Blogs are a great way to market your legal practice and the more visually compelling the better.  Careless use of social media and its visual impact can spell real trouble, though.  We’ve posted about things to watch out for in responding to on-line reviews, using Facebook and sharing on-line opinions.  Now comes another risk to think about:  copyright infringement.

The issue is in the spotlight because an award-winning photojournalist filed a complaint last week in Pennsylvania district court against a national plaintiff-side personal injury firm for allegedly infringing his copyright by using one of his images in a blog post on the firm’s website.

Fatal fire

The plaintiff alleges that in June 2017 he produced a video documenting a fatal fire in East Coventry, Pennsylvania, in which a nine-year-old boy died.  He registered the copyright in the video with the U.S. Copyright Office and solely holds all rights in and to the video, he says in the complaint.

The defendant law firm is alleged to have infringed the copyright with a blog post on its “For the People” website that “prominently featured” the video.  The complaint attaches a copy of the post, which appears to picture an embedded video from a CBS TV affiliate in Philadelphia.  The posted article describes the fire, notes that the kitchen can be one of the “deadliest rooms in the house,” and discusses how residential landlords in general may potentially be held liable for house fires.

Tips for staying on the (copy)right side

The defendant law firm has called the copyright infringement suit “meritless,” and has not yet responded to the complaint.  But whatever the merits, the filing itself offers a good opportunity to take a look at your own practices in using images in marketing yourself and your firm.

Creators of visual or audiovisual works have a protectable interest in their works, namely a copyright that exists from the moment the work is fixed in a tangible medium of expression.  Although registering a copyright may be a prerequisite to an infringement suit, a work is protected by copyright even before it is registered.

A common misconception is that an image is fair game for you to use if you don’t benefit commercially from that use.  In reality, even non-commercial use can, under some circumstances, infringe the author’s copyright, because the essence of the protection is the exclusive right to reproduce, display and perform the work.

A well-chosen image can dramatically pep up your CLE presentation, PowerPoint slide deck, blog post or firm brochure.  But the purpose of all these marketing pieces is to draw positive attention to yourself and your expertise within the bounds of your state’s version of Model Rule 7.1 (“Communications Concerning a Lawyer’s Services”).  That can backfire if they draw negative reaction.  Some ways to avoid that:

  • Use “kosher” images that you purchase via a subscription service; don’t pull things off the internet.  (The images for this blog, for example, are almost all from Getty Images.)
  • For a source of free-to-use images, become familiar with “Creative Commons” licensing, a form of royalty-free use that requires attribution.  (One of our recent posts used such an image, for example.)
  • Seek advice from someone in the know about IP law, because the ins and outs can be complicated.  If you’re lucky enough to have access to in-house expertise from a colleague, ask!  An ounce of prevention, and all that.

We hope you enjoy all the images that we use here at The Law for Lawyers Today!

One market effect of the ongoing COVID-19 pandemic is that transactional clients might be eager to offer you stock or some other form of participation in a deal in lieu of your legal fees.  An uptick in proposals like this could come as clients try to limit cash outlays until the business climate and their operations become less unpredictable.  In an arrangement like this, the client preserves cash and if the deal works out your investment in a client might increase in value, even above the cash fee you might have earned.  It would seem like a win-win situation, right?

Not so fast.  Deals like this can raise risk for firms, and the ethics rule governing transactions between lawyers and clients has several requirements.

Accepting stock in lieu of fees

Taking stock or having a personal financial stake in a client’s transaction can potentially create a conflict of interest between your personal interest in the investment and the client’s interests, particularly if you will also be acting as a legal adviser in the deal.  The optics by themselves can raise risk — namely the appearance that you might structure the transaction or advise in a way favoring your own interests over the client’s.

If the deal goes south, the parties might look for deficiencies in the lawyering; a conflict can give rise to a claim, or at the very least complicate your defense.

For these reasons, many larger firms limit or even prohibit investing in clients.  In all events, business transactions with a client — whatever form they take — are subject to your jurisdiction’s version of Model Rule 1.8(a), which governs whenever the lawyer knowingly acquires an ownership or other pecuniary interest adverse to a client.  See ABA Formal Opinion 00-418 (July 7, 2000) (advising that lawyers can invest in clients, including stock in lieu of fees, but must comply with Rule 1.8(a)).

Rule 1.8(a) prohibits business transactions with a client unless:

  • the deal is fair and reasonable to the client;
  • its terms are fully disclosed to the client in writing;
  • the client is advised in writing to consult independent legal counsel and given a reasonable opportunity to do so; and
  •   the client gives informed consent, in writing, to the transaction and the lawyer’s role in it, including whether the lawyer is representing the client in the transaction.

And when you also represent the client in the transaction, you must additionally comply with your jurisdiction’s version of Model Rule 1.7, which governs “material limitation” conflicts, in which your financial interest in the transaction raises “a significant risk” that your representation of the client will be materially limited by your own interests.

Real life risks

The real life risks are illustrated by a complaint filed last week here in Cuyahoga County (Cleveland), Ohio.  The complaint’s allegations set out a complex transaction, but include the claim that the lawyer in the deal accepted a two percent ownership interest in the plaintiff at the same time he was representing the plaintiff, but without meeting the requirements of Ohio’s Rule 1.8(a).  The relief sought includes a declaration that the defendant’s ownership interest was not lawfully obtained and is void.  (No responsive pleading has been filed as of yet.)

Many decisions illustrate the possible pitfalls.  See, e.g., BGJ Assoc., LLC v. Wilson, 113 Cal. App. 4th 1217 (2003) (oral contract between client and lawyer/joint venturer void; client’s consultation with other counsel not sufficient unless client signed a written waiver).  Professional discipline can also be a consequence.  See, e.g., In re Snyder, 35 S.W.3d 380 (Mo. 2000) (lawyer who made fee agreements that included acquiring interest in clients’ residential property suspended for failing to comply with Rule 1.8(a)).

Takeaway on taking stock

The current climate is one of uncertainty for clients and lawyers.  If you are offered the opportunity to participate by way of an investment in a deal in which you are representing a client, whether or not the investment will be in lieu of your fees, consider the risks, and make certain that you comply with your jurisdiction’s ethics rules, including on conflicts and business transactions with clients.

This Photo by Unknown Author is licensed under CC BY-SA

If a South American investor asks you to take delivery of $1 million cash in your law office, to deposit it into a client account and then wire it to different designated accounts, all to supposedly “leverage” additional funds to produce a movie — should you do it?  A New York lawyer who did was charged with money laundering, allowed to plead to a lesser offense, and earlier this month was suspended from practice for three years based on the conviction.

The opinion of the New York Appellate Division in the case dovetails nicely with a recent ABA ethics opinion on the “duty to inquire” in order to avoid assisting with a fraudulent transaction.

“Didn’t feel good about it”

The lawyer in the case was assured by the client that the money was “clean.”  He testified that under the irregular circumstances he “didn’t feel good about it,” but went ahead with the arrangement anyway.  For his role in the transaction, the lawyer was paid $25,000.

In hindsight, the lawyer should have listened to his tingling Spidey sense, and run the other way, because several years after the transaction, he “learned that the money was ‘drug money,'” according to the court of appeals opinion.

The lawyer was immediately suspended from practice after his guilty plea in the criminal case; regulations in New York as in other systems provide for such interim suspensions upon conviction for serious crimes.

Later, in imposing the three-year suspension, the appeals court quoted the remark of the judge at the lawyer’s criminal sentencing:  “People usually don’t walk into an office with a million dollars in cash” and ask that it be converted into another form, and therefore, the court said in the disciplinary case, the lawyer “should have been on notice that this was not a legitimate transaction.”  In fact, the lawyer acknowledged that something was not right but decided to participate anyway, the court said.

Duty to inquire

If you find yourself with a cool million bucks that a client wants you to move around, like this lawyer did, you should first read the ABA’s Opinion 491, which was issued April 29.  Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent.  The extensively-footnoted opinion discusses when you “know” that, and spotlights some circumstances that require lawyers to inquire further before they provide their services.  The opinion includes some hypotheticals.

The knowledge that a deal is criminal or fraudulent may be inferred from the circumstances, “including a lawyer’s willful blindness to or conscious avoidance of facts,” the ABA Committee said.  Therefore, if you have facts that “establish a high probability that a client seeks to use the lawyer’s services” for a crime or fraud, you have “a duty to inquire further to avoid advising or assisting” the wrongdoing.

Even if information you get (whether from an intake interview or during the representation) doesn’t meet the “high probability” standard under Rule 1.2(d), the Committee advised, other rules on competence, diligence, communication and honesty may require you to inquire further.

If the client or prospective client refuses to give you information necessary for you to assess the legality of the proposed transaction, you “must ordinarily decline the representation or withdraw” from an existing representation, the Committee concluded.

Listen to your Spidey sense

“A lawyer may not ignore the obvious,” the ABA Committee wrote.  We’ve commented before (here and here) on the 2016 TV exposé that captured secretly-taped intake interviews in which lawyers appeared to be willing to use “gray money” to carry out transactions proposed by fake “clients.”  In each set-up, there were clues that should arguably have prompted further inquiry.

Bottom line:  If your nose tells you something is fishy about a client transaction you are asked to help with, then as the ABA opinion quoted, you have “an ethical responsibility to find out whether the proposal [is] above-board before performing the services.”

The eyes of the nation and of the world have been on crucial issues of racial inequity in the past few weeks following the death of George Floyd at the hands of police.  These issues penetrate to the very essence of how we can maintain a just society — issues that likewise go to the heart of lawyering.  One of the many ways that the legal community does the day-to-day work of maintaining an equitable society is by adhering to our ethical standards, which strongly call on us to practice our craft in line with the highest ideals of integrity.  These standards are always being refined and interpreted through the work of state and national ethics committees and the opinions they issue to guide practitioners.

Two significant ethics opinions have been issued in recent days.

California finally weighs in on pot practice

The Golden State has the most lawyers in the nation, and also the largest cannabis market.  However until late last month, the state bar’s ethics committee had been silent on the burning issue for lawyers seeking to counsel cannabis clients:  Can they provide representation with respect to conduct that is state-legal but that remains federally illegal?  As we noted at the time, city bars in San Francisco and Los Angeles took the lead on giving guidance to the state’s lawyers.

Now the state bar committee has weighed in, and unsurprisingly given the green light to lawyers who want to represent clients in all aspects that are “reasonably required” to make their clients’ businesses “functional and profitable in compliance with California law,” says the committee’s opinion.

Similar to Model Rule 1.2(d), Rule 1.2.1 of the California Rules of Professional Conduct bar counseling or assisting a client to engage in criminal, fraudulent or illegal conduct.  However, lawyers may nonetheless discuss the legal consequences of any proposed course of conduct with a client.  Under California’s comment [6] to Rule 1.2.1, a lawyer may “advise a client regarding the validity, scope and meaning of California laws that might conflict with federal or tribal law,” and advise on complying with California law “even if the client’s actions might violate the conflicting federal” law.

Interpreting the rule and comment, the Committee advised that California lawyers could provide legal services related to state-legal cannabis.  They may not advise the client to violate federal law, the Committee warned, and cannot provide advice or assistance in violating state or federal law in a way that avoids detection of those violations.  Lawyers must also advise the client about the conflict between state and federal laws on cannabis, including the potential for federal criminal liability and the associated penalties.

With 33 states and the District of Columbia taking steps to legalize cannabis for medical or recreational use or both, California’s guidance for lawyers may be influential elsewhere as well.

ABA cautions against “hearing too much” from prospective clients

In its latest ethics opinion, issued Tuesday, the ABA’s Standing Committee on Ethics and Professional Responsibility warned about the conflicts of interest that can arise from prospective-client interviews where a talkative potential client might over-share specific information before you decide whether to take on the matter.

Under Model Rule 1.18, even if no attorney-client relationship ensues as a result of a preliminary consultation, learning information from a prospective client creates duties of confidentiality that can bar you (under Rule 1.9) from taking on substantially-related future matters adverse to the prospective client.

In particular, the Committee advised, “Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter.”

The kind of information that could be “significantly harmful” depends on the context.  But, drawing from cases and state ethics opinions, the Committee gave some examples of topics to avoid — at least until you decide whether to take on the matter:

  • settlement issues like pricing and timing;
  • detailed accounts of strategic thinking;
  • projections of potential claims and defenses;
  • legal theories regarding a case;
  • client financial information;
  • terms and structures of proposed transactions.

Bottom line:  patience pays.  Not hearing (or saying) too much before you determine that you will accept a new client or matter is the way to avoid learning “significantly harmful” information that can raise a conflict down the road if the consultation doesn’t result in an attorney-client relationship.

We’ve noted before that just because information relating to your representation of a client might be publicly available, your duty of confidentiality means that you can’t disclose it if it is not “generally known.”  The two concepts — public availability and being “generally known” —  are not the same, as a New Jersey lawyer learned earlier this month when the state supreme court imposed a one-year suspension in a disciplinary case that (among other things) involved a Yelp review.

“Good for the goose…”

According to the disciplinary board’s decision, the lawyer represented a client in a child custody matter and achieved a “seemingly good result” via settlement.  Over a year later, however, the client posted “poor reviews” of the lawyer’s services on several websites.  In turn, as set out in the board decision, the lawyer posted a review of the client’s massage business on Yelp, where he said that the client

is a convicted felon for fleeing the state with children.  A wonderful parent.  Additionally, she has been convicted of shoplifting from a supermarket.  Hide your wallets well during a massage.  Ooops, almost forgot about the DWI conviction.  Well maybe a couple of beers during a massage would be nice.

After the client complained, the lawyer sought to explain his actions, according to the board decision.  He admitted he was “very upset” by the client’s negative Yelp rating of his practice, and felt that his response was justified because “what was good for the goose was good for the gander.”

The lawyer conceded that his conduct regarding the client “rating was [not] my finest moment,” said the board.  The lawyer contended , however, that the conduct was not unethical because his disclosures “were public information and I did not violate attorney client privilege.”

Public information vs. generally known

Model Rule 1.9(c), like its New Jersey analogue, prohibits using “information relating to the representation” to the disadvantage of a former client with only narrow exceptions, “or when the information has become generally known.”

Here, said the board, the information in the Yelp review the lawyer posted related to the former representation, and the information had not become generally known.  The board cited New Jersey state and federal case authority and the ABA’s Formal Opinion No. 479 (2017).

As the ABA advised, “the phrase ‘generally known’ means much more than publicly available or accessible.  It means that the information has already received widespread publicity.”  Merely being “of public record” does not mean that the information is “generally known” when it is not “within the basic understanding and knowledge of the public,” said the New Jersey district court in a 2006 opinion.  And in a previous disciplinary opinion, the state supreme court had found that subpoenaed records from police departments had not become “generally known.”

On these bases, the state supreme court adopted the board’s decision finding a violation of Rule 1.9, and suspended the lawyer for a year, based on that plus other misconduct.

Don’t yelp

Retaliatory reviews on social media seem to be a recurrent ethical trouble spot for lawyers.  But you might be tempted to use or disclose client information in other more-benign-seeming settings — like at a social gathering (or Zoom hangout), where talking shop might lead to dishing the dirt on a matter because “after all, it’s ‘of public record.'”  In situations like that, the ethics rules should make you think twice.

Dan Bressler’s Risk Blog and The Professional Responsibility Blog also mention this case.

Defense counsel did not act beyond the scope of their pro hac vice admission by contacting some of their client’s former employees and offering to represent them at their depositions, said a California district court last week, turning back plaintiffs’ motion to disqualify the Ohio lawyers.  In its opinion the court analyzed both pro hac vice principles and the Golden State’s ethics rules on client solicitation.

Extent of PHV admission

The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer.  In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented.  Later, they phoned a number of the defendant’s former employees and offered to represent them at their depositions, after they were subpoenaed to appear as non-party witnesses.  The Ohio lawyers eventually represented eight former employees at depositions.

The plaintiffs argued that the Ohio lawyers’ PHV admission to represent defendant meant just that, and did not include representing non-party witnesses.  They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction.  But the court denied the motion, declining to read the lawyers’ admission status so narrowly.  Instead, said the court, “counsel, admitted on a pro hac vice application, ought to be able to fully prosecute or defend the action in which they were admitted within the bounds of the law.”

Solicitation for pecuniary gain?

The plaintiffs also argued that by phoning some of the defendant’s former employees, the Ohio lawyers had violated California’s rules on client solicitation.  Like Model Rule 7.3, California’s version bars telephone contact to solicit professional employment when a significant motive for doing so is the “lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.”

The rationale for the rule is that “A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services. This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter,” in a situation that can be “fraught with the possibility of undue influence, intimidation, and overreaching.”  Model Rule 7.3, cmt. [2].

But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client.  The court acknowledged that these were  management-level employees who were being deposed as a result of that employment relationship.

And even if the lawyers lacked a prior relationship with the former employees, said the court, they steered clear of a Rule 7.3 violation because they did not solicit for “pecuniary gain.”  Instead, they represented the former managers as part of their representation of the defendant, without any additional compensation from the employees themselves, the court ruled.

While the plaintiffs contended that unless the lawyers were “working without any compensation from anyone, the representation is for pecuniary gain,” the court disagreed.

Watch yourself…

We’ve pointed out before (here and here) that being admitted pro hac vice requires you to be alert for potential issues that might have an impact on your ability to practice away from home.  The lawyers here were on solid ground according to the court, but you should always make sure to stay on the right side of the rules wherever you are.

An Ohio lawyer crossed a border and also a line, leading to a two-year suspension and a restitution order under an opinion the state supreme court handed down this week.  The suspension was based on ethics violations as to numerous clients, but one involved the prohibitions against unauthorized practice and sexual activity with clients.  The opinion continues the disciplinary trend in the Buckeye State to treat all forms of lawyer-client sex harshly — even in the absence of physical contact.  It also shines a light on the perils of unlicensed cross-border practice.

Michigan v. Ohio (and not college football)

The client’s divorce action was already pending in Monroe County, Michigan when she retained the lawyer, who practiced in Toledo, Ohio, just across the border from Michigan.  The lawyer advised the client that he was not licensed to practice in Michigan, but would file a motion for pro hac vice admission and affiliate himself with an Ohio lawyer he knew who was licensed in both states.

Over the next six months, however, as described in the Board of Professional Conduct’s recommendation to the state supreme court, the lawyer failed to seek any kind of admission in the Wolverine State, despite the reminders he received from the Michigan-admitted lawyer, who was the only one of record in the client’s divorce case.

Despite his lack of any status in the case, the lawyer went to Michigan and, along with the Michigan-admitted lawyer, participated in both an unsuccessful mediation and a final pretrial conference on behalf of the client.  The Michigan-admitted lawyer, however, had never received the retainer he demanded, and refused to represent the client at her June trial. That left her unrepresented, forcing her to scurry to arrange substitute counsel on a week’s notice.

The court found that the unlicensed cross-border practice in Michigan violated Ohio’s version of Model Rule 5.5, which bars practice in a jurisdiction in which the lawyer is not admitted, and adopted the Board’s recommendation that the lawyer make restitution to the client of the $16,500 she paid to the lawyer and to substitute counsel for his work in coming up to speed the week before trial.

“Salacious” texts

In addition, according to the court’s opinion and the Board’s recommendation, the lawyer “engaged in an inappropriate personal relationship with [the client] that included multiple texts that were solicitous and sexual in nature.”   They never entered into a physical relationship, however, and the lawyer argued to the hearing panel that absent “actually engag[ing] in physical sexual activity” he did not violate Ohio’s version of Model Rule 1.8(j).  (The lawyer later deleted the “salacious texts,” but the client kept them.)

The Model Rule proscribes “sexual relations” with a client unless a consensual sexual relationship pre-existed the client-lawyer relationship.  But Ohio’s Rule 1.8(j), in contrast, more broadly prohibits “solicit[ing] or engag[ing] in sexual activity” absent a pre-existing consensual sexual relationship.  The Board noted that “one can violate the [Ohio] rule by the mere solicitation of sexual activity,” which had been clearly and convincingly proven by the text messages, the Board said.

As we’ve noted before, the state supreme court readily disciplines lawyers who violate the rule on sexual contact with clients, rejecting arguments based on consent, and here, the lack of actual physical relations.

Bottom line:  Toeing the line, whether it is a state border or an issue of sexual conduct, is the best way to avoid disciplinary trouble.

Falling below the standard of care in providing legal services to a client can of course bring a malpractice claim down on your head — and as we’ve pointed out, the economic climate resulting from the Covid-19 pandemic raises the risk of such claims.  Let’s say that you’ve actually made an error.  If you acknowledge your negligence, can you quickly settle the claim with your client and move on?   A Tennessee Supreme Court opinion issued last week spotlights the ethics rule that imposes requirements and limitations on your ability to smoothly exit a potentially messy situation.

Mea culpa

A Tennessee lawyer voluntarily dismissed the personal injury suit he had brought on behalf of his client in her car accident case.  Unfortunately, the lawyer failed to refile the case within the statute of limitations, and as a result, his client’s cause of action became time-barred.  (Blowing a deadline is the most common cause of a malpractice claim.)

The lawyer met with the client, acknowledged his mistake in writing, and gave her a $500 check with a promise to “make every effort to make [her] whole.”

Later, the client filed a grievance against the lawyer. A few months later, the lawyer agreed with the client to pay her $5,000 in exchange for a full release of her legal malpractice claim against him, and withdrawal of her ethics complaint.  The lawyer did not advise the client of the desirability of seeking independent legal counsel before settling her claim against him.

Clear conflict

Within three months of the settlement, the disciplinary authorities came knocking.  The lawyer was charged with violating his duty of competence and diligence under Tennessee’s versions of Model Rules 1.1 and 1.3.  He was also charged with violating the Volunteer State’s version of Model Rule 1.8(h)(2), which bars settling a liability claim or potential liability claim with a client or former client without advising that person — in writing — that it would be desirable for them to get independent legal advice on the advisability of the settlement.

The rule is included as a subsection of the rule on conflicts of interest that mostly arise based on a lawyer’s personal interests, and it’s easy to see why it is positioned there:  a lawyer who is in the cross-hairs of a client’s malpractice claim is clearly conflicted when it comes to valuing that claim and arriving at a fair settlement with an otherwise-unrepresented client.  The situation clearly calls for the client to get legal advice from someone besides the conflicted lawyer.  Failing to so advise his client before settling the potential malpractice claim against him put the Tennessee lawyer on the wrong side of the rule.

The lawyer stipulated to the rule violations, and only disputed the sanction that the disciplinary panel imposed and that the chancery court affirmed:  suspension for one year, with only 30 days to be served as an active suspension, and the rest as probation.  The state supreme court affirmed as well, calling the penalty “generous,” and noting that it was the least amount of time on active suspension provided for under the state rules.

The court also noted that the lawyer had received seven previous disciplinary sanctions over his 47-year career, four of them involving failing to file matters within the applicable statute of limitations.

Watch yourself

If you make an error, the prospect of resolving it quickly with the injured client is very inviting.  But if you fail to keep yourself out of a conflict in the process, you can find yourself in a different kind of trouble.

Lawyers should be allowed to help provide “basic financial assistance to indigent clients — such as money for groceries, clothes or medical supplies,” the New York City Bar Association said last week in a letter to the state’s courts.  In light of the urgent need caused by the corona virus pandemic, the group is seeking to fast-track an already-pending proposal to amend New York’s ethics rules, which generally bar providing financial assistance to clients in connection with pending or contemplated litigation.

An unlevel playing field

Model Rule 1.8(e) has only limited exceptions:  lawyers can advance court costs and expenses in contingent fee cases; and they can pay “court costs and expenses of litigation” on behalf of indigent clients.  But as New York’s version of the rule currently provides, they can’t advance or guarantee other financial assistance to litigation clients.

A rationale for the rule is that if lawyers “subsidize lawsuits” by making loans to clients for living expenses, it “would encourage clients to pursue lawsuits that might not otherwise be brought.”  See id. cmt. [10].  This ignores an obvious power and resource imbalance.  As Prof. Roy Simon points out in his treatise, Simon’s New York Rules of Professional Conduct Annotated, “[a]rguably, financial assistance by lawyers to litigants would level the playing field … especially where a relatively wealthy individual or a successful corporate defendant opposes a relatively impoverished plaintiff.”

One commentator has pegged the origins of the rule to the Star Chamber Act of 1487 and the Statute of Liveries of 1504 “which were intended to prevent wealthy landowners from bankrolling legal claims of their serfs as a means to gain more land and power for themselves.”

Humanitarian exception

The corona virus pandemic, which has wreaked havoc in New York, with more than 159,000 cases reported in New York City as of Thursday, obviously brings the subject of financial assistance to clients to the fore.  The stay-at-home order in New York, as elsewhere, has resulted in wide-ranging economic devastation and huge job losses

In its letter, the bar association described the proposal for a humanitarian exception to Rule 1.8(e), which would permit lawyers representing indigent clients on a pro bono basis, as well as lawyers working for legal service providers, public interest offices, and law school clinics, to provide financial assistance to indigent clients under limited circumstances.

For example, permitted activities under the humanitarian exception could include:  “a pro bono lawyer helping a client pay for groceries or essential living supplies; a non-profit law office establishing a client assistance fund to allocate resources based on need; and a law school clinic leveraging its resources to provide assistance to a client who may be struggling to meet basic living expenses.”

Under the proposal, lawyers  would not be allowed to offer financial assistance as an inducement to continue the pro bono representation or allowed to advertise the availability of financial assistance.

The New York State Bar Association has already approved the proposal and in January had sent it to the courts for their consideration.

Client assistance in other states

Although New York’s current version of Rule 1.8(e) tracks the Model Rule fairly closely, other jurisdictions have taken other more expansive approaches.  The District of Columbia’s Rule 1.8(d)(2), for example, allows lawyers to extend financial assistance provided that it is “reasonably necessary to permit the client to institute or maintain the litigation or administrative proceeding.”

Other states that permit client financial assistance over and above court costs and litigation expenses under their versions of Rule 1.8(e)include Louisiana; Minnesota (may guarantee loan “reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits”); Mississippi; Montana and North Dakota.

Stay tuned for action on this front in the Empire State.  As the bar association wrote, “Especially now, lawyers should not be limited in their ability to provide assistance to clients who are struggling to make ends meet.”

When we scheduled our daughter’s wedding for March 15 in New York City, little did we know how surreal the world would be by then.  The wedding did happen, with a much-reduced number of guests, hand sanitizer on each table, and with the hora joyously danced with gloves on.  The next day, the governor banned any gatherings, and by the time we returned home to Cleveland a couple days after that, the changes in all of our every-day lives had taken hold.

Now we seem to be getting ready to start cautiously emerging into what everyone is calling the “new normal.”  What will it look like in terms of continuing to practice ethically and managing professional liability risk for you and your firm?

Malpractice-claim “upswell” to come

First, what are the stakes?  Many things about our future professional lives are unknowns, but if past tumultuous national events are a guide, there will likely be an uptick in grievances brought against lawyers, and likely a decided increase in the number of legal malpractice claims asserted against lawyers and firms.

The public health crisis has of course created potentially ruinous economic hardship for numerous clients, both businesses and individuals.  As the Great Recession taught us, the economic situation will result in many different kinds of litigation, and when deals go south or when underlying litigation does not turn out well, clients very often blame their lawyers, whether it’s justified or not.

One malpractice insurer has noted that during a recession, and for the three years following, there has historically been a spike in paid claims, a number that typically doesn’t recede until five years post-recession. “In addition, and looking back at the events of 2008 specifically, legal malpractice insurers experienced a spike in paid claims above $10,000 that ranged from 35% to 41%.”  Bar committee chairs note the same possibility of an upcoming “COVID-19 legal malpractice upswell.”

Keeping safe, minimizing risk

Here are five things you can do to try to reduce your risk of being on the wrong end of an ethics grievance or a malpractice complaint as we tiptoe toward the “new normal:”

  • Stay in your lane:  We’ve noted before that when times get lean — as they are going to become for practitioners in many areas — the temptation is to take all the business that comes in the door.  If you are a solo or in a small firm, beware of this tendency, because “dabbling” can raise competence and diligence issues from an ethics standpoint (Model Rule 1.1, Model Rule 1.3).  Make sure you are truly able to handle a matter before you agree to be retained.  Get input in the area from someone you trust, so that you don’t fall into the trap of not knowing what you don’t know.
  • Keep the calendar:  Year after year, missed deadlines are the most common source of legal malpractice claims.  The pandemic produced a shifting landscape of orders on court closures, statute-of-limitations, deadline extensions and the like.  Pull out all the stops on your calendaring process.  Build in redundancy, using paper calendars, your e-calendar and your docket department’s calendar system (assuming you’re lucky enough to have this kind of support).  Make sure that your staff — wherever they are working from — knows who has responsibility for what.
  • Be on top of your game:  No pressure here — but it’s obvious that developments in your substantive area of focus have changed and are changing quickly every day as the government responds to the COVID-19 pandemic.  Practicing competently means staying on top of it all.  Add that to the challenge we have all faced with working from home and at the same time possibly balancing a range of current life issues:  kids at home, spousal job loss, family health issues.
  • Document, document, document:  Put more in writing.  Your clients will continue to be in fast-moving situations, calling on you to move quickly, too.  Speed can be an enemy from a risk-management point of view, however.  At least memorialize in an e-mail what the client has asked you to do — aka the scope of the engagement.  This can be particularly important if you have been directed not to do some aspect that would ordinarily be within the scope of the legal work.  Also be clear about who you do and don’t represent, and communicate that in writing.
  • Check in with your carrier:  Your professional liability carrier can be a good source of risk-avoidance resources, and this is also a good time to check your policy provisions.  And if you don’t have insurance, make sure you are complying with any ethics rules or regulations on necessary communications you need to make to clients.

Don’t forget self-care

Last, this pandemic and its fallout will continue to be grueling from an emotional standpoint.  The mental health and well-being of lawyers, already widely viewed as problematic, will continue to be an issue.  Take care of yourself.  Reach out for help if you feel over-whelmed.  Here, as we frequently post, is a link to every state’s lawyer assistance program.  Here is a link to the ABA’s COVID-19 Mental Health Resource page.  There are lots of other resources, too.

We’ll emerge — in some way or another — on the other side of this.  In the meantime, be well and keep safe.