The 16th Annual Seminar on Professional Responsibility was presented on October 11, 2013, and offered 2.75 CLE credits to attendees. The seminar covered topics regarding ethics and professionalism, including: duties to prospective clients; tips to avoid ethical and malpractice traps; blogging in the digital age; and substance abuse.
11. The Importance of an Engagement Letter
• Avoid Stumbling Into A Lawyer-Client Relationship
– Identify Client
– Clarity is key
12. Define Client
• “Dear Ms. ___ (officer of corp.), we are pleased to provide our
legal services to you.”
• Actually – client = Corporation
• Representing entity does not mean represent officers
• May later be asked to be adverse to constituent
• Avoid conflict of interest
13. Define Client
• Corporation does not mean all affiliates
• Consider language in engagement letter
• Avoid conflict situation later
14. Define Scope
• Protection through engagement letter
• Avoid -- “Re: Legal Representation”
• Define exactly what being asked to do
• Litigation
• Non-litigation
15. Benefits to Clarity
• Avoid blame for unrelated matters
• Defines when representation ends –helpful for S/L purposes
• Conflicts - easier to be adverse to a former client than current
client
16. Consideration
• Gentle Termination Letter (“Thank You” letter)
• Helps define when current client becomes former client
• “We enjoyed representing *client+ in this matter, and look
forward to working with you in the future should the need
arise.”
17. Dual Representation
• Cover in the engagement letter
• Asked to represent partners; multiple shareholders; multiple
parties to a contract; employer and employee
• Confirm that no conflict exists
– i.e. possible claims against each other; conflicting testimony;
conflicting goals/objectives)
• Get informed consent confirmed in writing
18. Dual Representation
• Make clear that there are no secrets between joint clients
• Confidences must be shared
• Give option to secure separate counsel
19. Other Considerations for
Engagement Letter
• Somebody other than client paying legal fees
• RPC 1.8(f) - Confirm in writing
• Representing an insured
• Lawyer paid by insurance company
• RPC 1.8(f)(4) requires sending “Statement of Insured’s Rights”
20. Other Considerations
• Flat fee - RPC 1.5(d)(3)
• Add language that client may be entitled to refund
• Refund if early termination
• ODC v. Summers, 2012-Ohio-1144
• Where does $$ go?
• “Earned upon receipt” - Operating account
21. Sharing Fees: Not In Same Firm
• Contingent fee cases
• Rule 1.5(e) – permissible if
• Division of fee in proportion to services performed by each or
• Each lawyer assumes joint responsibility for matter/available
• Includes joint/severable liability for malpractice
• Client consent - identity each lawyer and division of fees
22. Doing Business with Clients
• Rule 1.8(a) - allows us to do business with clients
• Explain in writing
• Terms, risks/disadvantages to client
• Reasonable alternatives
• Lawyer’s role
• Advisable to consult with another lawyer
23. Properly Declining Representation
• Prospective clients
• Communications are confidential – RPC 1.18
• Confirm in writing that unable to take engagement
• Consider whether to inform of applicable S/L
24. Additional Tips
• Communicate with Clients
• Failure to communicate is bad business
• Can lead to malpractice and ethical problems
• RPC 1.4 requires us to communicate with clients
25. Key Areas to Communicate
• When seeking waiver of conflict or confidentiality
• Settle/appeal
• Client objectives
• Means to accomplish client goal (litigation tactics)
• Updating on status of matter
• When client requests information
26. How to Communicate
• Talk to clients – do not rely exclusively on e-mails
• Send key letters, pleadings and bills
• Show client value and hard work
• Gets you paid
• Informs client of status
27. How to Withdraw
• Grounds
• RPC 1.16
• Client engages in illegal/fraudulent conduct
• Client insists upon action lawyer considers “repugnant”
• Or which lawyer has “fundamental disagreement”
28. Grounds
• Client fails to fulfill obligation - Financial or otherwise
• Lack of payment
• Lack of communication
• Given warning that will withdraw unless obligation met
29. More Grounds
• “Unreasonable financial burden” on lawyer
• Representation rendered “unreasonably difficult”
• “Other good cause”
30. Withdrawal Considerations
•
•
•
•
•
•
•
Minimize risk to client
Fair notice/opportunity to retain new counsel
Cooperate with transitioning file
Refund unearned fees
Litigation – permission from court
Careful with client confidences
Submit motion in camera
31. Thank You!
Rasheeda Khan, Director
rkhan@keglerbrown.com
(614) 462-5481
Chris Weber, Director
cweber@keglerbrown.com
(614) 462-5415
33. #LegalBloggersBeware
Blogging in the Digital Age
Cases, Rules, and Guidelines
for Lawyers & Judges
presented by Jason H. Beehler &
Kailee M. Goold
Kegler Brown Ethics Seminar
October 11, 2013
34. You Should Care Because…
•
•
•
•
You blog
She blogs
We blog
You can’t leave your
house without hearing
“social media”
“tweet” or “blog”
• You use the internet
• The cases are entertaining
37. Frank Russell Wilson
The judge is “a stern
attentive woman with thin
red hair and long, spidery
fingers that as a grandkid
you probably wouldn’t
want snapped at you.”
38. Frank Russell Wilson
“Nowhere do I recall the jury instructions mandating I can’t post
comments in my blog about the trial. (Ha. Sorry, will do.)
So, being careful to not prejudice the rights of the defendant –
a stout, unhappy man by the first name of Donald…”
41. Kristine Ann Peshek
(After posting her client’s jail identification #)
“This stupid kid is taking the rap for his dirtbag of an older
brother because ‘he’s no snitch.’”
42. Kristine Ann Peshek
“He was standing there in court stoned, right in front of the
judge, probation officer, prosecutor and defense attorney,
swearing he was clean.”
54. Horace Hunter
Around 30 blog
posts
22 were about his
own cases
In some instances,
no client consent
to post
21 described his
successful results
No disclaimer
55. Horace Hunter
Virginia State Bar launches an
investigation, and says Hunter
violated rules on disseminating
“client confidences,”
misleading advertising, and
advertising without a
disclaimer.
Hunter’s defense?
57. Horace Hunter
Virginia Supreme Court said in part that Hunter was right:
“To the extent that information is aired in a public forum,
privacy considerations must yield to First Amendment
protections. In that respect, a lawyer is no more prohibited
than any other citizen from reporting what transpired in the
courtroom.”
58. Horace Hunter
But also wrong:
Posts were not inherently misleading, but
had potential to be misleading
Disclaimer was required
60. 1.6: Confidential Info (e.g. Hunter)
(a) A lawyer shall not reveal information relating to the
representation of a client, including information protected by
the attorney-client privilege under applicable law, unless the
client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation, or the
disclosure is permitted by division (b) or required by division
(c) of this rule.
61. 3.3: Candor to the Tribunal (e.g. Peshek)
(a) A lawyer shall not knowingly do any of the following:
(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer;
62. 3.6: Trial Publicity
(e.g. Peshek, Russell Wilson)
(a) A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an
extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public
communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter.
63. 7.1: False, Misleading, Nonverifiable
Communication (e.g. Hunter)
A lawyer shall not make or use a false, misleading, or
nonverifiable communication about the lawyer or the
lawyer’s services. A communication is false or misleading if it
contains a material misrepresentation of fact or law or omits a
fact necessary to make the statement considered as a whole
not materially misleading.
64. 8.2: False, Misleading Statement About a
Judge (Conway)
(a) A lawyer shall not make a statement that the lawyer knows
to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judicial officer, or
candidate for election or appointment to judicial office.
68. #2: If you wouldn’t do it in court
in front of the judge, don’t do it
in your blog post, on Facebook,
on your website, in your Tweets.
69. Let’s Test the Guideline
Conway: “Judge,
you’re an evil
witch.”
Peshek: “Your
honor, my client
is really stoned
right now.”
Wilson: “Judge, you
are a stern
attentive woman
with thin red hair
and long, spidery
fingers.”
70. #3: Don’t blog without a disclaimer.
“Case results depend upon a variety of factors
unique to each case. Case results do not
guarantee or predict a similar result in any
future case.”
71. #4: Don’t post blog
comments that reveal you
lied to the court.
Texas case where attorney told judge she needed a continuance
for a death in the family, and judge found evidence on lawyer’s
Facebook page that she was partying instead.
72. #5: Don’t interact with commenters
or visitors to your blog unless you
intend to enter into an attorney-client
relationship (and keep their info
confidential).
73. #6: Don’t communicate online with
someone you know is represented by
counsel.
You represent a company in an
employment matter. You know
the terminated employee
maintains a personal blog. You
go on without revealing who you
are, and post comments you want
the blogger to respond to.
74. Questions?
Jason H. Beehler, Associate
jbeehler@keglerbrown.com
(614) 462-5452
Kailee M. Goold, Associate
kgoold@keglerbrown.com
(614) 462-5479
www.OhioLegalEthics.com
Editor's Notes
Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)After the judge told the jury NOT to discuss the case verbally or in writing, he posted an entry on his blog about the case.
Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)Criticized the judge.
Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)Also criticized the Defendant.
Attorney Frank Russell Wilson of San Diego was suspended for 18 months (stayed on conditions), and ordered to re-take the MPRE (!), because of blog comments he posted while serving as a juror in a felony jury trial. (First mistake: During voir dire, didn’t disclose that he was a lawyer)After the judge told the jury NOT to discuss the case verbally or in writing, he posted an entry on his blog about the case.
Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients (criminal defendants) on her blog.
Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients on her blog.
Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients on her blog.
Attorney Kristine Peshek was an assistant public defender in Illinois. Also called out Judges.Suspended for 60 days.
Attorney Kristine Peshek was an assistant public defender in Illinois. She discussed her cases and clients (criminal defendants) on her blog.
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial.
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial.
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. He posted 11 paragraphs of comments on JAA blog, where attorneys discuss issues concerning the Broward County Court. He described Judge Aleman as “seemingly mentally ill.”
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. He posted 11 paragraphs of comments on JAA blog, where attorneys discuss issues concerning the Broward County Court. He described Judge Aleman as an, “evil, unfair witch.”When he got in ethics trouble, guess what his defense was?
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. He posted 11 paragraphs of comments on JAA blog, where attorneys discuss issues concerning the Broward County Court. He described Judge Aleman as an, “evil, unfair witch.”When he got in ethics trouble, guess what his defense was?
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. Ended with Conway agreeing to a public reprimand.
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial.
Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.”
Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. IMPORTANT: BLOG CONTAINED NO DISCLAIMER
Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. IMPORTANT: BLOG CONTAINED NO DISCLAIMER
Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. IMPORTANT: BLOG CONTAINED NO DISCLAIMERGuess what Hunter’s defense was?
Sean Conway of Hollywood, Florida got mad at Florida Circuit Judge Cheryl Aleman, who he believed was depriving criminal defendants of their right to a speedy trial. Ended with Conway agreeing to a public reprimand.
Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. With respect to reporting on case results that are a matter of public knowledge, Virginia cannot stop Hunter (or any lawyer) from posting on his blog. Such restriction would violate the First Amendment.
Horace Hunter, a criminal defense attorney in Virginia, authors a blog called, “This Week in Richmond Criminal Defense.” Overwhelming majority of posts are about cases in which Hunter obtained favorable results for clients. Gotta have a disclaimer that tells potential clients you can’t guarantee any result.
1.18: 4.2: 8.4:posting favorable (disguised)reviews for self on Avvo, Yelp, etc…
Disclaimer depends on content of blog.Show OLE full page dislcaimer, always at top right of each page