and putting together documents and doing legal analysis, you know, the human skills and the personal skills become even more important. And so learn how to work with other people, learn how to inspire people and how to work with teams and achieve goals together. Work with people with different backgrounds and cultures and and acknowledge and respect the differences that you have with them. Um, and adapt your behavior if you necessarily, uh, and your communications, uh, according to who you're talking to. And that's not something that AI does, especially well. And, uh, if you can. Understand and people talk about diversity and inclusion. But in many respects, this is what it's all about. It's about learning how to work with other people and how to help everyone in your group succeed. So resilience, uh, you know how to bounce back when you have adversity and you will have adversity. We all do self-preservation. We talked about physical and mental health earlier. Emotional intelligence and how to regulate your emotions. Really important because there'll be times where you have setbacks and it's going to affect you emotionally, and you need to know how to bounce back from that and how to help others bounce back when they are suffering emotionally. Uh, negotiation skills really important? Um, but it's not just how to negotiate contracts or how to negotiate a settlement, but how to negotiate with your clients. You know, how do you talk about your legal fees, for example, or air quotes, um, or how to deal with engagement letters, how to negotiate with your colleagues if you need them to cover for you or to help you on something, and how to read people. Again, this is not something that I does particularly well. How, you know, how do you read the room? How do you understand everyone's motivations? Where where are the people coming from? How are they reacting to what you say? What are they interested in? What would motivate them? What would motivate them? And there are plenty of other skills that you won't learn in, um, in law school. How do you how do you manage your your finances? How do you build businesses? How do you how do you develop strategies for building businesses? How do you how do you get on the stage and talk to strangers? Um, how do you pitch for work or, or respond to, um, RFP? How do you deal with the crisis? What happens when when things go wrong? And how do you how do you how do you cope with that? What's what do you do when people, uh, do things, uh, that are inappropriate in the office? So learning how to think like a lawyer is much more than, uh, applying law to the facts. And that's a great thing, particularly, as, you know, the the easy bits potentially get replaced by AI. Uh, it's a challenge, but it's also an opportunity to, to really show that you are a multi-dimensional person, that that can't be replaced by AI because there's so much more to who who you are as a person and as a lawyer. And so the opportunity is to identify the skills that are not taught in law school, as well as obviously, the ones that are that best align with your own strengths. And once you've worked out what those skills are, you should play to those strengths and build your career around playing around the areas in which you are or can be strongest. So. Conclusion. Um, in conclusion, I've given you a nice, long presentation, and I've covered a whole lot of topics. And, um, but this presentation doesn't give you all the answers. Hopefully it's giving you some guidance on, on on areas which, uh, may be helpful, but there are lots of areas where you'll have to find this out for yourself. Um, but hopefully some of these topics will be, um, able to provide you with guidance for your future career and for your life decisions. So. Go through, uh, go through the, these topics and, uh, and if you find any of the advice helpful, please do pay it forward. Um, and, uh. Provide advice to the next generation of lawyers. Um, because, you know, when people ask me, what are my proudest of as a lawyer, I don't talk about, you know, a particular deal that I worked on or, uh, the fact that I made partner or that I, I'm working at a great law firm. I mean, it's all great, and I'm definitely proud of all of that. But if people want to know the thing that I'm most proud of, it's, it's it's the proteges. It's like one of the questions that people ask about my firm is who's here because of, you know, I'm very proud of the junior lawyers who, as a result of my guidance and sponsorship, um, have climbed the ranks and have ultimately made partner. I'm proud of the clients that I've been able to institutionalize, who now have relationships throughout the firm in multiple touchpoints. And, and, um, you know, the it's not just what I've done for myself. And I think as you become more senior, you realize that that that your legacy. Is more important than, um, than how much money is in your pay packet every week? You know? Yes. Sure, sure. Build up a successful career by all means. But at the end of the day, you're going to retire. And if if all. You've done is just earnt money. You may well find that it's an empty feeling at the end, but if you can build up a legacy, you can point to real accomplishments. You know, I didn't just bring in money for the firm and bring in money for myself, but I've built up a practice. I've helped other people with their careers, I've given people guidance, and none of that would have happened if it hadn't been for me. I have, I'm not just leaving behind. Emptiness. I'm leaving behind a legacy I. I haven't just stood on the shoulders of giants. I am the giant. And I've helped other people stand on my shoulders. And I think you'll find that if you can do that, you'll find that not just at the end of your career, a higher level of job satisfaction, but even as you go along, uh, a really high level of job satisfaction, knowing that it's not just about you, it's about all the people around you who, who, who, um, admire and respect you because they know that you have their backs and you're you're part of that team. So that concludes my presentation. As I said, I'm on LinkedIn. If you want to connect with me or follow me on LinkedIn, feel free to do so. I'd like to give, uh, advice along those lines. So thank you all for your time. Hello and welcome to the Quimby Continuing Legal Education course. Working from home ethically technological competence for lawyers. My name is Matthew Blaisdell, and I'm a solo immigration attorney in Brooklyn, New York. Today, we're going to teach you how to meet your affirmative duty of protecting the attorney client privilege in a work from home environment. So what we're doing here is looking at the new normal in terms of how you interact and communicate with your clients and employees, and exploring how to maintain attorney client privilege and proper supervision of employees. What we do need to know about maintaining confidentiality and making sure that staff and outsourced work still allow us to meet our obligations under the rules of professional conduct. To do so, we'll be breaking the topic down into four main areas technological competence, privilege and confidentiality, supervision of remote staff, and managing your online presence. By the end of this course, you'll be prepared to anticipate liabilities that may arise when attorneys and staff are working remotely, and in so doing will provide you with a number of both general and also very specific practical tips and best practices to enable you to meet your obligations and allow you to work with confidence in a remote environment. So let's start with a concept of technological competency. Before we jump into it, we'll just acknowledge that this is a technical firm. That's merely a simple recognition of the fact that to be competent in our services, we can't rely on our intellectual capacity alone, but need to be competent with the tools that we are using. So starting with the duty of technological competency, most states now require you to understand the benefits and risks associated to fill your basic obligations. So tools include virus protection, software, firewalls, password management, etc. and having detailed office policies in place. We'll explore these in more detail towards the end of the presentation. But should we run out of time? There's a lot of very actionable steps spelled out in the materials to help you develop your own internal policies, covering both you and any individuals that you may be working with in whatever capacity. So let's look at what the rule and the comments actually state. And a client lawyer relationship. A lawyer shall provide competent representation to a client which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Most relevant to technological competency. Here's number comet number eight and maintaining competence, which states that to maintain the requisite knowledge and skill, we need to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. And this rule has been adopted by the majority of the states. So again, know your tools and inability to understand how email and other cloud based services work will not protect you from liability should you violate any of the other rules discussed here. Ignorance is not an excuse. And finally to review a few of the key points that we went over. What is the type of technology we're talking about here? It could be anything that using your practice, it could be anything that you commonly use to create and send information. It may or may not be anything in social media. And always check your state's versions of rule 1.1, including the comments and ethics opinions. Next slide. The essential areas to be aware of cyber security, protecting and transmitting information. Electronic filing. Discovering file management to collect, identify, maintain and organize information your and your clients, social media and the basics that we all use such as email, calendaring, research methods, case management software, etc. all of this may or may not be limited to the technology that you use in your practice. I would break relevant technology down into these four, what I call essential areas. So we have cybersecurity, which is the protection and transmission of information. We have e-filing, discovery, file management etc. in which we collect, identify, maintain and organize information. Social media, which includes your and your clients use of social media and the basics which most all of us are currently using, which would be like email, calendaring, research, case management, etc. etc.. It would behoove you to have a policy in place for each of these topics, including hardware, software, and the processes and procedures that you and your staff will have place for using them. And speaking about competency, we can't really understand it except in relation to other rules. So what behaviors and objectives are we applying this concept to? We'll first look at the duty to preserve attorney client privilege as described in Model Rule 1.6. And for our purpose. Our purpose is specifically looking at comment 18 here on this slide, which specifically references competence as well as rule 5.3, which is supervision of staff, a rule we'll discuss later. So there's a lot of text here, but the gist is that you need to demonstrate reasonable efforts to prevent access to, or disclosure of information relating to your representation, which it describes describes in the last sentence here. Here we have a comment that's all about email. This comment puts us in the shoes of our friend, the reasonable man. Here we see the phrases reasonable precautions, reasonable expectation of your client's privacy, and the reasonableness of the lawyer's expectation of confidentiality. So the first of these reasonable precautions refers to a standard. Basically, you have to have measures in place that make sense for the communication that you're making. And the other two reasonable expectations refers to your safe harbor. You don't need to set up the equivalent of Fort Knox for a simple email about scheduling an appointment. So always refer to your North Star. The reasonable man. Basic tools to keep in your practice virus protection software. Firewalls that control the traffic in and out of your network. A password management service that stores, generates, and manages access to your software, policies and processes related to your former employees. Timelines for clearing out their accounts, for getting them access to the network, their passwords, etc.. Have a policy for devices who can access Wi-Fi and on what devices? The phones, laptops, what apps can they use, what apps can they not use, etc. and think about having multiple layers of backup. Updated versions of your data, continuous syncing and daily on site backup onto an external drive in the event that yours is, um, corrupted or held for ransom or whatever. Always keep a backup on site and off site. It is helpful to have a very basic understanding of the main external threats to your firm's security. So these would be say, phishing, which is an attempt to obtain sensitive information by someone pretending to be a trustworthy person. So you've seen this all the time, someone emailing you, reaching out on social media, etc., pretending to have a connection or otherwise be a legitimate person because they have some basic information of you which they use to then obtain more information about you. There's also ransomware, which is a malware that prevents or limits access to a system or network by encrypting files, which can be decrypted only upon payment of a ransom. So in this case, someone sent a virus. Now, you can't get access to any of your stuff, and they say, we will decrypt this so you can get access to it if you pay us money. And this is relevant to us because after the financial and retail sectors, the legal sector is the one most targeted for cyber threats. You should also really be aware of the main form of protection against these attacks, which is encryption, which we just discussed in ransomware. So if you're familiar at all with crypto, then you know that encryption works by using a key that basically applies a code to scramble the text that you're entering into the software. And then it applies another key to unlock or decrypt the code. That's usually in the form of a password. This will protect you from the risk that even simple communication poses. So when someone takes a small piece of information about someone and uses that to get even more information. So think about people who try to trick you into giving them your Social Security number, which then they'll go to use with some other entity to get even more information about you. And apparently on this slide is just for. Verbiage purposes, we have the two different forms of data which is in stasis, which is data that sits encrypted on a server, device or server, and data that's in transit. So when it's traveling over a network or internet, you don't really need to know these in detail for our purposes today. But again, these slides are here for reference. Should you decide to, um, deepen your education on this topic a little bit later, this commonly comes up in the context of, say, client portals or case management software document portals where clients can upload and, you know, their documents, you know, electronic intakes that we send out, etc.. Okay, so what goes into an office technology policy? Here are eight points to consider. You should think about informing employees about what's expected and what's acceptable behavior in dealing with computers and property regarding clients info and their own personal lives. You should think about internet browsing policies. You should think about establishing and implementing policies and procedures for trainings, or establish and implement policies and procedures regarding their remote workspaces. What are the spaces actually look like and what are the risks inherent in each employee's environment? You can hold meetings with subordinate staff to achieve sufficient supervision. Articulate steps to take in the event of a policy breach. Show clients your concern and commitment by keeping their information confidential and demonstrate attempts to maintain ethical standards. Again, doing all of these things will reduce your liability in case of breach does occur. You can always come back to the disciplinary committee or whichever and say, I've implemented everything that I could possibly think of to prevent these things from happening. But the fact that they did, um, I still made reasonable efforts, and you'll be in pretty good shape. And here in the next two slides, we have a list of nuts and bolts type tips to protect you from these events occurring. We can't take the time to describe these in more detail, so please just use these slides as a jumping off point to conduct your own further research. Please just take the time to skim these for the moment and again, use these as a point of reference after the presentation. To summarize privilege and confidentiality. To maintain the protection, you must take adequate precautions to keep the communications confidential. This extends to periods after the communication was initially made. Because failure to maintain the confidentiality over time waives the protection. And generally speaking, constantly consider whether any third party has access to your communications with your clients. You must make reasonable efforts to ensure that you have measures giving reasonable assurance that your staff is maintaining confidentiality and that you are responsible if you have knowledge of any breaches of this duty by your staff. Remember that outsourcing work does not alleviate you of the duty to maintain direct supervisory authority over their work. And recall that you should have a training in place with ongoing instruction and supervision, including the rules governing diligence, communication, confidentiality, conflicts of interest, trust accounts, candor, honesty, communications with persons represented by counsel, and the unauthorized practice of law. And this should all be preceded by a conversation with staff to ensure their understanding and compliance. Again, think about using stories, particularly case law, to really kind of make it clear to them what actions might get you in hot water and the extent to which you are liable and your license might be liable for violations. Other ways to do this are to use signed confidentiality agreements and have discussions about record keeping in the homes of your staff. Have written contracts incorporating protocols for confidentiality and security. Have them provide you with photographs and descriptions of their work environments. Have them inventory with you their internet security protocols, including how they store digital documents. Provide them timeframes for deleting client information from their devices and with your own clients. Inform them that paralegals may be used for outsourced work and obtain informed consent for that from your clients. Again, checking local rules. Okay, now let's have a discussion on what exactly privilege and confidentiality is and how it applies to us in the work from home context. What to take from this slide is that attorney client privilege is basically confidentiality expectations, assurances and ensuring. So establish the rules of who can talk about what. For our purposes. To who is who is actively listening and who has access. Managed and supervised envelopes and fax machines using the phone in a public space without VPN. Talking on a phone in a cafe. These are the types of activities that we're talking about here in this section. So what does confidentiality? Confidentiality actually mean? The law has linked the recognition of privilege to a confidentiality requirement, which has three dimensions. The first is subjective. The client must intend their communications with the attorney to be confidential, so assume, unless they say otherwise, that the communication is confidential, in which case no one should have access. Asynchronous or not. So thank. Email. Software. Texts. Phone. Video. Assume that the client intends that to be confidential. The second element is objective. The client's subjective intention must be reasonable under the circumstances. So if they call you on your cell phone and you tell them that you're on a bus, you have a little bit more leeway. It's not reasonable for them to assume that it's going to be as confidential as it might be otherwise. So again, remember the reasonable man from the earlier slide and from law school. And third, the confidentiality must have been subsequently maintained. So this is our main point. And we'll address cybersecurity later. Encryption, backups, use of email devices, staff policy, malware, etc., etc.. All the points we just ran through earlier, that's an ongoing obligation. 24 over seven 365. So when does the privilege disappear? Well, in two instances, it can disappear expressly when someone expressly waives it or impliedly by conduct. Few cases here. Look at the second bullet. Taking or failing to maintain precautions may be considered as bearing on intent. So again, if you're lax in your policies, that's indicative of the fact that you might not have intended to the communications to be confidential. The attorney client privilege is not absolute and does not protect all communications, which must involve the subject matter of the representation, and be made with the intention that the communication be confidential. So two points there to be privileged. The communication must involve the subject matter of the representation. And number two, it must have been intended to be confidential. Okay, so this slide returns to the subject matter of the privileged information. So within particular communication again this only refers to the subject matter of the legal assistance and does not extend to any other technical information that might have been included in communication. So in the third bullet you'll see an example factual summaries or reports about simply factual material information, measurements, diagrams, etc.. There's also a great case Bauer v Wiseman from the Southern District of New York in 1987. In that case, Bauer and Wiseman, two individuals in an intimate relationship. Wiseman was, the lawyer told Bauer, his companion, to stay in his hotel room while he attended a conference and the hotel room. He left papers spread all over the table, uh, related to their estate, his own estate planning, which involved her Bauer, and in which she, of course, read. So in a later lawsuit, Bauer sought to make those estate planning documents discoverable, and when Wiseman sought to protect them, the court found out that he had failed to take all possible precautions to protect that information. When he left, it scattered all over a table in a hotel room in which he made her stay. So the basic rule is that the privilege extends to communications that are both one meant to be confidential, and two made for the purpose of rendering legal advice. So to this last point, there's another case in Ray Tom's food in the Middle District of Georgia, 2006, in which a business owner was talking to his corporate counsel about a number of business and personal matters. And then he tried to shield the email that he sent out to other parties regarding non-legal matters. When he was in court proceedings, the court made the point that the attorney client relationship is not the same as attorney client privilege, so it must be the privilege must only extend to legal advice regarding the specific matter communicated to the attorney. Uh, they must be the client should be aware of the possibility of conflict, and it must have been intended to be confidential when made up. And the privilege again only extends to the legal advice regarding the specific matter communicated to the attorney. So four types of communications can meet the standard clients request for legal advice. A client's communication to the attorney of facts that the attorney needs to give legal advice and attorney's request for facts. That the attorney needs to give the advice, and the attorney's legal advice. So here's a case, Lois Sportswear, which involved patents litigation, in which one of the parties was seeking access to the attorney work product of the other party. This case discusses what might be reasonable measures in that context, but the takeaway is that if you don't designate the material as confidential, and if you don't take measures to treat it that way, then if you mistakenly produce it, that confidentiality has then been waived. So again, just really hammering home a few of these points. The client must have subsequently maintained that confidentiality in order to preserve the privilege. If they go on talking about the confidential material to other people, then they have not maintained it and it's no longer privileged. Uh, this is particularly troublesome with email communications that can be transmitted to others with ease. So example, if you forward the email or accidentally include third parties on the subject matter, the email you have essentially waived, uh, the privilege. So if the client within reason expects the privilege, then it attaches. The client must maintain the confidentiality to preserve that privilege. Think very deeply about who might be receiving these emails, and also what language you're putting in the signature line of your emails regarding the confidentiality of the material in your emails. So to reference one last case, which is interesting in this context, which is US versus Santiago in Eastern District of Pennsylvania in 2013. This is an individual, Santiago, who is selling cocaine and giving instructions on the phone regarding how to sell the cocaine. Well, then also talking to his lawyer. Meanwhile, the feds, of course, are eavesdropping on all these conversations, which Santiago later sought to protect as attorney client privilege. Problem here was that Santiago also talked to third parties, referencing the communications that he had made to his lawyer. And when he talked to these other third parties about the stuff he talked to his lawyer about, he was waiving the privilege of those communications. So the fed had access to it, and Santiago was not able to protect the communications. And with that last interesting tidbit, we will move on to the next section. Supervision of remote staff. Two main points who this applies to and when you're liable. You need reasonable assurance that your staff's conduct is compatible with your obligations under the rules. Basically, you have to make sure that your staff do not get you in trouble that is on you. This applies whether you have direct supervisory or managerial authority. Second point is that you're liable if you had constructive knowledge or if you failed to avoid or mitigate when you knew about it. So basically, if you're aware of a violation and you have the ability to mitigate it, then you are liable. Think authority and knowledge. You cannot outsource competence or supervisory obligations, whether to a lawyer or to a non-lawyer. If you engage with anyone to do your work for you, you cannot avoid responsibility under the rules. If that person's conduct triggers a violation, you are the one in the trouble. So the paralegal ate. My homework is not an excuse. If you suspected the paralegal might be eating paperwork, then you must have stopped them. But there is some safe harbor here. This is not strict liability. Again reasonable efforts. So solo attorneys might not be held to the same standard as a white shoe conglomerate attorney and a new lawyer may not be held to the same standard as an old veteran attorney. So think about what the matter type is. Is this a small claims or is this international finance? Think about who is the client and think about what is the expectation of privilege. Make these clear to yourself, to your client, and to staff. Get on the same page about processes, procedures and how information is shared and stored. We will address some more best practices later. But we'll touch on one of those now, which is protecting yourself by having training in place in how to comply with the rule, both what the rules are and how they can comply with that. So one way is to do that is by telling stories through case law. I told a few stories just a few minutes ago, and those tend to be effective with staff, and that they give examples and highlight the consequences. They make it real to your staff, the extent to which they are like they, and you are liable for discipline in the event of violations. For more on best practices, you can read this article published on the Utah State Bar website in 2014. But let's move past this for now and jump into the ABA guidelines for the use of paralegals. Guideline number one is basically your responsible and you should take reasonable measures. Guideline number two is that unless the local law says otherwise, you are able to delegate anything to a paralegal except. You may not delegate the ability to start an attorney client relationship may not delegate fee setting. Um, and this can be whether to independent paralegals, notary publics, translators, caseworkers, etc. you are responsible for whatever they do here. So if they sign someone up, assess a fee, give or provide legal advice, you are probably in trouble and can't avoid responsibility for the ensuing damage. Guideline number four refers back to reasonable measures to make sure that the client courts and your colleagues are aware that you are using non-lawyers to perform legal services. And by legal services, we mean things that are not clerical. So when you're taking where you're applying law to facts, if you're telling someone what their legal status is or liability is at any given time, that's the provision of legal advice, how to answer questions on legal documents, etc. basically anything that's not straight up transcription, um, you know, calendaring, helping people make appointments or whatever could be construed as legal services in the broadest sense. So if you're going to take a conservative approach. The overbroad. What we want to look at here is guideline number seven, which is making sure that your non-lawyer does not have a conflict through their other employment. What reasonable measures would work in your practice for identifying conflicts brought by employees? Worth spending a little bit of time thinking about how to implement a conflict check in your practice and as applied to your staff, not just to you and your colleagues. And the other one to look at here is guideline number nine. You cannot split fees or pay for referrals or pay by contingency as applied to your staff. You can only play pay your staff and outsourced work for the volume and for the quality of their work. They are not your partners and they are not a referral service. They are the hired help to help you get your work done. And here we have some best practices for remote paralegals, signed confidentiality agreements and discussions about record keeping in their homes. Written contracts incorporating your protocols for confidentiality and security. Requiring that they provide you with photographs and descriptions of their work environments. You may require an inventory of their internet security protocols, including how they store digital documents. You can set time frames for them to delete client information from their devices. And in your own materials to clients. You may inform them that paralegal work may be outsourced so that you can obtain informed consent from the clients. Check your local rules regarding these requirements. So now let's talk about managing your online presence. Advertising services online refers to Model rule 7.1 communications concerning a lawyer's services 7.2 Advertising and Rule 7.3 Solicitation of clients. So rule 7.1 is that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or it omits a fact necessary to make the statement considered as a whole not material misleading. So importantly, comment number one, this governs all communications about your services, including advertising. So whatever means are made to make your services known. All statements about those must be truthful. And comment number two a truthful statement is misleading. If there's a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about your services for which there is no factual foundation. So the takeaway here, it's important to note that the rules cover all communications about your services, and that you are liable for misleading statements, which are defined as creating a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about your services, for which there is no reasonable factual foundation. Comment three adds a little bit more detail, describing a statement as misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters, or, if presented with such specificity as it would lead a reasonable person to conclude that the comparison can be substantiated. Advertising online services. Now we're looking at module 7.2 specifically again in the comments. The interest in expanding public information about legal services ought to prevail over the considerations of tradition. Nevertheless, advertising by lawyers entails the risks of practices that are misleading or overreaching, and the keywords into what this covers would be um, or does not cover would be any information concerning your services, your prices, your language ability, the names of people who have made references to you, and any other information that might invite the attention of those seeking legal services so you can disseminate this information. There's no problem with that. It does not include basic facts about your business. Comment number five. A you may pay others to generate client leads, such as internet based client leads, so long as the lead generator does not recommend you. So to comply with rule 7.1, you must not pay a lead generator that states that implies, or that creates a reasonable impression that it is recommending you, that is making the referral without payment for you from you, or that it's analyzed the person's legal problems when it determined how to make the referral to you. So basically, you can pay for lead generation as long as that service does not recommend you imply that's referring you for free, or that it's analyzed the person's problems before referring it to you. Now we move into solicitation. A lawyer shall not, by year's crucial phrase, in person, live telephone or real time electronic contact, solicit professional employment when the significant motive is your pecuniary gain. Unless you're reaching out to a lawyer, family, close personal or professional relationship. And every written, recorded or electronic communication shall include the words advertising material at the beginning and ending of any recorded or electronic communication, unless the recipient is one of the people identified above. So basically, you can only solicit other lawyers, friends, and prior clients, and by solicit they mean in-person, live telephone or real time electronic communication. Uh, and of course, at the bottom there's the subsection C, the one no one takes seriously, which is that you have to write if you are soliciting write advertising material at the beginning and at the end of every statement, which doesn't easily fit into a tweet many of the times. So again, this is a rule that's, uh, somewhat in flux. And check your local rules, because a lot of states have been, um, updating them to reflect modern communication, especially on social media. And these requirements, um, may differ by jurisdiction. So here again, we're putting some more specificity on the definitions of advertising and solicitation and when they might apply. Solicitation is a targeted communication initiated that is directed to a specific person, not your communication. Let me start. All right. And here we're providing a little bit more specificity into the definitions of advertising and solicitation. So comment number one to rule 7.3 defines solicitation as a targeted communication initiated by the lawyer and directed to a specific person. This is not a lawyer's communication. That is directed to the general public, or it's not a communication in response to a request for information or automatically generated in response to internet services. There is a potential for abuse when the solicitation involves. Here's the words direct in person, live telephone, or real time electronic communication by the lawyer to another person who is known to need legal services. And the third comment important to know that communications can be mailed or transmitted by email or other electronic means. These typically do not involve real time contact and do not violate other rules governing solicitations. So the takeaway here is that it is advertising or solicitation. If it's directed, excuse me, it's advertising if it is directed to the general public, but it is solicitation if it's directed to one person, live real time, and that special scrutiny will be paid to these real time communications. Comment number six. Any solicitation containing information that is false or misleading within the meaning of rule 7.1, which involves coercion, duress, harassment, or which involves contact with someone who is made known to the lawyer. A desire to not be solicited by the lawyer. All of that is prohibited. And if after sending a letter or communication, you receive no response, any further effort to communicate with that person may also violate these rules. So essentially, do not coerce people and do not keep poking them if they do not respond to your initial effort. Here. We have a few technical exceptions to the rule for certain organizations or for people who reached out to you. So about seven and eight. The rule is not intended prohibit you from contacting representatives of organizations or groups that may be interested in establishing part of the group or prepaid legal plan. Members and. The rule regarding material marked as advertising material does not apply to communications sent in response to requests of potential clients or their spokespersons. So if someone reaches out to you and asks you for information, your response to that is not considered to be solicitation. Um also general announcements, including change and personnel or office location. Um soliciting professional employment need to be in legal services does not fall within the ambit of this rule. So now we're going back to real time. Most emails and websites are not considered to be solicitation because they are not real time. However, most forms of messaging and most chat rooms are. So you see there, uh, comment number nine, ordinary email and websites are not considered to be real time and interactive, but instant messaging, chat rooms, and other types of conversational computer access communications are considered to be real time or interactive. So in the course of educating the public, you should carefully refrain from giving or appearing to give a general solution that applies to all apparently similar individual problems, because slight changes in facts may require a material variance. So otherwise the public may be misled or misadvised. So essentially do what you can to avoid the appearance of providing the same advice to multiple people who may not, in fact, have identical situations, despite how they might present them to you. Talks and writings aimed at the public should caution them not to attempt to solve individual problems on the basis of the information that you have covered. However, your participation in an educational program is not usually considered to be advertising because its primary purpose is to educate and inform rather than to attract clients. An educational program might be considered advertising if, in addition to its educational component, participants or recipients are expressly encouraged to hire you. So generally, educational programs are okay. However, a gray area might be blog postings, um, or putting educational materials online. In that instance, they might look to what the intent is. Are you putting the stuff out there with the intent of getting clients, or are you putting it out there for the purpose of educating the public? It depends. Check your local jurisdictions comments. Check your local jurisdictions case law, check your local jurisdictions ethics opinions. If you're at all concerned about the extent to which you're putting. Information about the law. Out into the public in any format whatsoever. Best practices to take the most conservative approach. Whatever you're putting out there, label it. Attorney advertising at the beginning and the end to the extent to which it fits. But again, local rules are changing in this extent. Include your name, principal address, and telephone number. If your local jurisdiction offers it and some do. There are disciplinary bodies that will or bar associations that will pre-approve any content posted. So as I just discussed in talking about blogs, um, PDFs, other documentation regarding information, if you want a local, you know, bar association or disciplinary panel to make a determination whether it's advertising or not, many of them will give you, uh, preclearance ahead of time. It's your best interest to preserve a copy of all electronic communication for at least one year, and obviously refrain from false, deceptive, or misleading statements. So, for example, if someone posts material on your social media profile that does not comport to this, try to scrub it and to avoid dissemination or use of the material that might violate the rules. So clients are the people who post stuff on your website, um, on whatever portals that you're using that might violate these rules. Do your best to get rid of it. If you do use third party endorsements or testimonials, do your best to ensure that it's accurate. Do not allow misleading endorsements relating to skills or expertise. Do not claim that you specialize. It is better to say, for example, in my case I am an immigration lawyer, rather than for me to say that I specialize in a specific area of immigration. And it's best to hide any identifying information of clients, obviously, including on listservs. There's no public record exception to the rule of confidentiality, so eliminate all identifying information about your clients before posting, whether that's to a website, whether that's to a private chat room, um, whether that's through any other form of social media. Uh, do take every measure you can to scrub that. Any identifying information of clients see this happen a lot in, uh, lawyer chat rooms. So, like, uh, Facebook groups for lawyers where we talk about cases and problems, somebody will quite often post a phone pic of a document, um, having, uh, information that would lead to the identification of a client. That's bad. Even though it's a private chat room, it could very easily be disseminated or find its way outside of the chat room. So again, redact everything you post anywhere, at any time. And some common sense here. Be honest and transparent. Be careful when hiring for SEO or lead generation. Find space to write attorney advertising or where you don't have space. Try to include a link. So maybe become familiar with, you know, Bitly, the service in which you can create smaller links that might fit more easily within a tweet or a post or, you know, Instagram or whatever it is. Um, if you can't find space to put in the general disclaimer, stick a link in there that will, um, direct the person to the disclaimer, or you can have it as a pinned post. So, for example, if you're looking at someone's Twitter feed, quite often the very first thing you see is the pinned tweet. And that's a very great place to put your disclaimer. Um, so maybe you won't be required to put it inside every single tweet that you post. Um, this could be applicable to a number of other forms of social media that allow you to, um, pin a post at the very top of your profile. And improvise. So again, a tweet doesn't provide much space for your address, but in your profile you might include a link to your website. And your website should have your complete contact information. So if you can't put, you know, name, address, etc.. Attorney advertising all of the disclaimers. This does not imply results 100% of the time. Whatever, whatever. Then obviously you can't put that in every single thing you post, but you can make it easier for them to find again, whether it's a pinned tweet or maybe it's just a link to your website or whatever it is, provide them access to it. That's going to put you in much better footing. Again, if you're advertising or electronic communications ever comes to the attention of attorney discipline. And don't stress out, at least overly so. Disciplinary bodies usually only instigate investigations and, um, charges regarding to competence only when it happens in conjunction with other violations. So for example, uh, they bring a charge of diligence against someone, then they'll quite often tack on a charge of competence where it's relevant. Um. So, for example, you failed to be diligent by meeting a deadline that might be actually a failure to mitigate the effect of your incompetence. Competence charges may also appear when successor counsel reviews your files. So again, um, everything you put out there, any communication to your client, everything you file on behalf of a client, um, your attorney work product might very well end up in your client's hands, and it might well end up in front of another lawyer. When your client takes the file to another lawyer, who then might forward the file to a disciplinary body. So that's another way in which, um, your technological competency might find its way to a grievance committee. Also remember that everyone makes mistakes. Uh, they don't tend to charge, uh, violations of rule 1.1 for each, you know, single acts, um, of competence. So if you make a slip up with your calendaring, with your email, you know, with your backup, with your firewalls, etc., uh, a single violation is probably not going to lead to, um, charges by the grievance committee. However, if you do a bunch of them, if there's a pattern or practice of your inability to use your technology competently, then you're putting yourself in a much riskier position. And if a rule doesn't cover a specific, you know, piece of hardware or software or, you know, process that you're engaging in, um, just ask, what is the purpose of the rule? Is this the type of thing that rule seven might cover? Is this the type of thing that rules 1 or 5.3, um, are looking to address? And so, you know, is the thing that you're doing. Does it dovetail with the purpose of the rule? So again, if it's not covered by the rule, let's take a step back and think, is this the type of thing that the rule would cover? And then if so. Put into place some of the measures that we've talked about throughout this presentation. And lastly, again, don't panic. It's highly unlikely that any of the above constitutes serious professional misconduct. So again, if you have a slip up on zoom, something escapes, a chat room, etc. that's not usually the type of thing that's considered to be serious professional misconduct, not on the level of stealing or misappropriating funds. It's not on the level of failing to cooperate investigation. This is not commission of a serious crime or something that's obvious. That's practicing while suspended, uh, meaning engaging in the unauthorized practice of law. So these aren't typically life and death violations that are going to put your license at risk. Your lodestar is basically, especially when it comes to advertising. Do not be deceptive or misleading and try to make a good faith effort to comply when it's reasonable for you to do so. And lastly, since time allows, I'm going to give you a few more security. Best practice nuggets. Consider don't plugging in flash drives. Avoid unsecured or public Wi-Fi. Use a VPN, which is a virtual private network when accessing or transmitting client information. Do not open unexpected attachments. Apply anti-virus or anti-malware defense to devices before connecting them to a network. Use firewalls and secure router settings. Prevent unknown devices from connecting to the Wi-Fi or network. Implement password management policies. Update your computer antivirus software daily. Educate and train staff on email, social media, web surfing apps, etc.. And as mentioned, include multiple layers, updated versions, and continuing seq of data. You could also encrypt emails, electronic records, documents, etc. supply or require staff to use secure encrypted devices and software. You could save data permanently, only on an office network and not on personal devices. Could use a reputable vendor for cloud services. Use websites that have enhanced security features only. Set up a daily backup of your data using a rotating set of multiple devices that are beyond any cloud based backups, and test them every week. Generally update software constantly. Consider using two factor authentication for logging into devices. And considered device A built in protection features such as access and recovery features. And lastly have advanced protection and recovery for lost and stolen devices. So that's a survey of the rules and best practices to help you meet your affirmative duty of protecting client attorney privilege in home and a work in home. And with that, we have a survey of the rules and best practices to help you meet your duty of protecting attorney client privilege, privilege, and your work from home environment. Thank you for joining us. My name is Matthew Blaisdell, and please consider, um, additional Quimby courses on this topic. And if there's anything else related that we could cover for you, please do let us know. Thank you. Hello and welcome to Email Communication for Lawyers Strategies and Ethics. I'm Alison Jones, president of Legal ESE consulting, where I help lawyers with the business end of their practice. So I work with them on everything from marketing and business development to practice management and productivity. And email is one of the topics that comes up with my clients all of the time. Email can be a great productivity tool. It can be a time saver. It's quick and easy, but it also can be a productivity killer. It can be very easy to get sucked in to email and to have it take over your whole day. So what we're going to talk about today is some strategies and tools for using email more effectively. And we'll also talk about ethics. So our agenda for today is first to talk about when email is and isn't the right tool for the job. Sometimes email is the best way to communicate what you want, and other times email just makes things more complicated. Next, we'll talk about when you're the sender, how to send more effective email messages to get your point across better, and also to elicit better responses to your email messages. Then we'll talk about a whole bunch of tips and tools to better manage your email inbox so you don't sit down and realize that half of the day is over, and all you've done is is get bogged down in your email inbox. And then finally, we'll talk about some ethical issues when you communicate by email. So our first topic is when is email the right tool? So I've got a couple of thoughts on this. Email is a great tool to use when you're just communicating facts. When you are sending a message that just requires a short response and not a long explanation. It's the right tool when words are enough to communicate your message. And what I mean by that is that you don't need things like body language or inflection, or just the words won't be misinterpreted, potentially. Email is also a great tool to use if you're trying to confirm a previous conversation or document something in writing that you have already communicated another way to a client, a colleague, or an adversary. But email isn't necessarily the right tool to use for emotional or sensitive subjects. So anything that might be misinterpreted, email might not be the best tool to use. It's not the best tool to use if tone or inflection or again, body language are important to understanding your message. Email is also not a great tool to use for scheduling. We get those back and forth strings of emails, and especially if you're trying to schedule something with multiple people, you've got those reply alls and it's hard to even manage who's responded when they're available when they're not available. So email might not be the right tool for scheduling. So let's talk a little bit about when you're the sender, when you're creating the email message, how do you write a message that is more effective? When you send better email messages, you get better responses. So the first step to sending better messages is to think about who your audience is and write for your audience. So when you're sending an email message to another lawyer, whether that be a colleague in your firm, an adversary, another attorney that you might be working with, co-counsel, you may write things differently than you would write if you were writing an email to a client, a layperson who doesn't necessarily understand the legal jargon right? You may be writing an email message to a personal friend, and that may be much more casual. But if you're writing for the court, you want to make sure that your language is much more professional. So always think about who your audience is and what information they may or may not already have. Use the Kiss principle. Keep it short and simple. Email may not be the best tool if you have a long, complicated. Discussion or information to get across. You want email to be short and simple so that people actually digest your message. Next you want to request a specific action. And here is where I find that a lot of people make mistakes in email. They're sending a message and they're expecting a specific response, but they're not explicitly saying that in their message. So the recipient doesn't really understand what it is that you want them to do. So make sure that you request specific actions. So one way to do that, especially if you have multiple things or multiple responses that you want from one email message, is to number them and to say, I need you to respond yes or no to these five questions or whatever it might be, but make sure that you're requesting a specific action from the recipient. Next, stick to the subject. Subject line is what I mean there. Oftentimes. We fall into the trap of sending email messages or responding to an email message. And we've now changed the subject of what we're talking about. And that gets confusing for the recipient. And it also makes it more difficult to search through and find the email that you're looking for. So it's very easy when you're sending an email message to just change the subject line. If the body of your email the subject has changed, then change the subject line to match what you're talking about in the email message. And use an email signature. Someone may receive your email and they may decide that they need to have a conversation with you. So instead of making them search for your telephone number or your other contact information. Use an email signature that includes that to make it easy for them to respond to you. Couple of other tips. Again, this idea of sending professional email messages. You want to use professional language, so you don't want to use abbreviations or emojis or things like that in a professional email. It's this is a business communication. Whether you're writing to an adversary, the court or your client. So you want to make sure that you're using professional language. Another tip is to take a look at whatever attachments are going in your email. So again, maybe you're forwarding a message. But maybe the new recipient doesn't need the attachment. So unnecessary attachments, they kind of bloat your email message. They make it take up more space. And it can be confusing if there's a an unnecessary or an unrelated attachment on an email. For ethics purposes, you want to make sure that you're double checking triple checking attachments. Also, lawyers have gotten into some sticky situations because they have forwarded emails with attachments that the recipient shouldn't see or that contain confidential information. So double check those attachments. And then shorten the string. So I just talked a little bit with attachments about email below. The same thing happens when an email string gets too long, and that is often the case if you're going to an old message with an old subject line that you're using because you don't have this person's email address in your address. Book. Instead, you're just searching for an old email and then hitting reply to that and sending them a message on a completely unrelated subject. So aside from changing the subject line, you want to get rid of that old email string so that you don't have unnecessarily bloat and unnecessary bloat and you're not confusing things. This is also an important thing to look at. Again, if you're forwarding messages to other people, make sure there aren't messages lower down in the string that you don't want the new recipient to see. And then finally double check who your recipients are. Be very careful of autofill. Again, that has gotten some attorneys into hot water. These email programs, as soon as you start typing, the first couple of letters, automatically fill in the recipient's name and email address, and it may not be the email that you want to send this message to. So before you hit send, make sure that you're not only checking your attachments and the email string, but make sure that you have the correct recipients as well. Couple more tips in the same vein. Watch out for reply all. So not only do you want to make sure that you're not replying all if you don't have to. So that you don't annoy everyone you know. For example, somebody sends out a message with a whole bunch of recipients just for informational purposes. If you want to respond back just to that person. Hit reply and not reply all. It makes people crazy. I'm sure it's happened to you where you're now getting messages from a whole bunch of people that you don't even know who are responding to the original recipient, but they hit reply all by accident. Same thing can occur if you've got a bunch of people on on the string, and maybe there's something confidential that you want to say back. Make sure that you're hitting, not reply all, but reply so that everyone who is included is not getting that message. Beware of BC. So sometimes lawyers will blind copy a client on an email message to, for example, a opposing counsel because they want their client to know what's happening on the case and they figure this is one step. I'll just bc the client on my correspondence, my email to opposing counsel. But the problem with that can come with a client doesn't necessarily realize that their BCD and they hit that reply all by mistake. And now the client thinks they're sending you a confidential communication and they're really copying opposing counsel. So a better solution to that. And this was even discussed in a New York State Bar Association ethics opinion. It's opinion. 1076 from December of 2015. The better option is to keep the client off of that email string entirely. Don't use BC and instead just send the message to opposing counsel and then forward the sent message to your client so that they can see it. It's an extra step, but it is much more, um, safe. You don't have to worry about what the client is going to do and how proficient they are with email. And then finally, whenever you're sending an email message, consider that. It may become an exhibit in a legal proceeding, a malpractice action, or a disciplinary proceeding at some point in the future. So you always want to be very careful with what you're putting in in email, how you are responding, what kind of language you're using, especially if you're responding to a client, a disgruntled client. Be very careful with those messages, because if the client is really disgruntled and they they file a grievance and there's a disciplinary proceeding, that email message to the client may become an exhibit. Another tip when you're a sender of email, because we're trying to be as productive and as efficient as we possibly can. In outlook. There's something called quick parts. And I really like quick parts because they help me create email messages faster. So you can find quick parts under the insert tab in outlook. And what you can do is save copy that you use a lot into quick parts. So when you type the the message out once, save that as a quick part and name it. And then if it's something that you use frequently, you don't have to retype it every time. You're not reinventing the wheel. You can just in a couple of clicks, put the whole message in and and hit send. So some examples of things that you might use quick parts for are requests for documents or information. Things like instructions, form letters, frequently asked questions. If you get clients who ask the same questions over and over that you're answering an email, create a quick part from it so that you can quickly and easily answer those questions without either cutting and pasting, or trying to make sure that you're covering all the bases. Those kinds of things. Directions to courthouses, things like that. You might want to use a quick part for. Okay, so our next topic is managing your inbox. And here is where a lot of people get bogged down, right? They sit down at their desk at the beginning of the day. They have all kinds of things that they would like to accomplish, and they open up their email and then they get sucked in to everybody else's priorities, which is really what what email messages represent, right? It's somebody else sending you something. It's usually their priority and not yours. So what we want to learn to do is learn ways that we can get through that inbox more quickly, more efficiently, more effectively. So that we can get on with the other work that we need to accomplish during the day. And a lot of times, that means that we want to touch that email message as few times as possible so that we're not constantly going back and reviewing the same information over and over. So one of my biggest tips is if this is at all possible for you in your practice, and even if you don't think it is, I would suggest that you try it. Don't keep your inbox open all day. Close it down so that it doesn't distract you from working on the focused work that you need to do, and also so that it doesn't distract you when you're having a conversation on the phone with a client, or if you have a colleague in your office when you leave that inbox open and you see those new messages. Filter in. It can be easy for that to pull your attention away from the person in front of you, the person on the phone. Turn off your notifications. So those little pop ups that tell you that, that you have a new message or the the notification sound. Those are really distracting and it's very hard to ignore them for whatever reason. We have sort of an instinctive response that when a new message comes in, we need we need to look at it. So even if you keep your inbox open, at the very least turn off notifications so that they're not distracting you. Some other email strategies I recommend if at all possible, and it may not be possible if you have specific kinds of of practices like criminal, I would say, for example. But for most lawyers, if you can avoid checking email first thing in the morning because it can sabotage your entire day. So I usually recommend to my clients that they work on their highest priority work, whatever that might be first, and then check their email after that. If you absolutely, positively have to check your email first thing in the morning, I would recommend setting a very limited timer just for you to triage to go through to make sure there's nothing urgent that you need to respond to right away, and then go to your highest priority productive work and then come back to your email. Another strategy is to check email at specified times during the day, so maybe you check it at 1030 in the morning after you've spent some time working on your highest priority for the day, and then maybe you check it right before or right after lunch, and then maybe you check it at 4:00 in the afternoon so that you can get to anything that needs to be handled before the end of the work day, whatever schedule works for you. But instead of constantly going back and forth between your work and your email, just checking email at those specified times. Don't fall into the always available trap. Now, what I mean for that is, if you are always responding to email as soon as it comes in. Whether it's on your work computer or your home, on your smart device or your, uh, your phone or your tablet. You're training people to think that you're going to respond immediately no matter what time it is, no matter where you are. And that's not necessarily the best strategy for your productivity. It's not good for you and it's not good for your clients. You don't want people to think that you're available at the drop of a hat, because that may not always be possible, and it may not always be desirable. And when you don't, then suddenly respond within two minutes, then you're getting the client who's sending you 12 emails, or they're calling your office three times because they think they can't get to you, because usually you respond immediately. So don't fall into that trap. Instead, what you want to do is set expectations. For response time. So there's a couple of ways that you can manage those expectations or set those expectations. For example, at the initial consultation with your clients, you can talk to them about what the best ways are to communicate with you. And. If you're communicating by email when you will respond. So you want to maybe tell them that you will always respond to their email within 24 hours, or by end of business. As long as you receive the email by by a certain time in the day. Again, whatever works for you. But talk to clients about that, how you're going to communicate with them at the initial consultation. You can also manage expectations. I have some clients who do this. They use automatic replies, so if they're checking email at specified times during the day, they turn on automatic replies at certain hours of the day. When they know that they are not checking email or they're not available. So maybe it's a day that they're there in the middle of a trial and they'll be in court all day. They set the automatic reply to say, I'm in court. I received your email. I will respond in X amount of time or by, you know, a certain day or whatever that needs to be based on your schedule. That's another way to manage expectations. You can also create a communication policy that you can hand out, and that can be within your office too, so that people within your office aren't expecting you to respond right away. Let people know what your communication policy is, and that may include when email isn't the most appropriate way to communicate. So, for example, you may tell clients that if they have anything that's urgent that needs to be addressed. In less than one business day that they need to call your office, and if they can't get to you to speak to your assistant so that somebody can take care of it. But that communication is not appropriate for email. Another way to process email more quickly is by using the reading pane, or now what they call the preview pane in outlook. And what that does is it lets you see the contents of the email without opening it. So it puts a window on your screen. I like to put mine on the right hand side. Some people like to put it on the bottom of the screen, but it allows you to process email faster because you don't have to click so many times. So to access the reading pane, if you don't have it right now, you want to click on the view menu and outlook and then click preview and then tell it where where you want that screen to go. Do you want it to go, you know, to the right, to the left, on the bottom, on the top. Wherever you find that it's the most comfortable for you. But I find that that's much easier. I don't have to open every email. I can just go quickly through and look at each message. In my inbox. Another way that I manage my inbox that this is really helpful for me is to color code messages from important recipients. So I have certain people that I have color coded. So when their message comes in, it comes in. Bright green or bright blue so that that message stands out. So if I'm doing that triage and I'm just scanning through my inbox, I can see right away, uh, if I've gotten a message from an important recipient, a client, you can do it by subject, however, however you want to do it. But that color coding, I find is very helpful. And the way to do that in outlook is through what's called conditional formatting. So you find that on the view tab, click View Settings, then click on Conditional Formatting. Click add and then you name it and choose a color. So maybe you want to call it clients and you want to color them bright red. Then you add the condition. So what is the condition is it comes from a certain person. It has certain things in the email um, subject line. You know, there there are multiple ways that you can work this out. Then click through, okay on all screens and you'll have applied that conditional formatting. Conditional formatting is is really a type of of rule. So let's talk about other ways to use rules and folders in outlook to help process your email more quickly. So by creating rules and folders, one of the things you can do is automatically move messages into separate folders. So you pull them out of your email inbox. So sometimes you can use them to get unimportant messages out of the way, things that you may still want to receive, but they're not the main focus of what you want to be doing in your email. So for example, maybe that's newsletters or bar association announcements. Maybe you want to set up a rule and a folder so that those things go into a separate folder and they're not cluttering up your main email inbox. Or you can do it the opposite way. Maybe you want to create a folder for a client so that all of the emails that you get from that client, or on a particular case, whether it's from an adversary or from a client or whoever, or from a specific sender, or with a specific subject into a separate folder, then you can just look at that folder to find all of those messages in the same place. Rules allow for faster processing of email because it's it's organized for you. It sets up automation for these messages so you have less to do to process. It's just a matter of knowing where you have to go to look for those messages. So to access rules, to create rules, click on the home menu and then click on Rules and Create Rule. And then there's a whole step by step wizard that outlook takes you through to set up your conditions and determine where you want those messages to go, which messages you want to move, and so forth. This seems like an obvious one, but as we're going through our email inbox, a lot of times we see messages that are are just junk. So get them out of your inbox, delete them as fast as you can. I always say delete liberally and and quickly. Um. Hardly ever. Is there a message that you delete that you really need back? And if that's the case, you can always peruse your trash bin before emptying it, you know, maybe once a week to make sure that you didn't inadvertently delete an important message. Coralie to that. Corollary to that is the unsubscribe rule, right? How many times do you encounter somebody you meet somebody maybe at a networking event, and all of a sudden you're getting their email newsletter or you're getting spam emails from them. You buy something and now you've gotten an email every single day from Best Buy because you went in to buy some computer equipment or whatever it might be. Unsubscribe. Instead of just deleting those messages, think about whether do you really need to get a daily email from Best Buy about their, you know, most recent sales, or is that just cluttering up your inbox and taking extra time? Even deleting, although it only takes a second or two if you have to do that every day, it gets monotonous, so unsubscribe from any of that useless information. You can always go back and resubscribe later. Think about separating your personal email from your business email. Create a separate email address, whether that's in in Gmail or something else, for for personal email messages or for those shopping sites. For newsletters, maybe even so, that what's in your business email inbox is really just business. Then try to respond as soon as possible. Now, why do I say that? That's an. An inbox management strategy. I say that because you leave it languishing in your inbox, it can get lost and that can cause problems. But it also the faster that you respond, the faster that you can get it out of that inbox. And it's not taking up time looking at it two and three and four times. And then make sure that when you're processing your email that you're not distracted, you don't want to be trying to process your email while you're doing something else. That's when mistakes get made. And sometimes that's when we get into ethical problems. So when you're processing email, when you're responding to email, when you're sending an email, make sure that you're giving it your full attention. So now that we've kind of processed. What can be processed. Maybe we've moved things into folders. We've deleted what we can delete. We've unsubscribed from what we can unsubscribe from. Now, when we're getting to the nitty gritty of when we actually have to do something with the message. As I just mentioned, we want to respond as quickly as possible. So in that time that you've designated now for processing your email, because you're not checking constantly throughout the day, you've designated and set aside specific time where you're going to process your email as you're going through. Can you respond in two minutes? If you can, then respond right away. And the reason for that, as I, as I just mentioned, is that you're not leaving it sitting cluttering up your cluttering up your inbox. You're not having to process it more than once, and you're not potentially letting it fall through the cracks. Now, what do you do if you can't respond in two minutes? Do we really want to leave it sitting in in our inbox so that we keep seeing the same message, or we have to scroll down to find it later? One method to avoid that is called the action folder. So if you create a folder in outlook. That's called action. Usually that will float up to the top of your folders list, because action starts with an A, so that's an extra plus. But you drag and drop messages into the action folder that need more than two minutes to address. And then once you've finished processing your entire inbox, you can go to the action folder and and figure out what the next step is for that email. So the action folder might be appropriate. If, you know, I need to go and look at the file and look something up, or I need to do some research, or I need to talk to somebody else before I can respond to this email. All of those things might be appropriate for an action folder. So let's talk about saving and storing important email. And does it belong somewhere else or should it be saved or stored right in outlook in in your inbox? I would say most of the time you don't want to be filing your email or storing email in your inbox. So if it relates to a client file, it belongs in the client's file. You don't want to store that correspondence separately in email. And one of the reasons for that is simply that when you're looking at a client's file, you want to make sure that you have all of the most updated and most current information in that client file all in one place. You don't want to have to look in multiple locations to see if you have the most updated information. Another reason for moving out of the inbox into the client's file is that you may not be the only person who needs to access that client's file and needs to know the most updated information. And so if you're the only person who has access to your email inbox, you're the only person who has access to that client information, and that may not be the best practice. So you want to move that out of email and into the file. There's a couple of ways you can do that. You can you can save the email right to the file as an email message. And it will open up again in email when you open it from the client's file. Or you can save the email message and if it has attachments, the attachments to to a PDF and then store the PDF in in your electronic filing system. Your inbox is also not your to do list. So if an email message represents a task that you have to complete, you may want to move it out of your email and to your task list. Now we just talked about an action folder. So that's sort of is another option. Um and then you once you've completed the task, you can move the message to, to the client file. But this may be something else. Maybe it's not a client file, but it's something that you have to take action on. Maybe maybe it's an invitation to an event and you're not sure if you can attend, but you don't want it to get lost. So move the entire thing to your task list. Now, if you're using outlook, you can use the drag and drop method. Just drag that email message to the task icon in outlook and it will create a task for you. And then you can put in whatever information you need to put in. But when you drag and drop the email, it takes the entire email. So if it's an event, invitation or what have you, all of that information, the date and the time, location, etc. is maintained in your task. Or you could just create a new task and, and manually fill in the information. And the way you would do that is to click on the task icon. In outlook. And. That looks like a little clipboard. Then you click new task and then you can add a subject or sort of the name of the task, start and end dates priority. You can even add reminders so that task will pop up. So maybe if it's an event invitation, for example, you're not sure if you want to attend, you can create a task and put a reminder for three days from now to to take a look and decide whether or not you want to attend, for example. And then you can add notes in there. Maybe you want to copy and paste the the event information. You can also flag an email in outlook to create a to do that gets added to your task list. So the way to do that is just to left click on the message to add outlook sort of default automatic flag or if you right click. You get more options so you can put custom dates in the automatic or default flag. I think defaults to today, which may not be helpful because you may just create a never ending to do list, but you can add your own date for when you want that to do to be. You can add reminders. There's other things that you can do from that email message to create a task. You can also assign tasks to other people in outlook. So sometimes you get an email message and you say, oh well, I'm going to create a task out of this, but but I don't need to do this. Maybe my assistant needs to do it, or maybe my associate needs to do it. So to assign a task in outlook on the task menu, just click on at the top, click Assign Task and then enter the name or the email of of the person in the two line. And then you can do things like assign a due date so they know when this needs to be done. You can tell them if this is a high priority task or not. You can decide whether you even though you're assigning the task to someone else, you want to keep it on your task list so that you can keep tabs on it. Um, you can also request a report when they mark the task complete, so you'll be notified that it's that it's done. When you've done all that, press send and it gets assigned to somebody else in your office. So that's an easy way to delegate tasks out of your email, rather than just forwarding the email to create a task from it. So what else might arrive in your inbox that really isn't necessarily a task. It may be an appointment, but it may not come through as an appointment. It may just come through as an email message. So, for example, maybe you get an email message about a practice group meeting or a committee meeting at the bar association. If that email really represents an appointment, don't leave it in your inbox. Move it to your calendar and you can use that same drag and drop method in outlook to drag it to your calendar. And now some other ways that you can work with your calendar and outlook. And I'm mentioning this in an email program only because our email inbox gets cluttered up with all of these things that are really tasks or appointments and not necessarily email, but also because, as we mentioned earlier, one of the things that email is not necessarily the greatest tool for. Is for scheduling appointments. So sending emails to especially if you've got multiple people that you're trying to schedule. Um, email is a really bad tool for that. So there are a couple of different things that you can do instead of emailing to create an appointment. So some of them you can do right in outlook. You can share your calendar with other people in outlook. You can use the scheduling assistant, or you can use the the meeting poll, which is also called Find Time. And I'll talk a little bit about those each in a minute. But outside of outlook, a couple of other tools that you might think about using to schedule appointments, whether with one other person or multiple other people, are doodle.com and calendly.com. So in Calendly you create an account and you can set up all kinds of different appointments, and then you just send a link to somebody and they can choose a time on your calendar based on the parameters that you set out. Doodle. You don't necessarily have to have an account. You can just set up a doodle poll on the fly. And what that does is you put in all of your available times, it sends an email to the people that you want to attend, and they go in and check off the times that they're available. And then you can choose the time that works the best. So within outlook. If you're on exchange, you can share your calendar with other people. And the way you do that is to click on the calendar icon. And then in the ribbon, click on Share Calendar and then choose your options and. Decide who you're going to share it with. And then you can share your calendar. Within your organization. If you have exchange, you can also use Outlook's scheduling assistant. And what that does is it allows you to see who is available and when, and then you can choose a time where you can already see that everybody is available. So what you would do is create a new meeting and add all of the people that you want to attend within your organization, and you will see their calendars, and you can select the time that makes sense for everybody. Also in outlook. If you're now trying to set up a meeting with people who aren't necessarily in your organization, you can use Find Time, which is also called the meeting poll. So you want to open a new appointment or meeting, add your title, add your recipients, and then click on that meeting poll icon, which is a little red calendar icon with like a magnifying glass on a clock. Then you set the time. Frame for the meeting and pick your suggested dates and then click next to add additional options, which is more more days. So in other words, if you're trying to schedule something and you have options beyond just the one particular day. Choose all your additional options, dates, and times. Then click Add to Email and that will create an email to all of your recipients with the poll. And similar to um doodle, they'll they'll click to say when they're available. And then you can choose a date based on when everyone or the most people possible are available for your meeting. So now let's talk a little bit about. Ethics. So email. Again can be a great tool for certain things, but there are some pitfalls that you need to be aware of, and also some ethics rules that you need to be aware of whenever you're using email to communicate, especially to communicate with clients or to send confidential client information. So some of the potential ethical pitfalls that arise with email include a potential breach of confidentiality. At setting up an inadvertent attorney client relationship through email and emailing with a represented party. Confidentiality and security when using a vendor for your email or a third party to. To send messages or documents. Um, and there's also potential pitfalls involved in discarding or deleting email messages. So let's talk about some of the rules and opinions that apply. Two email. So the first one is ABA model rule 1.1, which is the duty of competence. And we know that that duty to be competent includes being competent with technology, which means you're expected to know the basics of how email works and what security and confidentiality. Tools are available to you to make sure that you're not breaching client confidence. Then obviously there's the duty of confidentiality, which is ABA model rule 1.6. And you also email may also come into play with the duty to prospective clients, which is ABA model rule 1.18. And then there are two ABA opinions that I want to talk about as well. One is ABA formal opinion, 459 from 2011, and the other is ABA formal opinion 477, which was issued in 2017. So let's talk first about. Aba formal opinion 459, which was issued in 2011, and that opinion addressed the issue of whether email was an appropriate tool to use for communicating confidential client information. And one of the first questions that was addressed in the opinion is is there a reasonable expectation of privacy? In the use of email. Then is there a significant risk that the communication will be read by a third party? One of the issues to address then is, is the client using a workplace, device or system? And does an employer or third party have access? Those kind of go under that significant risk issue. So one of the things that you have to think about as a lawyer when you are communicating with client over email, is during that initial consultation where you're talking about your communication policy and explaining expectations with respect to email, you also need to explore. Weather for this particular client, email is an appropriate form of communication. Is there a reasonable expectation that that communication is going to stay just between you and the client? So you may have to ask questions like who has access to the client's devices and where are they access their email. So is there a significant risk the communication will be read by a third party? Well, if they're sharing a computer at home with their spouse or their child and this is a, a divorce action, um, or really any other kind of personal action for this individual. Is there really a, a reasonable expectation of privacy when a third party, the spouse or the child can access those email messages? Same thing if the client is using a workplace device or a workplace system. If this is a employer owned. Um, computer, laptop smartphone that the client is using. And if the employer especially has a policy that they can access employee email messages or they can monitor employee email, that's potentially a breach of confidentiality. So email might not be the best way for you to communicate with that client if that employer has access, if they're using a work email system or a work email address. So maybe they need to set up a separate personal email that they only access on their personally owned smart device. So these are the kinds of questions that you should be asking if you don't want to run afoul of formal opinion. 459 and these are things I think not a lot of, um, lawyers ask their clients, and it potentially could cause a problem. And especially if you're thinking again, like it's a divorce action and it's other people in the household that have access, or if it's a if you're talking about an employment discrimination matter and they're accessing through an employee work device, the employer is going to have access to that information now. Not only is it a breach, but it's a breach that potentially gives an advantage to your adversary. So let's next talk about ABA formal opinion 477 that was issued in 2017. So and this opinion actually changed a previous opinion which was formal opinion 99 413, which discussed whether what kinds of measures lawyers needed to use when they were using email to protect client confidentiality. And the standard is that lawyers have an obligation to use reasonable measures to prevent inadvertent or unauthorized disclosure of confidential information. Now in 1999. What was reasonable is different than what was reasonable. In 2017, technology had advanced. There were all kinds of changes that were being made that made it much easier for lawyers to take additional precautions to prevent disclosure of confidential information. So ABA formal opinion for 77. Imposed some sort of stricter. Requirements or obligations on lawyers. Especially in specific circumstances. So let's look at this in a little bit more detail. And some of the factors to consider in terms of what's reasonable for lawyers to do include how sensitive the information is. So for example, if it's medical information, financial information, information about trade secrets, things like that, that would be considered to be highly sensitive, that may lean towards the lawyer having to take more stringent measures in order to be considered reasonable. Next factor is the likelihood of disclosure if additional safeguards are not employed. So how easy would it be for? The. Email to be breached or to be to be read or the information to be disclosed if there aren't additional safeguards on top of just a regular email message. Then you need to. Consider, well, what is the cost of employing those additional safeguards? No one's expecting lawyers to go into bankruptcy to put systems into place that are that are too expensive, especially considering the other factors, the sensitivity of the information and the likelihood of disclosure. So all of these things need to be balanced. And in addition to the cost, how difficult is it to implement these safeguards? And this is one of the things really, that has changed between significantly between 1999 and 2017, what may have been much more expensive or much more complicated to implement, like encryption and things like that back in 1999 are much more easy to implement. There are there are better tools for doing them, less expensive tools than there were before. And then the final factor is the extent to which the safeguards adversely affect the lawyer's ability to represent clients. So if it if it creates a significant obstacle in your ability to represent the client, if the client has access, doesn't have access to certain tools, or can't use certain tools, or if it makes it impossible to communicate, that's another factor that might lean towards less stringent as opposed to more stringent measures. So if a device or an important piece of software is excessively difficult to use, that might go in favor of less stringent safeguards, for example. So as a result of all of this, what are the steps that lawyers need to take according to the opinion? First, they need to understand the nature of the threat. And to some degree, this goes back to that idea of model rule 1.1 with respect to competence, right? Part of being a competent lawyer is understanding the nature of the threat of disclosure and, you know, breach of confidentiality of specific information. Voyeurs also need to understand how client confidential information is transmitted and where that information is stored. So some of that goes to I said earlier that. One of the things to think about is what measures are in place when you're using a third party vendor. So are you using a third party vendor for your email? Are you using a third party vendor to send? And receive documents confidential documents from clients. You need to understand what those that vendor's policies are. Is the information encrypted? Can the vendor have access to it? Can the vendor see it? Do you have to have an encryption key? How how does the information get sent and and where is it kept and for how long is it kept? Lawyers also need to understand and use reasonable electronic security measures. So you have to know what is available out there to you and and what you can use. And then you have to determine how electronic communication about client matters should be protected. Does it need to be encrypted? Do there need to. Be additional security measures put into place? So it's a little bit more onus on the lawyer and a lot more things that you have to look at under the circumstances to see what's reasonable and what's not with respect to disclosure of client information. Lawyers also need to label confidential information. It needs to be very clear what information is confidential. You need to. Train lawyers and non-lawyer assistants in technology and information security. So all of those phishing emails, you need to be as as a manager, you need to be training the people in your office, not just the lawyers. What they need to do to make sure that they're not breaching confidential, you know, client information and security. You have to conduct due diligence on your vendors providing communication technology to make sure that their practices are in line with the ethics rules. And you also need to get input from clients on on what they can and can't use, and to try to figure out what measures make the most sense for your clients and for your practice. And just to mention a couple of the other pitfalls that I talked about before. So we talked a lot about that breach of of confidentiality, inadvertent attorney client relationship can come up with email when you have email links in places like your website. If you're inviting people to contact you, you need to be very clear about what that contact means, and that it does not mean that by sending you an email that that establishes an attorney client relationship because you don't want to get stuck into, um, being forced into an attorney client relationship that you don't want to take on, or creating a conflict with an existing client or a future client. The other thing to think about is that you've got confidentiality even with prospective clients. That's that rule 1.18. So whatever information is conveyed to you via email, even if it's not by a client, if it's a prospective client, you need to keep that confidential. So if you have those kinds of links on your website, I'm asking people to contact you or send you their information about their case. You want to have some disclaimers in there and be very clear about how much or how little information you want them to convey to you, so that you're not getting stuck in those situations. Um, email with a represented adversary. You also want to make sure that's those CC and BCC. There are ethics opinions in different jurisdictions that cover that. When if you're responding to an email from an adversary and the adversary has CC their client on the email to you. Um, does that constitute. Communicating with a represented party. You also want to think about when you're discarding or deleting email. Is it email that needs to be retained for a specific purpose? Um, maybe it doesn't need to be retained in your email. Maybe it needs to be retained in some other way, but make sure that you're not creating some kind of a spoliation issue by deleting or discarding email, whether that's email with a client or with an adversary that pertains to a case, you want to be very sure that when you are deleting, um, that you're not deleting anything that needs to legally be maintained for a specific reason. So in closing, I hope that these. Tips. Will help you to better manage your email inbox, to send better messages so that you receive better responses, and so that you can stay abreast of the. Ethics issues that might apply when you're using email to communicate. Again, I'm Alison Jos from Legalese Consulting. Please feel free to contact me if you have any questions or if you need any help being more productive with your email. Hello everyone, and welcome to ensuring access to justice for neurodivergent People. It's wonderful to get to join all of you. My name is Hayley Moss. I am from sunny Miami, Florida, and I am an attorney, an author and advocate, and I am also autistic. We'll talk about a little bit what all that means to me and what it means to be an autistic person and a neurodivergent person, getting to lead this program for you all later. Before we get started, I want to point out a little bit about accessibility and housekeeping. I know that we have all sorts of amazing features here at Quimby, and something that might be helpful to you is, again, this presentation is recorded so you can always go back to things as you see fit. And we also have closed captions and a transcript available to you. If you or someone who is visual you or someone who has a hearing impairment, or there's some other reason that that might be helpful for you in making this program accessible, then that's available to you. If there's anything that I can do in the future to make this more accessible for you, please let me know. Access is something that I take seriously. It's part of our title today. It's part of what we're working towards. And access is a team sport. It's not my job to be the person who gatekeepers, who can access this program or make it accessible to you. With all of that said, we are going to jump right into our discussion to really just kind of begin to talk about what neurodiversity is in the first place. I am very aware that this might be something that's new to you. If it is, that's totally okay. This is new to a lot of us. And when I talk about neurodiversity, I'm talking about this idea that all of us have different brains, that we are just as unique as anything else, and our brains are no exception. Just like how some of us have different skin colors and eye colors and hair colors and personalities, all sorts of things that make us who we are in terms of our identity, how we process the world around us is no exception to that. When we think about our different neurological profiles, our neurotypes, there's a couple different things that we're thinking about with how our brains are working, and the way that we tend to classify brains falls into two major categories. I don't like saying the word normal, because what really is normal when we think about that, if you ask me, normal is a setting on my washer dryer. It's a standard that is random and arbitrary at best. Our idea of normal, so to speak, at least when we talk about brains, is this idea of neurotypical. And what it means to be neurotypical is that your brain probably works in expected ways, that the way that you process information is pretty similar to the majority of human beings. Maybe you don't register things as too loud, or you don't register things as being overwhelming, or you're able to communicate very well along the lines of what's expected of you societally, culturally, or that it's just who you are as well as for those of us who are neurodivergent. That really is kind of our out of the box thinker, our person who might have heightened responses to different stimuli, all sorts of different things. And when we think about what neurodivergence really is, we think about all these things that are differences in how we communicate and how we think. Most often these are forms of disability. And I know that's something that seems kind of complicated to think about, is we're talking about differences and disability in the same sentence, in the same concept. And what's happening here is that most forms of neurodivergence are cognitive impairments. Under the definitions from the Americans with Disabilities Act of 1990, and they limit one or more major life activities, which include things like communicating and thinking. Not everyone who is neurodivergent will identify with disability, and not everybody with a disability is neurodivergent. Kind of a lot to think about there for a moment. And when we think about how many people might be these people who have these communication and sensory and thinking differences, it turns out to be a lot of us, depending on how expansive your definition of neurodivergence is, that could be as many as 1 in 7 human beings. I've seen estimates that are closer to about 20%, or 1 in 20. I've seen all sorts of different numbers, but I also realized, depending on what part of the world you're in or how expansive your definition or net for neurodiversity is, depends on what you get. The definition that I am using today is very expansive, and that's because I don't think that it's up to me or anyone else really gatekeep whose brain might be atypical, for that matter. And the traditional definitions of neurodiversity have a tendency to exclude. Which means when we think about neurodiversity, if this is something that's familiar to you, your immediate assumption is probably just autism, ADHD, and learning disabilities. That's because these are the folks who we think of as quote unquote desirable in the workplace, who are productive in society, who have something to contribute for that matter. And all of that is a bias we're going to unpack later throughout the program. But when we're talking about neurodiversity also does include people who seem to be excluded more often than not. So folks with intellectual disabilities, people with mental health or psychiatric conditions, and even acquired cognitive disabilities like Alzheimer's, dementia or traumatic brain injury. All of these things fundamentally alter or affect how somebody processes the world around them or information. Another misconception that I'd like to quickly clear up is I know that it's very quick to think that when we talk about processing information and our brains, we can kind of go to this diversity of thought thing, and I'm not going for that. We're not talking about differences in opinions. We're talking about how we process information. So as we're here today, I have a scent diffuser in my apartment and I can hear the fan of it going constantly. Now there's a very good chance that you won't be able to hear that, that it doesn't seem to stick out at you, that maybe you just know that you hear the sound of my voice. Maybe it sounds very clear to you. Maybe it sounds very loud. Depending on how you have your volume, all of those things are different experiences based on how your brain is processing information. It doesn't mean that you like the sound of the fan or you like the sound of my voice. It means that you are processing it as it's loud or it's quiet, or it's calming or whatever it is that makes you process that information. I hope that helps clear that up a little bit. And moving right along to our next slide, I want to talk about where this comes from and more about this idea of neurodiversity that I did mention earlier that this might be new to you. And relatively speaking, neurodiversity is a fairly new terms. It came about in the late 1990s from a sociologist in Australia by the name of Judy Singer, and she was writing about this idea in her thesis at the time, and she was corresponding with a journalist from The Atlantic by the name of Harvey Bloom. And bloom wrote about neurodiversity for the very first time in 1998, saying that neurodiversity may be every bit as crucial for the human race as biodiversity is for life in general, and who can say what form of wiring will prove best at any given moment? I really like this as an explanation for what neurodiversity is all about, primarily because we're not viewing a lot of these cognitive conditions that we mentioned on the last slide and earlier in the program as something that's wrong with people, that it's very easy to assume that this is a failed version of normal type thing. And what bloom is saying, essentially, is that it's a lot like different types of technology. It's that we have some advantage when people are thinking differently or that they're processing things differently. One of the easiest explanations that I've ever received about neurodiversity is this idea of this Mac versus PC type thing. Or as I often do it at this point in time, kind of this Apple iPhone versus Android operating system. And we're not saying that one is superior to the other, although you might have a very strong opinion about which is better, but one might be better for certain type of tasks or different interface that you prefer. And the other might have different strengths and different weaknesses. And that's totally normal. And that's totally okay. And that's exactly what we would expect. But in certain tasks, certain moments, one does come out on top of the other, but we don't know exactly which moment that might be or. When that moment arises. I find that to be really powerful and really comforting. And that's something we're going to talk about, especially when we talk about bias and stigma. So keep that idea of the two types of operating systems in mind, because that's something we're going to play with a little bit later throughout the program. When we think about neurodiversity as well, I know we just talked about how there's not that this idea of failed version of normal or that something's wrong with us. In fact, like bloom was saying, neurodiversity can be one of our greatest strengths. And this list that is on the screen is not exhaustive, that we have way more forms of neurodivergence than just autism, ADHD, dyslexia, dyspraxia, learning disabilities essentially, as well as a couple other cognitive conditions. But there are a lot of things that are in common with these things, and also what we think about the strengths. And we think about what this can do for us, our clients, us as lawyers, the people around us, the people that we love. I think that's really fascinating is we often focus so much on the deficits I mentioned when we began that I am a person on the autism spectrum. I'm autistic, and so often people immediately want to assume what is difficult for me or what I struggle with. But really, we want to talk about the things that we're good at. We want to think about what skills that we have that might be quote unquote, best at any given moment is a lot of us who are neurodivergent are people who think outside the box. We are constantly adapting to a world that doesn't always necessarily have us in mind. A lot of us are very creative. You have to be creative when you're adapting to things that might not always accommodate your different needs, or a world that isn't exactly designed with you in mind. A lot of us might be extremely passionate and able to focus on things for hours that we get excited about. So that's especially true for the autistic and ADHD crowd. That's something that happens to me. I get really excited about something. There's something that I'm interested in. I will spend the whole day going down a rabbit hole of thought to learn everything that I can about it. Every person is different, but those are things that I know are very true to my own experiences. A lot of us might also be very passionate, very honest, reliable. We might have a lot of energy just the way that we are also compensating for the things that are hard for us. I often think about lawyers who I know are neurodivergent, and one of the first people who comes to mind actually, is David Boies. And I'm sure a lot of us are familiar with David Boies, whether it's because you recently watched a documentary on Theranos or the Hulu show, or you go back to the memories of Bush v Gore. And what's really fascinating to me about David Boies is he's dyslexic and he's known for being a wonderful attorney. He said in an interview once that I remember reading that he is not a very good reader or he has to slow down. And he often, because of that, relies on memory and other tools at his disposal to be an effective attorney when it comes to arguing in court. And that ultimately is one of those things that makes dyslexia a strength for him rather than just a, well, you know, I just can't read very well, or I read very slowly because it's difficult for me. I feel the same way about my own neurodivergence a lot is that it is a strength, and I think that's something that we want to focus a little bit more on throughout our time together, and something that we could be thinking about. All of us have these unique strengths and weaknesses that make us who we are. But when we really focus on everything that's hard, such as maybe an inability to read effectively or differences in social communication, or perhaps in the case of some of our ADHD, or things like being easily distracted or unfocused at times that we think so much about all these things that are hard or bad, that we don't focus on the things that are good and that bring a lot to the table, especially here in the legal profession and the people that we know, even outside of the profession as well. How do we begin to focus on this? How do we do better is we have to think about where we're coming from. And a lot of that ultimately boils down to the attitudes, biases, and stigmas that we already have. A lot of us aren't always very good about neurodiversity and disability. There's this idea almost that once we get off this well-worn path of be nice to people, don't say the R word and offer assistance, we kind of get a little bit lost on what would be appropriate, what we can and can't say. I know there's lots about language that comes up throughout all sorts of things, but some of the things that happen to me the most are these microaggressions that happen. I gave my top three of things that I experienced on a regular basis, professionally and personally. Here. One of the biggest things that people will say to me as an autistic person is, I never would have known if you didn't tell me. And this usually comes from a very good place, as do most of these things. But what makes this so hard is, as someone who does struggle at speaking the dominant social language at times, or often finds myself missing social cues or struggles to initiate conversation at times is when someone says, I would have never known if you didn't tell me. What you're doing is you're recognizing a lot of my different coping skills and it's something I've had to learn a lot. My goal isn't to appear as if I don't have a disability. My goal is sometimes to just make other people feel more at ease or more comfortable, because a lot of us do have that discomfort because we just don't know. We don't really know what to do. We have lots of feelings about this. It's kind of sometimes anxiety inducing that we just don't know. And something that happens, and we're not going to get too detailed on this in today's program is a lot of neurodivergent folks don't disclose at work. We don't disclose professionally. You probably work with people, clients who might never tell you. And a lot of us don't tell you for a lot of different reasons. It's highly individualized. But something that happens a lot, especially for folks who are marginalized. So women, people of color, other people with unique identities as well. So people who might be transgender, non-binary, different cultures, etc., that basically, if you're not in this dominant idea that a lot of us use this idea of kind of suppressing neurodivergent traits as a survival skill, that you don't want to be profiled, you don't want to be discriminated against, that you're purposely acting in a way that feels like almost having a permanent customer service personality, for lack of a better description, and that people complement. And it can be a really difficult thing to struggle with and feel that you can't always be yourself because you're really trying hard to make people feel comfortable with you. Other things that people say are things like, why don't you just get that? Why don't you just try harder? If only you applied yourself all of these things. And I know they usually come from a good place of, we know you have so much potential, or this is something that's super simple and you just don't get it. And they get frustrated. Now let's think about what we talked about on the previous slide. We talked about a lot of different strengths that neurodivergent people have. We didn't talk a lot about the weaknesses. And just like anybody else, I and other neurodivergent folks have unique strengths and weaknesses. There are things that I can do very easily that a lot of my peers can't. I feel very comfortable having this conversation right now, and I'm sure there's at least one person here who would be absolutely terrified to deliver a program of any sort. I'm not going to tell you that it's really easy, because I know that everybody has things that they're good at, things that they're bad at, things that make them excited, things that make them nervous. That's just being human. And finally, one of the ones that people say a lot to me is stuff like, everybody's a little autistic and we're all in the spectrum. And usually this also comes from a good place, which is why it's confusing when we talk about some of these things, is it's a way that's supposed to make me feel better about the things that are hard for me, and a lot of the things that are hard for me and hard for you might be very similar, might be very different. But the reasons why is really what separates that. For instance, I'm really bad at keeping my files organized. I seem to just always have papers all over the place. I work from home mostly, so my kitchen table is just a scattered mess of papers and I'll just be like, wow, I really need to get organized. I really want to do this. I want to make sure that it's not such a disaster zone on the table. And somebody else might go, yeah, I'm really disorganized too. That's that's an everybody thing. Like everybody's like that. If that's the case, we're all on the spectrum. And the difference is usually between you and me in this situation is I want nothing more than to get all of my papers organized. I want to, and then I start going through them. I don't know what to throw out, what to shred, what to save, what goes in a folder, etc. and I get extremely overwhelmed and then it never gets done. That is not the same as saying I simply just don't care, or I simply just don't want to do this. That my neurodivergent makes it really difficult and my disability makes it, that these things are hard for me. And all of this has a root. When we think about where a lot of this comes from, it comes from this idea of ableism. And at its core, ableism really is prejudice, stereotypes, and discrimination against people with disabilities. Ableism is simple or as complex as you want it to be. That's the simplest version of it. But a more complicated version of ableism comes from an attorney and scholar by the name of T.A. Lewis, and Lewis basically breaks down ableism as this way of how we assign value to people's brains and bodies and minds based on our ideas of who is normal, who is productive, who is intelligent. This idea of excellence in fitness and all of this has roots that are intersectional. So it comes from things like eugenics, racism, misogyny, capitalism. You can kind of really go down the line with Lewis's definition. And because of who falls into these categories or who we're deciding is productive and desirable and intelligent, and even how we treat people based on a lot of these stereotypes and discrimination and prejudice, that the biggest thing that Lewis also explains is that you do not have to be disabled or neurodivergent, for that matter, to experience ableism. People are treated differently sometimes when they hang out with me, I am treated different around people whose disabilities seem more apparent. For instance, my parents, when I was growing up, were treated differently than other parents because they had a non-speaking at the time, autistic child. All of these things are rooted in this ableism, but when we talk about it specifically in a neurodivergent context, we're coming from this idea that there's something wrong with us, that medical model of disability, almost of that we're treating the person and that the person is the problem and that they need to be fixed to act more neurotypical, that we need to act more normal. This be yourself, but not like that type thing that I feel like I've experienced a lot. And think about this back to our original example of technology. We were talking earlier in the program about having two different types of phones. We have our iPhone, we have our Android, and let's just pretend, for example, sake, that I download a really cool app on my iPhone and I want to share it with you. You are an Android user, and you go to look for it on the App Store or whatever androids have, and it turns out that it's not compatible. And chances are you'll just go, well, Haley, that sounds really awesome, but it won't work on my phone. You'll have to show me some other time. Or maybe there's something that will work on both of ours instead. And chances are, we'll just move on from that conversation and go about the rest of our day. When we're dealing with people, we don't have that same approach. If I wanted you to download this app and we're talking about it in terms of how we talk about Neurodivergence, the first thing that happens is, well, do you have an emulator for your phone? Is your phone broken? Let's try to troubleshoot why you can't do this thing that seems so effortless for me. And that kind of sticks with me because that's something that I know I've experienced. I know plenty of other neurodivergent people have, is this idea of you're this failed version of normal when that's really not the truth. It's just that for some reason, certain things just are difficult or they're just not compatible. If we're treating our technology better than sometimes we treat people, that really does kind of reinforce that idea of ableism. I know it's not always easy, and I know that sometimes it's super complicated. We're going to switch gears just a little bit now that we got that out of the way. So we're off to our next slide. And we're going to talk about law practice a little bit because that's really what we're here for. After all this is continuing legal education not just disability 101. And we think about who in our profession is neurodivergent or even just neurodiversity as a whole, because whether or not we know it, our profession is neuro diverse, meaning that we have people with all kinds of brains in it. We're talking about our lawyers, we're talking about the staff we work with, our colleagues, our clients, witnesses. We might one day call to the stand or people we might depose. And we're also thinking about our personal lives. I know many attorneys who are neurodivergent themselves. I've worked with many folks who have neurodivergent family members or friends. I know there's probably at least one person here who might know me and go, yeah, that's that's my friend or something of that nature. So when we think about how this affects us, because I know a lot of diversity topics, sometimes we think, well, where does this come into my life? And the truth is, neurodiversity is something that you interact with every day, whether or not you know it. Think about the people that you work with, the people that you represent, the people that you love. And chances are at least one of those people has a learning disability, a cognitive disability, a mental health condition. You can kind of just go down the line and eventually you will land on at least one person. Or sometimes you might land on someone who has multiple different conditions. So you might land on someone who has depression and also has ADHD, for instance. So we're very used to being around neurodiversity. And on our next slide, we're going to chat just a little bit actually, about how this affects our profession. When we talk about disability more broadly, there's a lot of kind of a disparity actually more than anything else, that when we think of who is self-reporting disability, it's a very small number of lawyers, less than 1% consistent consistently from the National Association for Law Placement. Some of the most recent numbers look to be about 0.88% as of 2020. I will have to double check what those 2021 numbers are looking like, but generally speaking, it's in that 1% range or less consistently year to year. And that's also because there is a self-reporting metric. A lot of us don't self-report or a lot of people who are neurodivergent, particularly don't associate with disability. Disability is very highly stigmatized in our profession, as I'm sure you can imagine, whether it comes to bar admissions, whether it comes to staying licensed, whether it comes to even this idea of who is fit to practice, we can kind of just really evaluate or who is, you know, going to be a good lawyer. What we think, who the ideal lawyer is. What I think is really interesting, though, is that there are certain forms of neurodivergence and disability that our profession tries to do a good job about, that we talk an awful lot about probably since the time you were at least in law school, actually, things like anxiety, depression. Substance use disorders, and the American Bar Association feels the same way that we're going to talk about anxiety, depression and substance use, primarily alcohol. These are things that I know I've heard about since my first year of law school, or maybe even going back to orientation, and what we end up finding, at least what the ABA finds is that a lot of these different mental health conditions do occur in lawyers than higher rates than the general population that you have more anxiety, more depression, more substance use. But something that was really interesting in this landmark study from the ABA back in 2018 is that they mentioned that nearly 12.5% of lawyers reported meeting the criteria for an attention deficit or hyperactivity disorder diagnosis or ADHD, and then they never addressed it again. Now, this is an extremely high number for ADHD that in the general population, it doesn't look anywhere close to this. It shows that we have a lot of work to do, and it's something that I'm surprised hasn't really been evaluated or studied further, to be quite honest with you. When we think about lawyers with disabilities, though, and why these things might not be investigated or really disclosed in the first place. There's a lot of factors working against you that lawyers with disabilities are more likely to be unemployed or underemployed, which is also true for the general population when it comes to disability employment, and especially for neurodivergent folks. Something that happens a lot is that autistic people actually have one of the highest unemployment rates of all disabilities, and we also have lower starting salaries than non-disabled lawyers. There was a study that estimates that this number is somewhere around the $10,000 mark for a recent graduates, which is a lot of money to think about. And something else, if you look at other studies on disability employment, there's one in particular that is from the Ruderman Family Foundation that discusses that the higher level of education that a person with a disability obtains, the wider that salary gap is going to be. As attorneys, we all are very privileged. We have higher education. We have a JD. After all. You are watching this because you are a JD. You have an active bar license and you need credit. Most likely that you definitely are in this highly educated bracket and that your colleagues who might be open about a disability or that they have an apparent disability or neurodivergence might be being treated differently, even in terms of what they're being paid or what job opportunities are available to them. Despite all of this doom and gloom, it seems we have a good story to be telling, and that's that. We all benefit from having neurodiversity within our law practice and our profession is we have these unique problem solvers that we were talking about and different approaches to different legal issues and strategy. One of my fondest memories of being in law practice was when I first started, and I remember being assigned a case about judges and arbitrators. It was actually an arbitration, and we wanted to disqualify the arbitrator. I remember being asked to research different standards for disqualifying judges and arbitrators, and my boss was primarily focused on just disqualifying a judge or an arbitrator. And we want and I and I was just looking at it and I was like, I think there might be two different standards here. I'm going to look into that. And I ended up looking into the differences between judges and arbitrators for disqualification, because it was almost assumed that they would be the exact same. And at the time they were not. And I brought back all of this research on both standards. And it turned out that that idea of looking beyond what I was asked was right. Ultimately, that's what won the motion, and it was a really powerful experience for me and the folks that I worked with. Realizing that having a different approach to a problem that wasn't the one that I was expected to take could be one of our greatest strengths, not this know it all type thing, but this. Hey, there might be something that we're not thinking about. Let's look into that or this might be great. Something else that I've learned is a neurodivergent attorney or team might be the best lawyer for a specific client. A lot of us know what it feels like to be different, and I know that there are people who need that reassurance or want to be trusted, or that want to trust you. I know that there are people that I've worked with throughout my career who have trusted me because of my approach, or because I have been vulnerable with them and shared something about myself, or that it made them think that they could trust me, that I knew what I was doing. I think that's something that's really powerful, and that could be one of the greatest assets that we actually have. And let's move right along, actually, on where this is going to be a good thing for us is that neurodiversity at work has been this really big trend that's been going on. It's something that we've seen a lot, not just in the legal space, as we do have a lot of law firms that are realizing neurodiversity is good for us, but it's something that's been going on for the last several years, if not at least the past decade, in the tech sector, in private business and even the public sector as well. But there's all sorts of amazing resources on neurodiversity at work nowadays. If this is something that you're interested in learning more about, you can check out some resources from places like disability in or even the US Department of Labor has all sorts of really cool resources on neurodiversity at work nowadays, and I'll make sure that you have access to those as well. When we do have neurodiversity at work, though, we all benefit from it. There are companies that end up having higher revenues and making more money by employing people with disabilities. I know that there's this almost default assumption that when we hire people with disabilities, that it's to make us feel good about ourselves. I think about this a lot because my local grocery store is very well known for hiring people with autism, with down syndrome, or people that seemingly do have a cognitive condition. And it's wonderful. It makes me feel good about it as a consumer that these people are in my community, active, employed, probably getting a fair wage, all that good stuff. And while we think that these businesses are also doing it out of the goodness of their own heart, they're doing it because it benefits them, too, that their profits go up. The public looks at them favorably. And we know as lawyers, the public does not always look at us favorably, but being a champion of people in our community who often don't get the chance or who are mostly marginalized, that's good for us. I always find myself saying that neurodiversity and disability inclusion isn't just this moral compass of good and the right thing to do. But don't just do it because it seems like it's a good idea. It's sometimes the only and the best idea that we have of making sure that we include everyone, people that are primarily unemployed or underemployed, people who don't get the chance and who deserve it and who want it. All of these things are good for us. And of course, we all benefit from working with people who are different than we are, who think differently, who experience the world in ways that we don't. All of this is good for us, which means we're going to have to move right along just a little bit as well, just to have this shift into where does this come into our profession? Where does this come into this access to justice conversation, and where does that happen? That's probably the question I know a lot of us are thinking as well is a little bit about cultural competence and something that gets lost on a lot of people is that there's all sorts of different rules. There's all sorts of different ways that we communicate with one another. I know that we have our biases about what is going on inside of someone else's head, that oftentimes I think about the bias that I experience, that people immediately assume based on autism, that I am really good at technology, that I don't want to make friends or talk to people, that I live in my own world. But everything is very loud and very crowded that people automatically make a lot of assumptions that sometimes people will even be very explicit about this, that they might assume that autism also is an intellectual disability. There are a lot of autistic people who do also have an intellectual disability. But when people make this decision to assume that I have an intellectual disability, they often talk to me like I'm a young kid. And it's extremely frustrating to deal with that. A lot of these biases, they do have basis in somewhere, but they're also not true. I am not a computer genius. As much as I wish I were. I did not major in computer science when I was in college. Like many of us, I went to law school because I wasn't passionate about the sciences or technology. I realized that I do love talking to people and working with people and having friends. And being in the tech sector isn't something that's for me. All of these biases are things that I have to often overcome, as well as the fact that at least for autistic people, that I am female. And that's a big deal, because a lot of our images and our biases are that's a little boy's thing, not an adult's thing and not a woman thing. For instance. All these biases come into play quite a bit in my life, and it's really frustrating having to kind of unpack other people's biases as well. Also, just try to be open minded. That's one of the best things that you can do when it comes to being culturally competent with people who are neurodivergent and who might be thinking differently and have kind of a different social language than you. The best way for me sometimes to describe Neurodivergence, or at least my experiences, is a lot like being a second language learner. And no matter how hard I try. I will always sound like I am from somewhere else, even if I do speak the dominant social language fluently. And instead what happens a lot of the time is when I get something wrong. So I miss an idiom, a turn of phrase, or some social cue. I get judged really harshly for it, even though it's not my first language. And people often culturally don't try to learn the language that I naturally speak. For instance, I don't make a lot of eye contact with people, primarily because I find it exhausting in all of my attention goes towards looking at you. One of the best things you could do is just know that's how I function, and that's what works best for me, rather than just force me to look you in the eye, as I've been told so many times to do, starting when I was probably in elementary school. All of these biases are things that probably take a lot of time to unpack. We're not always going to get it right. We just have to be patient with ourselves. And I know even when it comes to things like ableism and what is and isn't offensive, especially when we think about things like language, I don't always get it right either. And I want you to know that this is something that I'm not exempt from either, just because this is also my community. And speaking of community. All of our communities have unique cultures that neurodivergent and disability communities do have their own rules and cultures and customs. This is something that I wasn't always aware of either. As an autistic person. The autistic community is very separate sometimes than the broader disability community, and also has different ideas and rules and preferences than even other forms of neurodiversity that if you talk to the autistic community largely, you've noticed that I probably have said autistic a lot, and not just people with autism or people on the spectrum, for instance, that that's a deliberate choice, because this community puts their identity at the forefront when talking about themselves, as opposed to, say, people with intellectual disabilities might not refer to themselves as intellectually disabled. But that is, for instance, a rule. Just like in deaf culture, you have people who use lowercase d for deaf to refer to not having any hearing, or a lack of hearing or hearing loss, or people who refer to themselves as capital D, deaf as a sense of pride or culture and community. All of these things are unique in rules, and even the way that I communicate with other neurodivergent people is very different to that. I might skip the customs. I might start talking to you like you're my best friend, or that I implicitly trust you all things that oftentimes catch non-disabled, neurotypical people off guard. One of the easiest things that you can do, though, when it comes to language, though, and trying to be culturally competent, is try to avoid those euphemisms. And when I say euphemisms, I mean something very specific. I really am talking about how we can clean up our language and the easiest way possible, which essentially to me is avoiding things like handicapped, special needs, differently abled, different abilities. All of these things don't really help. And I know that sounds counterintuitive, since a lot of this probably to you, sounds a little bit nicer than saying disability or something like Neurodivergence. That might have been a new word to you today. I say that we want to avoid these euphemisms primarily because they are not things that are chosen by people with disabilities, by neurodivergent people. A lot of them are chosen by researchers, parents, other stakeholders, and they actually contribute to stigma. If you look a little bit deeper into some of the research, I often find myself really frustrated when people say that I have special needs. That one especially. And I know that for those of you who are in elder law or trust and estates, that a special needs trust has a very specific meaning, I am not here to attack that, but I do. If your jurisdiction does use supplemental needs trust to say the same thing, I will use that instead. When it comes to special needs though, why it's really frustrating for me is that my needs really aren't special. There's nothing that I need or want in my life that's really that completely unique compared to anybody else for that matter. I often want the same things you do. I want a career that I love. I want to be successful. I want to be happy. I want to be surrounded by friends and family and hobbies and love and all the same things that, you know, most of us want those needs to have a roof over my head, a good education, all of that stuff that's human that my needs really aren't special then their human needs. I just might need different support to get there. So a lot of us might need things like accommodations, or we might need someone to help explain things to us a little bit more. All of these things are really paramount. And when you are talking about neurodiversity, if you want to avoid the euphemisms, you can always just use things like disability. Disability is not a bad word, I promise. You can talk about neurodiversity, or if you really want to be as respectful as possible, refer to the exact condition at play. So you might just say autism, ADHD and intellectual disability. You get the idea. If you really, really don't know what to say, ask the individual. That's just like treating us like anybody else and respecting boundaries. Sometimes if I really don't know what to do, I will ask someone how they describe their disability, or if they say I have ADHD, then I know exactly that. They say that's how I refer to myself versus saying, well, I'm an ADHD here, and I know that there are folks who might use euphemisms to refer to themselves. If they do that, that is their preference. If you really don't know what to do, just ask what people use to describe themselves and honor that choice. One of the weirdest things that happens to me every once in a while when it comes to language is people go, no, no, no, you're you're not autistic. You have autism. I made a deliberate choice that that's how I describe myself. It's part of my identity. I can't separate it from myself. I can't just put my autism down like a trendy accessory and then go off and about my day, it just doesn't work like that, unfortunately. Or fortunately, I actually wouldn't want to trade and be someone else to save my life. But that's kind of just you get the idea. Other things that we could do to be culturally competent is we have boundaries and deserve respect just like anybody else. Just treat us like people that assume that we are competent. Assume that we understand things. I know that because we have this natural curiosity sometimes about experiences that we don't have, it doesn't mean that it's appropriate to ask those questions. I have been asked questions because I have disclosed that I know most of us would probably never ask someone we don't know very well. Consider your relationship with this neurodivergent person, and then you can decide whether or not some of these questions are appropriate. You might not want to ask me, for instance, what I got on my Lsat, and people will ask me that without even knowing me or knowing where I went to law school, or that I am so many years removed from it already. It's really wild to think that this is something that happens. The same goes for people who say this to a lot of people with disabilities. More broadly, this is something that happens to friends of mine who have physical disabilities especially is what happened to you or what's wrong with you? Please don't be the person who asked that question because you would not ask someone else that question, just based on another characteristic of theirs. If you really want the honest answer, the answer is that nothing is wrong with me. I just happen to be born this way. And the thing with disability and neurodiversity that's really interesting is it's the only minority group that you can join in any point in your life through no fault of your own, whether it's through an accident or just being lucky enough to be alive for a long time. Just treat everybody with respect. And that's a really great way to get started and to be as culturally competent as possible. One of the easiest things that I wish that people did more often, too, is that we communicate directly with each other. I know communication is huge for us as attorneys, and being direct is something that's really helpful. I am not good at reading social cues or reading between the lines. I love it when people mean what they say and they say what they mean. It makes it so much easier for me. It makes it easier for most of us as well. Something else that's really frustrating, I think, for a lot of neurodivergent folks, especially if communication takes a lot of effort or is very difficult, is small talk. I have never known really what to do with it, and I always tell folks, consider leaving that behind. It's okay to get straight to the point. I know for a lot of us, we view that as being rude. I promise that it's not in a lot of situations either, that it's just a social convention that we've done a very good job adopting at times. If you immediately say, now, let's talk about this matter, because that's why I'm here, that's really helpful. It's a lot more helpful than. Hi, how are you? We need to talk. You say we need to talk immediately. I think I'm in trouble. When we go straight to the point or there's an agenda or things like that, and we're very direct about what we're talking about or like, hi, Haley. Today we're going to talk about neurodiverse cultural competence. I'm going to go, okay. And then I can mentally prepare myself and not think that I'm in trouble or I did something wrong or that you're I can't tell if you're just trying to be nice to me, or you're trying to say something that it kind of eliminates a lot of the guesswork for me. And I find that really helpful when people are able to do that. One big thing as well is I know that when we talk about disability more broadly, we kind of have this guide map that we've been given of be nice to people. Offer assistance and don't use harmful slurs and language if possible. But something that we don't think about when we offer assistance is being prepared for yes answers and no answers. I get offered a lot of assistance that I don't want and I don't need, primarily because people assume what my needs are just based on my disability. Everyone immediately assumes because of autism that I need things presented to me a very specific way, that I need everything to be very quiet, that I don't want to interact with people. And it's really frustrating because a lot of the things that I need, especially in professional settings, might be clear communication. It might be. A lack of ambiguity. When you're giving me instructions to write a motion instead of just going reply to this. Tell me what the facts of the case were. If I'm brand new to the matter. All of these things can be helpful. And think about how sometimes assistance might not always be helpful either. And this is something that is known as benevolent ableism. When you're basically trying your best to be kind and at the same time, it doesn't go well because you're making decisions for another person. Typically, the best image that I can give you of this benevolent ableism thing of when we're offered assistance and it isn't wanted or needed. Imagine that you are in a parking lot and there is a person with a wheelchair and they're they're unloading or loading up their car, and then they're going to put their wheelchair in the car and they're able to transfer into the driver's seat, or they're an ambulatory wheelchair user, meaning that they could walk very short distances or sometimes can walk and other times not. And immediately some kind stranger insists on touching the chair, pushing the chair, helping fold it up in the back of the car. Even though this person has done it a thousand times, and that person is probably thinking or saying no, no, I promise I got this. I've done this a thousand times and it takes away that independence and agency, things like that happen every day to me and other people who are neurodivergent or disabled. If someone says no to you when you offer assistance, I promise they're not trying to be mean. There's a very good chance that we know our brains and our bodies very well. And at least speaking for myself, if I do need help, I will be sure to let you know. And I am always appreciative of the offer. It just feels sometimes a little strange when people assume what my needs are without consulting me about them. I know that we want to be kind, and sometimes the kindest thing we could do is make sure that people have the independence to be able to make decisions, or to be able to advocate for themselves. I know that we're very good at advocating for others as attorneys, but sometimes opening the door to allow other people to advocate for themselves is truly the greatest thing that we're able to do. And how do we exactly advocate for others? And when we talk about disability, something really important to think about is the Americans with Disabilities Act. And the Ada is probably the major thing when it comes to disability rights and when it comes to protecting people with disabilities, whether it's in practice, whether it's in employment and any type of situation here in the United States. And essentially the Ada was passed in 1990, in its original form by former president H.W. Bush. I know that some of us who work in Ada compliance might be saying that well, or that have to deal with Ada matters, might be saying, we haven't had enough time to get this together. Just kind of to give you a little bit of perspective on that. The Americans with Disabilities Act is older than me. I have had time to go to law school. I have had time to learn this stuff I am. Nearly going to be 30. You've had plenty of time, but when we don't know the Ada does or is, then to help break it down for you. It is a very wide piece of federal legislation that prohibits discrimination against disabled people in a variety of contexts. There's five different titles, and title one is all about employment that we have title two that deals with state and local government programming and services and also buildings. Title three is all about our public accommodations. So think of places like parks and businesses. Title four is our telecommunications. And then we have a fifth title that is essentially a catch all for anything that isn't covered elsewhere. And what this really does is it allows people with disabilities to be part of their communities. A lot of the time when I talk about the Ada, I end up really in a title one context where we're talking about employment and something else that we're going to be talking about next is a little bit more about what does this mean? What does the Ada do for us in a variety of contexts, as attorneys in our day to day lives, we are primarily dealing with titles one, two and three of the Ada. Again, that's talking about employment, the entire employment life cycle of hiring to firing. We're talking about our state and local government services and buildings. So even things like courthouses, we're thinking about our public places, like even our own offices, all of these things. And to help understand that, we're going to move on to talk a little bit about what the Ada does on the next slide. Is that essentially it is the floor. It is the bare minimum of stuff we have to do. And what we're doing under titles one through three, essentially, is we are required to provide reasonable accommodations to qualified individuals with disabilities. In the employment context, a reasonable accommodation is anything that essentially can assist the person, like with their job duties and things, and doesn't cause an undue hardship. Basically that it's not way too expensive or that it's not impossible to implement. That's pretty much what the undue hardship standard usually means. But what we also have to do when we're not just thinking about employment is we're thinking about what would be reasonable and how can we accommodate this person. So a lot of it is we have to communicate with people to understand what would be helpful, what would make something more accessible, or a little bit less terrifying for this person. All of this is a communication game, essentially. In my last job, my last office had fluorescent lights, and for me, with my sensory processing differences, fluorescent lights are very difficult. They would give me migraines. They would hum all day long. I'm sorry if you have fluorescent lights now and you're thinking about how they hum all day long. But this for me was extremely distracting and also kind of painful. So what I did is I wanted to talk about how can we accommodate this, because it makes it very difficult for me to do my job because of my disability. And what ends up happening is, as much as I would have loved them to have replaced every fluorescent light bulb in the building, that would have been unreasonable. What we ended up deciding on is that I can shut them off. I could bring in a different lamp that if I was worried about the humming, I can wear headphones at work. And that's exactly what I did. I wore noise canceling headphones nearly every single day to block out the sound, and that was really helpful for me. If you are worried again about things like costs of accommodations, that's one of the biggest rumors that we have to dispel is that a lot of accommodations, especially in employment context, are usually free or low cost. A lot of things, even in proceedings and client meetings, really are probably not that expensive for you to implement. Personally, I think it all comes down to communication. We came up with a solutions for me based on just having a conversation about, hey, these lights are really difficult on my brain. That's all we had to do. And communication is key here. Of course, when we think about things like proceedings, we're probably also thinking about how we can make court more accessible. And there's no perfect answer to this. I know a lot of courthouses might be in old buildings, that there might be ways that being on the stand or having to testify, or even just be involved in the legal system is highly inaccessible. Depending on your jurisdiction, your circuit court or district courts might also have an Ada coordinator. You will want to contact that person about any accommodation requests or accessibility concerns regarding going to court or the proceedings that might be upcoming. When it comes to things like clients, I think about what their individual needs are or things that I think that might be helpful to anybody. One thing that I used to do in my last job is I always had different fidget toys on my desk, and I know that this might seem kind of silly to some of you, but some of you might very much remember having things like fidget spinners or stress balls, or things that somehow feel good to have in your hands. Or maybe you are someone who fidgets a lot because you click your pen, or you twirl your hair around all sorts of different things. But I realized that for a lot of folks, especially me and other neurodivergent people, this might be something that reduces anxiety or helps them focus that having that just little gateway to conversation or just letting them know, hey, it's okay if you take the stress ball off my desk. That would make people feel more comfortable and it would make something feel more accessible. Other different accommodations that might be at play, whether it's in litigation or outside of litigation, is maybe if you're doing depositions that you allow for different breaks, that you have to accommodate people with disabilities under the law, especially if they tell you that they have a disability or that they're neurodivergent. I know that it seems more complicated than it might be. Everybody has a different way. Maybe that there's things that get done in writing, maybe there's additional support, people involved, all sorts of different things. But really finding those answers is very individualized. I try to make it so that there's breaks. I want things to be accessible to everybody whenever possible. There's no perfect answer. And I know that we have a lot of different ideas. This is hard. I know, mostly because there's no one size fits all, even when we're dealing with the exact same form of neurodivergence that when I told you the story about fluorescent lights that might not affect every autistic person or neurodivergent person, they might have a different sensory sensitivity, or they might also have things that are a lot harder for them to decipher in terms of communication. There really is a massive spectrum in each person is exactly that, their own individual, and they each have things that might be difficult for them or accommodations that they need. It's really, really not the best idea to take this. I know one person with XYZ condition, therefore this is the accommodation solution that is going to work approach. If you really don't know what to say or do. I always like to ask people how I can be more supportive or what would make this a little bit less scary? As we know, meeting with lawyers for the first time or any time, if you have never done it or it's new to you or not something that's part of your regular life, it's probably pretty anxiety inducing in the best of times. So we have to think about how we could do that in a way that isn't very scary and is better for everyone too. Which means we have to talk a little bit as well about our ethics. And when we think about this, I want us to think about things like diminished capacity. I know this is something that comes up a lot, and that we have to talk about presuming competence. I know that when we we have all sorts of rules that are talking about things like diminished, diminished capacity, I apologize for a second. When it does come to things like diminished capacity. I am thinking about how we can be helpful. I am thinking about how we can make it easier on folks to be able to understand, and what we need to do when it does come to this is we are thinking about having as normal as a client relationship as possible, that we really do want to be sure that we are being helpful, that we are allowing that person to be the decision maker. I know for a lot of people with intellectual disabilities, for instance, that they are viewed as having diminished capacity. Perhaps a parent or a guardian or other trusted person is who hire who put you in contact with them. But remember, the client at the end of the day, is still the client. They're the ones you want to communicate with. And a lot of this ultimately does boil down to communication that if you do think that this might be a concern and in ways that you might want to communicate more confidently with your client, think about using something called plain language. And what plain language is, is essentially taking out the legal ease that we're boiling things down to be simplified. We're not making it so that adults can't understand. Or we're saying these topics are too mature, but think about something like confidentiality for a moment. Now, if you are a non-lawyer, or maybe you're a second language learner or you have an intellectual disability, confidentiality is probably a very complicated topic to explain. But you might say something like that means I can't tell your secrets unless you say I can. That might be a plain language explanation that would be really helpful to potentially a defendant with an intellectual disability. That's how you can help maintain that reasonable, typical lawyer client relationship. I know for those of us in the criminal arena, we're probably also thinking about competence. There's all sorts of different. Kind of proceedings and different types of procedures to establish competence. Depending on your jurisdiction. Something that I like to do, though, as a matter of culture and as a matter of respect, is that I like to presume my client or whoever I'm speaking with is competent no matter what. Unless I have a reason to believe or they prove or tell me otherwise. It is very easy to get written off just because of a diagnosis or a label. I always try to assume this person knows what happened. They know what we're talking about, and that's when it's up to me to make sure that they're able to understand. That's when things like plain language come into play. And also keep in mind there's many different ways to communicate. I have worked with a lot of people who are nonverbal or non-speaking, depending on which terminology you like to use, meaning that maybe they aren't very talkative, that they talk very little or they can't talk. That doesn't mean that they're incompetent and don't understand what you're saying. As a very good colleague of mine has said over the years, not not speaking is not the same as nothing to say, which means it's up to you to come up with other ways for this person to communicate. Maybe they might be very competent and understanding and they use sign language. Maybe they're using talk to text or text to talk type apps or AAC alternative and augmentative communication that it's up to you to be able to explore these things and to help do things in a way that feels safe and also proves that you are able to communicate and allow this person to prove that they're competent, because you probably know that they are, unless you have reason to believe, in which case that's a whole other thing to take into consideration. Another thing that comes up a lot is this idea of attorney client privilege, especially for those of us who might need additional support. I know when we're working with folks who might say, need an interpreter, whether it's an ASL interpreter or what I've seen, as well referred to as a cognitive interpreter in the case of a guide from the Washington state courts, is that you might have someone in the room whose job is just to help make things make sense to the client, whether it is ASL or just trying to make sense of the legalese and boil it down into plain language. Because sometimes that's a really hard skill for us to that's very different than having supporters. Supporters are the people who break that privilege that supporters might be, say, if you bring your parents with you or your best friend, all of that type stuff. But when we have interpreters, it does not destroy the privilege that interpreters are there to help it make sense to the client and allow us to have, as typical of a relationship as possible, that they understand us and we understand them being understood and being accommodated. And also keeping in line with our ethical duties and considerations is really important for us as attorneys and to make sure that when we are working with neurodivergent clients, that we're able to give them the attention and the representation that they deserve, and we deserve to do our best as well to be as professional and competent and communicative as possible to help send us home. Actually, I want to talk again about how we can be more inclusive and stuff. We're going to talk about what we can do as well, and how can we be more inclusive, ways that we can be more inclusive and helpful to the neurodivergent people in our lives is that we have the ability to be vulnerable and open with each other. I know I talk a lot about communication, but this is one of the easiest things that we can do. I know that a lot of us, especially if we're in big firms or that we're new to the profession, or there's a generational difference, because millennials and Gen Z has a tendency to be a lot more open than previous generations, especially about things like mental health, that it often falls on the most junior people to be the ones who are leading these conversations and being extremely vulnerable. If you are a person in power with authority or privilege, it means a lot. When you are the person who is sharing your stories, who is making it safe psychologically for other people in your firm, or that you work with to be themselves as well. I actually teach an undergraduate course every couple semesters now, and when I teach my undergraduates, I actually disclose to them about why I'm teaching this Autism and Disability studies course. I let them know that I'm autistic, and that's why it's important to me. And every semester there's always one student who needs an accommodation. They are always kind of embarrassed. They let me know. I tell them it's never going to be a problem, not to worry too much. And I actually will ask the students usually why they took my class on the first day, and the same student who embarrassed gave me their form will be the student who says, I took this class because like you, I also have autism or something similar. And I'm always really surprised. And I realize that this happens is because they perceived me, an adult who has some kind of authority or power, that I made it safe for them because they saw they wouldn't be the only one. And their peers were fairly accepting of me, and that meant they would probably get the exact same response. Having that openness and that allowance of vulnerability is huge. It shouldn't just be something that feels superhuman or rare. One of the best things that we could do as well is we need to go beyond our stereotypes. I know it's very easy to box people in based on what we've seen on TV before, or just that one person we know. What we're able to do when it comes to aligning people to strengths is we go beyond the stereotypes. We let people do things that they're passionate about, work they're good at. It was very frustrating at first, being assigned to just do technology tasks around my last law firm office and experience, when I really just wanted to do research and writing because I was much better at that. And when I had the chance to research and write, I was excelling. I was so much happier. A lot of us are also super passionate. When you allow us to explore those passions and use those passions, whether it's something you use as a communication tool or just something to help make it easier for us to do our jobs, or that is part of our job, everybody's happier. I also love when we communicate very directly. I know we talked a bit about direct communication earlier in today's call, but when we talk about direct communication, especially if you're working with neurodivergent people, think about this for a moment. This is something that I like to do as kind of a fun little exercise is to come up with maybe 3 or 4 bullet points about how to work with you. That, for instance, I might tell you that unprompted phone calls make me anxious. I might tell you I'm not a morning person. I might tell you that I love when you send a calendar invite and you have an agenda of what we might be talking about throughout the day. So maybe you'll say something like, this is a meeting about our CLA that's upcoming, or this is about something else. I have had the surprise meeting where I thought that I was in trouble, and it turns out somebody just wanted to talk about what happened on Game of Thrones. That was terrifying and very anxiety inducing, and being able to communicate that I do not do well with that element of surprise. And, you know, don't subject Haley to that element of surprise because it makes her anxious. And what I really like about using this type of communication is you don't know who is neurodivergent. You just know that each of us has different communication needs, that not everyone is a morning person. Some people are great texters and some people are great talkers, and that's just how it is to that. That's just how our brains work. That's also kind of feeding into this idea of universal design. And universal design as a concept is very expansive. It's really when we design our buildings, our products, environments to be accessible to everybody, regardless of things like their age or disability or other factors. If you want to see some really great examples of universal design, I like to point to things that we sometimes take for granted. Typically, for instance, closed captions. Now, I know I mentioned at the beginning of the program that we have closed captions here on our CLE today, as well as a transcript. These things are huge accessibility features and they do come from universal design. I am not deaf, I am not hard of hearing, and I use captions on almost every program, whether it is a CLI or a television show, because it is more accessible for me. Why is that? Why do you perhaps do the same thing? Maybe you're watching a program in another language, or a language that isn't your first language. Maybe you are really good at visual information and need extra cues. Maybe you're like me and you really like when you find out that characters are being sarcastic because they're scoffing instead of laughing. Or maybe you just really want to know the sound in the background or the soundtrack, or you are someone who is mindlessly scrolling through social media and you're using captions because you are in public and don't want to turn the sound on all sorts of different things, and that you still benefit from this universal design no matter what factors are at play, or even though you're not deaf or hard of hearing. All of this is really powerful stuff. The same also goes for things like elevators that have the tones, they have the lights, they have the braille, they have all sorts of things that no matter who you are, you know exactly where you are in a tall skyscraper. All of this benefits us. Neurodiversity and disability ultimately do drive innovation, and I think that's one of the most beautiful, coolest things that you can think of. And finally, one of the greatest things that you could do is follow the lead of neurodivergent people. I often feel very blessed and privileged to be able to lead people into this discussion, that there's a very good chance that this might be one of the first times that you've been exposed to ideas about neurodiversity. I want to make it very clear that I am not a spokesperson. I do not want to be a spokesperson or the spokesperson of neurodiversity. I am one voice in a massive conversation. I cannot be here by myself, and I certainly am someone who sits on the shoulders of giants at times. What I am encouraging you to do is to keep learning and leading with curiosity that you ask questions. You stay curious. You seek out voices, whether it is in our profession or even in your personal life, and who you follow on your social media feeds that people that don't look like me, people who don't sound like me, people who have different life experiences than I do. People inside and outside of our profession. You get the idea. Not being able to expand your knowledge and perceptions is huge. I also realize what a privilege it is to be able to have this conversation with you. I have been to numerous classes and trainings and professional events about neurodiversity, and they are led by people who are neurotypical and don't have that lived experience. A lot of the time, what they're doing is teaching me how to assimilate to be a better culture fit, that they are trying to help you be more normal, essentially. And that goes against the idea of what we want to accomplish. That really having this opportunity means a lot to me. It makes me really blessed, and I hope that something that we talked about either helps you professionally or personally. And if you are someone who does realize, wait, I am neurodivergent and I didn't know that, I want you to know that you are so loved, you are so competent and you are worthy. And I'm glad that you found out something about yourself and I hope that you come to find that you also have community. All of these things are important, and I'm really excited to know where you're going to go next and what you do with this knowledge and how you continue the conversation. Truly looking forward to keeping it going and what is next. After all, the world does need different kinds of minds working together. Hello, everyone. This is Fran, grazing at grazing law. Thank you so much for joining me today for best behavior, Ethical strategies for dealing with bullying and bias in the profession. In the 40 plus years that I've been practicing, the profession has changed profoundly. And some people believe that we are less civil to one another and less professional than we used to be several decades ago. I don't know if that perception is correct, but there are lots of indicia that people are more aggressive towards one another, that there is a lot, unfortunately, of bullying in the profession. And many, many times that bullying is tied to different types of conscious and unconscious bias based on different characteristics or groups that people belong to. We really need to think about what we're going to do to tackle bullying and bias in the profession, because unfortunately, it has really serious consequences for everyone involved. So. So the scope of what we're going to cover today is the breadth and depth of bullying in our profession. It doesn't just relate to lawyers who are adverse to one another or even just to lawyers. It relates to everyone participating in our profession. And in addition, it occurs within law firms or legal departments, among colleagues, between seniors and subordinates. Unfortunately, it's fairly widespread according to statistics statistics we're going to talk about today. So first of all, we're going to learn about how we can detect unconscious and implicit bias, specifically when it is at the cause or root of bullying in the profession. I hope we're going to come away with effective strategies about using the ethical rules of professional conduct, various civility codes in your jurisdiction, court rules and other types of judge rules to combat harassment, bullying, discrimination and bias as it exists in our profession. And ideally, I hope we'll be able to talk about how you create and promote a workplace where bullying is not tolerated and where everyone feels respected and included. In addition, we want to talk about how you can reduce the risk for your legal employment organization, whether it's a firm or a legal department, on how reducing the risk of claims for discrimination, harassment, retaliation and other types of misconduct. These are very serious issues that seem to be growing and causing a lot of distress for individuals who suffer at the hands of bullies, and from organizations where bullying is unfortunately tolerated. So you may wonder, why do we care about this? Is this something we really ought to be talking about? The reality is, it is something we should be talking about. And here's why. When you have bullying in a legal setting where people are practicing law, it impacts the legal employer, the people who work there, and other stakeholders such as clients, opposing counsel, the courts in which you appear and the like. We also want to make sure and think about the ethical rules that are implicated when bullying occurs. The codes of civility that many jurisdictions have adopted, adopted, and adapted to as a reaction to bullying, and individual court rules and judges rules about this sort of thing. Why should we care? Well, one thing is that there are legal consequences when people engage in bullying, particularly when it's based on bias. There are ethical considerations because various types of bullying and incivility in the profession also amount to violations of disciplinary codes that can lead to sanctions, can lead to cases being lost, can lead to deals being lost, can lead to people losing their jobs, and also litigation arising out of claims of discrimination, harassment and retaliation. Also, if you have a situation or an environment and where bullying occurs and appears to be tolerated and isn't addressed, you're really likely to face both legal and ethical consequences that go beyond what I've just talked about. For one thing, it can affect whether people want to work in your organization, whether you can recruit new people, and also whether you can retain the people you have recruited. So there's a lot more employee turnover and poor suffering, morale if it's perceived to be a hostile work environment. And the bullies may also suffer as eventually they can find that they're out of a job and that others don't want to engage them for new positions because of this. We also find that when you have a diverse and respectful, inclusive team, you're much more likely to have a better work product and clients are likely to be better served. Of course, it should also be obvious that it is the right thing to do, and it's good for the profession when you don't have bullying and incivility in the workplace. Turning to how that affects us further, let's look at the combination of different rules and different guidelines that we as lawyers face that can enable us to judge whether conduct is, in fact inappropriate and bullying in nature. And also, how can we best use strategies within the rules to protect ourselves, our colleagues and our organizations? One thing that comes to mind is that we have the ABA model rules of Professional Conduct. Those rules act as the template for jurisdictions across the country, and specific state rules on how lawyers are expected to behave. Failure to abide by the applicable rules of professional conduct can lead to different types of disciplinary action and sanctions. You may be reprimanded, suspended for some period of time, and I can assure you, unfortunately, if the conduct is severe enough, some people can lose their license. So the rules of professional conduct are mandatory for lawyers and provide a lot of assistance for people who need to tackle bullying and bias in the profession. The codes of civility tend to be something different than the rules of professional conduct. They're generally supplementary, and they do not, on their own terms, usually create a basis for disciplinary action against lawyers. However, it's clear that certain types of conduct may well violate both a code of civility and a rule of professional conduct. And we'll talk about some of those as we go through them. As well as that, if you are participating in a dispute in litigation, arbitration or something like that, where there is a forum in which you're appearing, the individual forum and the individual judicial officer leading your proceeding may have their own rules, both on conduct and civility expectations. I've seen increasingly a number of judges who have promulgated their expectations, expectations about how lawyers will treat one another and everyone else in the process, and the consequences that will be imposed if we do not. The other thing is that during the recent pandemic, the closures that resulted from that and the increased pressures that everyone faced, a number of bar associations and courts issued additional guidance and expectations about how they intended lawyers to behave. One thing that particularly became important is that the courts did not want lawyers to exploit the situation by asking for unnecessary extensions or creating additional stress for adversaries, but they also didn't want people to neglect to meet deadlines by using Covid, the pandemic, and closures, as an excuse when there weren't valid reasons for doing so that were in your client's best interests. As I've said, the rules of professional conduct are where we start. And because the ABA model rules are the template upon which the others are based, I'm going to rely on those in our discussion today. In my view, you could probably find a basis on which virtually every rule could have some implication to bullying, bias, civility, professionalism and the like. But there are certain rules that, to me, really jump out as being particularly important in dealing with bullying and bias in the profession, and I've given you a list of them here. I'm not going to list them right now. You have them available. But I wanted to say that I that there is a particular rule that jumps out at me, and that is rule 8.4 G of the ABA model rules. I want to be clear that that subsection has not been adopted by every jurisdiction. Many jurisdictions have outright refused to adopt it, and others have modified the language. For me. In particular, I practice principally in Pennsylvania, and I'm licensed in two other jurisdictions. This subsection is top of mind. What rule 8.4 G stands for is that it makes it a disciplinary matter, a professional violation if someone engages in discrimination or harassment in the practice of law. In Pennsylvania, the court has attempted the state Supreme court has attempted to implement a version of 8.4 G at least twice that has been challenged in the federal courts, and two federal courts have determined that the versions of 8.4 G that Pennsylvania attempted to adopt were impermissible and has struck them down. So if this is a rule that is in place in your jurisdiction, or if it isn't, I urge you to check it carefully to see what is the status in your particular jurisdiction, where you are licensed and where you usually practice. Even if that rule, by the way, is not in place, I think there's more than ample. Other rules that come into play that you should be thinking about as we deal with this, and I will address them as we go forward, I want to talk about respect in the workplace. Next. The firm respect in the workplace is not something that I've long been familiar with. I mean, it seems obvious, of course, but it seems to me that this particular framework has taken increased attention lately. I see many, many more companies implementing respect in the workplace policies where they didn't have them before, and frequently those policies tend to deal with many things that were addressed, such as prohibitions against harassment and discrimination. And sometimes also they explicitly provide that you're not going to engage in bullying, that you're going to accommodate people who have special needs and the like. So it's become top of mind for many, many more employers, including legal employers. And what these employers have realized is that if you have an environment in which there is bullying and bias and it's tolerated, it undermines respect in the workplace, which in turn makes people feel devalued, not appreciated for their contributions. And when they're not respected, they're less likely to feel they can be their authentic selves when they are. Participating in various meetings at the workplace or just trying to do their job. This also causes people who are targeted to feel distracted. Even witnesses and observers feel at risk and feel distracted. And they also are less, um, performing, less putting out less work. And the quality declines as well. Frequently, people who feel they're suffering from this sort of thing also start to take more time off, and there is an increase in absenteeism that also becomes a problem. So you want to have a workplace where everyone feels respected so that they can do their best work, that you can attract and retain the best talent and most importantly, respect in the workplace goes in all directions. It's not just certain people have to abide by it and others don't. And this becomes particularly important in a legal environment because often, unfortunately, people who are more likely than others to engage in bullying tend to be people who have a lot of power. And it's often a result of an imbalance of power. So frequently it might be that someone such a big rainmaker that they seem to be immune from the rules that everyone else has to follow. Think about it. If there's a lack of respect in a workplace and there are biases in that workplace that are apparent to other people, people who are in historically protected groups under the law, or feel that they are historically marginalized, are going to feel much less safe. However, it just doesn't limit itself to that. Issues regarding respect and bias in the workplace can be biased based on things that are not necessarily protected by applicable law. It could be based on the way someone dresses. It could be based on the size or shape of the body, cultural habits, accents, uh, perhaps a distinctive way of speaking based on where they grew up or on education. So these issues are not just based on the typical what we think of as gender, race, age, disability, LGBTQ and the like. Uh, in addition to whatever the law provides, firm policies and handbooks make a lot of sense because they can make the principles here even greater and broader than what we see under the law. One of the things that frequently occurs in the workplace that is implicated by a lack of respect and bias is people telling jokes that they think are appropriate when other people might not find them so, or giving compliments about how someone looks or the fact that they've lost weight, or something of the sort that causes others to feel offended and disrespected. And unfortunately, these things do occur more often than not in the legal workplace. So when you're creating a policy for workplace respect, you want to take into account several key things that should be included. These are, of course, the EEOC principles, uh, making sure that no one is discriminated against in hiring, promotion opportunities, etc., or in terminations based on some sort of bias you want to accommodate. People with disabilities have very clear policies prohibiting discrimination, harassment and bullying. And by the way, harassment is not merely sexual harassment. It can take other forms. Very important is to ensure that that the workplace policy is clear that the employer, the firm, the legal department will not tolerate retaliation for others who complain against others, who complain that there are very clear promulgation of company policies and training so people know what's expected of them, that any investigation is confidential and that appropriate action is taken and very, very important. As I said in reference to rainmakers a few minutes ago, it has to apply to everyone. You can't exempt someone because they're a big producer or a very significant partner from these policies. Unfortunately, if you do that, they're not really worth much and they're likely to lead to exposure both, uh, in terms of liability, loss of personnel, etc., and potentially actually loss of clients and business. So where are we today on all this? Many different groups have experienced bias and obstacles to advancement in lots of professions and even at the top of our profession, even lawyers with sterling credentials find that they may be not given a fair shake or a chance to participate in rainmaking opportunities, or to have a lead role in a key case because they happen to fall within a certain group that's historically been prevented from doing so. And a lot of statistics show, and we're going to cover those momentarily, that women and diverse lawyers may not advance and generally do not advance at the same pace as people who are perceived to be in the majority, and this applies across many. Different types of groups and in addition to being denied equal opportunity to advance, is more likely to be harassment and bullying for people in historically marginalized groups. One of the issues that also goes hand in hand with bullying and bias is the principle of incivility. As I said earlier, increasingly jurisdictions are promulgating codes of civility, and I've seen more and more courts and individual judges doing that as well. Simply put, I think we know it when we see it. But incivility is not just one instance. Usually. It's generally being rude or discourteous, and it occurs routinely for many. Unfortunately, in the legal profession, some of the things that happen more and more often, and I think when people have been under pressure during the pandemic, this may have been exacerbated. People communicate in a nasty way with a hostile email, give criticism that either is unwarranted or could be delivered more constructively. Gossiping about people, uh, making comments about people that are unfavorable and not based on something that's merit based, uh, making faces of people accusing people that they're not doing a good job without a good basis, uh, publicly ridiculing people and shunning and excluding people. But the last one that I want to mention, which is something that I have observed, unfortunately, many times in various workplaces where I have worked, is where people with a lot of authority, um, lose their temper in a way that is intimidating. They throw things at other people in the room, um, so to say, scream at them, smash the phone down and the like. We do not really want that to be happening, obviously, in any workplace and certainly not in a legal workplace. So in addition, there's various other ways in which people engage in incivility that constitutes bullying in the practice of law. Besides the things I just mentioned, as in terms of, uh, losing one's temper or being rude, there are other things that are maybe more directed in some ways to the actual work. What I mean by that is ignoring communications from other counsel who need legitimately your response, abusing the requests for extensions, or refusing to give people extensions when they genuinely need it, uh, not extending the kinds of professional courtesies that are appropriate when it's not in any way going to harm your client's interests. This is a really big problem, particularly in litigation. When we're dealing with discovery. People file mountains of discovery they don't really need. They interpose objections that are frivolous. They carry on a depositions. They try to coach their witnesses. They file papers with claims or defenses that don't have a good basis. There are things that come up routinely. It also comes up in negotiating a settlement or negotiating any kind of agreement for that matter. Unfortunately, there are people who agree to certain terms in principle, may even agree to a terms sheet, and then try to renegotiate or back off what they agree to. But one thing that pervades, no matter what kind of work we do, is we want to make sure that we're treating the people we work with, the clients we're serving, the lawyers were dealing with on the other side the same, regardless of whether they belong to a group that we belong to as well, or a group that has historically been on the periphery of the profession. So let's think about what we mean when we say bullying, because the purpose of this course is to address the ethical issues surrounding bullying and bias in the profession and workplace respect, incivility, all are part of that, uh, phenomenon. And the things we need to think about when we think about bullying. Most people still think about the schoolyard. We think about children being mean to other children, or we think about cliques that exclude people. But bullying occurs to people at all ages in lots of situations, particularly, unfortunately, in many workplace situations and in many legal workplace situations. And it's usually a result of a perception that there's a difference in power, and it usually is something that happens more than once. It can take the form of saying things to people, touching people inappropriately, or acting in a way that socially excludes them. When we think of bullying as a type of incivility and harassment, there are certain things that occur specifically in the legal profession that we encounter and need to tackle and need to know how to tackle ethically. Calling people names that are inappropriate. Making comments about people belonging to certain groups, threatening people that they're going to get, be disciplined or have their job jeopardized or lose a promotion. Excluding people based on their participation, participation or perceived membership in a group that is not even something that is a choice. You're born a certain gender, race, religion, religion is may be a choice, but you born into a certain group and now you're being excluded because all people in the group seem to be kept on the periphery. The other thing is you find that that there's additional and intentional criticism of people based on a perception that people in a certain group are not favorable, are not as capable. Well, uh, also, there are situations where we decide that certain people cannot work remotely while others can. And if it's based on some form of bias, it may also be a form of bullying. And of course, in any way yelling, losing your temper, throwing things at people, or taking telling jokes at their expense that are not welcome are all additional forms that of bullying in civilian and harassment that we see occurring in the workplace. One of the key reasons this occurs is that people most, if not all people, have certain biases they may or may not be aware of. It can be explicit or implicit or unconscious. And for those of you who are not aware of this, Harvard University has implicit implicit bias tests available online that you can take for a variety of different types of biases, some of which are based on legally protected categories and others that actually are not. So let's think about whether you might have a bias. Uh, I taught a course similar to this for non-lawyers not long ago, in which I used an example that I'm going to use with you today. And I, I said, think about whether or not would you cross the street when you see a person who looks a certain way, is wearing certain clothes, has a lot of tattoos or piercings? Um, and I was surprised by how many responses I got from people that said, oh yes, I would, because they're dangerous. Well, in my mind, just because someone is wearing a hoodie or a certain type of logo clothing or sneakers or has tattoos or piercing does not in any way mean that that person is more or less dangerous or a threat than anyone else, but that is a type of bias that goes into play both in life in general and often in the workplace. Two other things that occur to me that are really common, unfortunately, examples of how this might play out in a legal workplace is whether or not you would assign a certain matter or case that potentially involves travel to a woman who's pregnant, or a parent who has young children at home. Many, many places where I have worked and where clients of mine have worked. There have been instances where, in fact, pregnancy and parenthood or responsibility for your own parent or, uh, have impacted whether people are assigned to work on certain matters. It also impacts whether people are hired. And as a result, as I'm sure you all know, many jurisdictions have passed something called the Crown Act, which is to deal with the bias against women of color who wear their hair in a natural state. We need to think about all of these things as we're moving through our legal jobs. And now we're going to talk about some numbers, some hardcore numbers that deal with bullying and bias in the profession. Uh, this study is something that I've been thinking about for three years since it came out. In May of 2019, the International Bar Association released the results of a study it conducted of nearly 7000 people in the legal profession, covering 135 countries. And the study was done using six languages. Uh, I'm not going to go through in, uh, excruciating detail the information related to the summary slide on the Bar Association report. That slide gives you some of the highlights in graphics that are really easy to follow, including how including how you become more aware of these issues so that we can deal with them. Instead, I'm going to discuss some of the particulars that really jumped out at me. Lawyers should know better, but unfortunately. It seems like based on the results of the EBA study, we don't know as much as we should about bullying and bias in the legal profession. The May 2019 report, which, uh, summarizes and goes into some explanation as to how the survey was conducted, came up with some really troubling conclusions. The survey was given to people who are not just lawyers, but others who work in law related positions. And it covered all types of law jobs, not just law firms or even in-house jobs, but working in the courts and working in government. Some things that jumped out at me that I think everyone should be aware of, that is about one third of the men who responded, and over half of the women that responded. And about three quarters of the nine non-binary respondents reported that they had been bullied at work. Now, the study does not specifically define bullying, but instead allowed the individual respondents to select from a list of items that might constitute bullying, or to to add their own examples of what they felt was bullying that they had experienced directly as targets in the workplace. In the legal workplace. Similarly, 40% of the female respondents, 32% of the male respondents observed being bullied, others being bullied in the workplace, even if they themselves had not been targeted. Uh, that's very disappointing, I'm sure to all of us. What is also really disappointing is that more than half of the women who reported being bullied at legal workplaces said they never reported it. They never reported it. And even perhaps more disappointing is that of those who did report it, less than 3% felt that the workplace response was excellent. But over 72%, nearly three quarters of those who reported it. Women who reported being bullied at work felt that the employer response was either negligible or insufficient. There's a lot of work to be done when we think about reporting bullying in the legal profession. There are certain themes that come away from that result, and also from other studies and things we've experienced or observed ourselves. When bullying occurs in a legal workplace, it is not often reported. There's lots of reasons for that. In fact, generally about 11% of the respondents to the survey said they always reported it. And men were more likely to not report it. Also, they found that, uh, the most junior members of the legal profession were less likely to report bullying that they experienced compared to those who were at the later stages in the profession. I would say that I the most common reason why people don't report being bullied in the legal profession or observing it, is concerns about retaliation. How is reporting it going to hurt them further? Uh, particularly women said they are afraid that they are going to have adverse adverse consequences. And it's not uncommon that that is the case despite the legal prohibition. There's another study that I think equally, if not compels the conclusion that bullying is far too pervasive in our profession and that there is a link between bullying and bias in the profession, left out and left behind the hurdles, hassles and heartaches of achieving long tum Legal Careers for Women of Color is an ABA study and report released in June of 2020. At that point, although uh women of color were about 14% of all associates at firms, the percentage of women of color partners was only 3.5%, and the women lawyers of color who were surveyed for that study and report stated that they were likely to leave the legal profession much more likely than their male colleagues, because they were more likely to be subjected to both implicit and explicit bias. They felt that they were not given equal access to success, which includes opportunities for business development being perceived as being fully committed to their jobs, being considered fully for promotion, or for assignments on key projects. This is also a really unfortunate situation that we need to think about. So I wonder is the situation with respect to bullying and bias getting worse over time? Many people think that the legal profession was considered more professional and more civil and business like as it was than it was, you know, than it is now comparing, uh, earlier times. So I've noticed when I'm going back looking at cases that at least beginning in the 1970s, judges started to refer to certain types of litigation practices that showed a concern about bullying. Terms like scorched earth, Rambo style lawyering. Sharp practices started to appear in litigation decisions by the court. And I think one of the reasons that we found that is that there has always been a tension between zealous advocacy and being overly zealous in a way that crosses a line. And I don't think that people necessarily agree on what a clear line would be. But one thing that occurs to me as to why a profession may be perceived as being less civil and have more bullying, is that the way the media portrays lawyers has changed? My first image of a lawyer on TV was Perry Mason, who, though he used his skills to win, he used his tactical skills, his intelligence, his investigation skills. But he didn't do things that, as I recall, were perceived to be possibly underhanded or dishonest. But if you think about recent shows about, uh, lawyers on television, uh, one of my favorites is, uh, The Good Wife. You see that in LA law, Good Wife, and Better Call Saul. Sometimes vigorous advocacy about vigorous advocacy. Zealous advocacy is portrayed in a less favorable and appropriate way. And that, I think, leads to what people think lawyers are like and maybe what lawyers think they should be like. Uh, I also think that because we're working with technology now, we don't reflect as much when we communicate it by email or by text as we did when we had to take the time to actually write a letter, review it, think about it. Uh, that may also contribute to us being less civil in our communications. We also may feel that there's a lot more pressure on us to generate work particularly, and to do our work, particularly given recent events with more people working remotely. And finally, because we are working remotely, and also because lawyers clients are much less likely, as they used to, to pay for junior lawyers and to pay for junior lawyers to follow senior lawyers around. I think there is not as much training about how to handle things in a professional way, although of course, if you're following someone around who is also a bully, that may be better that you're not doing so. So let's think about again the rules of of conduct that apply to us and how they relate to bullying. As I said earlier, in my view, 8.4 is the most important rule. And even if you don't have 8.4 G, you still have 8.4, which says A lawyer shall not unless various things. And it seems to me that many examples of bullying and bias fall within the area of subsection C as some sort of occurs in some sort of misrepresentation or dishonesty. And to me, any type of bullying and bias in the profession, in my opinion, can be considered prejudicial to the administration of justice. Um, unfortunately, if we don't rely on these rules to report people, then and there is an action taken by the court or its disciplinary authorities, it will continue. In case you're not aware, we do have a duty to report certain types of misconduct. Rule 8.3 is not identical in every jurisdiction, and sometimes the standard is somewhat, uh, adjusted as to what a lawyer's duty is to report another lawyer. But generally speaking, it has to be something that is a substantial question of the lawyer's honesty, trustworthiness, or fitness as a lawyer. And people can differ as to whether or not bullying or incivility is implicated by that. To me, it certainly relates to a lawyer's fitness as a lawyer, but that doesn't mean that everyone would have the same view. Um, incivility and bullying also affect all types of relationships in the practice of law. Frequently it implicates relationships with clients or colleagues, people we work with, how we deal with opposing counsel and the clients, and also how we deal with parties in a transaction when we're trying to negotiate and close a deal. I want to talk about clients for a minute. It may surprise some of you, but it's not that uncommon for lawyers to be disrespectful to their clients by failing to be diligent and by procrastinating, and not handling matters swiftly, by not responding to clients quickly when they ask for something, or telling them you're going to get back to them, even acknowledging that they've reached out to you by using harsh language, profane language, raising your voice. I have seen examples, unfortunately, of lawyers threatening clients and insulting them, including in writing, which to me is unbelievable. Thinking that you're making a record of mistreating your client. But unfortunately that happens. And also failing to represent people in a way that's appropriate or engaging in intimate relationships with clients. Another area that's very common for bullying in the legal profession is how we treat our colleagues who we work with, whether it's in a legal department, a government office, courts or a firm attacking people personally, giving them feedback that is constructive, insulting them in front of other people, sending nasty emails or shunning people and excluding them from meetings making comments that are biased or inappropriate. Another area, as I mentioned earlier, where bullying occurs unfortunately at great lengths is in litigation. I think I've already covered much of that. I won't repeat it again, except to say we're going to get into some of this in more detail shortly. And in transactional practice, it's maybe not as obvious, or perhaps not even as common as in a litigation combative situation. Uh, and maybe not perceived to be as as adversarial. But there are various things that occur to interfere with a deal progressing to finalize a deal, get the documents done, um, or mislead as to changes to the documents that constitute bullying as well. As I mentioned, I happen to practice heavily in Pennsylvania, so I chose to use the Pennsylvania Code of Civility as an example. I'm not going to spend a lot of time going through this, because this code of civility is not apply to everyone who's listening, but I think it actually provides some great language for people to use. If you are on the receiving end of incivility in handling a matter, and the Pennsylvania Code applies to judges and lawyers, which I think is very helpful, uh, you may want to check if this is not applicable to you, whether your jurisdiction has something like this that you can use, and if it doesn't, you still might find language in here that's useful if you're trying to counter someone who's behaving inappropriately. And as I said, there's many ways in which this also applies to judges, at least in Pennsylvania, flagging that for you, should you have concerns about particular situations you're in. All right. Under the Pennsylvania Civility Code, there are some things that Pennsylvania recognizes that I think we all need to think about. And I think these are really good principles that apply regardless of the jurisdiction you're in or the type of practice you have, you want to make that. You're sure that the way you're acting is always professional and courteous, whether you're dealing with people. In a courtroom, whether you're at your office, whether you are going to a bar association event, and you want to make sure that your communications, whether you're speaking or writing, reflect respectfulness. You don't want to do anything, particularly in a courtroom that's going to get you in trouble with the judge. But that makes somehow the sense for people who observing makes people feel your clients and others that this isn't a dignified situation. You definitely don't want to disparage people personally or use inappropriate speech, because this reflects poorly on everyone and can create great risk for you, for your clients, and for your employer or firm, whoever that might be. You certainly do not want to exhibit or act in a way that is prejudicial or biased, based on someone's belonging to a certain group. You certainly have a duty ethically, besides the civility code, to be truthful and not misrepresent. And you are not supposed to contact generally someone else's client or the court without communicating and copying opposing counsel. And you're not supposed to say things, do things, or act in a way that shows disrespect for others. Those principles apply whatever jurisdiction you're in. I'm also sharing with you resources from the Pennsylvania Bar Association that I think will help anyone, regardless again, of your forum. To deal with bullies and inappropriate behavior. If your bar association or your court system, or the bar licensing authorities don't have this type of civility code or recommendations, these principles can still be cited as exemplars. If you need to deal with it, either with a court motion, papers, or in letters to opposing counsel. I also love the New York standards because New York did something that I hadn't seen other people do, other jurisdictions do. New York explicitly added to its codes of civility provisions dealing with transactional practice and non litigation practice. And I think those changes are particularly helpful when you're in a situation where you are in litigation, you may find that the bullying takes the form of frivolous claims or baseless motion practice. Think about this example in particular. Think about when you're in a case. An opposing party just keeps filing things that really don't have merit, and it's just increasing the delay and the cost for your client. And you are finding that you have to constantly try to work it out. Here's an example that specifically happened in a case I had, which I think illustrates the problem. We were involved in a case in which the other side was a big insurance company, represented by a large firm with a lot of lawyers and a lot of resources, and that party continually failed and refused to produce its discovery responses. They were woefully inadequate, resulting in lots of motion practice seeking to get the discovery provided and produced while motions to compel were pending, that insurance company counsel filed a motion for summary judgment in which many of the things that were stated as being undisputed facts were the subject to the very discovery that had been withheld. Um, in that situation, what do you do and what rules are implicated? There are many rules you can look to if you have this situation. First of all, rule 3.1 requires that lawyers will only make more meritorious claims of contentions. Rule 3.2 requires lawyers to expedite litigation, and rule 3.3 requires candor to the court. And so when you have a situation like this, if someone is withholding discovery as a bullying tactic, causing your client to incur expenses and then trying to exploit it by filing a premature motion that you also have to respond to in many courts, including the federal court, you can file a motion saying that you can't respond to the summary judgment because you still need additional discovery, but you want to also make sure that by the time you get to that point, that you have made a detailed record with the other side about the deficiencies, deficiencies in their discovery that you have abided by, the good faith requirements to meet and confer, as most courts require, that you have filed your motions to compel on a timely basis and sought to enforce the orders flowing from those motions, and that you take steps to seek to exclude any evidence or have claims dismissed. If parties persist in not only withholding discovery, but in also failing to abide by discovery orders, I also urge you to seek costs and fees when you're in this situation and continue to do so. Those are things you can do to best prepare to for a situation like this that we faced in our case. But the single thing that I found the most helpful in that situation and others is that when I see that I have an opponent who's going to engage in inappropriate tactics, foist upon us claims that don't have merit, delay litigation, withhold information, mislead the court, etc. I do a search of two things. I search the disciplinary history for the lawyer, and I search for records of other cases in which that lawyer or that firm or that client may have been sanctioned for similar conduct in more times than I care to remember. I have actually found very useful and helpful information that has shown that the lawyer or the client or the firm has engaged in similar tactics before, and frequently I've been able to get costs and fees by using that as an additional tool, so I urge you to do it. Similarly, discovery is a place in which in which lawyers engage in a lot of misconduct. We need to also remember that you're not supposed to be a bully, be uncivil, be rude, or engage in other activities like that in connection with depositions, turning over documents and the like. How many times have you seen if you are a litigator, a lawyer making speaking objections at a deposition, trying to coach the witness by doing so, or sending you discovery responses? Sources that are replete with objections that have no valid basis, and just to rake up your costs and cause a delay. So one of the situations that I've seen happen occurs frequently in connection with deposition scheduling. Unfortunately, I've often, more often than I'd like to think about, been on the receiving end or copied on emails from opposing counsel fighting about where deposition should occur, when they should occur. And I've seen communications that have occurred by email in which there are insults foisted against opposing counsel that are both sexist, racist or otherwise inappropriate, commenting on someone's sexual orientation and the like. This is clearly a violation of the ethical rules of violation of, I believe, every court's rules, most judge's rules, and and a basis on which you should be seeking relief from the court. How do you do that? Well, one rule that applies is the rule about expediting litigation. So if you are again dealing with a bully in discovery or depositions, you need to have a written record. Your responses should not participate in the same kind of language or aggressive behavior. They should just be. Matter of fact, I don't believe that it's useful to go point by point and try to argue about every single thing. I prefer to just say that we reject what you're saying, and we're not going to engage in it. Unproductive, back and forth letter writing campaign. But if someone continues, I don't have any problem referring to in my letters, referring to the ethical rules, the civility code, judge's rules, the court rules that the other side is violating. And I don't have any problem attaching that to my motion if I need to file one, it's really important to make sure that whatever someone's going to file back at you is not going to include you doing or saying anything that similarly crosses the line, because at that point, the judges and often, even if you haven't done anything wrong, judges will just look at the lawyers and say, I'm not going to deal with it. You fix it yourselves, you work it out. Um, or a pox on both of you. Other things you can do. If you do have someone who's inappropriate at a deposition and has that pattern, is to videotape depositions, make sure you use the appropriate notice saying you're going to do so, but then you can have a better record, not just the transcript, because the transcript doesn't show you what people are doing physically, the tone of voice, etc. some courthouses will let you reserve rooms within the courthouse for depositions so that you feel you can get to the judge more, more readily if you need that. I've even seen courts appoint discovery masters when one party is so out of line, or both are out of line that the discovery can't get done without a babysitter. So another situation that I've had is that I was involved in a case where a party noticed a deposition change the deposition date without telling every to counsel. Only some counsel, and therefore counsel that did not receive notice did not attend because counsel wasn't aware of it. In that instance, the party sought a protective order from the court, so that limited limiting the use of the deposition required the party that had failed to give notice to pay costs, and to pay for all the expenses of reconvening the deposition and the inconvenience on counsel and the witness as well. So these are all strategies that you can have in your arsenal if you're dealing with a bully. In context of litigation, incivility also occurs, perhaps less frequently. I'm not sure if that's accurate or not, but some people think so. In transactional practice, some of the types of incivility and bullying that occur in transactional practice that the New York Civility Code specifically tries to deal with. And I think it's really helpful, is that sometimes counsel will know that someone's represented, but still try to contact the party without going through counsel. I also want to point out that in some jurisdictions, you cannot even tell your client to contact the other side's client without going through counsel. Another type of bullying that occurs is when counsel makes artificial emergencies, escalates deadlines so that they try to pressure a party to agree to a deal terme. Similarly, some lawyers will say they have authority to certain terms and you will negotiate based on that and later learn that the party on the other side is backing off, claiming that the counsel didn't have authority. In addition, one that I've had happen many times in settlement agreements particularly, and I find very offensive, is that you agree to terms and then the other side sends you a draft that excludes important terms that you want, or adds terms that you didn't agree to, or you send someone a draft and they change it. So. Another thing that you can do if you are finding that you're dealing with a bully on the other side in a transaction is refer to rule 3.4, which is dealing with fairness to the opposing party and counsel, and makes clear that a lawyer is not supposed to disobey an obligation under the rules to make frivolous requests, or to otherwise make it harder for an opposing party to conduct business and get the legal matter done. And rule 4.2, again, is communicating with someone who's represented by counsel. And if you want more specific tactics on dealing with this, I again refer you to the excellent example that I know New York has. There may be other jurisdictions as well. It just happens that I have have encountered that particularly. So thinking about bullying in the profession, another thing that occurs frequently that I am surprised how often people use and I do not condone at all, is lawyers will threaten other lawyers in person, at depositions and emails and letters that the lawyer is going to seek disciplinary action and sanctions against the other lawyer and report them for disciplinary action because of something they've done that is not even remotely actionable or appropriate for discipline, and will abuse the threat of discipline in order to try to extort concessions. I have a case that we're working on in which there's a lawyer who had sent us multiple threats of sanctions to our team, um, and condemning us for bringing our case, for asserting the claims we asserted, saying we don't have any basis how they're going to go after all of us for the client and us for fees and costs. And in fact, I've had it happen in more than one case and filed motions to dismiss that don't have merit and the like. And what actually has happened in the cases where I have been on the receiving end of these letters is that the other side has not won their motion to dismiss. And in fact, the very thing that they criticized us for or said we shouldn't have done or didn't have a good basis for, are things that the court said we were 100% right on and ruled in our favor entirely. I've found that lawyers who tend to do this frequently are more often than not, lawyers who are the ones themselves who are abusing the litigation process, asserting frivolous claims and defenses. I don't approve of weaponizing, um, the rules of professional conduct or codes of civility or court rules. I, in my view, they're appropriate to be used to counter bullies, but in a matter of fact way, instead of for me. Instead of saying that I'm going to report someone when I may not even believe, for example, that their conduct rises to a duty to report it, I'm much more likely to say that I am concerned that such and such an action violates a particular rule or principle of the code of civility, and that I expect it to stop. The other thing I do in these letters is, again, if I am aware that the party on the other side, the lawyer on the other side, has a reputation and has in the past engaged in the same kind of inappropriate conduct that I'm experiencing. I will absolutely call it to their attention before I file a motion with the court. And I don't threaten them that I'm going to tell the court. I just say, I'm aware that this is a pattern and it needs to stop. So not everybody might want to use it that way, but it's something that I believe is helpful. Um, you may be thinking, well, my client wants me to be really aggressive. They want me to be super zealous, and they want me to be a hired gun. I don't know why it's bad for me to do it. Nothing has happened to me so far. Well, the reality is that frequently when a lawyer engages in bad faith tactics and bullying, it ends up hurting the client's reputation. For example, if a lawyer comes across as a bully in the courtroom, it may cause a jury or the judge to perceive that the client is also a bully, or that the client is more likely to be someone who would engage in the negative conduct accused of. Or that's at issue, because why would they have this kind of lawyer if this wasn't the way they acted as well? That may or may not seem fair, but it is something that happens. Also, bullying in a case always causes the cost to go up. And sometimes when that happens, clients don't like to have the higher bills either, including the client that wants an aggressive lawyer. There also is concern that if you are representing a well-known client, like a big company, that the client's reputation in the business world or amongst stakeholders can be impacted by lawyer behavior. It has happened where a transactional. Or has been so objectionable and offensive that the lawyer has caused a deal to blow up, and that the parties to the deal on the other side decide they don't want to do business with this particular company or the company's lawyer. I participated in a matter in which a client was considering selling their business to another company, and because the lawyer on the other side repeatedly engaged in bullying by, among other things, backing out on principles and terms that had been agreed to. Constantly trying to renegotiate the deal. Raising their voice, um, making negative comments about our client. The clients walked out of the deal. They said, we're not going forward. We don't want to do business with a company that acts this way or that uses a lawyer that acts this way, so it can happen. Also, if bullying is bad enough, uh, the lawyer and the client may find that there are consequences. There may be consequences for the lawyer in terms of ethics complaints. There could be ultimately later malpractice claims because the bullying could have impacted the result. Uh, and certainly it affects the reputation of the organization with which the lawyer is affiliated, whether it's a law firm, a legal department, a company or the like. And when that happens, it's harder to retain people, recruit people, etc.. So, um, lawyer bullying in the workplace occurs in the form of discrimination. Um, it affects how we deal with our clients. It affects who gets credit for work at a firm. It occurs when lawyers make comments on the appearance of other people in their organization. It also occurs when people are excluded from meetings or when they get negative feedback on their work. That's inconsistent with other people would do, or it's not handled in a professional, respectful way, or when staff is yelled at or belittled as well. One thing that jumps out at me from this that others may have experienced is that I have observed, and I have also heard from clients who work at other organizations where there'll be a group of people who routinely go to lunch together or routinely go out for a drink after work, often led by a senior person at the organization. Frequently, it's a partner who who has a lot of work, a lot of clients, and that partner will go to lunch with a select group of people or go out for cocktails with a select group of people, not including others in the department. Uh, one instance of which I'm particularly familiar is that there was a senior litigation partner who almost every day went to lunch with a group of more junior litigation partners and litigation associates. And as the group went to lunch, they would gather at the elevator on the litigation floor, get in the elevator with several other people from that floor who were not invited to the lunch, go down to the elevator, walk down the street, and all. Go into a restaurant, but not invite or include certain other people who are also in the litigation department. What was really notable about that is everyone who went to lunch was a man, and everyone who was excluded was a woman. These are examples of bullying and bias that occur. So to avoid this, you want to make sure that you have a good policy, that it's updated regularly, that you train your team on it and that you enforce it, and that you do so without retaliation. In addition, you want to make sure if you're considering hiring new people to join your firm, even if someone is a really big rainmaker, you may ask that person for a mandatory disclosure about whether or not the person has ever been disciplined or the subject of any malpractice claims, but do you ask them whether or not they've ever been the subject of any discrimination claims or any harassment claims? To me, that's something that you want to ask people before you hire them. Again, as I said, a rule 8.4 G has not been successful everywhere. But for jurisdictions that have it, it generally urges that lawyers should not engage in discrimination or harassment based on various protected groups, and that's professional misconduct to do so. I think that is still misconduct because I think it impacts the administration of justice. But unfortunately, not every jurisdiction has upheld this type of rule. So going forward, what do you want to do? You want to have policies on civility, have a no tolerance policy on bullying and harassment, etc. you want to make sure people feel safe to report problems without consequences, retaliation. You want to make sure that, um, people feel they have a responsibility to report misconduct. If you experience misconduct from other lawyers at other organizations, you want to memorialize it in writing in a way that is courteous and concise and not also offensive. You need to make sure that you make a record and that you. Timely move to compel if someone is holding up your case, not giving you discovery or otherwise making it hard for you to effectively represent your client if inappropriate conduct occurs at a deposition. If it's not being videotaped, you can put on the record by describing again in matter of fact terms that someone is banging the table or standing over the witness or throwing something. And if that doesn't work, you should consider videotaping depositions or taking them in the courthouse so that you have easy access to the court and where judges permit it. You should also consider calling the judge even during the course of a deposition. Make sure that you don't respond with personal attacks or misrepresentations or foul language when that's being done to you. And where appropriate, I urge you to seek sanctions from the court to protect your interests and your clients. There isn't any question that, unfortunately, there are too many people in our profession who do engage in bullying, who violate the ethical rules and civility rules and misuse their powerful positions to justify somehow how they're acting or to describe it as as being a zealous advocate for clients that is not correct. Engaging unethically and engaging in bullying is not appropriate or real. Zealous advocacy. The best way to deal with lawyers who do this is to report what they do, and to seek consequences against them, and to make the appropriate record in a courteous and professional way. If we as lawyers don't try to do this, and don't try to maintain a profession that respects diversity and inclusion, we're going to find that people don't feel they belong. They're not going to be able to do their best work. And that's not good for anyone the profession, the clients, the court or the system of justice. Thank you all so much for joining me today. You are, of course, always welcome to contact me. Email is best if you have follow up questions or comments about my program. I will try to respond to you as quickly as I can. Thank you so much for listening and have a good day.

Presenter(s)

AJ
Allison Johs
President
Legal Ease Consulting, Inc.
CS
Cari Sheehan
Assistant Clinical Professor
Indiana University Kelley School of Business – Indianapolis
FG
Francine Griesing
Founder & Managing Member
Griesing Law, LLC
HM
Haley Moss
Attorney and Neurodiversity Expert
LG
Lewis Grimm
Partner
Jones Day
MB
Matthew Blaisdell
Principal
Matthew Blaisdell, Esq.

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