Getting to “Nope!”

Like many young associates, when I first started practicing, I was eager to prove my worth, show the partners and senior associates at my firm that I deserved to hang with them, and that they could count on me to not only “get it done” but “do it well.”   The word “no” simply did not exist in my world;  it had been eviscerated from my vocabulary.  Anything that hit my desk would be handled with unmatched enthusiasm and legal acuity.  I received rave reviews from my superiors and they kept coming back to me for more help.  I never turned any project away.  I did it all.  I was a success.

I also gained 30 pounds and a sleep disorder that year, and I didn’t read a single book for pleasure.  Is that the picture of success?  In retrospect, I am not so sure.

Now, to be clear, I worked for kind, compassionate, brilliant lawyers.  That’s part of why I wanted to please them.  It’s part of why I dreaded saying “no” when they asked for help. It took me about three years to understand that they weren’t responsible for controlling my workload, I was.   I remember the first time I said “no” at work.  There was a lot of sweating, a lot of panic, and a little rehearsal.  But I did it.  And you know what?  Nothing bad happened and I still had a job.

Fast forward a few years to another challenge – parenthood.  Just as I wanted to be the perfect associate, I also want to be the perfect mother—showing up for every class party, being the first to volunteer for EVERYTHING, and NEVER forgetting to wipe down the grocery cart before the kid sits in it.   Just add another 30 pounds and a new kind of sleep disorder.  No problem, right?  I can handle it.

For some of us, learning to politely decline someone’s request, or letting an opportunity go, is a real challenge, especially for professionals with demanding careers.  This is especially true considering the heavy focus on our profession’s duties to others: our duties to colleagues, our duties to tribunals, and above all, our duties to our clients.  However, saying “no” is an extremely important skill.  And I call it a skill because for some of us, it is something that needs to be acquired.  (The next step is letting go of the guilt associated with saying “no,” but there is only so much I can tackle in one blog post!)

Rule 1.1—the very first rule of the Rules of Professional Conduct demands competence.  Although we tend to view “competence” in concrete terms such as “legal knowledge” and “skill,” also consider that when we are in high demand and over-extended, there is a corresponding risk that the quality of our work may suffer.  We may not be as thorough; we may not be as prepared.  We may not be fulfilling our duties to our clients.

Knowing your limits and finding the courage to enforce them are key to competence in the practice of law.  When we take care of ourselves, we are better equipped to care for others, whether they are our families, our colleagues, or our clients.

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A Lawyer’s Duty to Self-Report?

Years ago, when I was on the ethics staff at the State Bar, I used to get the question, “Am I required to self-report conduct?” I still get that question from time to time when lawyers call me for advice.  Here’s the skinny.  There are two instances where the Rules of Professional Conduct require that you self-report your conduct, and they both have to do with handling trust funds for clients.  First, you have a duty to self-report under Rule 1.15-2(p) if you know or reasonably believe that trust funds have been misappropriated or misapplied.  The term “misapplied” is not defined in the Rules, but it appears from the context that it involves the use of client funds for a wrongful or inappropriate purpose.  Second, the Rule indicates that if an unintentional or inadvertent error results in the “use of one client’s trust funds to pay the obligations of another client, the event must be reported unless the misapplication is discovered and rectified on or before the next quarterly reconciliation required by Rule 1.15-3(d)(1).” So, if you discover an error in your trust account reconciliation resulting in a negative balance for a client, but you fix it within a quarter (e.g., replacing the funds), you are not required to report that error to the State Bar.  If you don’t correct it, you must self-report. Comment [26] makes clear that this rule requires a lawyer to self-report, even if the disclosure of confidential information is necessary to comply with the Rule.  The appropriate person at the State Bar to self-report to is the Trust Account Compliance Counsel (TACC).

Let’s contrast Rule 1.15-2(p) with Rule 8.3, which is generally known as the reporting rule.  Rule 8.3 provides that a lawyer “who knows another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter.”  This Rule, unlike Rule 1.15-2(p), does not require disclosure of information otherwise protected by Rule 1.6.  That means if a client insists that the information required to make the report remain confidential, you cannot report it. The Comment does say that a lawyer should encourage his or her client to allow the lawyer to report, if it would not harm the client to do so. Rule 8.3, by its very terms, applies only to the report of another lawyer.  It is not a self-reporting rule.

It is up to you whether you self-report conduct other than what is required under Rule 1.15-2(p).  If you do decide to self-report to the State Bar, understand that if you disclose conduct that would constitute a violation of the Rules of Professional Conduct, no matter how minor, the State Bar must open a grievance file and investigate the matter.

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When is Friending Too Friendly?

I hear more and more about attorneys connecting with their clients on social media.  The reasoning? There is a greater connection with your clients. It shows you care and that the client isn’t simply a file number.  Perhaps the thinking is that social media is an effective way to get your name out, connect with many different people, and solidify your brand.  From a marketing perspective, it may make sense.

It is not unethical to connect with a client on social media through Facebook, Twitter, or Instagram and the like.  There is no rule that says you can’t, but is it a good idea? Here are some reasons to think before you connect:

  • Social media tends to be informal. Consider whether this is the kind of relationship you want with your clients.
  • The informality associated with some kinds of social media may encourage the client to communicate with you outside of normal business hours.
  • Because of the informality, clients may be tempted to discuss their case with you online. Consider attorney-client privilege waiver issues and confidentiality problems if the client overshares.
  • Think about how you usually use social media. Is it primarily personal or for business? Does sharing what you ate for dinner really promote your brand? Consider establishing a separate Facebook page for firm news, professional activities and accolades.  Or connect with clients only through professional sites like LinkedIn.
  • Consider the kind of information shared and what the client may learn about you. Are your personal Facebook posts the kind of information you want your clients to see, or is it information that really should be reserved for friends and family?
  • Your clients may have religious or political beliefs that are vastly different from your own. They may not get your sense of humor, or they may be easily offended.  Your posts may inadvertently alienate some clients.
  • Keep in mind that clients would also see what other friends or family will post about you, if tagged. Does your mom post embarrassing pictures of you from middle school?  Or what if a friend posted a less than dignified video of you playing a game of charades at a party?  While this silliness won’t sink a career, it may not be the professional image that you want to project.

Aside from potential boundary issues, there is a real concern that this informal connection may implicitly encourage communication about the client’s case if you have connected with a client during the representation.  You already have an affirmative obligation to advise certain litigation clients about the dangers or risks of posting on social media and how those posts may affect their case. See 2014 FEO 5.

In my view, if you don’t already have an existing friendship with a client, it is prudent to keep your professional and personal life separate, especially if you are currently representing a client in litigation. Develop your brand and your connections through a law firm Facebook page or a professional platform such as LinkedIn.  You may be the life of the party, but unless you would want your clients at that party, think twice before inviting them in.

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Friending a Represented Opposing Party

Some time ago, in a blog far, far away, we explored the topic of social media and discovery. In particular, we had concluded that it would likely be a violation of Rule 4.2 of the Rules of Professional Conduct for a lawyer to try to “friend” an opposing party she knew to be represented in that matter.  The conclusion was based upon the fact that a Facebook friend request was “a communication” under the Rule, and that the purpose of the communication was to obtain information related to the matter for which the party was represented.  As you know, Rule 4.2 prohibits communications about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.  Seemed like an easy question with an easy answer at the time.

Fast forward to July 2018, where the Ethics Committee has been studying a proposed ethics opinion on this very issue.  An initial draft of the opinion reached the very same conclusion that we did.  The latest opinion that was circulated, Proposed 2018 FEO 5,* reached the opposite result.  Opinions #4 and #7 of the proposed ethics opinion state that either the lawyer, or any person at the lawyer’s direction, may request access to restricted portions of a represented person’s social network presence, so long as there is no misrepresentation.  In other words, the proposed opinion finds that a lawyer or his agent can make a friend request on Facebook to a person the lawyer knows to be represented.  Opinion #5 of the proposed ethics opinion also permits the lawyer to post or communicate directly on the represented person’s Facebook feed so long as the communication is not “intended to elicit information about the subject of the representation….”  Wait, what?  I cannot imagine why a lawyer, who has no relationship with a represented opposing party, would send a friend request or thereafter post on that person’s timeline, except to garner useful information about the subject matter of the representation.

Well, there are certainly arguments on both sides of this issue.  Some believe that seeking truth or exposing the truth is the most important goal and that an interpretation offering more protection to the represented individual frustrates that goal.  While discovery tools are available, or hiring a private investigator is possible, it certainly would be more expedient to be able to see what the represented person (or their friends or family) is posting online.  There may be an argument that traditional discovery may not be available or is not likely to extract the same information as Facebook postings.

At the same time, others argue that some people do not understand the full implications of accepting friend requests.  Some small business owners, for example, believe that social media is the perfect platform for growing their business, and have an “accept all friend requests” policy.  Others may recognize the lawyer’s name and know enough to decline any friend request by the lawyer, but certainly would not know the name of the lawyer’s paralegal making a friend request.  Does the omission of certain information about the person making the request somehow make that request misleading? Lawyers do have an obligation to advise their clients about social media posts and the dangers of over-sharing. So, is it the client’s responsibility to be more vigilant about who they allow into their network?

There is no doubt that a tension exists between the protection of the represented person under Rule 4.2 and the desire to find the truth.   To me, the friend request issue and its resolution may turn upon the answer to three questions: First, should Rule 4.2 be interpreted to prohibit communications between a lawyer and represented person that, while not about the subject of the representation on their face, are intended to discover or obtain information related to the subject matter of the representation?  To put it another way, does interpretation of the Rule in this instance turn upon the purpose of the lawyer’s communication, or on the actual communication itself? Second, can the lawyer, through a friend request, invite herself into a conversation with a represented person, hoping to glean some useful information, without disclosing the lawyer’s purpose or disclosing that she represents another party in the matter.  Rule 4.3, dealing with unrepresented persons, requires that much.  If we are making an exception to permit online friend requests, should we apply the minimal protections in 4.3? Third, how do we resolve the tension between truth-seeking and client protection?  Should one goal be placed above the other.  Rule 4.2 is not the only rule that would tend to, in some instances, frustrate the fact-finding goal.  The confidentiality rule is another, but there are exceptions to that rule that appear to serve a greater good or a weightier goal.   One of those exceptions is candor to a tribunal. With this opinion, the State Bar may be blurring the lines, if not carving out an exception, for certain online communications.

Comment [1] to Rule 4.2 spells out the three primary concerns addressed by the Rule, which help preserve “the proper functioning of the legal system”:

  • Protecting a person who has chosen to be represented by a lawyer in a matter against overreaching by other involved lawyers;
  • Protecting that individual from interference by involved lawyers with the attorney-client relationship; and
  • Protecting that individual against uncounseled disclosure of information relating to the representation.

I believe it is primarily the third concern that merits further analysis.  The Ethics Committee, at its July meeting, sent this proposed opinion back to subcommittee for further study.  While the current interpretation of Rule 4.2 in Proposed 2018 FEO 5 feels wrong, I usually need more than a feeling or gut reaction to justify an outcome.  On the other hand, I tell my clients, never ignore your gut.

*UPDATE: This proposed ethics opinion was rejected by the Full Council of the State Bar on October 26, 2018.  This matter will go back to the Ethics Committee at its January 2019 meeting.

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Could New Advertising Rules be on the Horizon?

Have you ever been confounded by the complexity of the advertising rules, especially with respect to direct mail/email communications?  When must you use a disclaimer and what must it say?  How big must the disclaimer be and where must it be placed?  What color and font can you use for the disclaimer? The ABA Standing Committee on Ethics and Professional Responsibility is proposing significant changes to the advertising rules, and plans to present its recommendations to the ABA House of Delegates in August**.  Your NC State Bar has been watching this process for a while now, but is certainly not waiting to see what the ABA will do.  A special committee to study the new proposed ABA Model Rules on advertising has been convened by the State Bar, and I am excited to be serving on the committee.

Why is the ABA considering these changes to the Model Rules?  First, the ABA wants to encourage national uniformity in the advertising rules and a simplification of the rules.  Each state’s advertising rules look very different, and many are very complex.  Second, the ABA wants to accommodate changes in the legal profession from technology, competition, and cross-border practice.  Certainly the legal profession has changed since the advertising rules were adopted, and many of the provisions are outdated given technological advances and social media.  Third, the ABA wanted to relieve regulators of unnecessary burdens.  Nearly all complaints in advertising grievances are from competitors, not clients.  If there truly is little risk that prospective clients will be misled, then regulators should not be spending time disciplining attorneys for violating what amount to technical violations of very specific rules.

Here is one example of a proposed modification by the ABA Standing Committee.  Our NC Rule 7.3(c) has very specific requirements for targeted direct mail solicitations, including what the advertising disclaimer must say, the size of the font, the placement of the disclaimer, and the conspicuousness of the disclaimer relative to other printing on the envelope and in the letter.  The draft ABA opinion would completely eliminate Rule 7.3(c) as it exists today and the comments relative to direct mail solicitations.  The proposed rule would define “solicitation” as a “communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.”  The proposed ABA Rule 7.3 goes on to prohibit solicitation by “live person-to-person contact” subject to certain exceptions, but specifically excludes written/electronic communications from the prohibition, unless the recipient has made known a desire not to be solicited or if the solicitation involves coercion, duress or harassment.

If NC adopted this kind of rule change, attorneys could spend more time practicing law, and less timing measuring the size of their disclaimers. State Bar staff could worry about bigger problems than whether an attorney’s disclaimer language meets the conspicuousness test.  Heck, my clients wouldn’t need me to review their ads as much, but I’m definitely OK with that!

**UPDATE: Changes were recommended to the House of Delegates in August, and with some minor modifications were approved by the ABA.  The NC Special Committee to Study the new rules continues to meet to determine which of those Model Rules North Carolina wants to adopt.

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Harness the Power of Feedback

When we think about communications with our clients, we are often focused on our obligations under Rule 1.4 of the North Carolina Rules of Professional Conduct.  As a result, we often view communication with a client in somewhat clinical terms: reporting information to the client, advising the client about his or her rights, explaining the pros and cons of pursuing a claim or defense, and obtaining the client’s consent to a particular course of action.  But have you ever considered expanding the scope?  For example, would you consider asking your client for feedback on how you are doing?

Extending an invitation for feedback from your client may not seem like a fun exercise and may even feel a little uncomfortable.  After all, most of us strive to be self-assured, and asking for feedback may feel like self-doubt.  However, asking for feedback may not only enhance the relationship you have with your client, it may also avoid misunderstandings, improve your practice, and importantly, provide some welcomed affirmation.

Consider this: just by extending the invitation for feedback, you will have communicated to your client that you care about him or her, that you are interested in what he or she has to say, and that you are listening.  The invitation will likely be well-received, appreciated, and may reinforce your client’s confidence in you.

Further, by giving the client an opportunity to provide some feedback, you may uncover a misunderstanding of which you were previously unaware.  Such a discovery provides a key opportunity to address a relatively small issue early on, before it potentially snowballs into a larger problem.  Many disciplinary complaints stem from breakdowns in communication between the attorney and client, and addressing concerns in a proactive manner may just prove to be the stitch in time that saved nine.

If the client is forthcoming, you may learn about areas for improvement. For example, you may learn that while email communication is easiest for you, your client is not computer-savvy and prefers to receive phone calls.  Or you may learn that your client was expecting to hear from you every day, and you now have an opportunity to manage that expectation.  Receiving this type of feedback may flag common issues that you can address across your practice to enhance your relationship with all clients.

Finally, you may actually get some positive feedback, and who doesn’t want that?!

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Professional Relationships – How Important is it to be “Right?”

Raising a very strong-willed seven-year old daughter definitely has its challenges.  One of the many life lessons that we want her to learn is the lesson of how to properly interact with her peers.  One concept we recently discussed is when it is okay not be “right.”  For example, our daughter often corrects her friends when they say or do something that she knows isn’t correct.  Sometimes it is helpful, and sometimes it is frankly annoying.  We have tried to explain to her that unless it is something very important, it is okay to let mistakes go.  She was very confused by this statement.  It is hard for her to grasp the concept.  If something isn’t right, shouldn’t it be corrected?  I asked her if she would rather have good relationships with her friends or always be right.  She stated, “I want both.”  We have some work to do.

This conversation made me think about our interactions with each other as professionals.  Have you ever had a conversation with a peer who corrected you constantly?  Are you the one who constantly corrects other professionals?  Their pronunciation of words?  When you know what the person meant, but they used the wrong word?  Have you ever corrected the word “your” to “you’re” in an email where it was not critical?  Is this behavior professional?  It probably depends.

Correcting a small issue that will not affect anyone else is probably not a good idea, particularly in public.  You may embarrass your colleague which will not foster a great professional relationship.  However, if the person’s mistake could impact others in a negative way, it may be necessary.  If that is the case, perhaps you should attempt to point out the mistake in private, if possible.  It is also helpful to avoid using words or phrases that come across as pompous and condescending.  For example, instead of saying, “actually, it is pronounced voir dire,” you could say, “I have always had a hard time with those Latin words.  I heard the judge pronounce it “vwar dir.”

Manners are a huge part of professionalism and are not something we should focus on only as a child.  If you catch yourself correcting someone for something relatively unimportant, you may want to pose the same question to yourself that I asked my daughter?  Would you rather have a good relationship with your fellow professionals, or be right all the time?  You likely cannot have both.

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Choose to Light Lamps

I recently attended a funeral for a friend’s mother, and was moved by the service and the remarks made about this wonderful woman.  I learned that my friend’s mother lived by these words: “Attitude is everything. You can either choose to curse the darkness around you, or you can choose to light lamps.  Always choose to light lamps.”  I love this metaphor.  I certainly see darkness in my profession from time to time.  Attorneys are angry about grievances filed by clients they believe are ungrateful or unreasonable.  The State Bar issues discipline against attorneys who are not managing their trust accounts as the rules require, and the feeling is that the punishment is too harsh. Lawyers are losing their licenses to practice law for lapses in judgment that cause harm to the profession.

I have also seen lawyers who have taken the grievance process and disciplinary proceedings in stride.  Instead of cursing the client who brought the grievance, the attorney took the opportunity to re-evaluate her law firm’s client service and responsiveness, and make positive changes in her practice.  Instead of cursing the State Bar staff or the grievance process, another attorney found out something he did not know before.  As part of his written response to the State Bar and given the nature of the allegations against his character, we advised the attorney to get character letters from his colleagues and those in the community to support his good character for truthfulness.  The outpouring of support was uplifting, and the attorney learned how well his peers and others thought about and appreciated him.  Without the State Bar grievance process, he may never have known how much he was loved and respected.  In another instance, where an attorney faced losing his law license, he reconsidered whether the practice of law was truly his calling, and ended up finding more joy by following his passion to another profession.

These attorneys are just a few examples of those whose attitude made all the difference.  They chose to light lamps rather than curse the darkness.  I believe they came out better for having done so.

 

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When the Golden Rule Becomes a Local Rule

If you know a party is represented, must you notify opposing counsel before you seek an entry of default and default judgment against his or her client?

Rule 1.2(a)(3) of the North Carolina Rules of Professional Conduct provides that “[i]n the representation of a client, a lawyer may exercise his or her professional judgment to waive or fail to assert a right or position of the client.”  The comment to the rule explains:

Lawyers are encouraged to treat opposing counsel with courtesy and to cooperate with opposing counsel when it will not prevent or unduly hinder pursuit of the objective of the representation. To this end, a lawyer may waive a right or fail to assert a position of a client without first obtaining the client’s consent. For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.

See Comment to Rule 1.2(a)(3).

So what are an attorney’s obligations when the attorney knows a defaulting party is represented by counsel and that counsel has failed to file an answer to a complaint?  Should the attorney notify opposing counsel of his or her intention to seek an entry of default and default judgment?

Rule 1.2(a)(3) provides that this decision lies within the attorney’s discretion, and that he or she may—without his or her client’s consent—provide opposing counsel advanced notice.  Alerting opposing counsel to this type of procedural deficiency, and permitting him or her to correct it, epitomizes professional courtesy.  Still, many attorneys may zealously purse their client’s interests by forgoing such notice, which is entirely permissible under the North Carolina Rules of Civil Procedure and the Rules of Professional Conduct.

However, providing this type of notice is not a matter of professional courtesy in Mecklenburg County: it is a requirement.  The 26th Judicial District (Mecklenburg County) has enacted local rules which require an attorney to give opposing counsel advance notice:  General Civil Rule 16.6 for the Superior Court Division requires an attorney to provide ten (10) days’ written notice to opposing counsel (where it is known that the opposing party is represented) before seeking entry of default.  General Civil Rule 15.4 for the District Court Division takes the requirement a few steps further, stating:

The 10-calendar-day notice shall be given immediately after the expiration period for filing the answer and no later than five business days after the expiration period.  A violation of this rule will cause the case to be identified as delinquent and may subject the case to dismissal at the discretion of the Chief District Court Judge or presiding judge.

Rule 15.4, General Civil Rules 26th Judicial District, District Court Division. That is, if the attorney knows that a defaulting party is represented by counsel, and fails to provide written notice of his or her intention to seek entry of default (and do so quickly), the case is subject to dismissal.  This is a steep penalty for the zealous advocate who failed to check the local rules before seeking entry of default.

While it is always good practice to extend professional courtesies where we can, it is crucially important to read the local rules of the district where our cases are pending.

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The Law Trumps a Client’s Directive for Payment

Suppose you are a personal injury attorney.  The client has agreed to the settlement and when it comes time to go over the settlement disbursement summary, the client balks at paying a particular medical provider.  Suppose, also, that this medical provider has perfected a valid lien pursuant to G.S. §44-49(a).  Until recently, the State Bar had said that the attorney may pay the medical provider over the client’s objection, with the implication that the decision to do so was within the sound discretion of the attorney.  No more.  Now, pursuant to a recent ethics opinion (2017 FEO 4), if the settlement funds are subject to a perfected statutory lien, the attorney MUST pay the medical provider, even over the client’s objection.

The ethics opinion does indicate that if the client has a valid dispute with the provider about the amount of the charges or whether they were in fact incurred, the attorney must leave the disputed funds in trust.  The attorney may release the funds when the dispute is resolved.  The attorney must, however, inform the client that “absent a prompt resolution of Provider A’s claim that is satisfactory to both parties, Lawyer will eventually be obligated to deposit the funds into the court for disposition. In the interim, if a final judgment is entered on Provider A’s claim such that the claim is no longer in dispute, pursuant to N.C. Gen. Stat. § 44-50, Lawyer must pay Provider A over the client’s objections.”  This section of the opinion creates an affirmative duty to interplead the funds if there is no prompt resolution.  The attorney may not continue to hold the disputed funds indefinitely or even for a lengthy period of time.

Suppose the client then refuses to settle because he or she does not want to pay a provider, or perhaps your attorney fee either.  Well, that’s the subject of a different blog.

 

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