The Law for Lawyers Today

The Law for Lawyers Today

Ethics, Professional Responsibility and More

CA Supreme Court rules against “categorical” privilege for public agency legal bills

Posted in Privilege

Folder searchIn late December, a divided California Supreme Court ruled that legal-fee bills in closed cases aren’t necessarily covered by attorney-client privilege.  Although the case involved a discovery demand  sent to a government entity under the state’s  public records act, some lawyers have questioned (sub. req.) how far the privilege limitations might go.

No “categorical” protection

The case arose out of a public-records request from the ACLU of Southern California to the Los Angeles County Board of Supervisors, seeking legal fee invoices that would reveal law firm billings to the county regarding nine lawsuits, each of which alleged the use of excessive force against inmates in the L.A. County jail system.  The ACLU alleged that the county and its outside lawyers were pursuing “scorched earth” tactics in refusing to settle excessive-force cases, and were using taxpayer dollars to do so.

Three of the cases were closed; the county agreed to produce copies of those legal bills.  But as to the six still-pending suits, the county said that they were exempt from the reach of the public records law under the attorney-client privilege exception, because “the detailed description, timing, and amount of attorney work performed … communicates to the client and discloses attorney strategy, tactics and thought process and analysis.”

On dueling writs of mandate, the intermediate state court of appeals found that the invoices were privileged and exempt from disclosure under the public record act.   In a 4-3 vote, the state supreme court reversed.

The high court rejected “categorical protection” for billing records.  Acknowledging that attorney-client privilege “no doubt holds a special place in the law of our state,” the majority wrote that it still only protects communications “made for the purpose of seeking or delivering the attorney’s legal advice or representations.”

Agreeing with the ACLU, the majority opinion said that “while invoices may convey some very general information about the process through which a client obtains legal advice, their purpose is to ensure proper payment for services rendered, not to seek or deliver that attorney’s legal advice or representation.”  Fee bills, the court said, evoke “an arm’s -length transaction between the parties in the market for professional services” more than they do the “discreet conveyance of facts and advice.”

Information in the “heartland”?

What remains privileged in a fee bill, however, said the court, is information that “lies in the heartland of the attorney-client privilege” — namely everything in an invoice on an active and pending legal matter — even when the information is  conveyed in a document, i.e. the  bill,  that is not “categorically privileged.”

The dissenters said that the majority’s ruling undermines a “pillar of our jurisprudence” by adding a “heretofore hidden meaning” to the state privilege statute, by shielding only communications that relate to the provision of legal consultation, even if they were otherwise transmitted confidentially between lawyer and client.

Following the majority’s rule, the dissenters wrote, means that lawyers must explain to their clients that confidential communications that were previously privileged “may be forced into the open by interested parties once the subject litigation has concluded.  If a limiting principle applies to this new rule,” the dissent warned, “it is not perceptible…”

Privilege takeaways

The contents of fee bills have long been subject to attorney-client privilege when they reveal information about strategy, research topics and the like.  As even the majority in this case notes, things like research topics or an uptick in the hours charged can be useful information to litigation opponents.  But as California commentators point out, the case will likely be read as a narrowing of the privilege, and by introducing subjectivity into the test, will possibly encourage discovery forays against the fee bills of opposing counsel.

California lawyer Ellen A. Pansky, quoted in the ABA/BNA Lawyers’ Manual on Professional Conduct, noted that “the case leaves an interesting, unanswered question: What mechanism will courts use to resolve a privilege claim when a party asserts attorney-client privilege to only portions of invoices previously transmitted in a completed prior matter?”  This might be an acute question, because California law seems to be that a court may not compel disclosure of attorney-client communications, even in camera, to rule upon a claim of privilege.

Particularly if you have cases in which California privilege law applies, stay tuned.

How should firms deal with impaired lawyers? Virginia opinion points to duties

Posted in In-house Counsel, Law Practice Management

Alcohol and drugs.The new year heralds a new start.  Many lawyers who struggle with an addiction — alcohol, drugs, gambling, food, sex — use the occasion to resolve to quit their harmful behavior, and there is a nationwide network of confidential bar organizations that can help.  But what are the obligations of a firm where an impaired lawyer works?  A new Virginia ethics opinion has some answers.

Duty to supervise

Every jurisdiction in the U.S. has a version of Model Rule 5.1.  Like Virginia’s rule, it requires partners or other lawyers in a firm who have managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to lawyer conduct rules.  The Virginia Supreme Court, in Ethics Opinion 1886, easily concluded that this mandates that firm managers and lawyers who simply supervise another lawyer make reasonable efforts to ensure that an impaired lawyer doesn’t violate the ethics rules.

Further, the rule requires preventive action, said the court.  “When a partner or supervising lawyer knows or reasonably believes that a lawyer under their direction and control is impaired,” they must “take reasonable steps to prevent” the impaired lawyer from violating ethics rules.

Steps to take

In dealing with an impaired lawyer, the firm’s first duty is protecting its clients’ interests, but the Virginia opinion (and common sense) suggests a range of responses that depend entirely on the circumstances:

  • Confrontation:  A first step may be confronting the impaired lawyer, and urging the lawyer to accept help.
  • Accommodation:  The firm may be able to work around some impairment situations.  For example, the firm might be able to reduce the impaired lawyer’s workload, require supervision or monitoring, or remove the lawyer from time-sensitive projects.
  • Supervision:  Depending on several factors — nature, severity, likelihood of recurrence — the firm may have an obligation to supervise, monitor or review the work of the impaired lawyer, including a senior lawyer or partner.
  •  Limitation:  Some circumstances will mandate that the firm entirely prevent the lawyer from servicing clients until the lawyer has recovered from the impairment.   In other situations, the firm might be able to protect clients by limiting the lawyer solely to giving advice, or to drafting legal documents for other lawyers.
  • Assistance as a condition of employment:  The Virginia Supreme Court said that firms should have an enforceable policy that requires an impaired lawyer to seek help — counseling, therapy, or treatment — as a condition of continued employment with the firm.
  • Reporting:  It may also be appropriate for the firm itself to confidentially report the impaired lawyer to the lawyer assistance program in that jurisdiction, or to consult with medical professionals for advice.

Not just for firms…

The Virginia ethics opinion focusses on harm prevention, and intentionally does not address the requirement under Model Rule 8.3 to report misconduct that has already occurred.  Also, legal obligations that a firm might have under HIPPA, the FMLA or the ADA, for example, are outside the scope of the opinion.

One important note:  Implicit in Opinion 1886 is that it also applies to lawyers working in-house or in corporate law departments, in government agencies, and in legal aid and legal services organizations — all of them constitute “firms” under Model Rule 1.0(c)‘s definition.

Deeds of loving-kindness

Whether you are a senior associate who supervises a more-junior lawyer, or you are the managing partner of a large firm, you have duties under Rule 5.1 with respect to an impaired lawyer.  We also have duties as human beings — duties that we can sometimes forget in the course of our practices.  Those duties, too, should point us in the direction of compassionate action for the benefit of a colleague suffering from an impairment.

Batting clean-up on 2016: positional conflicts, settlements and your firm letterhead

Posted in Conflicts, How Not to Practice, Law Practice Management

2017 Happy New Year typeYou may have some holiday leftovers lurking in your fridge (potato latkes, Xmas goose, black-eyed peas, New Year’s Eve caviar), and we too have some interesting ethics topics that we didn’t have room for during 2016 — so here’s a potpourri, touching on positional conflicts, coercive settlements and maybe how not to use your firm’s letterhead.

Arguing damage caps, pro and con

The U.S. district court for the Middle District of Tennessee in October turned back a disqualification motion aimed at Butler Snow, ruling that the firm could  continue representing a personal injury plaintiff who was potentially contesting the constitutionality of the state’s punitive damage caps, while at the same time asserting the caps defensively in at least one pending case for another client.

In its DQ motion, the trucking company defendant said those positions were inconsistent and raised a positional conflict in violation of Tennessee’s version of Model Rule 1.7 and its cmt. [24].

Not so, said the district court.  First, the trucking company waited until two months before trial to try to disqualify the law firm; it would cause severe prejudice to the plaintiff if she had to find new counsel.  Second, the firm retained separate counsel to represent the plaintiff on all post-trial issues challenging the damage caps, an arrangement that plaintiff agreed to at the beginning of her representation.  Third, there was no evidence that the potential conflict had actually affected the injury case, or was likely to compromise the firm’s representation of clients who simply asserted the caps to limit their liability rather than expressly defending their constitutionality.

On all these bases, the court held, the firm could stay in the case, part of which has now been settled.

Threat to publicize sexual allegations

In November, an Arizona lawyer who threatened to use press releases to alert the public to sexual allegations in order to obtain a settlement consented to a 30-day suspension.

In 2015 the lawyer filed a federal sexual harassment complaint on behalf of a client.  In a letter to the defendant, he announced he had created a specific website regarding the allegations, and said he would put up a public “shame on you” banner near the defendant’s restaurants.  He also told the defendant that he had scheduled meetings with police and the federal Department of Justice about the alleged hiring of undocumented workers.  In response to a settlement offer, the lawyer told the defendant’s lawyers that he “intended to destroy” the defendant’s businesses.

The judge in the federal case insisted that the lawyer stop his unprofessional behavior; the parties settled; and the state Disciplinary Judge accepted the lawyer’s admission that his conduct violated Arizona’s versions of Model Rules 4.4 (respect for the rights of others) and 8.4(d) (conduct prejudicial to the administration of justice).  The lawyer also agreed to two years probation and to pay costs.

The rules in my home jurisdiction, Ohio, include Rule 1.2(e), a specific prohibition against threatening criminal charges or professional misconduct allegations solely to obtain an advantage in a civil matter.  Interestingly, the Model Rules lack an express prohibition, although this case illustrates that disciplinary authorities can get there via other rules.

Using firm letterhead

Last, here’s a cautionary tale about using your firm letterhead for a personal legal dispute.

According to plaintiffs in a federal complaint filed in November, a Pepper Hamilton partner entered into a lease-to-own deal with a couple for a $750,000 house he owned.  The couple terminated the contract and moved out, and the lawyer claimed that they owed about $10,000.  The lawyer sent a demand letter for the money in September, using the firm’s letterhead.

That drew a suit from the couple against both the lawyer and the law firm for allegedly violating the federal Fair Debt Collection Practices Act.  “Once [the lawyer] sent the Sept. 19 letter … on [the firm’s] letterhead, he was no longer acting as an individual collecting his own debt, but rather a debt collector subject to the FDCPA,” the couple said in their complaint.

It remains to be seen whether that theory will fly — the case docket does not yet reflect any response to the complaint.  But it points to an issue that you should probably think about in your personal dispute before putting a piece of firm stationery in the printer.

What can you say when the client doesn’t pay? ABA opinion gives withdrawal guidance

Posted in Communication, Confidentiality, Law Practice Management

Money and JusticeOld-time lawyers say that it used to be easy to get the court’s permission to withdraw from a case.  You would just go to the judge and state, “Your Honor, we are not ready to go forward, and I am seeking leave to withdraw, because Mr. Green has not arrived.”  You know:  “Mr. Green” aka the moolah, aka the promised fee from the client.  And, so the story goes, the judge would bang the gavel and grant your motion.  (For a variation on the theme, see The Lincoln Lawyer, 2011, starring Matthew McConaughey.)

Such stories may be apocryphal, and whether true or not, hopefully we’ve come a long way in our understanding of the duties we owe clients in seeking to terminate our representation.  When withdrawing requires permission of a tribunal, as it does under most court rules, a continuing ethics quandary has been how much information we are permitted to disclose to the court in justifying the request.  On December 19, the ABA’s Standing Committee on Ethics and Professional Responsibility issued some guidance on the subject.

When you “may withdraw”

Model Rule 1.16(b), and state rules based on it, describe when you “may” withdraw from a representation, including when the client “substantially fails to fulfill an obligation to the lawyer regarding the lawyer’s services,” and the client has been warned that the lawyer will withdraw unless the obligation is fulfilled.  Comment [8] gives the example of a client refusing to abide by an agreement concerning fees or court costs.

In civil litigation, the quandary arises because Model Rule 1.6 requires the lawyer to maintain confidentiality about everything “relating to the representation,” with only narrow exceptions, and Rule 1.16(c) requires the lawyer to comply with a tribunal’s rules in seeking to withdraw.

You have to phrase your withdrawal request to the tribunal in some way — but  how far can you go in revealing the reason?  In Formal Opinion 476, the ABA Committee acknowledged the difficulty, quoting one characterization of the issue as a “procedural problem that has no fully satisfactory solution.”

Will “professional considerations” suffice?

The ABA Committee noted that many courts will simply accept a reference to “professional considerations” that are prompting the motion to withdraw.  (Sounds just a little like “Mr. Green.”)  Rule 1.16 cmt. [3] endorses that approach, advising that the “statement that professional considerations require termination of the representation ordinarily should be accepted [by the court] as sufficient.”

But some courts won’t accept “professional considerations” as sufficient.  The Committee cited withdrawal decisions from several jurisdictions that reflected details about the money owed by the client, the specific legal services carried out and other facts, indicating that the court had required much more than a generic statement from the lawyer about “professional considerations.”

The Committee pointed out that Model Rule 1.6(b)(5) and its cmt. [11] permit some disclosure of confidential client information in fee-collection suits by lawyers.  A motion to withdraw for failure to pay is “generally grounded in the same basic right of a lawyer to be paid pursuant to the terms of a fee agreement,” said the Committee.  Also, many court rules specify that motions to withdraw must be supported by “facts,” or “satisfactory reasons,” or similar showings.

Limit the info … but explain if required

Therefore, the Committee concluded, where the assertion that “professional considerations” justify withdrawal is not acceptable, and “when a judge has sought additional information” to support the motion to withdraw for non-payment, then the lawyer may “disclose information regarding the representation of the client that is limited to the extent reasonably necessary to respond to the court’s inquiry and in support of that motion to withdraw.”

What about the judicial officers considering such motions?  The Committee advised that judges “should not require the disclosure of confidential client information without considering whether such information is necessary to reach a sound decision on the motion.”  And if detailed information is required, courts should mitigate potential harm to the client, such as by allowing disclosure under seal or in camera, and by using redaction.

There will always be a tension between the duty of confidentiality and the necessity of providing reasons for a request to withdraw from representation. But Opinion 476 at least charts a path forward when facing the need to withdraw because of a client’s failure to pay.

Data breach report says BigLaw is most likely to be hit, and cybersecurity complaint is unsealed

Posted in Social Media and Internet

scientific_CloudComputing45Law firm cybersecurity is in the news again with two developments.  First, the latest ABA TechReport says that large law firms were more likely to be victims of a data security breach last year than mid-size or small firms, with one in seven respondents having been hit overall.  That’s a big deal.  Next, a federal class action complaint in what is thought to be the first suit attempting to base liability solely on a U.S. law firm’s allegedly inadequate cybersecurity was unsealed on December 9.  But that suit possibly turns out not to be such a big deal.

BigLaw take warning

As reported in Law360 (subs. req.), the 2016 ABA Legal Technology Survey collected responses from 800 ABA members, and it showed that 26% of firms with more than 500 lawyers had experienced a security breach.  That contrasts with about 15% of firms with 50-99 lawyers, and 20% of firms with 100-499 lawyers.  Only 8% of solos said they’d had a breach.

A possible explanation of the data may be what Willie Sutton said about why he robbed banks:  that’s where the money is.  Large and mid-size firms can be treasure troves for hackers looking to gain access to client info on deals and other financial activity, and law firms can provide “back door” access to the data of financial institution clients.  With more lawyers and more staff, larger firms also have more chances to suffer from human error.

The good news there, according to the survey, is that only 2% of respondents reported that hacking resulted in unauthorized access to client data.

Failure to secure data?

On the litigation front, a class action complaint was unsealed against Chicago-based firm Johnson & Bell Ltd., brought by former clients who asserted that the firm’s “computer systems suffer from critical vulnerabilities in its internet-accessible web services.”  Plaintiffs also alleged that client confidential information “has been exposed,” and identified the firm’s time-charge system, e-mail server and virtual private network as vulnerable to cyber-attack.

However, the plaintiffs never alleged that any actual breach has occurred, and the firm moved to dismiss the claims.  Potential vulnerability is not actionable, Johnson & Bell said in its motion — otherwise “every lawyer who carries a briefcase, takes notes in court or in a deposition … could be subject to being named in a class action lawsuit, because in each instance a client’s confidential information was ‘exposed’ or ‘vulnerable.'”

Counsel for plaintiffs in the suit is Jay Edelson, who has litigated successfully on behalf of consumers against businesses where actual breaches have occurred.

Although expansion of liability against law firms where no actual cyber-breach is alleged would be a  scary development, the possibility has fizzled for the moment.  As detailed in the district court’s opinion, the plaintiffs acknowledged that the time-tracking system vulnerability was  remedied shortly after the complaint was filed, and plaintiffs voluntarily dismissed their class action complaint in order to pursue arbitration under a provision of their retainer agreement with the firm.

Lawyer training = ounce of prevention

Law firm data vulnerability consists of at least two factors — technology and humans.  As we’ve pointed out before, a good way to address the human factor is with plenty of lawyer training, because we seem to be particularly prone to falling for scams and clicking before we think.  As for the technological factor, staying ahead of the bad guys is always going to be a game of Whack-a-Mole, which law firms will be striving to win.

Warning from WA: lawyer’s post-employment interviews with former employees not privileged

Posted in In-house Counsel, Law Practice Management, Privilege

Privilege 2A sharply-divided Washington Supreme Court has ruled that an organization’s attorney-client privilege doesn’t apply to post-employment communications between the company’s lawyers and its former employees.  Although Newman v. Highland School District No. 203 adheres to a minority viewpoint, the implications are troubling, and the bright-line test that the state supreme court established in a case of first impression will require new cautions in cases where Washington state privilege law applies.

Talks with former coaches not within privilege

In Newman, parents of a brain-injured high-school football player sued the school district, alleging negligence.  In preparing for trial, the school district’s lawyers interviewed the entire coaching staff, including several former coaches.  When the interviews came to light at a former coach’s deposition, the plaintiffs sought discovery of the communications between them and the lawyers for the school district.

Holding that “everything changes when employment ends,” the court’s 5-4 majority ruled that “the privilege does not broadly shield counsel’s postemployment communications with former employees.”

The court said that once the employment is over, the principal-agent relationship is severed, and the former employees are like any other third-party fact witness. “The flexible approach articulated in Upjohn,” the leading case on corporate attorney-client privilege, “presupposed attorney-client communications taking place within the corporate employment relationship,” the court wrote.

Likewise, the Restatement (Third) of the Law Governing Lawyers § 73 cmt. [e] generally limits the privilege to the duration of a principal-agent relationship, the majority said.  In addition, the court held, the rule promotes predictability and the “truth-seeking mission” of the trial process, which would be frustrated if the privilege were extended to cover post-employment communications with former employees.

“At odds” with Upjohn

The dissent in Newman disagreed with the majority’s adoption of a bright-line rule that would cut off the corporate attorney-client privilege at the termination of employment, and would exclude from its scope all postemployment communications with former employees, even when they have relevant personal knowledge regarding the subject matter.  “[H]ad they remained employed, such communications with counsel would have been privileged” under the reasoning in Upjohn, the author of the dissent noted.

Upjohn’s functional framework does not look at the “formalities” of the employment relationship, said the dissenters; rather, the focus is on the purpose of the communications themselves and the benefits and goals of the privilege.

Therefore, the proper test, the dissent argued, is “Did the communications with the former employee, whenever they occurred, ‘relate to the former employee’s conduct and knowledge, or communication with defendant’s counsel, during his or her employment?'”

ACC: Majority doesn’t get it

The VP and chief legal strategist of the Association of Corporate Counsel, Amar D. Sarwal, quoted in Bloomberg BNA/ABA Lawyers’ Manual on Professional Conduct, called the Newman decision “troubling,” and “a bad idea for Washington, and bad for other courts to follow.”  The decision reflects a “misunderstanding” of the way an organization gains and retains knowledge, which includes the knowledge of people who have left the organization, he said.

Practical implications

Washington’s supreme court got it wrong. Fortunately, its new bright-line rule is a minority viewpoint, and the privilege jurisprudence of most jurisdictions would follow Upjohn’s flexible approach.  But even if you are not litigating a case in a Washington state court, Federal Evidence Rule 501 might point to Washington law as supplying the rule of privilege.  Surmounting the challenge presented by Newman might involve exploring how an attorney-client relationship with an organization’s former employees might be extended or re-created for the purpose of communicating with them under the shield of privilege.

Expressing your opinion via social media can create conflict, D.C. ethics opinion warns

Posted in Conflicts, Social Media and Internet

Thumbs up and downIf you “like” a political Facebook post, or tweet a comment on a controversial legal topic, are you potentially creating an ethical conflict of interest with your clients who may have contrary interests?  The District of Columbia bar ethics committee thinks so, and warns about the risk in its Opinion 370, issued late last month.

The position, which the ABA/BNA Lawyers’ Manual on Professional Conduct (subs. req.) called “novel,” is part of an opinion that otherwise accords with the large body of common-sense advice about using social media for legal marketing and personal enjoyment.  Opinion 370 weighs in on several frequently-encountered issues, such as protecting client confidences, responding to online reviews and identifying legal specialties.

Positional conflicts?

But the D.C. bar ethics committee is possibly the first to single out blogging, tweeting or commenting as having the potential to raise a “positional conflict” with a client.  Such a conflict can arise when a lawyer takes one position and then takes an inconsistent position on behalf of a client.  The D.C. committee said:

“Caution should be exercised when stating positions on issues [on social media], as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.  [D.C.] Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if ‘the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by … the lawyer’s own financial, business, property or personal interest.’ … Content of social media posts … may contain evidence of such conflicts.”

While at least one academic scholar has advanced the idea that blogging can raise such a positional conflict, comment [13] to D.C.’s Rule 1.7 seems to describe the conflict only in connection with taking inconsistent positions on behalf of a client in a matter, where doing so would “adversely affect the lawyer’s effectiveness in representing another client.”

That would seem to rule out the possibility of a positional conflict where a lawyer is simply making a personal expression of opinion using social media, outside the scope of representing a client.

Bad for business…

Nonetheless, the brief warning in the D.C. opinion is valuable in making the point that what you say on-line can put you in an awkward spot with clients or potential clients.  Being identified in a high-profile way with a particular position could certainly cause a client to fire you or not hire you.  But that may just be viewed as a regular part of today’s legal practice.

When it comes to establishing a policy about what a firm’s lawyers and staff can say on-line, most firm managers avoid a heavy-handed approach.  Unless the lawyer or staffer wants to mention a specific client, the social media policies that most firms now have usually simply ask for the use of discretion and good sense, without stifling personal expressions of opinion — and that’s the way it should be.

Note:  My co-editors and I are thrilled that the ABA Journal has honored The Law for Lawyers Today as one of this year’s 100 best blogs!  Read the magazine’s announcement here.  We promise to keep bringing you fresh and lively news and comment every week from “Legal Ethics World.”

Five reasons why lawyers should be thankful

Posted in Uncategorized

ThankfulnessLast year at this time, we published this post on gratitude, and it resonated with a lot of lawyers.  Here it is again, slightly revised.  Have a grateful Thanksgiving holiday.

Looking at the roiling current of world events, many of them dark and discouraging, can justifiably make us anxious and depressed.  Our times seem indelibly marked by war, political turmoil, terrorism, desperate migration, environmental degradation, siege.  But here in the U.S., we will nonetheless sit down on Thanksgiving  Day with family and friends for a shared meal that is the proper antithesis — perhaps the strongest one — to hate, death and destruction.

And while you are feeling generally grateful, you should also think about your life in the law, in particular.  Academic legal scholars have examined the trait of gratitude and how it is and can be expressed in our chosen profession.

In her excellent 2012 article, which appeared in the Notre Dame Journal of Law, Ethics & Public Policy, author Reed Elizabeth Loder says that “Gratitude might be a curious topic at a time that the public maligns, even demonizes lawyers.  Asking lawyers to endure social scorn and yet feel thankful seems a double insult.  Yet … every lawyer should cultivate, feel, and act upon a special type of gratitude — call it legal gratitude.”

Cultivating this attitude, says Loder, can be a “sustaining source of ethical inspiration to lawyers.”  Having that inspiration can provide us with the outlook we need if we are to survive in our challenging profession with our inmost beings intact.

So here are five reasons to specifically be thankful for being a lawyer.

  • Our knowledge, skill and training are gifts.  Whether a GC of a Fortune 500, or a contract lawyer doing document review, we should recognize that we have achieved a privileged status in society that has improved our own lives, and created personal opportunities.  Even if we have earned our professional status by our own hard work, we have to acknowledge that we have “social and personal privileges” by virtue of the generally just society that permitted us to acquire our status, Loder writes.  “Whereas citizens owe gratitude to their government for general belonging and public benefits, the lawyer owes special gratitude for a legal heritage that bestows greater than normal benefits.  For this aura surrounding a life in the law, the lawyer should feel grateful.”
  • Our work has purpose.  More important than the concrete social advantages that being a lawyer brings to us, “are the possibilities a lawyer acquires for a meaningful professional and personal life.  The law is a worthy profession because it serves the intrinsic good of justice … Unlike many forms of work, legal work has an overarching purpose as its measure.”  Even when we struggle to find that purpose in the face of moral and practical uncertainty, “it is a privilege to have some standard of goodness” by which we calibrate our professional integrity.
  • We have the ability to change society.  “Because law is so central in a contemporary society that has few other shared cultural moorings, the lawyer is privileged to effectuate social changes that few have the power even to touch.  … Lawyers can influence, to small or large extent, legal reform and justice in particular cases.”
  • We have the opportunity to help.  As Loder says, “there is never a shortage of satisfying work for those lawyers who can make time to donate their expertise to represent otherwise voiceless clients or causes.”
  • We have the opportunity to grow personally.  Whatever you call your inner being — your soul, your psyche, your character — being a lawyer presents an incredible opportunity to refine and perfect it.   This concept may get lost in the hurly burly of daily practice, with its competitiveness and all the ordinary encounters we have that can diminish and dispirit us.  But at bottom, as Loder puts it, “the legal experiences that spur lawyers to perfect their craft and cultivate personal traits like patience and fortitude are the sources of gratitude.”

Our privileged position in society, the chance to do good work and serve a just system, the opportunity to serve others — all these build our own capacity for generosity and caring, and bring meaning to our own lives.

For these things, we should be grateful.

Being a technology “dinosaur” leads to license surrender in the Great North

Posted in How Not to Practice, Law Practice Management

Technophobia dinosaurTechnophobia isn’t  confined to U.S. lawyers.  No surprise, it affects Canadian members of the bar, too, with the same potentially disastrous results.  A cautionary tale:  a lawyer who was technologically illiterate failed to supervise his wife, who ran his office and used his bar credentials to misappropriate more than $300,000 without his knowledge.  Canadian disciplinary authorities last month permitted him to surrender his license voluntarily, instead of revoking it.

“Complete care and control”

First reported under the apt headline “Dinosaur in the Dark” over at Legal Profession Blog, the opinion describes how from 1996-2013 the lawyer totally abdicated administrative responsibility for his corporate and real estate practice to his non-lawyer wife, who served as his “law clerk.”

The 68-year-old lawyer had started out as a corporate/commercial litigator with a firm, where his practice was supported by an extensive staff and he never had to learn the nuts and bolts of running an office.  Nested in this comfortable cocoon, he remained technologically ignorant:  he dictated all his correspondence and documents; he did not access his own e-mail account, and “did not even know how to turn a computer on;” all accounting responsibilities were taken care of for him.

When the firm folded 22 years after he joined it, the lawyer began a solo practice, including real estate, running it out of his home with his wife as his clerk.  The wife, who had always dealt with the family finances, now took on all the tasks of running the business end of the law practice as well — she had “complete care and control” over the firm finances, had full access to the business account and trust account, opened all the mail and supposedly attended to all the bills and accounting.

The lawyer continued to be ignorant of all things technological — he did not even use a cell phone.  He remained unaware of Ontario’s mandatory Teranet system, the electronic registration facility implemented in the late 1990’s, in which client financial transfers and charges are required to be registered electronically using a computer key unique to the lawyer to whom it is issued.  The wife obtained the key on the lawyer’s behalf and used it without his knowledge, authorization or supervision.

Recipe for disaster

You can see where this sad story is headed.  When the income from the law practice failed to meet the couple’s modest expenses, the wife started robbing Peter to pay Paul out of the client trust accounts.  She testified “I always thought it would be a temporary thing.  I always thought things would get better and we’d … have more work or come into money, or something and I’d pay it all back.”

The wife’s delusional scheme continued based on the lawyer’s ignorance; he never saw e-mails that came from the bank or, eventually, from disciplinary authorities, and his wife intercepted postal mail and even phone calls that would have alerted him to the problems.  She admitted that she kept the lawyer totally in the dark about her increasingly desperate misappropriations.  Eventually, $373,000 in client funds had been misappropriated and more than $530,000 had been “misapplied.”

Keeping your eye on the ball

The house of cards finally fell after disciplinary authorities carried out a random “spot audit” of the firm.  (The 30-year marriage apparently ended, too.)  The lawyer was allowed to surrender his license by agreement, rather than having it revoked, partly because of his remorse, admitted misconduct and the wife’s admitted deception.

The lawyer’s counsel described him as a “dinosaur,” and the disciplinary opinion said he “refused or could not be bothered to become computer-literate, during a time when the practice of law and business in general was evolving rapidly and becoming much more dependent on electronic media and devices.”

Here in the States, of course, Model Rule 1.1 cmt. [8] says that the duty of competence means that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  Here, the lawyer was found to lack “the technological knowledge necessary to conduct a successful legal practice in the twenty-first century.”

Although the lawyer had every reason to trust his wife, being so ignorant that he could not “actively review and supervise” her actions was misconduct, as it would also likely have been under our Model Rule 5.3.

These circumstances make for sad reading, to be sure, but as we’ve pointed out a couple times before, you have to keep up with the times.