Many lawyers believe that they can conduct a law practice ethically following their sense of what is morally "the right thing to do." Relying on what their mother taught them and the "smell test" they think that ethical matters can be handled intuitively. Of course, lying, cheating and stealing are obvious ethical breaches, but legal ethics has evolved into a body of law as complex as civil procedure and other courses law students take. Some of the rules are counter-intuitive. Not long ago I attended a marketing seminar for lawyers where the speaker, a lawyer, proudly spoke of her practice of sending small gifts as "tokens of appreciation" to persons that brought clients to her firm. The Virginia Rules of Professional Conduct prohibit this and I had the CLE sponsor sent a message out to the attendees bringing this to their attention. See Va. Rule 7.3(d).
Recently I took a call from a lawyer that wanted to move to disqualfy a law firm that was adverse to the caller's client and had recently hired an associate from a very large firm. The associate's former law firm had represented the caller's client in a related matter while the associate worked there. The associate was not even aware that the caller's client had been a client of his former law firm, had no knowledge of the matter handled by his former law firm nor any personal involvement. I informed the caller that there was no conflict of interest and no basis to file a motion to disqualfiy the firm. He responded, "Really? That can't be right." I explained that conflicts are imputed under Rule 1.10 to other lawyers associated in a law firm, but the rules are different when lawyer move between firms.
More examples can be cited but the bottom line is that lawyers have to read, understand and know the rules and they cannot "go with their gut."
Wednesday, November 28, 2012
Thursday, November 01, 2012
Lawyers Need to be Aware of Fake Reviews
I did an interview for the ABA Journal that was published in August 2012. See ABA Journal, August 2012 at pp. 24-25. The topic of interest was the discovery of several incidents of online reviews of lawyers and law firms purporting to have been written by clients. Random Google searches of firms revealed "five star" reviews of various law firms created by persons who claimed to be clients of the law firm. Contacting the reviewers for verification is not possible. Google has acknowledged that bogus reviews are a problem but Google does not create reviews. Lawyers who hire marketing firms to boost their image and ratings online must ensure that the consultant is not using improper or deceptive practices, including manufacturing fake reviews about the quality of the lawyer's services. In the interview, I advise that lawyers who advertise and use the Internet to marker their services have an ethical duty to periodically Google their name and see what's out there. Lawyers should be monitoring and policing what others say about them.
Tuesday, May 15, 2012
Bad Ethics Rules that Need to be Incinerated!
This is a 6 min presentation on YouTube by Will Hornsby on some of the most ridiculous ethics rules adopted in some states:
http://www.youtube.com/watch?v=dqo_2JwzgUc&list=PLF236BD0804ED6416&index=5&feature=plcp
Enjoy.
http://www.youtube.com/watch?v=dqo_2JwzgUc&list=PLF236BD0804ED6416&index=5&feature=plcp
Enjoy.
Wednesday, April 18, 2012
ABA Nixes Proposal to Allow Non-Lawyers to Own Law Firms
ABA COMMISSION ON ETHICS 20/20 WILL NOT PROPOSE CHANGES TO ABA POLICY PROHIBITING NONLAWYER OWNERSHIP OF LAW FIRMS CHICAGO, April 16, 2012-At its April 12-13 meeting in Washington, D.C., the ABA Commission on Ethics 20/20 decided not to propose changes to ABA policy prohibiting nonlawyer ownership of law firms.
Co-Chairs Jamie S. Gorelick and Michael Traynor said, "Since its creation in 2009, the commission has undertaken a careful study of alternative law practice structures. Based on the commission's extensive outreach, research, consultation, and the response of the profession, there does not appear to be a sufficient basis for recommending a change to ABA policy on nonlawyer ownership of law firms."
By June 2011, the commission had publicly rejected certain forms of nonlawyer ownership that some other countries currently permit, including multidisciplinary practices, publicly traded law firms, and passive, outside nonlawyer investment or ownership in law firms.
After further consideration and study, on Dec. 2, 2011, the commission released for comment a discussion draft describing a limited form of court-regulated, nonlawyer ownership of law firms. It would have allowed nonlawyers, who were employed by a law firm and assisted the firm's lawyers in the provision of legal services, to have a minority financial interest in the firm and share in its profits. The discussion draft reflected an approach that was similar to but more restrictive than the structure permitted by the District of Columbia for more than 20 years.
"The commission considered the pros and cons, including thoughtful comments that the changes recommended in the discussion draft were both too modest and too expansive, and concluded that the case had not been made for proceeding even with a form of nonlawyer ownership that is more limited than the D.C. model," Gorelick and Traynor said.
Although it will not propose any changes to ABA policy on nonlawyer ownership of law firms, the commission will continue to consider how to provide practical guidance about choice of law problems that are arising because some jurisdictions, including the District of Columbia and a growing number of foreign jurisdictions, permit nonlawyer ownership of law firms.
"These are current problems that need pragmatic attention," Gorelick and Traynor said. "The commission previously released draft proposals on these issues, and will decide at its October 2012 meeting whether to submit formal proposals to the ABA House of Delegates for consideration in February 2013. Meanwhile, the commission welcomes additional comments on the previously released drafts."
The ABA Commission on Ethics 20/20 was created in 2009 and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.
Members of the commission include judges, law professors who specialize in legal ethics, practitioners (including former ABA, state bar and local bar presidents), and liaison members from the ABA Board of Governors, Center for Professional Responsibility, Task Force on International Trade in Legal Services, Standing Committee on Ethics and Professional Responsibility, and Young Lawyers Division.
Co-chair Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. Co-chair Traynor, of Berkeley, Calif., is a past president of the American Law Institute and currently chairs the institute's council.
Co-Chairs Jamie S. Gorelick and Michael Traynor said, "Since its creation in 2009, the commission has undertaken a careful study of alternative law practice structures. Based on the commission's extensive outreach, research, consultation, and the response of the profession, there does not appear to be a sufficient basis for recommending a change to ABA policy on nonlawyer ownership of law firms."
By June 2011, the commission had publicly rejected certain forms of nonlawyer ownership that some other countries currently permit, including multidisciplinary practices, publicly traded law firms, and passive, outside nonlawyer investment or ownership in law firms.
After further consideration and study, on Dec. 2, 2011, the commission released for comment a discussion draft describing a limited form of court-regulated, nonlawyer ownership of law firms. It would have allowed nonlawyers, who were employed by a law firm and assisted the firm's lawyers in the provision of legal services, to have a minority financial interest in the firm and share in its profits. The discussion draft reflected an approach that was similar to but more restrictive than the structure permitted by the District of Columbia for more than 20 years.
"The commission considered the pros and cons, including thoughtful comments that the changes recommended in the discussion draft were both too modest and too expansive, and concluded that the case had not been made for proceeding even with a form of nonlawyer ownership that is more limited than the D.C. model," Gorelick and Traynor said.
Although it will not propose any changes to ABA policy on nonlawyer ownership of law firms, the commission will continue to consider how to provide practical guidance about choice of law problems that are arising because some jurisdictions, including the District of Columbia and a growing number of foreign jurisdictions, permit nonlawyer ownership of law firms.
"These are current problems that need pragmatic attention," Gorelick and Traynor said. "The commission previously released draft proposals on these issues, and will decide at its October 2012 meeting whether to submit formal proposals to the ABA House of Delegates for consideration in February 2013. Meanwhile, the commission welcomes additional comments on the previously released drafts."
The ABA Commission on Ethics 20/20 was created in 2009 and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.
Members of the commission include judges, law professors who specialize in legal ethics, practitioners (including former ABA, state bar and local bar presidents), and liaison members from the ABA Board of Governors, Center for Professional Responsibility, Task Force on International Trade in Legal Services, Standing Committee on Ethics and Professional Responsibility, and Young Lawyers Division.
Co-chair Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. Co-chair Traynor, of Berkeley, Calif., is a past president of the American Law Institute and currently chairs the institute's council.
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