Category: Legal Ethics

Generally, employers have a duty to provide a safe work environment for their employees. However, work accidents happen even under the best of circumstances. A worker may be injured while following all safety precautions. 

For example, the Pennsylvania workers’ compensation system provides a remedy for workers injured on the job. Injured workers may receive medical treatment and a portion of lost wages after a work injury, but this depends on each State.

In return, the worker gives up the right to sue the employer for personal injury damages. The system ensures that the injured worker receives the care and support necessary for them to heal and return to the workforce.

Workers’ compensation is a no-fault insurance system. A worker does not need to prove the employer was negligent to receive benefits. Likewise, a worker who is partially to blame for the cause of their injury may still receive workers’ comp benefits. 

Is Workers’ Compensation Mandatory in Pennsylvania?

Workers’ compensation requirements apply to employers with at least one employee who could be injured or develop a work-related illness. The employer must have workers’ compensation coverage under the Workers’ Compensation Act.

Most companies purchase workers’ compensation insurance coverage from private insurance companies. There is also the State Workers’ Compensation Insurance Fund. It is a state-run worker’s compensation insurance carrier.

Some large employers may qualify to be self-insured. However, they must obtain approval from the Bureau of Workers’ Compensation to be self-insured. 

Employer Requirements and Obligations Under the Pennsylvania Workers’ Compensation System

In addition to providing workers’ compensation insurance coverage, employers in Pennsylvania must:

Notify Employees of Workers’ Compensation Rights

An employer must provide notice to employees that describe a worker’s rights after a work-related injury. The notices must be placed in common areas where employees have access. In addition, new employees should be given a written statement of their rights.

Notices must contain the name and contact information of the employer’s workers’ compensation insurance company. The company must also provide a list of at least six physicians approved to treat injured workers. Workers may choose any doctor on the approved list for treatment. 

Employers also have a responsibility to explain what employees should do if they are injured on the job. Employers must also notify employees about the rules and procedures for filing workers’ compensation claims.

Provide Emergency Medical Care for Injured Workers

Employers have a responsibility to assist workers in obtaining emergency medical care after a work injury. 

An employer should call for appropriate emergency medical services after a work accident. In addition, the employer must provide necessary and reasonable follow-up care without restriction. Injured employees may seek care from any medical provider in an emergency. 

Notify the Insurance Provider

An employer must notify its workers’ compensation insurance carrier of a work-related injury. The notification should occur within one workday of being informed an employee sustained an injury. 

Provide Employees with Claims Forms

The employer should provide an injured worker with forms to file a claim within one workday. The employer should also provide the injured worker with written instructions about filing a workers’ comp claim.

What Happens if an Employer Does Not Have Workers’ Compensation Coverage in Pennsylvania?

Employers could face numerous penalties if they do not have workers’ comp coverage. Uninsured employers may be required to reimburse the Uninsured Employers Guaranty Fund for any monies paid for a claim. The reimbursement may include:

• Actual claim costs
• Fees
• Interest
• Penalties
• Attorney fees

The Pennsylvania Department of Labor & Industry may prosecute an uninsured employer for criminal charges. Uninsured employers could be charged with fines and face imprisonment.

Employees may use uninsured employers for damages under tort law. The injured worker may receive compensation in excess of what the worker would receive as workers’ comp benefits. Compensation for a tort claim may include:

• The cost of medical treatment and medical expenses
• The expenses for long-term nursing or personal care
• All loss of income, including past and future lost wages and diminished earning capacity
• Out-of-pocket expenses and costs
• Pain and suffering caused by injuries
• Impairments, disabilities, scarring, and disfigurement
• Suffering caused by mental anguish and emotional distress
• Loss of enjoyment of life
• Diminished quality of life

Can the Injured Worker Seek Legal Counsel?

An injured worker has the right to seek legal counsel after a work accident. The injured worker may hire a lawyer to assist the worker in filing a workers’ compensation claim. In addition, the lawyer may assist the worker in filing a personal injury lawsuit against an uninsured employer. Lawyers also assist injured employees when employers fail in any responsibility owed to the worker. 

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A conflict of interest occurs when a person would harm the interests of one party with whom they are associated by working for the interests of another party with whom they are also associated. In the family law context, this typically regards situations where a firm or attorney has represented in the past, or currently represents, a party or individual whose interest is in direct conflict with a current or potential client. 

Why is a Conflict of Interest Problematic?

 Every person who hires an attorney is entitled to have “conflict-free counsel,” meaning they should be able to hire an attorney or firm that will represent that client’s best interests – and only that client’s best interests – with respect to that client’s case. If you hire an attorney for a divorce, and the attorney previously represented your soon-to-be-ex in another matter, that would create a conflict of interest. Or you may hire an attorney for a custody matter and then discover that the attorney knows your ex and the children personally from school or through sports. The attorney now has a conflict of interest. This is because that fact or relationship may influence the decisions they make in a case to avoid problems with that outside relationship. Any conflict or potential conflict should be disclosed to the client.

How Can I Identify and Avoid Conflicts of Interest?

 Conflicts of interest can cause problems for both clients and law firms. Attorneys and firms have an obligation to be compliant with ethics rules. The State Bar of California issues Rules of Professional Responsibility, which are adopted by the Supreme Court of California. These rules specifically identify when a conflict exists and what should be done to potentially avoid conflicts of interest. 

It is important to be upfront with any attorney you meet with as to who the other party in your case is (or will be). You should provide, for example, your spouse’s name, ex-spouse or ex-partner’s name, place of employment of all parties, and where the children go to school; these are some key pieces of information the attorney will want to know so they can screen for a conflict of interest. Many times an intake questionnaire will be filled out or discussed during the initial consultation in order to identify any potential conflicts. 

 Take time to do some research into your attorney or the firm you are seeking to hire; a conflict would exist if they formerly represented your ex or if they have any financial interest in your ex’s place of employment or residence. Overall, these conflicts of interest are not too common in large metropolitan areas. They are more likely to occur in smaller areas or where an attorney handles multiple practice areas, as these factors increase the likelihood that they previously represented someone else involved in the case or that they have some sort of relationship with that person or entity. 

Can I Waive a Conflict?

 There are some exceptions or waivers allowed but only with the consent of all parties involved. Once the risks of the conflict are fully explained, and all parties are informed, the conflict may be waived so long as the consent was freely and voluntarily made. If additional risks arise, that waiver must be updated. Lawyers may not represent a client whose interests are materially adverse to a former client. The key is to be sure that you consult with an experienced attorney to assist you with your family law case, one who is thorough in their consultation so as to avoid any unexpected or foreseeable conflicts of interest.

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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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