Must We Reveal Those Skeletons?

I was reminded recently of an Ethics Decision (unpublished) that answered the question, “When must a lawyer disclose unsavory personal information” to a client or prospective client?  Ethics Decision 2003-5. If you are currently being investigated by the State Bar, are you required to disclose that fact to your clients, or any prospective clients?  What about if you are being investigated by the government?  Or if you have been charged in a criminal matter?   At what point do attorneys have an obligation to disclose this kind of personal information to clients?

The State Bar has determined that an attorney has an obligation to reveal “unsavory personal information” when the attorney reasonably believes such information is necessary for the client to make an informed decision regarding representation.  You should ask yourself, can the client give informed consent to continued representation without this information? For example, an attorney who has received a grievance for an advertising violation, can reasonably conclude that the disciplinary matter will have no bearing upon his representation of his clients or prospective clients.  The matter will likely be resolved without the attorney losing the ability to practice law.  On the other hand, a lawyer who has a complaint pending for misappropriation of trust funds, where the State Bar has evidence to support the charges, will very likely lose his license.  He should consider whether he can appropriately conclude the client’s representation in the short term, or whether it will be necessary to give clients notice and the choice of alternative counsel.  The key here is to inform the client in plenty of time so the client’s interests are not prejudiced by the need to select new counsel.

In addition, if the attorney anticipates that a pending disciplinary or criminal matter may be so time consuming that it could adversely affect the representation of his client, there likely would also be a duty to disclose to any current clients whose representation may be impacted.  The attorney in such a situation should also consider whether to undertake any new representation.  The same considerations would apply to any personal situation that may take significant time away from the practice of law, such as personal health issues or a family health crisis.

It is interesting to note that the test for whether to disclose is not whether the client would want to know that information, but rather, whether the client needs the information to make an informed decision regarding representation.  The test appears to hinge upon whether the client could be prejudiced or whether the representation may suffer due to the attorney’s personal circumstances.  Another point is that the State Bar leaves the decision to disclose to the professional judgment or the discretion of the attorney.  I find that curious because it is likely that an attorney’s professional judgment may be impaired because he may have a vested interest in not disclosing the information.

If you are ever faced with this question about whether to reveal personal information to the client, I would try to put yourself in the client’s shoes.  If you, as the client, might want to know the information, then also ask yourself whether there is any possibility that your personal circumstances could affect the client’s representation.  If either answer is yes, and you are reluctant to inform the client, get the advice of ethics counsel.  It may be prudent to get another set of eyes to review the situation.

 

Posted by | Comments Off on Must We Reveal Those Skeletons?

Conflict Checks: Not Just for New Clients

In evaluating conflicts, I always tell my attorney clients that it is important to have a mechanism in place to (1) Identify, (2) Assess and (3) Address conflicts of interest.  You would think the first step is obvious, but you may be surprised by how easy it can be to miss identifying a conflict of interest in the first place. Sometimes the failure to identify a conflict stems from a complicated factual scenario such as multi-party litigation with various business entities or subsidiaries or unusual facts involving representation of estates or uninsured motorist claimants.  Luckily, those kinds of conflicts are few and far between.  More often, the conflict of interest that is missed is the one that should be obvious, if only we were looking for it. Where we fail to look most often is the conflict that involves the existing client.  If there is an existing client, then you’ve already done your initial conflict check before accepting that person as a client, and you feel safe in knowing you have done your due diligence.    But what happens if the client introduces a new matter?  Or suppose it is not as clear as a new matter?  Instead, the client changes the scope of the representation so that there may be additional issues, or suppose as you get deeper into the representation, you determine the scope of the representation should be expanded or changed.  Or, what if after additional investigation, you discover or receive new information suggesting that there are other adverse or potentially adverse parties or witnesses.

In any of the above scenarios, if you notice that there are additional issues with potential additional parties or adverse interests, then you should go ahead and run another conflict check.  The Rules of Professional Conduct provide that an attorney must be vigilant about identifying conflicts of interest that may arise during the course of the representation.  Sometimes a conflict arises through the direct action of a client, and other times, a conflict can arise that no one could have anticipated.  For example, suppose you represent a client in an employment dispute.  After you have represented a client for a number of months, you discover there are a number of fact witnesses that the employer intends to call at trial.  This is an opportunity to run another conflict check.  In so doing, you learn that one of the employer’s witnesses against your client is someone your firm is currently representing in a domestic dispute.  If  this is a matter that is proceeding to trial, then you have a conflict of interest because you cannot cross-examine a current client of the firm.

There may be a number of discoveries that you make or changes that occur during the course of representation that would trigger the requirement to run conflict checks.  If you stay vigilant, and know when to look, you won’t get blind-sided by a conflict of interest.

 

 

Posted by | Comments Off on Conflict Checks: Not Just for New Clients

Targeted Direct Texting

There is a newly proposed ethics opinion (October 2016) which will supersede the information in this blog.

Lawyers are familiar with targeted direct mail solicitation, and even if you don’t do it, you know there are ethics rules that apply. Targeted direct mail presumes that you know of a particular legal need of a prospective client, and you communicate with that person about the need for services. Rule 7.3(c). Unless you’ve sent one of these letters, you may not know that there are lots of ethics requirements that govern the minutiae of sending a targeted direct mail letter, especially regarding the font size, thickness, darkness, color, placement and conspicuousness of the advertising disclaimer.  These rules are not simply to be generally adhered to; they must be followed to the letter.  They are strictly construed.  Some of the requirements are subjective (no writing more conspicuous than the advertising disclaimer), so you should go above and beyond to be sure “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES” is absolutely the most conspicuous printing anywhere on the envelope and on the direct mail letter.

What about targeted direct electronic communications?  There are rules for that too.  Like the direct mail rules, these rules are designed to inform the public that the communication is an advertisement, but also may have the effect of squashing any creative, novel, eye-catching message designed to grab the attention of your reader.  The advertising notice (think big and all caps) must be in the subject line or header of the email.  The advertising notice must also appear at the beginning and ending of any electronic communication.  Then there are restrictions about the fonts, color, and size of the disclaimer, and finally, the disclaimer must be the most conspicuous printing (think HUUUGE – for the Bernie and Trump supporters).

Do these rules allow for targeted solicitation via text?  It is unclear.  Certainly the rules permit targeted solicitation through electronic communications.  Texting, however, does not have a subject/header field to include the advertising disclaimer.  Arguably, any electronic communication lacking this field could be banned as a method of targeted advertising under the Rules.  In addition, by the time you include the advertising disclaimer at the beginning and ending of a text, it may not matter what you include in the middle because the text will be so long that you will likely have lost your reader anyway. There does not appear to be an ethics opinion on this issue, although there is a proposed ethics opinion about using texting to advertise when a recipient has signed up for an advertising service.  This kind of texting service would not require the use of the disclaimer, as there is no known need for legal services.  In addition, there appear to be some federal laws that may restrict this kind of advertising altogether.  See CFR 64.1200.  My advice: don’t use texting for targeted advertisements–at least not without asking the State Bar first.

 

Posted by | Comments Off on Targeted Direct Texting

Liability Limits: Good Legal Advice, Bad Professional Practice

In my day job, I am a provider of professional services; in my other roles, I also frequently am a consumer of professional services.  As a consumer, I have noticed a disturbing trend in agreements for professional services.  More and more professionals are inserting standard clauses in their agreements with consumers prospectively limiting their liability for negligence and other mistakes or misconduct.

These limitations take various forms, but recently the trend seems to be to limit the professional’s potential liability to no more than the total fee they were paid by the consumer.  Assuming it is consistent with one’s professional obligations and is enforceable, these clauses allow a professional to commit negligence or other misconduct, potentially cause substantial damage to the consumer, but yet have no liability or financial obligation, other than to return the fee paid. That’s hardly a formula for fostering careful, diligent, and skillful professionals.

Certain professions restrict liability limitation clauses but permit them under certain circumstances. For example, lawyers are prohibited from entering into any agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement, pursuant to NC Rule of Professional Conduct 1.8(h)(1).  Such a clause or agreement is considered a conflict of interest with the client.  This restriction effectively prevents the use of such clauses in form or standard contracts and agreements with lawyers but permits it when warranted and with appropriate safeguards.  Although there certainly are circumstances where such liability limitation clauses are appropriate, they should not be a routine contract clause in my view.  Restrictions, such as the one contained in the NC Rules of Professional Conduct for attorneys, prevent their widespread use in form agreements.

Unfortunately, the regulations and ethics rules for most professionals in North Carolina do not prohibit or even restrict such liability limitation clauses.  Most professionals essentially are allowed to eliminate all such liability through a contractual provision without restrictions.  Hopefully, more profession regulators will recognize that placing at least some restrictions on these types of clauses will help limit their use to circumstances where justified and with appropriate protections, not merely as part of a form contract that most consumers never bother to read before signing away important legal rights.

As a lawyer, I realize that most of these clauses are inserted upon the advice of attorneys.  Although it may be good technical, legal advice to a professional, it is misguided, bad business, and unprofessional in my opinion.   As a consumer of services, the message that such clauses send me is that the professional is not confident in his or her abilities and doesn’t want to be responsible for any mistakes or misconduct.  I have consistently refused to sign agreements or contracts containing these liability limitation provisions and instead seek out professionals who do not use them or are willing to delete them.

I encourage you as a consumer to do the same thing and, as professional, not to include such provisions in your agreements from a business and professionalism standpoint.  I want to deal with professionals who are competent, confident, careful, and diligent but also willing to accept responsibility for any mistakes that may be made.  I believe that is what most consumers want in dealing with professionals.  Liability limitation clauses send the wrong message and create misguided incentives.   Sometimes good technical legal advice is bad for business and for your profession and professionalism. Any good professional should stand behind his or her work, not hide behind a liability limitation clause.

Posted by | Comments Off on Liability Limits: Good Legal Advice, Bad Professional Practice

Money Gone Missing: When a Third Party Steals Trust Funds

Under Rule 5.3, a lawyer has an obligation to properly supervise nonlawyer assistants who have access to the trust account. Thus, if that nonlawyer assistant embezzles entrusted client funds, the lawyer has a professional responsibility to replace the funds. What about when the loss occurs through fraud by an unaffiliated third party?

Does a lawyer have a professional responsibility to replace funds stolen from his trust account by an unaffiliated third party where the bank honored counterfeit checks presented by the third party?

Formal Ethics Opinion, 2015 FEO 5, was adopted in October 2015 and provides:

…when funds are stolen from a lawyer’s trust account by a third party who is not employed or supervised by the lawyer, and the lawyer was managing the trust account in compliance with the Rules of Professional Conduct, the lawyer is not professionally responsible for replacing the funds stolen from the account.

The Opinion advises that lawyers must still investigate the matter, take steps to prevent further loss to entrusted funds, and make every effort to remedy the situation including: “…researching the law to determine if Bank is liable; communication with Bank to discuss Bank’s liability; asking Bank to determine if there is insurance to cover the loss; considering whether it is appropriate to close the trust account and transfer the funds to a new trust account; and working with law enforcement to recover the funds.”

Note that the Opinion requires that the lawyer “was managing the trust account in compliance with the Rules of Professional Conduct” before he is relieved of the duty to replace the stolen funds.  While the trust accounting rules may not be burdensome, they are specific.  One area where we see lawyers consistently missing the mark is by failing to reconcile the trust accounts quarterly and by failing to send a written accounting of funds to clients, annually and upon final disbursement.  The opinion also clarifies that “substantial compliance” would be sufficient to relieve the lawyer of the duty to reimburse the account, so it is likely that a mere technical violation of the Rules, such as failure to keep proper-sized cancelled check images, would not trigger the reimbursement requirement.

RPC 191

Compare this Opinion with RPC 191 which requires a lawyer to reimburse his trust account for any losses caused by disbursing before funds are irrevocably credited where the lawyer disburses against provisionally credited funds. In that case, if third party fraud prevented the funds from being irrevocably credited and the attorney disburses prior to that point, the attorney must reimburse the client funds.

Does a lawyer have a duty to replace stolen funds from the lawyer’s trust account when the theft occurs as a result of an unaffiliated third party gaining illegal access to lawyer’s computer and transferring the trust account balance to the third party’s account?

It depends upon whether reasonable security measures were in place.  2015 FEO 6 provides that the lawyer is not professionally obligated to replace the stolen funds as long as he has “taken reasonable care to minimize the risks to client funds by implementing reasonable security measures in compliance with the requirements of Rule 1.15.” 2011 FEO 7 provides some of those affirmative duties including:

  • educating himself regularly on the risks of online banking;
  • actively maintaining end-user security;
  • using encryption and security software;
  • hiring an IT professional to advise the lawyer and firm employees; and
  • insuring all staff members receive training and follow the security measures adopted by the law firm.

Under the above two circumstances, may a lawyer deposit his own funds into the trust account while pursuing other remedies?

As a general rule, there is a prohibition on commingling funds:  Lawyers should not deposit personal funds into the lawyer’s trust or fiduciary accounts.  There are, however, various exceptions to the rule which permit a lawyer to deposit personal funds into a trust account including funds sufficient to open or maintain an account and others which allow the lawyer to fulfill his duty to safeguard entrusted funds.

Although it is not required for a lawyer to deposit his own funds into the trust account under the circumstances described in 2015 FEO 6, the opinion permits a lawyer to do so.  A lawyer may replace the stolen funds with his own, until the funds may otherwise be recovered from the bank, insurance, or elsewhere. The opinion provides that if the lawyer decides to deposit his own funds, the lawyer must make sure the trust account reflects the:

  • source of the funds;
  • reason for the deposit;
  • date of the deposit; and
  • client name for which the funds were deposited.

In short, under these circumstances involving an unaffiliated third party, a lawyer may not have a professional responsibility to reimburse the stolen funds. However, the lawyer (1) may still have a legal responsibility to do so; and (2) must take certain steps which include reporting the theft to the NC State Bar’s Trust Accounting Compliance Counsel.

Posted by | Comments Off on Money Gone Missing: When a Third Party Steals Trust Funds

Think Twice Before Using a Liquidated Damages Clause

NC courts generally give broad deference to parties entering into a contractual relationship to negotiate the terms of the contract, including legal remedies against each other.  One type of remedy which may be included is a liquidated damages clause.  Such a provision provides a pre-determined amount that a breaching party will owe the non-breaching party in the event of a breach.  This contractual provision has both positives and negatives.  On the one hand, it will typically be cheaper to negotiate the liquidated damages clause on the front end, as opposed to resolving the issues of damages in subsequent litigation. On the other hand, issues of the provision’s enforceability can, of course, be litigated and get very expensive.  Further, agreed upon damages at the time the contract was executed may prove insufficient at the time of a breach.

Can an attorney include a liquidated damages clause in a fee agreement with a client?  There does not appear to be any North Carolina ethics opinions or rules that expressly prohibit it.  Using such a provision, however, seems to force commercialism into the arrangement and ignores the heart of the attorney-client relationship — a relationship based on duty and trust.  Including such a provision also seems to be at odds with the fact that a client may terminate the services of an attorney at any time and for any reason.   Moreover, from a practical standpoint, clients may not appreciate these clauses, and wonder why an attorney would include the provision in a fee agreement. This provision may send the wrong message and a client may decide to go elsewhere.

Listed below are a few other considerations (but certainly not all) that weigh against using these provisions:

  • A liquidated damages clause in a fee agreement may not result in a clearly excessive attorney fee.
  • Contract provisions, to be ethical, must also be lawful.  I have not found any NC law which would indicate that such a provision in a NC fee agreement would be unlawful or against public policy.  However, this is a relatively new area. In service or consumer contracts, as opposed to employment contracts, there is not much law on whether a service provider may include this kind of language in their contracts.  You will need to keep up-to-date on this emerging area.
  • Liquidated damages provisions will generally be construed against the attorney, to the extent there is any question about interpretation.  The attorney is in a position of trust, and the attorney and the client do not have equal bargaining power. The courts will likely find the client was not given meaningful opportunity to negotiate the terms of the contract.
  • It is also important that you are certain that the client is specifically aware of this contractual provision, so that you would be able to state that the client knowingly forfeited this right if ever challenged on the provision.
  • Finally, a liquidated damages clause cannot amount to a penalty, and it is hard to see how a liquidated damages clause in your ordinary attorney fee contract could be anything else. The NC Supreme Court notes, “It is well established that a sum specified in the contract as the measure of recovery in the event of a breach will be enforced if the court determines it to be a provision for liquidated damages, but not enforced if it is determined to be a penalty.”  Brenner v. Little Red School House, Ltd., 302 N.C. 207,214, 274 S.E.2d 206, 211 (1981).

All this is to say, it is better not to treat your client fee contract like an ordinary commercial transaction.  While you can adequately protect yourself in the event of a breach by having a written fee contract, keep in mind that your fee contract is the first step in setting the tone of your relationship with your client.   It shouldn’t start out by being an adversarial one.

Posted by | Comments Off on Think Twice Before Using a Liquidated Damages Clause

They Mean Business

Bar applicants are under a lot of stress on the day of the bar examination.  That may be the understatement of the year.  In addition to trying to retain the enormous amount of information necessary to pass the bar exam, there are the additional worries of simply getting to the exam: Will there be traffic? Do I have the right directions?  Where will I park?  Do I have my admissions ticket with me?  Adding to that stress is the four-page Examination Regulations and Code of Conduct that must be initialed and signed before taking the bar exam.  This document contains a list of everything you can and cannot bring into the exam room, how you must conduct yourself during the exam, and where you can and cannot be at any given time.  The document asks the applicants to affirm that they have read and understand it, but no doubt, many do not read it carefully or simply forget the requirements and prohibitions. They have enough to worry about.

That four-page document can be critical, however, and knowing the rules may be the difference between obtaining your license and not.  Each time the bar exam is given, someone inevitably, albeit unintentionally, violates the rules listed in the document and must explain their conduct to the Board of Law Examiners before their bar examination results are released to them.  Keep in mind that in the vast majority of cases, these are not people trying to cheat.  They may have accidentally brought something into the exam room with them that they didn’t think twice about, such as a wallet, a watch, or eyeglasses case, or maybe they put on a jacket during the break that had pockets and simply forgot it was prohibited.  Applicants need to understand that the requirements listed in the Examination Regulations and Code of Conduct are strictly enforced.  It does not matter if a violation is unintentional.  If an applicant brings anything into the exam room that is forbidden, they risk having their exam results withheld for a period of time or, if there is not a good explanation for their conduct, permanently.  No doubt, it’s a bit harsh.  So if you know someone planning to take the Bar Exam, offer your condolences, and then remind them to carefully review the Examination Regulations and Code of Conduct, because you can bet the individuals proctoring the exam will, and they mean business!

Posted by | Comments Off on They Mean Business

The Stressed Out Lawyer

I am a natural born fretter. I tend to envision all the ways things could go wrong, and I tell myself it’s so I’ll be prepared when they (inevitably) do.  My sister-in-law often tells me to quit planning the wreckage of my future.  I know I need to find my zen zone, and try to deal with the stress that I inflict upon myself.  But if you’re like me, you know it is easier said than done.

The need to manage stress or the failure to do so seems to be the hallmark of the legal profession.  Apparently, the legal professional is number one — number one, that is, for the incidents of depression, out of 105 different professions. (1)   A fair number of the lawyers that I counsel suffer from depression, anxiety, and/or substance abuse.  I have wondered whether there is something about the legal profession that causes mental health issues, or is the type of person who is drawn to the law likely to be someone with characteristics that put them at risk?

According to Psychologist Martin Seligman, those traits which epitomize a good lawyer, may also translate into an unhappy person.  “[T]he legal profession is unique in that it is the only profession where pessimists–those who see problems as the norm and not the exception–out-perform optimists….[T]he legal profession calls for caution, skepticism, and anticipation that things will go wrong.”  (2) Combine that with the fact that lawyers as a group are particularly adverse to seeking help for mental health issues, and you have a recipe for disaster.

Given my personality, I have chosen the perfect profession for myself, so I should count that in the win column.  At the same time, if I allow the stress and worry to take too large a role in my life, I am at risk.  I attended a recent Lawyers Mutual presentation that tackled issues of stress and anxiety and how to cope with these factors in your life.  One takeaway from the program is that you need to schedule time to decompress.  Really.  Plan time away from your work, just like you would an appointment.  It doesn’t have to be as significant as a vacation.  Just think about how you can escape for a bit and find your happy place.  It could be getting outside, exercising, reading a good book, meditation, going to a concert, a change of scenery, spending time with family (or away from family), or anything else that makes you smile.

Schedule that time for yourself each and every day.  When you take better care of your mental health, you are in a better frame of mind – to make decisions, to get work done efficiently and to interact effectively.  In short, you’ll be a better lawyer.

 

Posted by | Comments Off on The Stressed Out Lawyer

Just Say No

For a while there, it looked as if the State Bar was going to require all law firms using any kind of personal mobile technology to adopt a BYOD (Bring Your Own Device) policy. Ethics Committee members and others, however, expressed concern that a Formal Ethics Opinion would serve to micromanage lawyers.  Furthermore, because technology was changing so rapidly, any ethics opinion, trying to direct how attorneys should protect mobile devices containing client confidential information, could become obsolete in a short time frame. Besides, lawyers already have a duty to stay abreast of changes in technology as part of Rule 1.1 (Competence). So, at its January 2016 meeting, the Ethics Committee instead voted to publish an article, in lieu of an ethics opinion, providing guidance to attorneys on how protect client confidential information on mobile devices by adopting such a policy.

One thing I learned from sitting in on the Ethics Committee meetings, was that the “apps” or applications that you download (think Facebook, LinkedIn, etc.) can access your contacts if you let them.  There are some applications that specifically ask if you will allow them to access your contacts, but there are others that may not.  That’s a bit scary.  If you are like me, you may have your client contact information on your smartphone.  I had not previously given much thought to my applications, although my M.O. is to say no to everything: can we access your location? – NO; can we access your contacts? – NO; can we access your pictures? – HECK NO.

Stay tuned for this ethics article in your State Bar Journal that will provide lots of insight and advice on protecting your mobile device and your client’s information. In the meantime, when in doubt, just say NO.

Posted by | Comments Off on Just Say No

Mistakes Just Happen: Professionalism Takes Work

Regardless of how conscientious you strive to be, eventually everyone makes mistakes. Fortunately, inadvertent or unintentional mistakes generally are not matters for which professionals are disciplined or held liable in most circumstances, absent some intent, malice or a pattern of errors.  Nonetheless, when mistakes do inevitably happen, it’s important to take a few simple steps to handle them correctly and professionally.  First, fess up and admit your mistake, preferably without qualification, hedging or excuse.  Second, take the initiative to do whatever you can to fix the problem or at least minimize any adverse effects.  Don’t wait for somebody to ask you to remedy it.  If you’re dealing with reasonable people, taking these simple steps often diffuses the situation and minimizes any potential negative effects to you and others.  In contrast, failing to take these commonsense steps, or acting to the contrary and unprofessionally, likely will exacerbate a potentially bad situation.

Because mistakes inevitably occur, we all eventually will be on the receiving end of such situations involving the mistakes of others.  It is equally essential to handle those situations professionally, even if it’s not the most expedient option or typically your first instinct.  For example, it is almost always a bad idea to respond through electronic communications to perceived misconduct by another person or professional.  The many shortcomings of digital exchanges rarely can adequately handle the sensitive nature and the nuances involved in such situations.  Rather, e-mails and texts regularly inflame and exacerbate such situations and cause people to make incorrect assumptions and jump to conclusions.

Ideally, confronting such situations should be done in person, or at least by phone.  These more traditional options allow for a much more interactive, interpersonal exchange and permit both sides to perceive essential nonverbal communications.  In short, when faced with such a situation, ask for a meeting or pick up the phone to discuss it, rather than sending a nasty email message without time to reflect.   It is equally important not to make assumptions or jump to conclusions without providing the other side the opportunity to explain and also to give the other side the benefit of the doubt, especially if you have developed a good working professional relationship.  Finally, don’t try to take strategic advantage of another’s mistake for short term potential gain.  Professionalism typically takes more work, but it is almost always worth it in the long run.  Next time the mistake may be yours.

I was reminded recently of these important principles.  Fortunately, both sides followed these basic but important steps and acted very professionally.  As a result, a potentially bad situation was quickly resolved, which then resulted in corrective action to quickly fix the mistake and the professionals were able to continue their good working relationship and focus on advancing their client’s interests.  The situation reminded me of the words of wisdom from a seasoned professional:  “Clients don’t hire us to pick a fight but to solve their problems.”  I just hope that the next time I am reminded of these important professionalism principles, it is as a result of someone else’s mistake.

Posted by | Comments Off on Mistakes Just Happen: Professionalism Takes Work