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Attorney E-Newsletter

July 2012

ABA 20/20 Committee Maps New Rule Changes

The American Bar Association Commission on Ethics 20/20’s mission is to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

On May 7, 2012, the 20/20 Committee filed a set of recommendations with the ABA House of Delegates for consideration at the Chicago annual meeting in August 2012. The recommendations address seven areas:

  • Introduction & Overview
  • Technology & Confidentiality
  • Technology & Client Development
  • Outsourcing
  • Practice Pending Admission
  • Admission by Motion
  • Model Rule 1.6 (Detection of Conflicts of Interest)

The recommendations are far too lengthy to report here. Some of the changes proposed include:

  • The existing definition of a “writing” in paragraph (n) of Model Rule 1.0 (Terminology) would be amended to replace the word “e-mail” with the phrase “electronic information,” making clear that the definition includes various ways that a “writing” can occur, both as exist today and as may arise in the future;
  • Changes to Model Rule 1.1 (Competence) would make explicit that a lawyer’s duty of competence requires the lawyer to stay abreast of changes in the law and its practice, and includes understanding relevant technology’s benefits and risks;
  • Comment [4] to Model Rule 1.4 (Communication), which currently says, “client telephone calls should be promptly returned or acknowledged,” would replace that admonition with the following language: “Lawyers should promptly respond to or acknowledge client communications.”
  • A new paragraph (c) in Model Rule 1.6 (Confidentiality of Information) to make clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from unauthorized disclosure and access, regardless of the medium used;
  • New language to Model Rule 4.4 would specify that electronically stored information can trigger Rule 4.4(b)’s notification requirements if the lawyer concludes the information, including metadata, was inadvertently sent;
  • The screening of individual lawyers from access to certain information in a firm required in various rules must now address not only documents but also electronic information.

The Committee is also seeking comments on two issues. It is requesting comments on possible approaches to defining virtual practice in a jurisdiction under Model Rule 5.5. Comments on this subject are requested by July 30, 2012. The Committee is also circulating a draft revision of Model Rule 1.7 (Conflict of Interest: Current Clients) which would address informed consent as to agreements regarding conflict of interest rules of a particular jurisdiction. Comments received by August 15, 2012 will be considered. As to both proposals, comments should be emailed to Natalia.Vera@americanbar.org. 

Suspended Animation

Our featured disciplinary case this month is that of Ronald Kaplan. Kaplan was suspended in 2006 for trust account issues, and has not been reinstated to the practice of law. Shortly after his suspension, he went to work as a secretary and law clerk for a friend’s law office.

In 2010, Kaplan attended a support hearing on behalf of a long time client he represented before his suspension. He signed his employer’s name to the entry of appearance form without authorization, and identified himself by a false name during the hearing. When the support master recognized him, he continued to insist on the false name. He did not charge the client a fee.

The matter came to the attention of Disciplinary Counsel, who issued a DB-7 request for statement of position to his employer, citing Kaplan’s unauthorized practice of law. In his administrative role, Kaplan intercepted the letter to his employer and directed a temporary secretary to call Disciplinary Counsel and request an extension of time to answer. When he was unable to think of any way to avoid the consequences of his actions, he confessed to his employer.

The Disciplinary Board noted this was a single incident of unauthorized practice, unlike prior cases where a suspended attorney went on practicing. However, the Board found the misconduct serious because of the forgery of his employer’s signature and failure to acknowledge his actions. Based on the Board’s recommendation, the Supreme Court suspended Kaplan for an additional five years. Two Justices dissented and stated they would disbar him.

Former attorneys who have been disbarred or suspended are permitted to work in law offices under very limited circumstances defined in Rule 217(j) of the Rules of Disciplinary Enforcement. Former attorneys are allowed to perform administrative, research, or preparatory work, but are not permitted to engage in any law-related task:

  • for a firm or agency with which the former attorney was associated up to the time of suspension or disbarment;
  • from an office not staffed by a supervising attorney on a full-time basis;
  • for any client who in the past was represented by the formerly admitted attorney;
  • representing himself or herself as a lawyer or person of similar status;
  • involving any contact with clients either in person, by telephone, or in writing, other than ministerial contacts;
  • rendering legal consultation or advice to a client;
  • appearing on behalf of a client in any hearing or proceeding, deposition or discovery matter;
  • negotiating or transacting any matter for or on behalf of a client with third parties; or  
  • handling client funds.

Both the former attorney and the employing attorney are required to file a notice of engagement with the Disciplinary Board. The supervising attorney is subject to discipline for any failure of either employer or employee to comply with Rule 217(j). These requirements apply regardless of the form of the employment, such as whether the former attorney is designated as an employee or an independent contractor.

Within You Without You

This article by California attorney David Cameron Carr is thought-provoking. Carr, whose practice includes disciplinary defense, writes of the ethos of a disciplinary defense attorney:

“You can’t truly have ethics unless you have an ethos, even if you can’t always live up to it.   Without it, you are just an animal in a cage of external regulation, responding to a fear of punishment.”[1]

He draws a useful distinction. We hear much of legal ethics. Ethics is defined by Merriam Webster as “the discipline dealing with what is good and bad and with moral duty and obligation.” Ethos, in contrast, is defined as “the distinguishing character, sentiment, moral nature, or guiding beliefs of a person, group, or institution.” A code of ethics can be imposed and enforced, but an ethos is a matter of character or nature, a shared value of a community.

Carr writes, “Legal ethics is often taught as that cage of external regulation rather than internalized principles to live your professional life by.  No one likes being in a cage, so we resist.”

It is important to remember that many of the principles of the Rules of Professional Conduct are grounded in experience. They were good practice before they were mandatory rules. Compliance with rules is important, but the most ethical practice results when a lawyer has embraced the principles of the profession as his or her own values.

Sheriff Taylor on Legal Ethics

The death of actor Andy Griffith on July 3 brought back memories for many of us. But who knew that in his role as Sheriff Andy Taylor, Griffith delivered an accurate and powerful lesson in the law of attorney-client privilege?

Perhaps this preparation served him well in his later incarnation as Attorney Ben Matlock.

Hat tip to John Steele of the Legal Ethics Forum for this remarkable link.

Incommunicado

The email address for this newsletter, comments@padisciplinaryboard.org, was out of service from June 28 through July 17. If you sent email to this address during this interval, it did not reach us and is not recoverable. Please resend it. We apologize for the inconvenience.

Let Us Know

Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.[2]

[1] We hear you out there, pacing the cage.

[2] We promise it’s working this time.3

[3]At press time, anyway.