As 2020 kicks off, let’s take a look back at situations that got lawyers into ethical hot water last year. They each point to some ways you can stay out of trouble this year.
1. Talk nicely
As widely reported, calling your opposing counsel a “bowl of d- – ks,” among other epithets is a sure-fire way to serve up some ethics woes. Other examples of lawyers misusing their power of speech in various ways, included:
- the lawyer who sarcastically replied to a question from the bench during a federal district court oral argument with “Are you serious judge?” and was ejected from the courtroom;
- the lawyer who impugned the integrity of state appellate judges in court filings, receiving a (stayed) suspension; and
- the lawyer who was suspended for threatening to arrest a tenant of his landlord client and telling him he should commit suicide.
As the Model Rules say, being members of the legal profession means that we are representatives of clients, officers of the legal system, and public citizens with special responsibility for the quality of justice. Calling a fellow member of the bar a “f- -ktard” just doesn’t square with those roles.
2. Bill carefully
Billing was big news at the end of last year, with reports about the lawyer who failed to keep contemporaneous time records and was suspended for overcharging clients based on her reconstructions of the work. In addition, there was the federal suit filed early in the year, with the allegation that a firm’s “block billing” obscured overcharges. (The plaintiff voluntarily dismissed the case two weeks after filing it.) There are lots of ethics issues relating to legal fees in general — dividing them with other lawyers; whether you must deposit them in an IOLTA or IOTA; what to do in case of a fee dispute with a client — but everything depends on the core notions of charging a reasonable fee, communicating the basis of that fee to the client, and keeping the client informed about the bill as you go.
3. Watch for conflicts
Getting disqualified is never a good thing, but conflicts of interest led to just that result in a couple cases providing some important take-aways. For instance, in the government context, the DQ of an entire prosecutor’s office based on the chief prosecutor’s previous representation of the defendant while in private practice underscored the role that imputation plays under Model Rule 1.10 and 1.11 in spreading the “taint” of a disqualifying conflict. And a lawyer who represented a massage parlor in the sale of the business was DQ’d in a suit over the deal because his previous representation of the buyer was “substantially related” to his work for the seller under the state’s version of Model Rule 1.9.
4. Keep it confidential
Technology played a role in two situations last year that spotlighted confidentiality concerns. In January, lawyers for President Trump’s former campaign chairman Paul Manafort failed to redact a document properly, leading to disclosure of the hidden contents when it was filed with the court. And a lawyer’s Facebook posts that disclosed enough information about a client that she recognized herself resulted in a public reprimand for violating the duty of confidentiality. The place where social media, technology and our confidentiality obligations intersect is a place to be cautious.
5. Patrol the border
Finally, beware of possible pitfalls related to multi-jurisdictional practice and the unauthorized practice of law. Last year a lawyer not licensed in Ohio was hit with an injunction and a stiff fine for UPL for providing legal services to six Ohio residents. And if you are in-house counsel, and the jurisdiction where you are working has registration requirements (many now do), this is a good time to check and make sure you are in compliance. (Here is a chart with links to state requirements posted by the ABA’s Center for Professional Responsibility and updated as of November 2019.)