Category: Legal Ethics

Attorneys are held to high ethical standards. They often are privy to very sensitive information about their clients. Sharing that information inappropriately would constitute a breach of attorney-client privilege.

That’s just one example of an ethics violation. Unfortunately, ethics violations do occur. Some types are more common than others. The most common include the following:

Violations Resulting from Lack of Technological Literacy

It’s important to understand that not all ethics violations are intentional. For example, some attorneys are required to use technology they’re not familiar or comfortable with. They may thus accidentally allow sensitive client information to leak.

Many vendors offer training programs to assist in this area. An attorney who worries they might accidentally mishandle client information due to a lack of familiarity with new technologies should enroll in such a program.

Client Neglect

Sometimes, attorneys take on more cases they can handle. They may have good intentions when doing so. Many genuinely believe they can manage all the cases they accept.

This can cause them to stretch their bandwidth too thin. As a result, they might not give clients the attention they deserve.

The best way to avoid this violation is to pay attention to how stressed you are about the size of your caseload and how honest you are when clients ask if you’ve completed certain tasks. Ask for help from colleagues and take on fewer cases in the future if you notice any signs that you’ve taken on more than you’re equipped to handle.

Unreasonable Fee Modifications

The American Bar Association’s Model Rule 1.5 prohibits attorneys from charging unreasonable fees for their services. Some lawyers violate this rule when they attempt to modify their fee arrangements.

Clients need to thoroughly understand the nature of a fee arrangement. Contracts must address the scope of work that will be covered by a flat fee. They must also clearly explain how and why a fee arrangement could be modified. Violations are less likely to occur if clients know precisely what they’re getting into financially when hiring a lawyer.

Accepting ‘Accidental’ Clients

It’s becoming increasingly common for attorneys to offer potential clients advice via the internet. This can cause problems when potential clients believe that an attorney answering their questions now represents them.

To guard against attracting accidental clients, an attorney should ensure their website and social media pages feature disclaimers making it clear that answering someone’s questions doesn’t make an attorney their official legal representative. They should also generally only offer advice to potential clients who appear to be genuinely interested in hiring a lawyer.

Creating Hostile Witnesses

There are instances when criminal defense attorneys will interview witnesses who later become hostile during a trial, making statements that conflict with the statements they made during their initial interviews. This could potentially put the lawyer in a position to have to personally testify in a case in which the lawyer is also acting as an advocate, which is not permitted under the rules.

The best way to prevent this is to abide by the directions of ABA Criminal Justice Standard for the Defense Function 4-4.3(f). When interviewing a potential witness, an attorney should do so in the presence of another trustworthy and credible individual. This can help them more easily corroborate their account of the interview if a witness becomes hostile.

Exaggerating Qualifications

Attracting clients is a goal of most lawyers. To attract more clients, some attorneys exaggerate their credentials or even make false claims.

For example, a personal injury attorney trying to grow their business may make statements that seem to indicate they are experienced with courtroom litigation. This could be an ethics violation if, in reality, they actually settle almost all of their cases out of court.

It’s understandable that attorneys want to attract clients and grow their firms. However, honesty is always critical when speaking to one’s experience and qualifications. Any exaggerations or lies can result in problems for both an attorney and their clients.

Finally, some experts point out that an attorney’s personal life can cause them to commit ethics violations. If an attorney feels pressure to earn more money for their family, they might take on too much work and cope with the stress by developing substance abuse problems or simply neglecting their clients. 

This doesn’t need to happen. Being an attorney can be demanding, but it’s much less stressful in the long run if a lawyer takes steps to avoid the common ethics violations listed here. 

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On Thursday, June 24, a New York court temporarily suspended Rudy Giuliani’s license to practice law in the state. The ethics violation that prompted the suspension involved false statements Giuliani made. Some believe Giuliani made these statements in an attempt to overturn former President Donald Trump’s loss in the 2020 presidential race. Others argue his statements could have resulted in riots or similar dangerous situations.

What Did the Court Say About Giuliani’s Statements?

Giuliani’s statements suggested rampant voter fraud occurred during the election. He failed to provide evidence to support such claims. In response, an attorney disciplinary committee requested that his license be suspended. They argued Giuliani’s statements represented a violation of professional conduct rules.

The court agreed and recommended a suspension since Giuliani’s statements posed an “immediate threat” to the public. Thus, the court suspended Giuliani’s license, although disciplinary proceedings remain ongoing.

According to the court, “[t]he seriousness of [Giuliani’s] uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden.”

What is the Legal Community Saying About the Suspension of Giuliani’s License?

Ronald Minkoff submitted the initial complaint to the New York Attorney Grievance Committee. He did so on behalf of multiple lawyers and lawyers’ groups. Minkoff states that suspending Giuliani’s license is a “once-in-a-lifetime decision.”

He also emphasizes its importance. This decision may signal to attorneys that they must always act honestly.

These kinds of temporary (or interim) suspensions are quite rare. New York University legal ethics professor Stephen Gillers says he was “gladdened” by the decision to suspend Giuliani’s license. He was also surprised. Gillers states the standard for justifying such decisions is “very high.”

Gillers also states that the circumstances surrounding this particular decision are unique. An attorney is usually subject to an interim suspension if it’s shown that they’ve cheated their clients in some manner. However, that’s not what happened here.

The rules Giuliani violated prohibit attorneys from making false statements to courts and other parties. According to the decision, an attorney’s false statements can “erode” public trust in lawyers and the legal profession in general.

The buildup to this moment has been significant. Previously, Rep. Bill Pascrell, Jr. (D-NJ) filed an ethics complaint stating Giuliani had “participated in frivolous lawsuits and used our nation’s courts to assault public confidence in the United States electoral system, violating the New York Rules of Professional Conduct.” The New York State Bar Association has indicated they’ve received “hundreds” of complaints regarding Giuliani’s conduct.

Some experts have stated that this case is also unique because Giuliani is a celebrity. Disciplinary authorities often hesitate when taking action against famous individuals. Celebrities typically have substantial resources they can use to fight back against disciplinary action.

Disciplinary authorities also tend to refrain from moving forward when a case involves political matters. To many, the fact that they acted now says a lot about the severity of Giuliani’s misbehavior.

What Happens Now?

Again, this is only a temporary suspension. Disciplinary proceedings still need to conclude. However, the court has stated that Giuliani’s misconduct “will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.”

Giuliani himself has dismissed the suspension of his license as a political decision. He claims the decision “could have been written by the Democratic National Committee.” According to Giuliani, the decision was made “to shut [him] up.” He added that the suspension wasn’t justified because none of his statements resulted in “a protest, a riot, an incident, an anything.”

Still, it appears other courts agree with the New York court’s decision. On July 7, Giuliani’s license to practice law in Washington, DC, was also suspended. The suspension will remain in effect pending the outcome of his New York disciplinary proceedings.

There’s reason to believe that Giuliani will face long-term consequences for his misconduct. We must wait and see how the disciplinary proceedings conclude. Generally, though, many see the suspension of his license as a major development in legal ethics.

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 Zoom is booming. Covid19 has pushed attorneys out of their offices and into their homes to work remotely. As a result, video conferencing has taken on a greater role in the workplace. Attorneys need to be able to interview clients, attend hearings, and conduct depositions as a matter of routine. 

Video conferencing platforms such as Zoom, GoToMeeting, and Microsoft Teams, have made that possible in a pandemic world. Although many law firms had been using video conferencing tools before the pandemic, their use has escalated. But these platforms are not without concerns for an attorney and for their clients.

Understanding these concerns is a starting point toward solving problems before they manifest. Many of these issues stem from an attorney’s ethical duties to their clients. The Model Rules of Professional Responsibility have been adopted in most jurisdictions in the United States, including California. These Model Rules, as adopted, govern an attorney’s ethical duties. Three Model Rules are relevant to the ethical concerns raised by such platforms as Zoom.

Attorneys Must Be Competent

Model Rule 1.1 states that an attorney must provide competent representation to the client. This requires that an attorney have or gain the legal knowledge, skill, thoroughness, and preparation necessary for that representation. Much of the issue of competence lies in an attorney’s skill in providing legal analysis. Comments by the American Bar Association and State Bar of California make it clear that competence includes keeping abreast of relevant technology.

According to Brian White, a lawyer and founder of Attorney Brian White & Associates, PC, “An attorney must understand how technological changes affect issues such as confidentiality and protecting work product. All video conferencing platforms have some security involved. Zoom is the most studied platform on security. However, it is important to understand a platform’s security tools and any deficits in those tools.”

Using Zoom as an example, maintaining security of the meeting link and password are critical to ensuring that only those who should be attending the meeting, are. That may mean using a new meeting link for each meeting or sending a password separately from the link itself.

There are other issues regarding security and encrypted sources for the sharing of documents. Again, using Zoom as an example, it is possible to share the screen during a client meeting. Attorneys must be careful that in doing so, they do not disclose other client information. Sharing screens can and should be regulated by the meeting host and documents should only be shared via encrypted means.

Attorneys Must Protect a Client’s Confidentiality

Model Rule 1.6 requires that an attorney protect a client’s confidentiality. This includes various aspects from the representation itself to client disclosures to work product and other client documents. Confidentiality is the bedrock of the attorney-client relationship.

The above security discussion is relevant to the issue of confidentiality. It is important that extra precautions be taken for sensitive meetings. An attorney may want to consider locking the meeting after everyone has joined.

Recording a session can mean that an attorney considers the issue of storage of the recorded session. For example, Zoom allows the meeting host to store the recording on the attorney’s computer, or it can be stored on Zoom’s cloud. The location of the cloud server may be an issue for sensitive material. For sensitive communications, an attorney should consider whether the platform allows end to end encryption or not. This can be an important component in determining which video conferencing tool to use for what kind of meeting.

An Attorney Must Keep the Client Up to Date

In both the Model Rules and in the California Rules of Professional Responsibility, the attorney must keep the client reasonably informed about the status of a matter and follow reasonable requests for information. (Rule 1.4) This imperative requires that despite the pandemic, that an attorney keeps their client advised of the status of the legal matter. During representation, some matters are more sensitive than others, but all client communications are subject to confidentiality concerns.

Picking the medium most suited to the level of security needed is critical to keeping the client informed and protecting confidential information. This duty extends to any other staff conducting the meeting on behalf of the attorney.

Finally, a word of caution for the attorney working at home. It is important that an attorney work in a dedicated area free from traffic from other family members. While a dog entering the camera shot may be cute, a spouse entering the same camera shot is a violation of the client’s confidentiality.

Concluding Thoughts

Attorneys must fully investigate and use tools available to protect client communications. This may mean spending time learning about security tools available and making appropriate choices depending on the level of sensitivity involved. For sensitive matters, an attorney may want to choose a video conferencing tool with end to end encryption.

Technology is ever-evolving. It is important to stay abreast of the technological tools that are available at present and other tools as they become available. This will help attorneys do their job and help clients feel secure.

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Covid-19 has affected every aspect of our lives, including our working lives. Suddenly, firms are advertising remote legal positions on job board sites around the country. An attorney licensed to work in New York, lives and works remotely in his home in New Jersey.

This doesn’t just involve those whose work and home lives are in close proximity but in separate jurisdictions. Attorneys are looking to work far outside their normal jurisdiction. Remote work makes this possible. However, attorneys are bound by ethical standards and some of those standards are relevant to remote working. In particular, lawyers are licensed or authorized to work in a particular state. They are not licensed to work outside that state. Doing so may open them to a charge of the unauthorized practice of law, which can lead to sanctions or possible disbarment.

The Movement Toward Loosening Restrictions

Even before the onset of Covid-19, attorneys had been calling for reform of what many view as protectionist rules that prohibit an attorney admitted in one state from practicing in another. Computers, internet, and conferencing platforms all make it possible to do much of the work involved in an attorney’s work life from any location. According to Jason Stephens of Stephens Law, PLLC, “With the realities of Covid in the workplace, remote working has become the norm for many attorneys”. As a result, more attorneys are now working outside their jurisdiction.

ABA Model Rule 5.5

The American Bar Association’s (ABA) Model Rule 5.5 addresses practicing across jurisdictional lines. Most states have adopted Rule 5.5 in some form.

Rule 5.5 prohibits any attorney from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Nor may an attorney assist another in doing so. Specifically, the Rule states that an attorney may not establish an office or other systematic and continuous presence in that jurisdiction for the practice of law, or hold themselves out to the public as being admitted to practice law in that jurisdiction.

The Rule also carves out exceptions to this general rule. It is acceptable for an attorney to work in another jurisdiction in which the attorney is not licensed provided the employment is temporary. However, the attorney may not have been disbarred or suspended in any jurisdiction. In addition, the attorney must be working in association with a duly licensed attorney in that jurisdiction.

The Rule also provides another safe harbor provision. It is acceptable for an attorney in good standing within their home state to work temporarily, providing legal services that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

So, when does work stop being temporary and cross into persistent practice? While there is no bright line, the work may not be so long that it rises to the level of systematic and continuous presence in that jurisdiction. This standard is one that is open to interpretation.

States Are Beginning to Address the Problem

Seeing the possibility of remote working as a necessity for some time to come, states are beginning to address the jurisdictional issue. Some states already allow lawyers to practice across state lines, Minnesota, North Carolina, Arizona, and New Hampshire among them. These states allow out-of-state lawyers to practice as long that they disclose that they’re not licensed to practice in that state.

Washington D.C has also relaxed its rules during the pandemic. The DC Court of Appeals Committee on Unauthorized Practice of Law has opined that the necessity to work remotely due to Cvid-19 fits within the temporary practice exception outlined in Rule 5.5. New York has allowed a similar exception.

Florida is considering making the change permanently. A Florida state bar advisory opinion has stated that an out of state attorney is not engaged in the unauthorized practice of law if solely practicing federal intellectual property matters, which was his area of expertise as long as the attorney was not practicing Florida law. While this will have to be confirmed with Florida Supreme Court action, it represents movement toward an ethical approach to serving client needs.

What Will Happen After The Pandemic Ends?

It is uncertain whether the rules regarding crossing jurisdictional boundaries will continue to relax after the pandemic ends. The trend is likely to continue into the near future. But as one year stretches into two, the question of what is “temporary” will undoubtedly have to be revisited.

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