Category: Legal Ethics

What happens if a partner or supervisor at your law firm asks you to do something unethical? Can you carry out the requested task? Does the fact that your boss asked you to engage in the unethical behavior protect you from possible administrative sanctions? What happens if you don’t know that the request was unethical and do it anyway? Should or must you report the unethical request to an appropriate party? The decisions an attorney must make every day are often laced with ethical dilemmas. The choices you make after a superior asks you to do something unethical are no different. Attorney Adam Burke explains how the Ohio Rules of Professional Conduct apply to these ethics situations.

The ABA Model Rules of Professional Conduct and the Ohio Rules of Professional Conduct (“ORPC”) both speak directly to this issue. However, as with any other ethical issue, certain circumstances may make it difficult to arrive at one specific answer. Generally, an attorney is bound by applicable ethics rules “notwithstanding that the lawyer acted at the direction of another person.” So, if you work in a law firm and your supervisor directs you to engage in unethical behavior you are still responsible for your own actions. If you engage in the unethical behavior you may be guilty of breaching Ohio’s Rules of Professional Conduct.

However, there are circumstances in which a subordinate attorney may escape consequences for unethical actions. In Ohio, Rule 5.2 states that a subordinate attorney does not violate Professional Conduct if they act “in accordance with a supervisory lawyer’s reasonable resolution of a question of professional duty.” This means that if an issue arises that does not have a clear ethical course of action the superior attorney may make a judgment call about how to resolve it. ORPC Rule 5.2, Comment [1] provides an example of determining whether the interests of multiple clients conflict. There is no clear resolution based on current regulations. A supervisor’s “reasonable resolution” of this issue should prohibit you, the subordinate, from facing charges of unethical conduct. 

A subordinate may also escape the consequences for unethical actions if he or she did not have knowledge that the superior’s request was unethical. ORPC Rule 5.2, Comment [2] provides that if your superior asks you to file a frivolous pleading, you may not be guilty of an ethics violation if you did not know that the pleading was frivolous. Lack of knowledge of the unethical conduct can be considered as a factor when determining if you, the subordinate, are guilty of an ethics violation.

If you are a subordinate attorney who receives direction to engage in unethical conduct you may also be duty bound to report your superior’s misconduct. ORPC Rule 8.3 plainly states that an attorney who has unprivileged knowledge of an ethical violation “that raises a question as to any lawyer’s honesty, trustworthiness, or fitness as a lawyer…shall inform a disciplinary authority.” This is true regardless of whether reporting the superior’s ethical breach would also implicate yourself or another attorney.

The preamble of the ORPC makes it abundantly clear that the legal profession is vital to the maintenance, preservation, and well-being of society. Attorneys cannot contribute to the preservation of society if legal professionals are not held to an extremely high ethical standard. Ohio attorneys are, therefore, required to self-regulate the profession and hold others to a heightened standard. Failure to disclose another attorney’s unethical behavior, regardless of seniority in a law firm or court of law, is one’s own ethical failure in the eyes of the ORPC.

However, a takeaway from ORPC Rule 8.3 should be that the knowledge of the unethical behavior must be based on unprivileged information. If you learn of your superior attorney’s unethical conduct but cannot disclose such conduct without breaking privilege, you are generally prohibited from doing so. While the Ohio Rules of Professional Conduct places a significant burden on attorneys to “self-regulate” and “self-govern” the profession, it also respects the sanctity of attorney-client privilege. Unless your client waives privilege in order to allow you to disclose this ethical violation you may not do so.

The choices you make after your superior asks you to do something unethical are important. If you have unprivileged knowledge of unethical behavior – including requests for you to engage in unethical behavior – you are duty bound to report it. Just because a partner at your firm asks you to do something does not generally reduce your responsibility to adhere to the code of ethics. There are exceptions to the general rule, but it is often best to proceed with caution and toe the ethical line.

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You’re having a pretrial strategy meeting with your client who has been charged with a crime. During your discussion, your client blatantly tells you that he is guilty of the charges against him. As his attorney, you may wonder what your legal and ethical obligations are in this situation. The United State Criminal Code and California Rules of Professional Conduct provide guidance for attorneys who find themselves struggling to come up with the answer.

As your client’s attorney, you are under no legal obligation to share his admission of guilt with anyone else. You are still bound by attorney-client privilege and must maintain the character of this respected tradition. Courts have routinely and consistently held that the attorney-client privilege is a cornerstone of the relationship’s dynamic, calling it “one of strict fiduciality and confidentiality” and “sacred and confidential.”

Just because your client confesses to the crime they have been accused of committing does not mean that they will be found guilty in a court of law. In California and the United States, there is a presumption of innocence. Your client is innocent unless and until:

1. a jury or judge finds them guilty in a court of law, or
2. they knowingly and willingly confess their guilt to the court.

Your job, as a lawyer, is not necessarily to prove that your client is not guilty, but rather to defeat the prosecution. Your job is to make it as difficult as possible for the prosecution to carry their substantial burden of proof. Having knowledge of your client’s guilt does not prohibit you from attacking the prosecution’s case.

However, there are certain legal and ethical handcuffs imposed by such a confession that may make your job considerably more difficult.

As an attorney, you may not suborn perjury. Subornation of perjury is the crime of persuading, encouraging, or permitting testimony you know to be false in a legal proceeding. It would be illegal (and unethical) for you to put your client on the witness stand, allow him to author an affidavit, or permit him to testify in a deposition if you knew that the testimony he was going to provide was false. Encouraging and/or permitting your client – who you know to be guilty – to testify to his innocence or to facts that you know to be untrue is a crime. If charged and convicted of subornation of perjury, you could face up to five years in prison and/or substantial monetary fines.

While courts have been protective of the attorney-client relationship, they have been equally as protective of the sanctity of the courtroom. Courts have consistently held that attorneys who knowingly and willingly permit falsehoods and lies to be introduced as the truth shall face significant consequences. California courts have explicitly expressed that attorneys have a responsibility to not only “dissuade” clients from offering “perjurious testimony,” but also to take meaningful steps toward ensuring that such testimony is not offered to mislead the court.

Not only is it a crime to permit your client to offer perjured testimony when you know it to be false, but it is also an act of contempt. California’s Business and Professions Code provides that an attorney who misleads the court has committed an act of “moral turpitude” that is “cause for discipline.” Attorneys who permit clients to offer perjured testimony or who willfully mislead the court with false information may face professional sanctions such as disbarment, actual suspension, or reproval.

If your client confesses you are generally under no obligation to present that information to the court. Rather, you are duty-bound by attorney-client privilege to protect your client’s statements and to provide a proper legal defense. Your client may have confided in you about his perceived guilt, but that not necessarily mean that he is guilty of the charges against him, or that the prosecution has the evidence to support a conviction.

While you may not offer perjured testimony and must be diligent in ensuring that the court is not deceived or misled by information you know to be false, you can still tenaciously defend your client against the charges with which he is faced. Once you have knowledge of your client’s guilt it is important to be more attentive to the words you use, the witnesses you call, and the evidence you present. Failure to act purposefully could result in significant legal and professional consequences.

Once you have knowledge of your client’s guilt it is important to be more attentive to the words you use, the witnesses you call, and the evidence you present. Failure to act purposefully could result in significant legal and professional consequences.

About the Author: Ambrosio Rodriguez is criminal defense attorney and owner of The Rodriguez Law Group, a leading criminal defense firm in Los Angeles, CA. He attended Georgetown University Law Center and is a former prosecutor with over 20 years experience.

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Social media is everywhere. It is no longer solely a forum for personal communication. Instead, social media has grown into an essential marketing tool for companies across the globe. Social media gives companies – big and small – the opportunity to reach massive audiences with the click of a button (or tap of a finger).

Lawyers, unlike many other working professionals, are bound by strict ethical codes of conduct when it comes to marketing and communicating with non-lawyers. The explosion of social media marketing has caused many attorneys to wonder how they can successfully utilize these platforms to grow their business while still adhering to the Rules of Professional Conduct. The Models Rules of Professional Conduct and the California Rules of Professional Conduct provide guidance for attorneys who are interested in using social media to market their business and engage with the public.

COMMUNICATING WITH THE PUBLIC

Attorneys must be wary of who they form “friendships” or “connections” with on social media platforms. It is important to evaluate who the intended recipients of a message are and why an attorney is engaging with them. Sending an invitation to connect on social media which appears to offer to provide legal services could potentially violate the California Rules of Professional Conduct in regard to prohibited solicitation.

Attorneys who use social media platforms such as Facebook, Twitter, Instagram, and LinkedIn may have some control over the audiences they reach and communicate with. However, no control mechanisms are absolute and attorneys must be wary of the potential for prohibited communications. Something as simple as sending a friend request to a represented party may cross ethical lines. Rule 2.1 of the California Rules of Professional Conduct explains that “While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”

In becoming “friends” with a represented party on social media, the attorney may be able to obtain private information that (a) would typically not be shared by the adverse party and (b) is relevant to the legal issue at hand. This prohibition extends to agents that may act on an attorney’s behalf, including paralegals, private investigators, secretaries, and interns. Attorneys who use social media to engage with the public should do so without touching on the specific legal issues on which they are actively working.

DISCLOSING PRIVILEGED INFORMATION

The sanctity of the attorney-client relationship is highlighted by the degree of protection given to privileged information. Attorneys who use social media – or who engage agents to run social media campaigns and accounts – can potentially violate privilege if they are not alert and aware about the information they share. In California, attorneys have a duty to protect privileged information of former, current, and prospective clients, and must have the consent of such clients to disclose any information about them.

Attorney blogs and platforms like Twitter have become a popular way for lawyers to engage with potential clients and those interested in legal issues. However, lawyers must be careful when choosing the issues they speak about and the information they use in these narratives. If an attorney were to imply something about a client in a post, a cursory search of the attorney’s history of representation could yield a list of potential clients that could be affected by this blog. Attorneys who want to blog, tweet, or post about ongoing legal issues they are working on must use hypotheticals and/or get the consent of clients that may be the inspiration for such content.

DIRECT MARKETING CAMPAIGNS

California encourages attorneys to tread carefully when using social media, blogs, and other internet resources for marketing purposes. It’s perfectly fine to advertise using social media, however, all ads must comply with the requirements set forth in the California Rules of Professional Conduct. Rule 1.4 applies to “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member of a law firm directed to any former, present, or prospective client….” When a communication is governed by Rule 1.4, it must not violate any of the 16 prohibitions stated within (e.g., guaranteeing a specific result, implying a relationship with a government agency or official, testimonials, availability for employment).

A California attorney learned the hard way that blogging and posting about her personal and professional lives could cross ethical lines. Following a thorough review of her vast social media and blogging platform, an ethics committee determined that posts about her professional life fell under and violated Rule 1.4. Why? The posts could conceivably notify prospective clients about her availability

Attorneys are permitted to pay for advertising on social media platforms. However, they are generally prohibited from targeting these advertisements or solicitations to specific individuals. Social media marketing campaigns, including banners and ads, must be aimed at the general public. Attorneys should also refrain from engaging in direct real-time electronic marketing and solicitation efforts.

TESTIMONIALS AND ENDORSEMENTS

It is difficult to log onto LinkedIn and other professional social media platforms without seeing recommendations and endorsements for leading professionals in your area. Attorneys must be careful when using social media in this regard. In California, Rule 7.4 generally prohibits attorneys from advertising themselves as being experts, certified, or specialists in a field of law. Endorsements or recommendations from social media platforms – including those made by an attorney’s social media connections – should be monitored closely to ensure that the attorney is not improperly classified as an expert.

If an attorney is classified as an expert by an award or certificate issued by an organization, agency, or association, the attorney may use this classification for advertising purposes. However, the attorney must ensure that the certification is not misleading and provide the name of the organization that provided the designation.

If an attorney receives an endorsement or recommendation from a social media platform or user, he or she must seriously consider removing the positive comment. Alternatively, the attorney could install a disclaimer to ensure that any prospective clients understand that the attorney is not an expert in the eyes of California law.

Social media has the potential to connect attorneys with millions of people. This can be great for the growth of a firm, but can also pose some ethical challenges. It is important to thoroughly review the Rules of Professional Conduct and keep abreast of any changes that are made. As social media grows, the Rules will continue to adapt to allow attorneys to engage with the public.

About the Author: Richard Morse III is a writer, legal scholar, and personal injury attorney at Injury Trial Lawyers, APC – a San Diego, CA based personal injury law firm. Visit getinjuryanswers.com for more information.

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