scales of justice 3

On Monday, the Supreme Court dismissed the writ of certiorari as improvidently granted in In re Grand Jury, a case that had potentially significant consequences for federal common law attorney-client privilege. Oral argument in the case was heard on January 9, 2023. The case hinged on which test should be used to determine whether the federal common law attorney-client privilege applied to dual purpose communications, that is, communications which contain both legal and non-legal advice. Many legal and business organizations supported a decision that would have broadened the privilege to include dual purpose topics, as long as seeking legal advice was one purpose for the communication.

The Court’s decision leaves in place a Ninth Circuit decision holding that the attorney-client privilege did not apply where the primary purpose of the documents was not legal but involved tax return preparation. The In re Grand Jury decision held that the privilege protects documents only where the primary purpose of the communication is legal, and that if the nonlegal purpose of the advice is found to outweigh the legal purpose, then the communication is not privileged and is subject to disclosure.

The Justices, who seemed skeptical at oral argument of counsel’s arguments that the Ninth Circuit’s formulation was unworkable, difficult to administer or marked a shift in the way courts currently analyze privilege claims, let the In re Grand Jury decision stand. While the legal and business organizations submitting amicus briefs hoped for clear guidance and a broader scope of the privilege, the formulation of the test to analyze attorney-client privilege claims in federal courts in the D.C. Circuit, Ninth Circuit and Seventh Circuit, which appear to differ in some respects, will continue to be the law in those courts.

Mental health

Lawyers face tremendous professional stress in the best of times between long hours, deadlines, and the adversarial nature of the work itself. The landmark 2016 report, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys[1], showed that attorneys experience problematic drinking at a rate much higher than other populations and are reluctant to seek help for substance abuse, depression, anxiety, and stress and do not seek out help because of concerns regarding privacy or confidentiality. For many, their stressors were exacerbated by the COVID-19 pandemic and the demands of remote practice. Failure to seek out that help causes many problems, including disciplinary violations when mental health impacts a lawyer’s performance.

While disciplinary authorities generally take mental health issues into account and often consider them a proper basis for mitigating sanctions, such problems are not a defense to disciplinary charges, as the West Virginia Supreme Court of Appeals recently concluded. In that matter, the court addressed complaints against a lawyer whose mental impairment was deemed to have impacted his client representation. While finding that the impairment was a mitigating factor, the court concluded that the impairment would not shield the lawyer from meaningful sanctions and imposed an active two-year suspension for the misconduct.

Lack of communication and diligence

As is typical for lawyers with impairments, the lawyer at issue failed to communicate with numerous clients regarding their cases. He was found to have committed over 50 violations. Violations of his duty to provide competent representation, communicate, and act with diligence were found in almost every instance of misconduct.

In one case, he failed to notify his clients that the opposing party had filed a counterclaim and never responded to the counterclaim. Opposing counsel requested the court dismiss the clients’ claims because of the lawyer’s repeated failure to obey court orders or rules of discovery. The lawyer never responded to the motion—and the court dismissed the claims.

Another client learned that opposing counsel filed a motion to dismiss for the lawyer’s failure to prosecute. When the client attempted to contact the lawyer, he would not respond. The court ordered the lawyer to respond, and when he failed to do so, the court dismissed the client’s lawsuit.

Yet another client retained the lawyer to defend her in a contract dispute. She asked the lawyer to file a counterclaim. He never did. He failed to present to the client the opposing party’s settlement offer prior to its expiration. The jury ended up awarding the opposing party thousands of dollars. Despite the lawyer’s promise to appeal, he never did.

Meaningful sanction

The lawyer presented evidence at the hearing that he was diagnosed with an adjustment disorder, which his mental health counselor attributed to stress and other emotional struggles. The social worker involved testified that due to the disorder, the lawyer “developed the capacity to avoid [and] became less productive.”

The Hearing Panel Subcommittee (HPS) recommended the lawyer be suspended for two years, but that the suspension be stayed. However, the Office of Disciplinary Counsel objected to the stay of the suspension. Ultimately, the court found the social worker never determined the lawyer was unable to understand the consequences of his actions and that the lawyer therefore acted knowingly when he disregarded the authority of the lower courts and his clients’ interests. The court made clear that when the Rules of Professional Conduct are violated, lawyers can inflict more than just monetary harm—of which malpractice settlements alone cannot cure.

The court found that the lawyer’s mental impairment was a substantial contributing factor in his misconduct. The court found due to that and other mitigating factors, the lawyer’s sanction was reduced to an active two-year suspension. The court found that without imposing significant consequences, this type of misconduct would not be deterred in the future nor would confidence in the profession be reestablished.

The dissent

Justice Wooten concluded that the penalty was “draconian” in his Dissenting Opinion, predicting that imposing such sanction on a solo practitioner would be the death penalty for his career. The dissent rejected the majority’s finding that the lawyer was motivated by greed—pointing to evidence that the lawyer was motivated by a depression that “caused him to ignore his duties to his clients and then stick his head in the sand as things fell apart.” The dissent would have made three months of the two-year suspension active, with the rest to be stayed on supervised probation.

Action steps

This lawyer is certainly not alone in his struggle—especially with depression rates remaining high for lawyers. When a lawyer thinks they have an issue, they should address it, as mental health issues can impact competent representation, the ability to act with diligence, and the ability to effectively communicate. Once the damage is done, it can be hard for a client to be made whole, so addressing a problem before it affects any client is key to maintaining compliance with our ethical duties. When clients are hurt and lawyers lose their ability to practice law, there are no winners. If you are showing signs of experiencing mental health issues, don’t ignore them. And undoubtedly, as we have pointed out before, lawyers should be compassionate and look for signs a colleague needs help rather than just watching from a distance. A Directory of Lawyer Assistance Programs by state can be found here. There are plenty of options for lawyers and effective treatment does not include a one-size-fits-all approach. Fortunately, strides are being made when it comes to the view of mental health in our profession.

[1] Krill PR, Johnson R, Albert L. The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys. J Addict Med. 2016 Jan-Feb;10(1):46-52.

Many of us have had the experience of opposing counsel copying their client on an email about the matter (and sometimes an email that takes us to task for some supposed transgression).  The immediate response may be to “Reply All” and tell the lawyer (and their client) that they are wrong.  Satisfying, but when you do so, are you violating the “no contact rule” found in Model Rule 4.2 (“a lawyer shall not communicate … with a person the lawyer knows to be represented by another lawyer in the matter”)?

Over the years, many lawyers have taken the position that the Reply All is permitted because the lawyer’s inclusion of the client on the original email constitutes “consent” for other recipients to contact all recipients.  The ABA Standing Committee on Ethics and Professional Responsibility now agrees.

Implied consent

Earlier this month, the Standing Committee issued Opinion 503, which addresses the great “Reply All” debate. In it, the Standing Committee opined that the nature of these types of group electronic communications (i.e., the fact that Reply All is common) means that a sending lawyer impliedly consents to receiving counsel’s “reply all” response. Because Rule 4.2 is not violated by contact the lawyer for the represented party has consented to, the receiving lawyer’s Reply All to the client does not violate the rule, despite communicating with the sending lawyer’s client. The Standing Committee likened group electronic communications (such as emails or text messages) to adding a client to a phone call with the other lawyer or bringing a client to an in-person meeting with the other lawyer. The opinion also highlights that “reply all” is the default setting in some email platforms. The sending lawyer must be mindful of this when determining whether to include his or her client on the communication, as such inclusion may appear to invite a “reply-all” answer. The Standing Committee opined that the lawyer initiating the communication bears the responsibility in deciding to include his or her client in the email or text message—and this burden should not be placed on the receiving lawyer to decipher whether the sending lawyer impliedly consents. Further, the number of recipients may be large, and in such case, the receiving lawyer may be unaware that the sending lawyer’s client happens to be one of the recipients.

As the Standing Committee noted, the better practice is to leave the client off the email or text message to the receiving lawyer—and subsequently forward the message to the client in a separate communication. Further, including a client on electronic communications to receiving counsel creates a risk that the client replies to all in his or her response—which may not be a wise move.

Presumption of implied consent is not absolute

The sending lawyer can overcome the presumption of implied consent by communicating to the receiving lawyer, verbally or in writing, that the sending lawyer does not consent to a reply all communication. The Standing Committee opines that such communication should be prominent, ideally in writing, and made in advance. Further, the presumption of implied consent is limited to group electronic communications and does not extend to other types of communications (like paper) that carry different norms and standards. Therefore, a lawyer receiving a traditional hard copy letter in which the sending lawyer’s client is copied should not infer consent to mail a response to the sending lawyer’s client as there is no prevailing custom indicating implied consent. The Standing Committee also cautions lawyers that the content of their reply is limited by other rules—for instance Model Rule 4.4(b) is implicated when the lawyer has reason to believe the email was sent inadvertently.

Other perspectives

New Jersey also finds implied consent when the sending lawyer includes their client in the communication. Virginia likewise finds implied consent.

Washington finds that consent is not implied simply because the sending lawyer copied the client on the email, but it may be implied from an assortment of circumstances beyond merely having copied the client on a particular email. California and South Carolina have issued similar opinions.

Consent is generally not considered to be implied in Illinois merely by copying the client in an email.  The act of copying a client does not provide implied consent in Alaska and the receiving lawyer must ask the sending lawyer whether their client should be included on the reply.

While ABA opinions are persuasive, they are not binding in most jurisdictions and your jurisdiction may not necessarily agree.  Before copying your client on emails to opposing counsel, or deciding to “Reply All,” think twice.

Earlier this month, the Ohio Board of Professional Conduct (“Board”) issued an Opinion which provides guidance to attorneys engaged or contemplating engaging in an office-sharing arrangement. Sharing office space has many enticing advantages for lawyers such as reducing overhead and having access to other attorneys to collaborate with, all while maintaining a sense of independence. This may be particularly appealing for lawyers seeking to work in hybrid working environments or to establish offices in multiple locations in or out of state. Whatever the driving force may be, lawyers must take special care to consider the diverse ethical issues raised by such arrangements. 

Contours of sharing nonlawyer staff

While nonlawyer staff can generally be shared, there are limitations.  The Board cites Ky. Ethics Op. E-406 and cautions that when lawyers sharing office space represent adverse clients in a matter, the same nonlawyer staff member cannot be assigned to both lawyers during the representation. The Board recommends implementing a written policy to identify conflicts when office sharing lawyers do use the same nonlawyer staff. Rule 5.3(b) requires lawyers supervising nonlawyer staff to ensure their staff understand that the confidentiality obligations under Rule 1.6 apply equally to the staff members. Accordingly, nonlawyer staff cannot divulge client information to other nonlawyer staff and lawyers sharing the same space who are not working on the same client matter. And though not addressed in the Opinion, one could certainly imagine problems, even disqualification, if steps are not implemented to ensure that documents are not segregated from staff working for adverse parties.

Maintaining confidence 

Given the logistics of shared space, the Board reminds office-sharing lawyers to act competently in protecting confidential client information from reaching unintended recipients. The Board recommends separating and safeguarding electronic and physical client files from other lawyers’ filing systems, keeping all in-person, telephonic, electronic, and written communications regarding clients in a manner to prevent unintentional disclosure; and ensuring that staff and lawyers alike refrain from communicating with or about clients in waiting and common areas. Lawyers should train nonlawyers staff on how to protect confidential client information.

Office sharing lawyers permitted to divide fees and collaborate on matters as co-counsel

Lawyers sharing office-space, but who are not in the same firm, are only allowed to divide fees pursuant to Rule 1.5(e)(2). However, lawyers under this scenario must (1) either divide the fee in proportion to the services performed by each lawyer or alternatively each lawyer assume joint responsibility and agree to be accessible to consult with the client; (2) obtain written client consent; (3) if applicable,  obtain a closing statement signed by the lawyers and client; and (4) ensure the fee is reasonable. Similarly, lawyers sharing office space may informally assist or consult each other about a case without billing the client.  This type of casual collaboration does not establish a law firm per Rule 1.0 cmt.[2]. Also, pointing to ABA Opinion 480, the Board cautions lawyers that discussing hypotheticals that disclose facts that can reveal the identity of a client won’t pass Rule 1.6 muster.

Considerations from other states

DC’s Opinion 303 reminds lawyers that office sharing arrangements by unaffiliated attorneys can create a risk of public confusion that the attorneys are affiliated, and that D.C. Rule 7.1 (prohibiting false or misleading communications about the lawyer’s services) applies to a lawyer’s professional affiliations. In Opinion 764, Illinois SBA opined that those lawyers sharing an office-space cannot use common stationary.  Virginia Opinion 874 clarifies that a lawyer may share office space with a firm located in a large building, despite the lawyer’s office only being accessible through an area used by the sharing firm. Further, it would be appropriate for the lawyer to place a sign in the lobby to clarify his status as being unaffiliated with the sharing firm.

Model Rule 4.2 is often referred to as the “no-contact” rule, prohibiting lawyers from contacting represented parties regarding the subject matter of the representation without first obtaining a court order or the consent of the other party’s lawyer.  Just last month, the ABA issued Formal Opinion 502, which warns pro se lawyers—that is, lawyers who are representing themselves as a party in the litigation—that the “no-contact” rule still applies to them despite the fact that the lawyer is also a party to the representation.

No ability to remove the lawyer hat

As written, Rule 4.2 applies to lawyers in their representation of a client.  Of course, most often lawyers represent someone else.  But what about when a lawyer is pro se, i.e. representing herself?  The “no-contact rule” generally allows the parties to a dispute to communicate directly with each other, so why can’t a lawyer who is the party talk to his opponent?   See Comment 4 to Model Rule 4.2.  While the first clause of the “no-contact rule”— “In representing a client, …” can confuse the issue, the main policies behind Rule 4.2 are still in play.  The “no-contact” rule is designed to prevent “(1) overreaching and deception; (2) interference with the integrity of the client-lawyer relationship; and (3) elicitation of uncounseled disclosures, including inappropriate acquisition of confidential lawyer-client communications.”  Direct communications between pro se lawyers and represented parties significantly jeopardizes all three policy goals. The Standing Committee accordingly reasoned that it is impossible for pro se lawyers to remove their lawyer hat to circumvent Rule 4.2. The risks are too high.

Self-representation vs. client representation; a distinction without a difference

In Opinion 502, the Standing Committee clarifies that a pro se lawyer is still “representing a client” for purposes of Rule 4.2, even if they are their own client.  Upholding the underlying policy considerations is important and serves as the basis for this determination.  These policy considerations are crucial to the functioning of the attorney-client relationship and the fact that the lawyer is representing herself does not serve as a sufficient basis to disregard them.

The Dissent

There is, however, a dissenting view. The dissent agrees that the purpose of Rule 4.2 is served by extending it to pro se lawyers, but that the language contained in the Rule does not allow for such application, notwithstanding the number of opinions that have adopted Opinion 502’s approach (“error compounded is still error”).  Even a sophisticated reader, the dissent argues, would not equate self-representation with representing a client and questions exactly what in the language of the Rule would lead a pro-se attorney to conclude that additional research is required. “The lesson here must be that nothing is clear.” The dissent questions whether the text of the Rule means what it says or what we want it to say. The dissent expresses that a trap is created by leaving this rule as is and that it should be amended to accomplish the outcome promoted in the majority opinion.

Proceed with caution

Some jurisdictions – like Texas – have not adopted the “lawyer is a client” approach and permit contact.  Other jurisdictions—such as DC and New York, appear to be in alignment with Opinion 502.  While states are clearly split on the interpretation of whether the “no-contact” rule extends to pro se lawyers, until your jurisdiction amends the wording of the rule or otherwise authorizes the conduct through an opinion, the wiser course may be avoiding the trap.

The Supreme Court of Georgia disbarred a lawyer for conduct that violated Rules 1.15(I)(a) and 1.15 (II)(b) of the Georgia Rules of Professional Conduct—the maximum sanction for such violations. After failing to respond to various attempts from the State Bar and Special Master to determine the validity of the allegations, the Court found that the lawyer’s “utter failure to participate in the disciplinary process” gave the Court no basis to impose a lesser sanction.

Seriousness of the allegations

All allegations of misconduct are taken seriously, but the Court here noted that trust account violations are extraordinarily serious. The lawyer was alleged to have paid past Bar dues with a check drawn on his trust account, made deposits to his trust account from his personal account, and made payments from his trust account that appeared to be connected to his personal expenses. Likewise, he was alleged to have made numerous cash withdrawals from his trust account. This conduct violates the requirement of Rule 1.15(I)(a) that a lawyer’s property or funds be kept separate from that of their client. It also violates Rule 1.15(II)(b) which prohibits depositing personal funds into a lawyer’s trust account and withdrawing funds from trust accounts for personal use.

Failure to participate in disciplinary process

When the investigation began, the State Bar’s investigator was unable to serve the lawyer by personal service at the address listed with the Bar’s membership department.  The State Bar ultimately resorted to perfecting service by publication.  When the lawyer did not respond, the State Bar filed a Motion for Default requesting that the Court disbar the lawyer. The Court rejected the recommendation, asserting disbarment was inappropriate given the ‘limited record before it and the allegations contained in the notice of discipline.’ The court then referred the matter to a Special Master for hearing to determine the nature and severity of the lawyer’s conduct.

More attempts at service were made and it is not clear whether the lawyer ever got notice of the proceeding.  If he did, he ignored it (including failing to respond to requests for admission).  If he did not have notice, it may have been that he’d failed to notify the Bar that his address changed – with disastrous results.

The Special Master conducted a hearing, but the lawyer did not attend or otherwise try to communicate with the Special Master or State Bar regarding the allegations. The Court found that minor violations of trust account rules may result in sanctions less severe than disbarment. However, the Court ultimately agreed with the Special Master that the lawyer’s failure to participate in the disciplinary proceedings is an aggravating factor and may constitute an admission by failure to reply that he does not acknowledge the wrongfulness of his conduct.  The Court then found that the lawyer’s failure to participate in the disciplinary process provided no basis to impose a sanction less than disbarment and Ordered the lawyer’s name be removed from the rolls of persons authorized to practice law in the State of Georgia.

Takeaway

Ignoring notice of a disciplinary charge is a dangerous business.  The failure to participate can transform a minor violation into something that costs a lawyer their license and livelihood.  In some states, disbarment is truly permanent—meaning the lawyer loses their license for life and with no opportunity to be readmitted to that state’s bar. But even in those states where it isn’t, the lawyer will be required to meet rigorous requirements for reinstatement, including waiting years before he or she is even permitted to apply for readmittance.  And even then, those efforts may be unsuccessful. Georgia requires disbarred lawyers to wait five years before applying for readmittance. Further, even if a lawyer is not disbarred, failure to respond can be independent grounds for discipline in certain jurisdictions.  While the lawyer here may have been disbarred even if participating fully in the process, he deprived himself of any shot of a less severe sanction by his total failure to engage in the process. This case serves as a lasting example of how high the stakes can be for lawyers who disregard the disciplinary process.

 

Just last month, Ohio issued Opinion 2022-07, which allows lawyers to hold cryptocurrency in escrow, under certain conditions. It is no secret that technology tends to outpace the law, so the clarity is certainly welcomed. While this opinion sheds light on murky territory, lawyers still must proceed carefully as many ethical concerns remain.

Property vs. monetary funds

Lawyers must keep client and third party property separate from their own, per Ohio Rule 1.15 (also see Model Rule 1.15). When that type of property is in the form of monetary funds, the rules require it be kept in a separate interest-bearing account, designated with a fiduciary title (such as IOLTA), and must be in an Ohio financial institution. Only monetary funds can be placed into an interest-bearing fund, and therefore, unless cryptocurrency is converted to funds upon receipt by the lawyer, it cannot be put into an IOLTA. Cryptocurrency is not considered a monetary fund but is treated as property. The Board concluded that since cryptocurrency is “property,” lawyers are permitted to hold it for clients or third persons in connection with a representation or law related business.

Technological Competence

This Opinion reminds us that in order to maintain the  knowledge and skill required by Ohio Rule 1.1, a lawyer should keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology. Cryptocurrency is now part of the mainstream lexicon. What seemed like a far-off concept to many appears to be here to stay. If you plan to hold cryptocurrency in escrow, you must become knowledgeable about how to appropriately safeguard it in a suitable place. Recommendations on methods to safeguard cryptocurrency held in escrow are found in the opinion and include cold storage wallets, encryption and back up of private keys, and multi-signature accounts.

Illegal activity  

Because of the anonymity of cryptocurrency transactions, lawyer escrow services may be a potential target of persons seeking to engage in money laundering or other fraud. Counseling a client to engage in illegal conduct or assisting a client in conduct that the lawyer knows is illegal or fraudulent is a violation of  Ohio Rule 1.2(d)(1) .  To avoid unknowingly assisting in illegal activity, the opinion instructs lawyers to have a detailed escrow agreement identifying the parties to the transaction and the underlying transaction for which the escrow account will be used.

What others are saying  

Several other states have issued opinions on the use of cryptocurrency.  Nebraska allows lawyers to hold bitcoins and other digital currencies in escrow or trust for clients or third parties.  DC allows lawyers to accept cryptocurrency instead of more traditional forms of payment if the fee is reasonable and does not violate Rule 1.8(a). North Carolina also allows lawyers to accept virtual currency from clients as a flat fee in exchange for legal services so long as the fee is not clearly excessive and the lawyer complies with the requirements in Rule 1.8(a). Yet, that opinion also concluded that methods in which virtual currency are held are not yet suitable places of safekeeping for the purpose of protecting entrusted client property under Rule 1.15-2(d).  As for other states, we will have to see what the future holds.

 

Gift giving can be complicated, but especially so for lawyers if they are the intended recipient. A ruling handed down by the Vermont Supreme Court last month increased a lawyer’s suspension from three months to five months because the legal documents he drafted conveyed his client’s real and personal property to himself. While the lawyer did not view the transaction as a gift, the Court refused to deviate from the plain language of the rule.

A bit of an “unusual” arrangement  

The client’s deteriorating health and desire remain in her home prompted the lawyer to recommend an “enhanced life estate.” An ELE deed would allow the client to convey real estate to a third-party while reserving a life estate. Further, the lawyer advised his client that she could bequeath her real and personal property via a trust agreement. This arrangement was alleged to have contemplated the client conveying her real property through an ELE deed to an individual serving as a trustee of the trust, and upon the client’s death, the trustee would sell the property and distribute the proceeds to the beneficiaries. A new will was also to be prepared which would name the trustee as the sole beneficiary and executor of the client’s estate—with the intention that any funds from the probated property would go to the trust beneficiaries.

The lawyer here knew his client for several years—living in the same community, attending the same church. He even considered his client to be a family friend. The lawyer asserted that when the client requested the lawyer fill these contemplated roles, he drafted the documents accordingly. The lawyer acknowledged that the arrangement was “a little unusual,” but he thought it was lawful and proper. The Court disagreed.

No gifts allowed

The Court found the lawyer violated Rule 1.8(c) by “prepar[ing] on behalf of a client an instrument giving the lawyer . . . any substantial gift”. The lawyer’s argument that he was acting as a trustee with intent to distribute the property was swiftly rejected by the Court as not excusing the violation of the ‘plain prohibition’ contained in the rule. The Court found that the lawyer prepared a document that gave his client’s property to himself without restriction and that the lawyer is still responsible even if he did not think the documents constituted a gift. The Court found that these types of transactions undermine public confidence in the legal profession.

Concurrent conflict

The Court further found that by drafting and presenting legal documents that gave him interests in his client’s property and estate, the lawyer violated Rule 1.7, which provides that a “lawyer shall not represent a client if the representation involves a concurrent conflict of interest unless, among other things, “each affected client gives informed consent.” The lawyer claimed to have advised his client that someone else should be used as the trustee and grantee and that the client should consult with another lawyer, but the client refused. No waiver detailing the conflict or inherent risks involved was ever signed. The Court rejected the argument that such violation is acceptable because of the client’s insistence.

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Lesson for the day

Not every gift is one worth receiving. Many jurisdictions allow for an exception Rule 1.8(c) if the client and lawyer are related—see examples in Ohio and  DC. But this case serves as important reminder to check your home state’s view on the matter. While you may not view yourself as reviewing a gift, think about how the court would view it.

Maybe you were lucky and opposing counsel was able to delete the inadvertent email you sent her before she read what would have inevitably blown your whole case. But what about for those lawyers who were not so fortunate? Did you commit malpractice? Do you anticipate hearing from disciplinary counsel? Certain mistakes can be damaging to your career. Others just serve as a warning to be more careful. How you react to your mistake can prevent the bad from becoming worse. What not to do…

Hold your breath and hope the mistake goes away

It won’t, and you need to examine if the mistake is simple and can be fixed or has jumped over the line into legal malpractice territory.  That’s going to be done on a case-by-case basis but ignoring the situation will only make matters worse.  It could even appear that you are trying to conceal the mistake.

Talk to your supervisor, a trusted colleague, or if your firm has an Office of General Counsel, talk to one of its members. Talking the situation through can help you determine if you need to disclose the mistake to the client, if you are able to still represent the client,  and whether you may need to get separate counsel. If something more serious does come of the mistake, doing nothing will reflect poorly upon you should disciplinary counsel launch an investigation or file a complaint—especially if you fail to respond.

Shift the blame

Blaming your clients or colleagues for your mistakes will not alleviate the concern and may cause you more issues down the line.  Perhaps your assistant truly was the one who failed to timely make the filing or put the hearing date in your calendar, but blaming that assistant is not going to be a satisfactory explanation to your client and could even make you look dishonest or careless. You are allowed to delegate tasks to nonlawyers, but ultimately you are still responsible for the error.

Procrastinate

Maybe you lost your cool with opposing counsel and are putting off your apology. Maybe you just completely forgot about a hearing, and you are dreading calling the court to explain. Waiting to right your wrong can make you appear less than sincere and may even serve to dissuade opposing counsel or the judge from excusing your misstep and allowing you to get that continuance that you so desperately need.

On a final note, make sure you’re covered if the mistake is serious in nature. Generally, you must notify your liability insurance carrier once a claim has been asserted against you. But it may be wise to notify your malpractice carrier if circumstances arise that lead you to believe a claim will be made. You don’t want to wait so long that you jeopardize your coverage.

Word to the wise  

You didn’t spend this much time to get where you are in your legal career just to sit on the sidelines, so focus on preventing future mistakes.

  • Don’t dabble in areas of law that you are not familiar with—competence is key.
  • Communicate with your clients. Emotions are often involved and you don’t want to be on the receiving end of a grievance, because your client is left in the dark about the status of their case.
  • Pay attention to the recipient list before you hit send. Pay attention to where you are and who is listening when you are talking about your client’s case. Watch what you say on social media. Confidentiality is crucial to your representation.
  • Do your homework before agreeing to take on the representation. Before you start on anything, check for conflicts.
  • Act with diligence. If it can be done today, don’t wait until tomorrow.
  • Extend professional courtesy to your colleagues and opposing counsel when they make mistakes. You may need them in the future.

The “no contact rule” set out in Model Rule 4.2 can be a source of confusion for many lawyers.  The rule prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of the other lawyer. We have discussed the rule before in the  corporate context, but what about in the government context? Ohio Advisory Opinion 2022-03  provides precise guidance on the issue.

The “no-contact group”

Opinion 2022-03 provides that per Ohio Rule 4.2, a lawyer is prohibited “from directly communicating with employees and public officials who supervise direct, or regularly communicate with the government’s lawyer concerning a matter, or who have the authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization”. These individuals are said to be included in the “no-contact group”; hence direct contact is generally impermissible. (The flipside is that direct contact with a person who does not fall into the “no-contact group” is generally permissible.)

Limitations on Rule 4.2 based the Constitutional right to petition government for redress of grievances

What about when the represented party is a government official, or employee deemed to be in the no contact group?  May the Rules prohibit contact that infringes on their client’s “constitutional right to petition the government for the redress of grievances”? After looking to other jurisdictions for guidance, see Virginia’s Legal Ethics Opinion 1891,  the Ohio opinion finds that lawyers may have contact with represented governmental clients.  That exception is not unlimited however.  It does not permit discussions of claims, for example.  Contact is only permissible upon three conditions being met:  (1) the communication must be based solely on a policy issue—not a claim; (2) the official or employee must possess the authority to take or recommend action concerning the policy matter; and (3) the lawyer is required to put the government counsel on notice of the intent to directly contact the government official. If all conditions are fulfilled, there is no requirement to obtain consent from government counsel.

Public Meetings

The opinion concludes that lawyers are permitted to directly communicate with government officials or employees on behalf of a client during formal public meetings—though the topic must be on policy issues concerning the client. Consent is not required, and government counsel need not be present. Lawyers are nevertheless advised to identify themselves as representing their client, if possible, in advance of the meeting to allow for adequate time for the official or employee to consult with or ask counsel to attend.

Settlement negotiations

On the opposite end of the spectrum, lawyers must obtain the consent of government counsel prior to any direct communication with government officers or employees regarding settlement negotiations. The recipient of any settlement offer is presumed to be in the “no-contact group.” Rather the lawyer is instructed to only propose the settlement (whether it be written or oral) to government counsel.

General Guidance

  • As we mentioned before, the “no-contact” rule extends only to the subject of the representation.
  • If the topic is off limits, don’t try to circumvent the rule by making the prohibited communication through the acts of another—a Rule 8.4(a)
  • Don’t assume consent is implied—always ask. Simply hitting “reply all” to an email could land you in hot water even if opposing counsel had cc’d their client on the email directed to you first—see South Carolina’s Ethics Advisory Opinion 18-04 which concludes implied consent cannot be found in such scenario.
  • Communication initiated by a represented party does not create an exception to the rule.
  • Be careful not to overstep when advising your client how to communicate with other unrepresented parties involved in the matter.