Think Before You Link: New NC Ethics Opinion on Social Media Connections

The Ethics Committee has now adopted an opinion[1] about the propriety of making and accepting invitations to connect and endorsements from judges and others on social media sites.  2014 FEO 8.  You can view the entire opinion by visiting the State Bar’s website and inserting the opinion number on the ethics page.  The opinion distinguishes between two types of “links” and also by who is making them– a judge or a lawyer.  For the first category – connections — the adopted opinion holds that an attorney may ordinarily accept an invitation to connect from a judge.  Opinion #1.  The lawyer generally also may send an invitation to connect with a judge.  Opinion #2.

The opinion warns that if the attorney is currently in proceedings before the judge at the time of the invitation, however, the Rules of Professional Conduct may require the lawyer to decline the invitation until the proceedings have concluded.  The lawyer must determine whether acceptance of the invitation during the pendency of a case will: (a) impair the lawyer’s ability to comply with the Rule 3.5 concerning ex parte communications and (b) amount to conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d), among other Rules.

Ultimately, the opinion directs lawyers to be mindful of their obligation to protect the integrity of the judicial system and to avoid creating an appearance of judicial partiality.  The same criteria apply when deciding whether to send an invitation to a judge to connect. Opinions #1 and 2.  Based upon this opinion, the safest course is to wait to connect with a judge until you are not appearing before that judge, if possible.

The next part of the opinion deals with endorsements and recommendations.  On LinkedIn, you have an option to display your “skills & expertise” on your profile page.  Your connections can then endorse a skill or expertise for you and you get a notification of the endorsement.  If you do nothing, and the endorsement is for a skill you have selected to show, then that endorsement automatically will appear on your profile page.  You may edit the “skills & endorsements” section to “hide” selected endorsements or skills.  People can also post recommendations on your profile page.

Why is all of this important?  The proposed ethics opinion says that it is okay to endorse a judge for skills or expertise (assuming you are not currently appearing before them).  Opinion #3.  Likely, this is permitted because it is really no different than sponsoring a judicial campaign or being listed publicly as a donor.  The lawyer also may accept endorsements and recommendations from persons other than judges as long as they are truthful and not misleading.  Opinion #5.

The opinion, however, holds that an attorney may not accept an endorsement from a judge under any circumstances or at any time because it would create the appearance of judicial partiality in violation of Rule 8.4(e).  Opinion #4.  Further, if a person who endorsed you later becomes a judge, you are required to remove or hide the endorsement from your profile if you know or reasonably should have known the person is or became a judge.  In the final adopted opinion, the State Bar added the reasonableness qualifying language.  Opinion #6.

Although the opinion primarily concerns the use of LinkedIn, it also applies to any social media site that allows public displays of connections, including endorsements or recommendations.  Opinion #7.    After reading the final opinion and before posting this blog, I decided I needed to figure out how to check my LinkedIn profile for people that may have become judges and might have endorsed or recommended me at one time.   Fortunately, no current judges endorsed me on LinkedIn so I didn’t have to learn how to hide or remove any.  Now I am off to figure out how to get onto our firm Facebook, Twitter and Google+ pages to check them as well.  Whose idea was it to set up all these social media sites anyway?

[1] This blog updates an earlier blog on the same topic.

 

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Email Encryption: HIPAA Considerations for Lawyers and CPAs

Currently, neither the NC State Bar nor the NC State Board of CPA Examiners specifically requires encrypted email, although licensees must take reasonable measures to ensure any client information maintained and transmitted is confidential and secure. On the other hand, the Health Insurance Portability and Accountability Act of 1996 [“HIPAA”] may require both lawyers and CPAs, under certain circumstances, to encrypt when acting as a “business associate” to a “covered entity.”

Could you be a “business associate” under HIPAA?

When HIPAA was first enacted, only covered entities, such as health care providers and health plans, were required to take steps to secure and prevent the unauthorized disclosure of certain types of individually identifiable protected health information [“PHI”] of their patients or members. The HIPAA privacy and security rules now apply not only to covered entities but also to their business associates. Further, with the new rules firmly in place, the U.S. Department of Health and Human Services is expected to become more aggressive in enforcing HIPAA. Given that lawyers and CPAs, who violate the rules while providing services to covered entities, may be subject to penalties of $100 to over $50,000 per violation, it is worthwhile to consider whether you are classified as a “business associate” under HIPAA.

HIPAA defines a business associate as any entity that creates, receives, maintains, or transmits PHI while performing a function, activity, or service on behalf of a covered entity including the provision of legal, actuarial, accounting, consulting, data aggregation, management, administrative, accreditation, or financial services.[1]  So if you are performing legal or accounting services directly for, or on behalf of, a covered entity, such as a healthcare provider or healthcare plan, you are classified a business associate and, consequently, must meet the same standard of security for the protection of PHI as the covered entity.

HIPAA Encryption Requirement

The good news is that HIPAA does not necessarily require the use of email/fax encryption by covered entities and business associates. The security rule made the use of encryption for PHI an “addressable” implementation specification as opposed to a “required” specification. Therefore, before a covered entity or business associate can decide not to encrypt electronic transmissions of PHI, the entity must engage in a feasibility analysis. The analysis would consider the:

  • Size, complexity and capabilities;
  • Technical infrastructure, hardware and software security capabilities;
  • Costs of security measures; and
  • Probability and criticality of potential risks to electronic PHI.

Under the feasibility analysis, “[i]f the entity decides that the addressable implementation specification is “not reasonable and appropriate”, it must document that determination and implement an equivalent alternative measure, presuming that the alternative is reasonable and appropriate. If the standard can otherwise be met, the covered entity may choose not to execute the implementation specification or any equivalent alternative measure and document the rationale for this decision.”[2] Thus, it is a violation of HIPAA to send unencrypted emails containing PHI while providing services to a covered entity without first having performed and documented the feasibility analysis.

As noted already, a single violation can carry a penalty as high as $50,000. On the other hand, encryption carries the benefit of qualifying for a “safe harbor” under HIPAA’s breach notification requirements.[3] A security incident that would otherwise require notification is not considered a breach if the PHI affected was encrypted and the encryption key had not been compromised. [4]

In summary, if the lawyer or CPA is performing a service on behalf of a covered entity which involves creating, receiving, maintaining, or transmitting electronic PHI, s/he would likely be a business associate under HIPAA.  Then, to determine if the covered entity and business associate should implement a mechanism to encrypt ePHI, the feasibility analysis discussed above should be conducted.

Other Potential Requirements for Business Associates

In addition to encryption considerations, under HIPAA, business associates may also need to:

(1) Execute Business Associate Agreements

Lawyers and CPAs may need to execute a business associate agreement with the covered entity.  The agreement should comply with the specifications required by HIPAA.  In addition, when the business associate must disclose PHI to a third party (i.e. expert witnesses, investigators, third party providers, etc.), s/he will need to execute a business associate agreement with the third party, to whom it provides PHI, which includes the same restrictions and conditions that originally applied to the business associate with respect to the information.

 (2) Implement HIPAA Policies with Documented Procedures

Business associates should implement and document policies and procedures to prevent, detect, contain, and correct security violations relating to ePHI.

(3) Perform HIPAA Training for Staff and Yearly HIPAA Security Reviews

Everyone that falls under HIPAA must perform HIPAA training for staff and yearly security reviews of their internal systems, their policies, and the flow of their ePHI into and out of their network, among other things.

Note that the list above is not inclusive of all functions a lawyer or CPA, who is classified as a business associate, may need to perform to be compliant under HIPAA. It is highly advisable for any professional who handles PHI while providing a service to a covered entity to consult an attorney practicing in the area of health care regulation to ensure compliance with the complex and changing laws surrounding the privacy and security related to PHI.

THIS INFORMATION IS NOT INTENDED TO BE LEGAL ADVICE.

[1]  See 45 C.F.R. § 160.103.

[2]  http://www.hhs.gov/ocr/privacy/hipaa/faq/securityrule/2001.html.

[3]  78 Federal Register 5644.

[4]  Id.

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The CPA Board Rules: They are a’ Changin’

The NC Board of CPA Examiners recently adopted amendments to its regulations in the following areas that may be relevant to your practice if you are a CPA or work with CPAs:

Self-Reporting of Convictions, Judgments, Discipline and Investigation

  • requiring CPAs to notify the board within 30 days of
    • any charge or arrest of a criminal offense, not just a conviction, plea or other resolution. § 08N .0208(a);
    • any settlement in lieu of a civil suit or criminal charge that is based on an allegation of professional negligence, gross negligence, dishonesty, fraud, misrepresentation, competence or violation of any federal, state or local law, regardless of any confidentiality clause in the settlement. § .0208(c);
    • any inquiry or investigation by the IRS or any State Department of Revenue Criminal Investigation Divisions pertaining to any personal or business tax matters. § .0208(d); and
    • the filing of any liens by the IRS or State Department of Revenue regarding the apparent failure to pay any tax amounts due. § .0208(e).

Peer Review

  • Requiring a CPA or CPA firm not currently providing services mandating participation in peer review program to register with that program within 30 days of the issuance of the first report provided to a client for such services. Services requiring a CPA or CPA firm to participate in the peer review program include: audits, reviews or compilations of financial statements, agreed-upon procedures or attestation engagements. § 08M .0105(a) &(b).

Basis for discipline

  • Adding another basis for discipline against CPAs within the definition of “discreditable conduct prohibited” to include:
    • misrepresentation in reporting CPE credits, and
    • entering into any settlement or other resolution of a dispute with a CPA that purports to keep its contents confidential from the Board. § 08N .0203(b).     

Modification of Discipline and Reinstatement of Certificates

  • Restricting rules concerning modification of disciplinary orders to apply only to permanent revocations by the Board (unless by consent). § 08I .0104(a);
  • Requiring affiants supporting reinstatement of a CPA certificate to be familiar with the facts of the revocation or discipline. § .0104(b); and
  • Making restitution of civil settlements, liens or other agreements with the aggrieved party an element of good cause necessary for reinstatement of a CPA certificate . § .0104(c).

CPA Firm ownership requirements

  • Requiring the CPA owner of a firm to actively participate in the business of the CPA firm as his or her principal occupation. § 08N .0302(e)(2). 

CPA Status

  • Eliminating “retired” status so a CPA is either active or inactive. 21 NCAC 08A .0301 (deleting section (32) and corresponding deletions and other changes throughout the regulations)

Application requirements

  • Imposing additional requirements and restrictions on applying for examination and for a CPA certificate, including:
    • prohibiting filing an application while serving a sentence resulting from criminal plea or conviction, including any type of probation. §§ 08F .0103 & .0502(c); and
    • requiring additional disclosure and documentation regarding a criminal plea or conviction or denial of any license by a state or federal agency. § 08F .0502(c).

CPE requirements

  • Ceasing to register CPE sponsors and relying upon those in good standing with the National Registry of CPE sponsors. § 08G .0403;
  • Requiring CPAs to receive and submit a certificate of completion for each CPE. § .0401;
  • Requiring monitoring mechanisms for internet-based CPE programs to ensure active participation by the CPA. § .0409; and
  • Allowing CPE credit for self-study based on national standard word count formulas.

For more detail about these recent changes to the rules, you can access the Board’s rules on its website.

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Conflict Waivers: When are they Enforceable?

I must apologize first for posing a question in the title of this blog that doesn’t have a definitive answer. I can give you some tips for making your conflict waivers as enforceable as you can, but there is no iron-clad way to ensure enforceability. Whether a conflict waiver will be effective, or upheld if challenged, depends in part upon whether the client reasonably understood “the material risks that the waiver entailed.”  Rule 1.7, Comment [22].  In other words, does the client truly appreciate what they are giving up by signing the waiver.

Since the burden will be upon the lawyer trying to enforce the waiver, here are the key items to keep in mind.  First, make sure the waiver is in writing and signed by the client. Needless to say, a court will necessarily be looking to the language of the waiver to determine whether it should be enforced. Second, make the waiver clear and concise.  This would not be the time to use complicated or flowerly language. The key is clarity and simplicity, so that a client would easily understand the risks of consenting to the conflict. Third, and most importantly, make sure that you identify the possible future conflict of interest with specificity.  Even if you cannot precisely identify the type of conflict that may arise, you should at a minimum be able to identify the possible adverse party and the nature of the conflict.  For example, if sharing confidential information between co-plaintiffs is necessary for effective representation, then consent to share relevant confidential information amongst co-plaintiffs must be addressed in the waiver.  At the same time, the failure of one party to allow the lawyer to share clearly relevant information amongst co-plaintiffs becomes a foreseeable future conflict of interest, and should be discussed in the conflict waiver.  Furthermore, any kind of conflict that you can envision at the outset (e.g., dispute arises among multiple claimants as to how to proceed, cross claims developing between co-plaintiffs, etc.) should be described with specificity in the waiver.  The more specific a waiver, the more likely it will be upheld if challenged.

Now, a conflict waiver that is more open ended and less specific in nature may also be upheld, especially where the client is sophisticated in legal matters and has access to independent counsel in signing the waiver.  Rule 1.7, Comment [22].  For example, Law Firm has been asked by large Insurance Company to render corporate tax advice.  Another department of Law Firm regularly handles personal injury matters against Insurance Company.  Law Firm asks Insurance Company to give informed advanced consent to Law Firm representing any of its other clients against Insurance Company in matters unrelated to the corporate tax advice.  Clearly, the firm may not know who will hire them in the future, but it does know the kinds of cases it generally handles and the nature of the conflict.  While the consent to the conflict is rather vague and open-ended, Insurance Company is a sophisticated client with in-house counsel who can review the consent/waiver.  This waiver will likely be upheld.  Law Firm must also obtain waivers from any personal injury clients who are adverse to Insurance Company during the time firm is representing Insurance Company.

There are also circumstances under which a waiver to a future conflict should not be sought: the representation is prohibited by law, the client lacks capacity to consent, one client will assert a claim against the other in the same litigation, or the lawyer will not be able to provide adequate representation to one or more of the clients. In addition, if a lawyer must disclose confidential information of one client to obtain informed consent by the other client, and there is no authorization to disclose that confidential information, the conflict waiver cannot be obtained.

Finally, regardless of the client’s sophistication, it is always a good idea to advise the client in writing to seek independent counsel and to give a reasonable opportunity to do so before signing any waiver.

Stay tuned for a future blog on when waivers can be revoked by the client for cause.

 

 

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New Standard for Direct Mail Solicitations

If you use targeted direct mail to advertise your legal services in North Carolina, you may already know that Rule 7.3(c), the direct mail solicitation rule, was amended in October 2014. Some of you may even have received a courtesy letter from the NC State Bar, as a gentle nudge to get your mailers fixed to comply with the new rule.  The amended Rule 7.3(c) reads as follows:

…every written, recorded, or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the statement, in capital letters, “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES” (the advertising notice), which shall be conspicuous and subject to the following requirements:

(1) Written Communications. Written communications shall be mailed in an envelope. The advertising notice shall be printed on the front of the envelope, in a font that is as large as any other printing on the front or the back of the envelope. If more than one color or type of font is used on the front or the back of the envelope, the font used for the advertising notice shall match in color, type, and size the largest and widest of the fonts. The front of the envelope shall contain no printing other than the name of the lawyer or law firm and return address, the name and address of the recipient, and the advertising notice. The advertising notice shall also be printed at the beginning of the body of the enclosed written communication in a font as large as or larger than any other printing contained in the enclosed written communication. If more than one color or type of font is used on the enclosed written communication, then the font of the advertising notice shall match in color, type, and size the largest and widest of the fonts. Nothing on the envelope or the enclosed written communication shall be more conspicuous than the advertising notice.

(Emphasis added). What all this means is that you have to be sure that your advertising disclaimer on the front of your envelope and at the top of your letterhead is the most conspicuous printing anywhere on the outside of the envelope or in the letter.  The Rule doesn’t prohibit photographs on the back of the envelope, logos on the front of the envelope, or brochures inside the envelope so long as the logos, photographs and brochures do not detract from the conspicuousness of the advertising disclaimers.

I’ve been reviewing attorney advertising for over 18 years, and I’m still having a bit of trouble trying to figure out when other printing, brochures, logos, or photographs may detract from the conspicuousness of the advertising disclaimer.  Because this language is rather vague and subject to interpretation, I have been advising my clients to get their current advertising approved by the State Bar, even if it has been approved before. “Conspicuousness” may very well be in the eye of the beholder, and in this case, the beholder is the State Bar.

 

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Unauthorized Practice of Law: A Trap for the Unwary

Allegations of unauthorized practice of law [“UPL”] have increased over the last few years. Most of us are familiar with the scenario of a non-lawyer doing prohibited legal work.   However, in a different context, some young NC lawyers are getting wooed by “national” or out-of-state law firms.  Typically, these firms will ask the young lawyer to be “of counsel” to their out-of-state firm so the firm can then practice law in NC.  This can be a potential trap for the unwary from a UPL standpoint.

Under North Carolina law, out-of-state firms looking to set up shop in NC must register as an interstate law firm with the NC State Bar and will also likely need a Certificate of Authority to transact business as a foreign professional corporation from the Secretary of State’s office, even if they hire a NC lawyer to handle NC cases.  In addition, the North Carolina lawyer must certify to the State Bar that other lawyers in the firm not licensed in North Carolina will abide by the NC Rules of Professional Conduct and that all professional services rendered to NC citizens by the firm are only provided by a duly licensed active member of the NC State Bar. Among other consequences discussed below, failure to follow the appropriate procedure may result in a bar grievance against the young NC attorney for assisting in the unauthorized practice of law in violation of the NC Rules of Professional Conduct, Rule 5.5(d).

The NC State Bar Council and any of its committees appointed by it for that purpose, (i.e. the Authorized Practice Committee), as well as District Attorneys, have the authority to investigate UPL allegations.  Following such an investigation, the State Bar may issue a warning letter, issue a cease and desist letter, or seek an injunction to prohibit a person or business from engaging in the unauthorized practice of law depending on the circumstances.  Engaging or assisting in the unauthorized practice of law may also expose a person to potential civil liability. Further, the unauthorized practice of law is a misdemeanor criminal offense.  Other more serious felony offenses, such as false pretenses, could be involved where an unlicensed person accepts fees while in engaging in the unauthorized practice of law.

Under the right circumstances, it may be a good opportunity for young lawyers to associate with an interstate law firm, especially in a tepid legal hiring market.  But, beware: make sure you know the potential pitfalls and closely follow the procedures outlined by the Administrative Rules of the State Bar, Subchapter E, Section .0200, and NC law, before embarking upon any association with an out-of-state firm looking to practice in NC.

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Your Avvo Profile: To Claim or Not to Claim

Have you claimed your Avvo profile yet? If you have, there are some ethics issues you should be aware of, and if you haven’t, you may want to read this before you do so.  My husband and law partner, Doug and I are on different sides of this debate.  He has not claimed his Avvo profile and doesn’t intend to, as far as I know.  He’s safe and secure in knowing that he has no control over the contents of the profile and if they get it wrong, it’s not his fault.  I claimed my Avvo profile a long time ago, in part, because the information posted about me was not accurate.  I felt duty bound to correct the information about me that was out there.  Once you claim your profile, however, you should be aware that you are now on the hook for ensuring that the information is correct and is updated in a timely fashion.  What I did not realize many years ago, when I claimed my Avvo profile, is that there is some information, such as testimonials, that I would have a duty to monitor but would have no control over.

I don’t use Avvo very much and only check on it rarely, as not much has changed in my professional life recently. Plus, I’m more of a LinkedIn gal. I have only one endorsement on Avvo and I don’t solicit endorsements from my clients.   What I understand from the State Bar is that you are required to check periodically on social media sites that you exercise some control over, and to make reasonable efforts to ensure that the information on the site pertaining to you complies with the advertising rules.  See 2012 FEO 8 and 2014 FEO 8.

Here’s the rub.  You have control over your profile on Avvo once you claim it, but you don’t have control over testimonials that may be posted on your profile without prior approval or authorization from you.  What if someone posts a testimonial on your profile that is untrue or that would be considered misleading under Rule 7.1.  For example, suppose someone posted, “Attorney Smith is the best attorney in the state,” or “Attorney Smith has won more personal injury cases than any other attorney in the county.”  What do you do? Either of those statements would violate Rule 7.1, according to the State Bar, but you have no control over that client’s post.

2012 FEO 8 suggests that you should contact the client and ask them to remove or modify the post so it complies with the advertising rules.  In some cases, it may be appropriate to add disclaimer language to the page where the testimonial appears.  On Avvo, however, you cannot add disclaimer language to a testimonials page, except by responding to each individual endorsement that would require a disclaimer.

What if adding a disclaimer won’t “cure” the problem, as in the two examples above, and what if you cannot reach the client, the client refuses to change the post, or you can’t identify the client from the substance of the post?  There is no clear answer in the Rules or ethics opinions.  In my opinion, if you have not solicited the testimonial and have no control over or ability to change it, then you should not be held responsible for the content of the testimonial.  2012 FEO 8 seems to suggest that control over the testimonial is what is key:  “When a lawyer has control over the content of postings on his or her profile on the networking website, the lawyer may accept a recommendation from a current or former client subject to certain conditions. The lawyer may only “accept” recommendations that comply with the Rules of Professional Conduct that pertain to advertising.” 2012 FEO 8, Opinion #1 (Emphasis added).

For Avvo, you may not have a choice whether to “accept” a testimonial or endorsement. The Rules of Professional Conduct are rules of reason.  If that’s the case, then when faced with a testimonial that would violate the Rules, and over which you have no control, you can only do what’s reasonable under the circumstances.

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Staying Professional in the Face of Adversity

It is difficult when your best efforts for a client appear to have been in vain; especially when you know without a doubt that the result should have been in client’s favor and there are no more avenues left to pursue to right the wrong.  Sometimes insult is added to injury when the client does not understand that you did everything humanly possible to help them.  We learn at an early age that life is not fair, but to see this concept played out is sometimes very hard to witness.  How do we remain professional in these circumstances?

(1)    Do not allow your emotions to get in the way.  Don’t yell, be overly animated, or allow your body language to show you are upset.  For some, keeping neutral facial expressions and not expressing anger and outrage comes naturally, but I believe for a lot of us, it is a learned behavior that comes with experience and effort.  If you need to vent, wait until after you leave the forum.

(2)    Try not to take things personally.  There are often factors involved that play into a decision that having nothing to do with you, i.e. politics, group dynamics, etc.

(3)    Stay positive.  Set the tone for those around you.  “Let me embrace thee, sour adversity, for wise men say it is the wisest course.” (King Henry VI, William Shakespeare)

(4)    Respond decisively.  Speak with conviction, confidence, and authority – despite the circumstances.

(5)    Remain fearless.  Do not allow the experience to keep you from pursuing what is just.

(List derived from http://www.forbes.com/sites/glennllopis/2014/01/20/7-ways-leaders-maintain-their-composure-in-difficult-times/)

Conducting yourself professionally in these types of situations sets an example for those around you.  Exhibit civility and self-control.  This type of behavior will certainly benefit you in the legal community and in your practice.  Though you may lose a battle, losing it with grace is commendable and will be noticed.

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Informal Written Ex Parte Communications – Playing by the Rules

You are involved in litigation and opposing counsel is driving you insane.  Deadlines are constantly ignored, and you are becoming increasingly frustrated.  You finally draft a pointed e-mail to opposing counsel requesting that he respond to the discovery requests you sent that are yet again overdue.  You decide to copy the judge on the e-mail thinking maybe that will get opposing counsel moving.  Good idea?  No.  But why?  Rule 3.5 (a)(3) seems to allow ex parte written communications with a judge if a copy is “furnished simultaneously to the opposing party.”  Doesn’t that permit unlimited written communications with a judge regarding a pending matter as long as the opposing party is copied?

According to 98 FEO 13, Rule 3.5(a)(3) must be read in conjunction with RPC 8.4(d) and Comment 7 to RPC 3.5.  Rule 8.4(d) prohibits conduct that is prejudicial to the administration of justice.  Comment 8 (formerly Comment 7) states “[a]ll litigants and lawyers should have access to tribunals on an equal basis.  Generally, in adversary proceedings, a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which the judge presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party.”  The opinion notes that informal ex parte written communications could be used to introduce new evidence, argue the merits of the case, or to cast the opposing party or counsel in a bad light.  Such informal communications give the appearance of granting undue advantage to one party and are impermissible ex parte communications.

The opinion notes that informal written communications should be limited to the following:

  • Written communications, such as a proposed order or legal memorandum, prepared pursuant to the court’s instructions;
  • Written communications relative to emergencies, changed circumstances, or scheduling matters that may affect the procedural status of a case such as a request for a continuance due to the health of a litigant or an attorney;
  • Written communications sent to the tribunal with the consent of the opposing lawyer or opposing party if unrepresented; and
  • Any other communication permitted by law or the rules or written procedures of the particular tribunal.

If you need the judge to know about a problem with opposing counsel, you may file a motion after trying to resolve the matter with counsel.  Even if opposing counsel is the one violating the rules, do not try to handle the matter by bringing it to the judge’s attention “informally,” or you may be the one answering to the State Bar.

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What’s My Line? – Your LinkedIn Endorsements

Unlike the game show “What’s My Line” from the 1960’s where celebrity panelists had to guess the occupation of contestants by asking a series of questions, you don’t want to leave prospective clients guessing about your “line” of work.  First, you have an obligation under the ethics rules to ensure that you only post truthful and accurate information about your services on social networking sites. Second, it just makes no sense from a marketing perspective.  If you practice only family law, why would you advertise your skills as a real estate practitioner?  This is what could happen, however, if you are not careful about the endorsements you accept through LinkedIn.

Have you ever received an endorsement through LinkedIn for an area of practice that you don’t do?  I once received an endorsement for patent law.  What?!  Well, I’ve learned to just ignore those endorsements that have nothing to do with my practice, but not after accepting a few of them, just to see what would happen.  If you have accepted LinkedIn endorsements for areas in which you do not currently practice, even inadvertently, then you need to visit your LinkedIn profile, and hide those endorsements/practice areas.  I am not the person who can best tell you how to do that.  I fiddled around with my profile for awhile until I figured it out — I think.  But, suffice it to say that if you are showing practice areas on LinkedIn that you do not do, then you must take some action to delete or hide those practice areas and the corresponding endorsements.

The failure to do so would be a violation of Rule 7.1(a).  This Rule provides that every communication about your services must be truthful and not misleading.  If you have created a LinkedIn profile, you have control over your information on that site, including your profile, your connections and your endorsements.  Unlike some other social networking sites, LinkedIn gives you lots of flexibility about what to show and what may be deleted.  Because you have control over the contents of your LinkedIn profile, you must periodically review it to ensure it is accurate.  If you change practice areas, review your profile to see if it needs to be updated or modified.  Also, if you change employment, promptly add your new employer to your profile so it does not appear you are still working at your old firm.

Bottom Line: Make sure your LinkedIn profile accurately shows “What’s Your Line” so you don’t get in trouble with the Bar.

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