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Professionalism and Ethics


ABA Amends Model Rules of Professional Conduct to Address Changes Brought by Technology and Globalization

It is undeniable that technology and globalization are changing the way lawyers practice law.  Technology has not just made people, places, and things much more accessible to us – it has impacted the way we store information and documents, the way we communicate with and advise clients, how we conduct investigations, and how we participate in discovery.  Likewise, globalization has brought with it an increasing number of legal issues that cross jurisdictional lines, and, as a result, more lawyers need to cross those lines in order to solve them.  In addition, economic forces have resulted in both newer and more experienced lawyers relocating or seeking employment outside the jurisdiction in which they were originally licensed. 

The American Bar Association (ABA) is cognizant of these changes.  In August, 2012 and February, 2013 – after a three-year study of how technology and globalization are transforming the practice of law – the ABA amended the Model Rules of Professional Conduct (Model Rules) to address the regulation of lawyers in light of these twenty-first century realities.  This article contains a summary of the most substantive changes adopted.[1]

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Attorney Client Privilege Extends to a Carrier Under the Tripartite Relationship, Even Where the Carrier Is Prosecuting Rather than Defending a Claim, and Even When the Defense Is Providedunder Reservations of Rights

Many cases have discussed the tripartite relationship between the carrier and its insured however, Bank of America, N.A. v. Superior Court of Orange County, 212 Cal. App. 4th 1076 (2013) presented a unique and different set of facts from the typical tripartite case. One difference was that it involved a title insurance policy. Therefore, the result was that the California Court of Appeals broadened the protections afforded by this relationship, even to the case's unique set of facts.

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Silence Is Not Always Golden: When a Partner’s Instructions Go Unchallenged and an Associate’s Obligation to Speak Up Success for newly minted attorneys generally depends on following directions of senior attorneys and successfully performing the tasks they dictate. Prosperity for the young associate is generally not had by questioning a senior attorney's instructions. However, what happens when an associate's managing or supervising attorney asks the associate to do something that is improper, crosses ethical lines, or just doesn't feel "right?" When, if ever, should the junior attorney speak up? view more
The Inherent Tension Between Professional Ethics Regarding Mistakes and Insurance Policy Liability Admission Clauses

Most legal malpractice policies contain a prohibition against admitting liability. This prohibition creates an inherent tension between a lawyer who believes his or her professional ethics requires him or her to disclose a professional omission and the loss of insurance coverage for that omission which would otherwise be available to make the client whole for any resulting losses from the omission. This tension was observed by the Illinois Appellate Court in Illinois State Bar Ass’n Mut. Ins. Co. v. Frank M. Greenfield & Associates, 2012 IL App. (1st) 110337, 366 Ill.Dec. 761, 980 N.E.2d 1120 (Ill. App. 1st Dist. 2012). In the Greenfield case, the lawyer made a mistake in drafting a client’s will that ultimately affected the distribution of funds from a trust established by the client. When the error was recognized, the attorney sent a letter to all of the trust beneficiaries reporting the mistake which, in turn, resulted in several of the beneficiaries receiving less money than they otherwise would have received had the client’s wishes been properly implemented.

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The Ethics of MSP: Attorney Indemnification

Do you remember your first time? The mere thought made your heart skip a beat, your breath a touch heavier and your palms perspire slightly. You just couldn't get it out of your head. You know, the thought that the federal government might pursue you or your client for failure to reimburse Medicare for conditional payments.

Okay, maybe this wasn't where you thought I was going, but Medicare reimbursement gives all attorneys cause to pause. What compliance options are available? On its face, the most tantalizing option involves asking opposing counsel to indemnify and hold your client harmless with regard to any claims asserted by Medicare to the settlement proceeds. While this may well be viable, tread lightly. This article provides a status update on the growing trend nationwide finding it to be ethically impermissible for an attorney to indemnify and hold another party harmless with regards to lien resolution issues.

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Are You Driving Your Adjuster Clients Crazy? Ten Things Lawyers Do That Make Clients Want to Tear Their Hair Out Several high level, experienced claims personnel were recently asked to share their pet peeves about the lawyers with whom they work. The responses were surprising because many of their pet peeves are so obviously improper. Are you doing any of the things listed below? If so, it’s probably time to make some changes! Below are descriptions of some of the most common complaints with suggestions for alternative handling methods. view more
The Pro Bono Call of Professionalism

Not too long ago, I accepted a pro bono case in which I agreed to represent a woman who was seeking a domestic abuse order for protection. I accepted the representation on a Friday and the hearing was set for the following Monday. I was unable to reach her over the weekend, so I planned to meet her on the morning of the hearing. When I arrived at the courthouse, I looked throughout the waiting area and saw a woman sitting alone in a conference room. Guessing it might be my client, I knocked on the door and entered the room. I asked her name and told her that I would be her lawyer. She immediately burst into tears. She then apologized and said that she thought I was going to tell her that I represented her abuser. We prepared for the hearing and I was able to help her get the relief she and her children needed. She thanked me for being her lawyer. I walked out of the courthouse that morning with a renewed understanding of the impact that a lawyer can make on someone vulnerable, scared and poor. She did not thank me because I was a particularly capable lawyer, or even because I was able to help her. She thanked me because I showed up.

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Resolving to Be Ethical: Ethics & Settlement Negotiations

Settlement negotiations have become integral to the profession; nearly every practicing attorney will undoubtedly engage in some type of settlement talks with opposing counsel at some point in their career. The Ethical Guidelines for Settlement Negotiation (2002) (ABA Section of Litigation) ("Guidelines") explains that the purpose of settlement negotiations "is to arrive at agreements satisfactory to those whom a lawyer represents and consistent with law and relevant rules of professional responsibility." (Section 2.1). While the Model Rules of Professional Conduct ("Model Rules") do not specifically address settlement negotiations, certain rules have a direct application to the settlement process, such as the Rules regarding truthfulness in statements and attorney misconduct. For busy litigators who strive to uphold the highest ethical standards in their practice, it is certainly worth reviewing the Model Rules of Professional Conduct, or more specifically their state-enacted version, that govern and inform an attorney's conduct throughout the settlement of a case.

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What to Do When Your Supervising Partner Makes a Mistake As we all know, everyone makes mistakes—even supervising attorneys. Learning how to address mistakes may be a challenging task but, once mastered, will only help to build rapport and strengthen your working relationship with your supervising attorneys, along with helping to avoid a potential disciplinary action under the Model Rules of Professional Conduct. This article will offer suggestions for addressing your supervising attorney’s mistake in a professional and respectful manner, while discussing the importance of doing so under the Model Rules. view more
The Billing Toolbox: How to Use All of the Right Tools to Create Bills Your Client Will Want to Pay (or at least not mind paying as much!) Billing clients for our work is one of the most important tasks for many lawyers. Our bills say a lot about us, both as individuals and as members of firms, and it is critical for lawyers to master the skill of billing in order to succeed at the highest levels of the profession. It is impossible to list all of the tools that must be used for every billing situation, but below are the general tools that should guide every lawyer in billing effectively.  view more
Malpractice vs. Misconduct Suppose your client, a lawyer, has been sued for malpractice. Could the alleged malpractice be a basis for discipline? Alternatively, is a disciplinary complaint likely to give rise to a malpractice suit? This article will attempt to shed some light on the distinction between attorney malpractice on one hand and professional misconduct on the other, as well as the types of conduct that may constitute both.



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Disqualification: Applied Legal Ethics Courts have long exercised regulatory control over the lawyers appearing before them. One form of that regulatory oversight is the authority to disqualify Counsel. Disqualification blends court-made procedural law with substantive law in the form of the Rules of Professional Conduct. The former is primarily decisional law and focuses on standing, waiver, and appeal. The latter relies on the professional rules to determine whether an ethics violation warranting disqualification has occurred. In this article, we'll look at both the procedural and substantive elements of disqualification. For a national perspective, we'll examine federal procedure and substantive law under the influential ABA Model Rules of Professional Conduct that form the template for the professional rules in most jurisdictions.  view more
Dealing With Difficult Opposing Counsel: Five Ways To Smooth A Rocky Road

Although likely a rhetorical question, as an attorney practicing primarily as a litigator, have you experienced the following scenario? Every conversation (at least from opposing counsel's end) seems to spiral into venomous words and threats. His or her every letter or e-mail drips with sarcasm—or anger. Counsel views depositions as "acts of war." In short, we've all experienced a litigation that was exhausting—mentally and physically.   

Such interactions do not necessarily have to result in a complete waste of time. They remind us—yet again—that we can have a professional relationship even with the most difficult lawyers. Here are the five things I remind myself every time I am forced to communicate with such a lawyer.

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Seven Legal Sins During a recent week of depositions, I had the pleasure of spending time in downtown Riverside, California. Located on Main Street in the midst of an open pedestrian area is a beautiful and inspiring memorial to Mahatma Gandhi. One section of the memorial is a bordered walkway leading down to the visually unique statue of Gandhi—which, as you circle it, provides a montage of his life and displays images of other champions of nonviolent demonstration. As you walk toward the statue, you are met with some of Ghandi's more provocative statements. Some of these statements are quite succinct and powerful. For instance: "Live simply so others may simply live. . . ," and "An eye for an eye makes the whole world go blind." One of the selected statements is a bit more expansive, but through it, Ghandi identifies with distinct and efficient clarity the seven sins one may find in the world. Given that Ghandi's first efforts to champion civil rights occurred while he was an expatriate lawyer in South Africa, we lawyers should consider what might be described as seven legal "sins."  view more
Social Networking Sites and the Ethical Issues They Create

When new technological advances are used and abused by the legal profession, the typical response is to clamor for new ethics rules specific to those technologies. By the time the studies are conducted, working groups have debated the issue and public commentary has exhausted itself, the technology has quickly become dated and the next big thing has taken its place. Blogs have been overshadowed by microblogs, MySpace has been dwarfed by Facebook, and so on and so on.   Most ethics questions about the use of technology can be adequately answered by existing ethics rules without regard to medium or application. 

 

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Seven Legal Sins During a recent week of depositions, I had the pleasure of spending time in downtown Riverside, California. Located on Main Street in the midst of an open pedestrian area is a beautiful and inspiring memorial to Mahatma Gandhi. One section of the memorial is a bordered walkway leading down to the visually unique statue of Gandhi—which, as you circle it, provides a montage of his life and displays images of other champions of nonviolent demonstration. As you walk toward the statue, you are met with some of Ghandi's more provocative statements. Some of these statements are quite succinct and powerful. For instance: "Live simply so others may simply live. . . ," and "An eye for an eye makes the whole world go blind." One of the selected statements is a bit more expansive, but through it, Ghandi identifies with distinct and efficient clarity the seven sins one may find in the world. Given that Ghandi's first efforts to champion civil rights occurred while he was an expatriate lawyer in South Africa, we lawyers should consider what might be described as seven legal "sins."  view more
Outsourcing and Off-Shoring—A Primer Particularly with the American and world-wide economy in their current positions, and with the recent American election year, the use of outsourcing and sending jobs "off-shore" (aka "off-shoring") has become a particularly hot topic. The practices of both outsourcing and off-shoring jobs are well-established in business communities and multiple industries world-wide. However, the emotions with which jobs are discussed, particularly during an election year, frequently leads to hyperbole and inaccurate terminology.  view more
The Complete Lawyer

How does your pastor define a "complete lawyer"? What characteristics do friends list when describing a "complete lawyer"?  What is your client looking for in a "complete lawyer"? 

Perspective matters when meeting with a client, talking to opposing counsel, picking a jury, or finding the perfect fishing hole. So, to understand perceptions of lawyers, I posed a question to clients, family, clergy, business owners, and attorneys: What is a complete lawyer?   

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