Legal Ethics

Recovery of Sanction Fees: Who Does the Money Belong To?

noreply@blogger.com (Bruce A. Campbell) — Wed, 03 Feb 2010 15:47:00 +0000

Have you ever wondered about what the right thing to do is if a plaintiff is awarded a monetary sanction in addition to a jury award or a settlement? Whose money is it? This issue and several others will be a discussed at the CLE seminar:

Strategies for Damages and Attorney Fees
LIVE • Dallas • February 18-19, 2010
VIDEO • Houston • March 25-26, 2010

At 11:15 AM on Thursday, Bruce A. Campbell will present "Recovery of Sanction Fees: Who Does the Money Belong To?"

View the brochure.

Texas Judges Still Have Online Lawyer "Friends" — But For How Long?

noreply@blogger.com (Bruce A. Campbell) — Fri, 08 Jan 2010 20:00:00 +0000

Unlike Florida, New York, and South Carolina, Texas does not appear to have an opinion addressing the question of whether Texas Judges can participate in online social networking.

Texas judges are currently allowed to choose who they will "friend" in social networking media. Judge Susan Criss of Galveston's 212th District Court says she follows her ethical canons and is careful about what she says and who she friends. She "friends" all lawyers in order to avoid an appearance that she favors one side over another. (Judge Criss was a panelist in the ABA program, "Courts and Media in the 21st Century," presented on July 31, 2009.)

The Ethical Canons that Criss referred to are Canon 2B and Canon 4A:

Texas Canon 2B: A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

Texas Canon 4A: Extra-judicial duties in general.
A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or
(2) interfere with the proper performance of judicial duties.

While the Canons do not, on their face, prohibit Texas judges from social networking, some, like Judge Orlinda Naranjo of Travis County's 419th District Court, have chosen not to participate. ("Social Networks Help Judges Do Their Duty," Miriam Rozen. Law Technology News, August 25, 2009.)

Comparison Between The Model Rules And The States' Rules

(Click on image to open larger chart in new window.)

Even though the canons are essentially the same, the opinions range from prohibiting judges from "friending" lawyers (See Online Social Networking For Judges: Florida Prohibits Judges To "Friend" Lawyers), to allowing judges to "friend" lawyers (New York Permits Judges To "Friend" Lawyers), to encouraging judges to "friend" people in the community (South Carolina Permits Judges To Participate in Social Networks).

Many Texas judges enjoy a collegiate relationship with lawyers. For example, the Galveston County Young Lawyers host a judicial reception as:

an informal atmosphere outside the courtroom where young lawyers could network with the area judges…. Attendance by the judiciary is always strong and truly affords the attorneys a chance to mingle with the judges in front of whom they practice.

It is important to note that the lawyers socialize with the judges "in front of whom they practice." It is this type of relationship that formed the basis for prohibiting online social networking for Florida judges.

South Carolina Permits Judges To Participate in Social Networks

noreply@blogger.com (Bruce A. Campbell) — Thu, 31 Dec 2009 14:47:00 +0000

Kittiwakes "networking" in Whittier, Alaska. © Bruce A. Campbell South Carolina judges are free to participate in online social networking. In response to the question about whether a judge can "friend" law enforcement officers and employees of the court, the South Carolina Advisory Committee on Standards of Judicial Conduct issued the following conclusion in October 2009:

A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate. (Opinion 17-2009)

The opinion states:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR.

The opinion references Canon 2(A), Rule 501, SCACR in support. Both Rule 501 (Code of Judicial Conduct) and SCACR (South Carolina Appellate Court Rules) outline appropriate and inappropriate behaviors, which are summarized by Canon 2(A),

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

South Carolina Opinion Differs
From The Florida And New York Opinions

While the relevant Canons of South Carolina do not differ significantly from the Canons of Florida or New York, each state has interpreted them differently. Florida prohibits judges from "friending" lawyers who may appear before them (See Online Social Networking For Judges: Florida Prohibits Judges To "Friend" Lawyers), New York permits judges to "friend" anyone as long as it does not compromise the integrity of the judiciary (New York Permits Judges To "Friend" Lawyers), and South Carolina comes close to encouraging judges to participate in online social networking.

The commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.

Problems Of The Opinion

There are two problems with the opinion that are relevant to our discussion of judges "friending" lawyers.

The opinion does not specifically address the issue if online social networking between judges and lawyers. On the one hand, the conclusion limits the opinion to approving networking between judges and "law enforcement officers and employees of the Magistrate." On the other hand, the use of "community" in the discussion of the opinion suggests that it applies to a much broader context.

Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.
Like the New York Opinion, the South Carolina opinion focuses on principle rather that concrete examples. Therefore, the decision about what constitutes questionable activities will have to be made on a case by case basis.

The Strength Of The Opinion

There strength of the opinion lies in its brevity. The single condition for participating in online social networking is "do not discuss anything related to the judge’s position as magistrate."

Conclusion

The South Carolina Opinion allows online social networking between judges, law enforcement, and employees of the Magistrate. Its weaknesses include 1) a narrow focus (judges, law enforcement, and Magistrate employees) with possible extrapolation to the larger community and 2) the lack of concrete examples. Its strength is its single qualification "do not discuss anything related to the judge’s position as magistrate."

This is Part 3 in a series about "Online Social Networking For Judges." In the next blog, I will consider how Texas might be influenced by these opinions.

Comment on Disciplinary Rules' Proposed Amendments

noreply@blogger.com (Bruce A. Campbell) — Mon, 28 Dec 2009 16:52:00 +0000

The Texas Supreme Court proposed amendments to the Texas Disciplinary Rules of Professional Conduct that are broad and extensive:

5 newly defined terms that apply to the entire body of rules
40 revised rules
4 new rules — five if you count Rule 1.00, the new terminology rule
11 rules that have not been amended except through the terminology changes added by Rule 1.00.

Not since January 1, 1990 have the Disciplinary Rules undergone this level of revision. Significantly, after the 1990 revisions to the Rules, the number of disciplinary sanctions against Texas lawyers experienced a substantial increase approximately a year after the rules changed. And, the number of sanctions did not return to normal even nine years later. ("Lady or the Tiger? Opening the Door to Lawyer Discipline Standards," Bruce A. Campbell, Fla. Coastal L.J. Vol. 1, p.232-36 (1999). If there was one lesson to be learned from the last time the Rules were substantively amended, it is that it can take a decade or more for lawyers to conform their conduct to substantial changes in the Rules.

You may want to read my comments in Texas Lawyer on proposed changes to rules governing:

Informed Consent
Affiliated Lawyers and Entities
Prospective Clients

Online Networking For Judges Is Not On The Rocks: New York Permits Judges To "Friend" Lawyers

noreply@blogger.com (Bruce A. Campbell) — Wed, 23 Dec 2009 16:15:00 +0000

Unlike their Florida counterparts, New York State judges are free to participate in online social networking with no greater restriction than is already placed upon them by virtue of their office. A January 29, 2009 opinion issued by the State of New York's Advisory Committee on Judicial Ethics states:

Provided that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network. A judge choosing to do so should exercise an appropriate degree of discretion in how he/she uses the social network and should stay abreast of the features of any such service he/she uses as new developments may impact his/her duties under the Rules. (Opinion 08-176)

The opinion identifies "the question [as] not whether a judge can use a social network but, rather, how he/she does so." The guidelines for New York judges using social networking advises judges to:

Recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly. (E.g., in previous opinions, links to advocacy groups are not permitted but links to news articles are permitted.)

Consider whether any such online connections, alone or in combination with other facts, rise to the level of a “close social relationship” requiring disclosure and/or recusal.

Avoid engaging in communication with those who informally ask questions about or seek to discuss their cases, or seek legal advice.

In summarizing the guidelines, the opinion states that the guidance given by the opinion:

. . . can only be, a non-exhaustive list of issues that judges using social networks should consider. The Committee urges all judges using social networks
to, as a baseline, employ an appropriate level of prudence, discretion and decorum in how they make use of this technology, above and beyond what is specifically described above.

In short, the opinion acknowledges the judge's ability to discern situations
to avoid and to abide by the canons and rules that already exist.

New York State Code of Judicial Conduct

The New York opinion identifies Canons 2(B) and (C) and Canon 4(A) as applying to the topic of online social networking. In particular:

A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. (NY Canon 2B)

A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness. (NY Cannon 2C)

A judge shall conduct all of the judge's extrajudicial activities so that they do not:
(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2) detract from the dignity of judicial office; or
(3) interfere with the proper performance of judicial duties and are not incompatible with judicial office. (NY Cannon 4A)

The New York Opinion recognizes the risks and advantages of participating in social networking and allows judges the freedom to participate if they so choose.

New York's Opinion Is The Polar Opposite Of Florida's Opinion

New York's approach to regulating the behavior of judges stands in stark contrast with the recent opinion issued by the Florida Judicial Ethics Advisory Committee (Opinion 2009-20), which essentially prohibits judges from "friending" attorneys on the basis that it may possibly convey "a special position to influence the judge." (See Online Social Networking For Judges: Florida Prohibits Judges To "Friend" Lawyers.) While the canons of each state are similarly worded, the interpretation by each state has produced opposite results.

The Strength Of The Opinion

The strength of the New York Opinion is clear: the responsibility for discerning the appropriate use of online social networking media rests squarely on the shoulders of the judges who use it.

The Committee cannot discern anything inherently inappropriate about a judge joining and making use of a social network. A judge generally may socialize in person with attorneys who appear in the judge’s court, subject to the Rules Governing Judicial Conduct.

The judges of New York are expected to act in a mature manner that is consistent with the rules and opinions that govern their position, regardless of the forum.

Conclusion

The New York Opinion protects online social networking between judges and the lawyers that may appear before them. Its strength is that it provides a broad set of guidelines that are to be applied through the wisdom of the judges.

This post is Part 2 in a sereis discussing Online Social Networking For Judges. In the next blog, I will review the South Carolina Opinion in this topic, which somewhat extends the New York position.

Online Social Networking For Judges: A Clear No For Florida Judges

noreply@blogger.com (Bruce A. Campbell) — Fri, 18 Dec 2009 16:18:00 +0000

If Facebook were a country, it would be the fourth most populous country in the world. Considering that Facebook did not exist 10 years ago, that is explosive growth. With that kind of growth, the question of whether lawyers and judges would join online social networking groups was not a question of whether but of when and what rules apply. In this series, we are going to look at some of the responses to judicial online social networking. There are two polar opposite approaches to the situation.

The "NO!" Pole

The recent opinion of the Florida Judicial Ethics Advisory Committee (Opinion 2009-20) is a clear "NO!" to the question of:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

The reason for disallowing judges to "friend" lawyers is that it may possibly convey "a special position to influence the judge."

The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.

In support of the decision, the Committee cited the Code of Judicial Conduct.

A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the
prestige of judicial office to advance the private interests of the judge or
others; nor shall a judge convey or permit others to convey the impression that
they are in a special position to influence the judge. A judge shall not testify
voluntarily as a character witness. (Florida Canon 2B)

A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) undermine the judge’s independence, integrity, or impartiality;
(3) demean the judicial office;
(4) interfere with the proper performance of judicial duties;
(5) lead to frequent disqualification of the judge; or(6) appear to a reasonable person to be coercive. (Florida Canon 5A)

While the Committee acknowledged "[c]omplete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives" (Comment 5a), it reasoned that a judge must "accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly" (Canon 2A).

The Minority Opinion

The minority opinion is noteworthy because it recognizes that the social networking term "friend" does not indicate a position of influence.

The minority concludes that social networking sites have become so ubiquitous that the term "friend" on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term "friend" on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a "friend" in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard. In this sense, the minority concludes that identification of a lawyer who may appear before a judge as a "friend" on a social networking site does not convey the impression that the person is in a position to influence the judge and does not violate Canon 2.

Problems with the Opinion

There are at least three problems with the Florida Opinion:

The opinion fails to recognize that participants in online social networking understand that, in context, "friend" means "contact" or "acquaintance" rather than a relationship of obligation. The Facebook term "friend" and the LinkedIn term "contact" do not convey "the impression that the lawyer is in a position to influence the judge."

The opinion specifically prohibits judges from networking with lawyers "who may appear before the judge." Since it would be a maintenance nightmare to "unfriend" lawyers when they are on a judge's docket and it is impossible to predict every lawyer that might appear before a particular judge, it seems likely that judges will decline to "friend" all lawyers in order to avoid violating the opinion. The opinion could easily be extended to apply to litigants, their employees, relatives, friends, etc. The safest course for a Florida judge will be to say no to any online social networking.

The opinion isolates judges from their peers. Judges were lawyers who enjoyed collegiate relationships with other lawyers. However, once elected to the bench, they can no longer enjoy the network of lawyers who probably helped the judge to be elected.

Strength of the Opinion

The strength of the opinion is that it provides a relatively clear demarcation between appropriate and inappropriate behavior. Simply put, if a judge is "friends" with a lawyer that appears in his/her court, the judge is in violation of the opinion.

Conclusion

The Florida Opinion prohibits online social networking between judges and the lawyers that may appear before the judge. Its strength is that it provides a measurable standard of conformity. Its weaknesses are the failure to adopt the common understanding of friend, the result that all online relationships between Florida judges and lawyers are likely to be eliminated, and that it isolates judges from the peers.

In the next blog, I will review the New York Opinion in this topic, which takes a position at the opposite pole from the Florida Opinion.

Staying Within the Lines: Proposed Rule Changes Could Blur the Lines for Attorneys

noreply@blogger.com (Bruce A. Campbell) — Fri, 11 Dec 2009 21:09:00 +0000

The proposed changes to the Texas Disciplinary Rules of Professional Conduct could make it difficult for attorneys to practice "within the lines."

One example of blurred boundaries is the definition of an "affiliated lawyer" in Rule 1.00(c)(iii).

A lawyer is “affiliated” with a firm if either the lawyer or the lawyer’s professional entity… has any other relationship with that firm, regardless of the title given to it, that provides the lawyer with access to the confidences of the firm’s clients that is comparable to that typically afforded to lawyers in category (i)…

Category (i) is defined as "a shareholder, partner, member, associate, or employee of that firm."

How will the definition of affiliated lawyers create conflicts problems? Consider the following scenario.

A law firm brings in a contract lawyer to work on one particular matter but either 1) fails to limit the contract lawyer's access to other clients' matters on the firm's computer or 2) fails to restrict the contract lawyer from hearing conversations related to other clients by firm lawyers within the office. The firm has probably provided "access to the confidences of the firm’s clients," which is a condition for the contract lawyer to become an affiliated lawyer. By inadvertently making the contract lawyer an "affiliated the lawyer," the firm now faces the potential of unforeseen conflicts of interest based on the past representations of the contract lawyer.

This is just one possible outcome from the proposed changes to the Disciplinary Rules. I will be posting more discussions about what lies ahead with the proposed amendments to the Disciplinary Rules.

Photo and processing by Bruce A. Campbell.

Sawdust and the 2 X 4

noreply@blogger.com (Bruce A. Campbell) — Fri, 30 Oct 2009 19:53:00 +0000

While many Texas lawyers are focused on whether E&O insurance must be disclosed by lawyers to their clients, the Texas Supreme Court recently released for comment, a massive revision of the Texas Disciplinary Rules. The E&O issue is but a speck of sawdust in the eyes of Texas lawyers compared to the 2 X 4 of changes proposed to the D.R.'s.

Based on their depth and breadth, the changes in the Disciplinary Rules proposed on October 20 have a much greater potential for influencing the practice of law.

The changes affect areas such as:

who is an affiliated lawyer
what obligations are owed to prospective clients
conflicts of interest
safekeeping of property
candor to the tribunal
obligations of managerial attorneys
many, many more rule additions and changes

During the next months, I will be discussing the consequences of several of the rule changes.

Professional Liability Insurance Disclosure on the State Bar of Texas Website

noreply@blogger.com (Bruce A. Campbell) — Fri, 30 Oct 2009 15:30:00 +0000

The State Bar of Texas posted a number of items related to the discussions about Professional Liability Insurance Disclosure, including reports and MP3 audio recordings of public hearings. Go to the State Bar website >>

Talk, Talk, Talk: Background Discussions About the Proposed Requirement for Disclosure of Lawyer E&O Insurance

noreply@blogger.com (Bruce A. Campbell) — Fri, 30 Oct 2009 14:45:00 +0000

In November 2007, the State Bar appointed a task force to make a recommendation of whether Texas should require lawyers to disclose the existence or non-existence of professional liability insurance, and, if so, the form of any such disclosure. The Texas task force first surveyed Texas lawyers by e-mail. The survey was reportedly sent via an e-mail blast to Texas attorneys, and then made available on the Bar’s Web site. (See also Memorandum from David J. Beck, Chair, to State Bar of Texas Board of Directors, dated June 11, 2008, regarding Task Force on Insurance Disclosure p. 3.)

According the Task Force, 6,160 lawyers completed the survey, which represented 6.6% of all members of the Texas Bar in 2008. According to the survey, the majority of the lawyers who completed the survey practiced in solo or small law firms, and 77.4% of the lawyers who voted believed lawyers should not be required to disclose whether they have insurance. According to the Task Force, 63.2% of the lawyers who voted in the survey also believed that if disclosure was required, it should be disclosed on the bar’s website instead of disclosed in writing to clients. (See PLI Disclosure – Attorney Survey Findings - February 2008.)

The State Bar also received 138 pages of comments from lawyers in Texas on the final question of the electronic survey. (See “Summary of Findings of Survey Comments” p. 1, available from the State Bar of Texas.) 1605 lawyers (71.9%) who answered the final survey question were against disclosure for reasons including: requiring disclosure would encourage lawsuits against attorneys based on anticipated failure and deep pockets; insurance is too expensive; this will cause insurance rates to go up; lawyers who do not currently carry insurance will have to raise their rates to afford it; other professional are not required to disclose whether they carry insurance; lawyers should be able to choose to be self-insured; and disclosure would hurt small firms and solo practitioners. 118 lawyers (5.3%) who completed the final survey question favored requiring disclosure for reasons including that a client is entitled to know and that disclosure is for public protection. 510 lawyers (22.8%) who answered the final question left comments including that they believed the survey questions were biased; they perceived a lack of suitable coverage especially for solo practitioners or semi-retired lawyers; and practice areas make a difference.

The Task Force also conducted telephone surveys of lawyers and the general public. According to the Task Force, 65% of the 500 lawyers who participated believed that lawyers in private practice should not be required to disclose whether they carry insurance, whereas 70% of the 500 members of the general public who participated believed that lawyers should be required to carry insurance. The Task Force also reported that 75% of the general public also believed that other professions (such as doctors, architects, engineers and accountants) should be required to carry insurance (although none of those professions are required to disclose such information). (See PLI Disclosure Survey of the Public - April 2008.)

Actions after Polling
Based on this information, the 13-member Texas Task Force recommended in June 2008, in a 6-5 vote, that disclosure not be required. The Task Force also voted, 6-4, that if disclosure was required, it should be an administrative rule, not a disciplinary rule, and be reported to the State Bar, not clients directly. (See Memorandum from David J. Beck, Chair, to State Bar of Texas Board of Directors, dated June 11, 2008, regarding Task Force on Insurance Disclosure p. 7.)

In March 2009, House Bill 2825 was introduced by Elliott Naishtat, Representative from Austin in the legislature, which stated the Texas Supreme Court shall: (1) promulgate rules that require an attorney not covered by professional liability insurance to either prominently display a notice in the attorney’s place of business stating he is not covered by professional liability insurance or provide notice in another manner to his clients and prospective clients, and (2) provide for enforcement including disciplinary action for professional misconduct. House Bill 2825 died in the Judiciary and Civil Jurisprudence House Committee.

In June 2009, the Texas Grievance Oversight Committee restudied the reports by the State Bar’s Task Force. The Grievance Oversight Committee recommended that a lawyer in private practice inform his client in writing if he does not have professional liability coverage within limits acceptable to the Bar, and to also notify his client in writing if his insurance lapses or is terminated during his representation of the client. The Committee also recommended that the rule became a disciplinary rule of professional conduct, so that any violation will be handled through the grievance process of the State Bar. (See Excerpt from the Grievance Oversight Committee 2009 Report to the Supreme Court, pp. 1, 2, 4; see also State Bar of Texas Board of Directors Professional Liability Insurance Disclosure Consideration Process 2009-2010.)

For more on this topic, read my articles in Texas Lawyer on disclosure of lawyer E&O insurance: It's Time to Speak Up: Don't Miss Out on Debate Over Professional Liability Insurance.

Will Texas Lawyers Be Required To Disclose Whether They Carry Professional Liability Insurance?

noreply@blogger.com (Bruce A. Campbell) — Thu, 29 Oct 2009 15:44:00 +0000

Are you aware of the possible impact that could result if you are required to disclose to clients whether you carry professional liability insurance?

Judging by the low attendance at the State Bar of Texas public hearings on the topic, most attorneys are unaware or indifferent: Dallas (50+), El Paso (6), Houston (35), Harlingen (4), Lubbock (9), and San Antonio (60).

The State Bar Board will use this input to assist it in making a recommendation to the Supreme Court. (The Board will vote on this issue at its Jan. 29, 2010, meeting.)

Read Bruce A. Campbell's article "It's Time to Speak Up: Don't Miss Out on Debate Over Professional Liability Insurance" in Texas Lawyer.

Collectability, Deductibility, and Recoverability

noreply@blogger.com (Bruce A. Campbell) — Fri, 12 Jun 2009 16:13:00 +0000

In Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development and Research Corp., et al., the Texas Supreme Court faces three issues that, if decided, could substantially affect how courts handle legal malpractice cases in Texas: collectability of underlying judgments, deduction of contingent fees from damages and recoverability of attorneys’ fees that were paid in the underlying suit.

The first issue the court could resolve concerns collectability...

Read more of Collectability, Deductibility, and Recoverability.

Going Up: Elevator Clauses, Client Consent and Increased Billing Rates

noreply@blogger.com (Bruce A. Campbell) — Mon, 26 Jan 2009 17:32:00 +0000

With 2009 upon us and the cost of operating a firm rising steadily, many lawyers may wonder how to increase billing rates for existing clients. What must a firm do before it increases the billing rate for clients who already have signed a retainer agreement? Can the firm increase its hourly rate without notifying the client? If the firm must give notice of rising rates, can notice be verbal or must it be written? If the client consents to the proposed rate increase can that client still challenge the modification later?

Read my latest article, "Going Up: Elevator Clauses, Client Consent and Increased Billing Rates," in Legal Ethics in January 26, 2009 edition of Texas Lawyer.

Dangers of Social Networking for Attorneys

noreply@blogger.com (Bruce A. Campbell) — Wed, 12 Nov 2008 22:24:00 +0000

Compromising or inappropriate pictures, statements, or other information on social networking sites may hinder an attorney's opportunity for employment, obtaining a license to practice law, or even result in suspension of a law license. Attorneys must recognize that their portrayal on social networking sites is considered a reflection of personal character. Read more about the dangers of social networking in "Choose Your Friends Wisely" – the next article in the Texas Lawyer legal ethics series, written by Bruce A. Campbell.

Read the article on law.com.
Download a PDF of the article.

(Photo © Bruce A. Campbell)

Free Speech for Lawyers?

noreply@blogger.com (Bruce A. Campbell) — Fri, 01 Aug 2008 13:28:00 +0000

The court jester often spoke frankly on controversial issues. Photo © Bruce A. CampbellThe Florida Supreme Court appears to be ready to dive into the question of what can a lawyer say about a judge and still avoid being disciplined. A Florida attorney is facing discipline for writing disparaging comments about a Circuit Court Judge on a legal blog. In the blog, the attorney referred to the Judge as an "evil, unfair witch," "unfit for her position," and referred to her as "seemingly mentally ill." The attorney is accused of violating Florida bar rules forbidding attorneys from impugning the qualifications of a judge and making statements about the judge known to be false or in reckless disregard for the truth. Interestingly, the lawyer apparently had cut a deal with the Florida Bar requiring a guilty plea in exchange for a public reprimand, but this deal may have been scuttled by the requests for briefing by the Florida Supreme Court. The Court has directed the attorney, as well as the Florida State Bar, to file briefs on whether the attorney's comments are protected speech under the First Amendment. The attorney, along with the help of the American Civil Liberties Union, is now defending his comments as permissible hyperbole or figurative speech. It will be interesting to see how the Florida Supreme Court treats the attorney's comments.

For an expanded discussion of the interaction between the disciplinary rules and the First Amendment, read "What can you say about a judge without losing your law license?" published in the August 4, 2008 edition of the Texas Lawyer.

(Post publication note) This article was picked up by several sites, including:
American Lawyer
The Boston Globe [boston.com]
Connecticut Bar Association
Corporate Legal Times Magazine
The Counselor, Boston Law College
Hawaii State Bar Association
The Indiana Law Blog
Kansas City Business Journal
Law Net (Greek version)
Law Roundtable
law.com
lawjobs.com
Legal News
Practice Source
The New York Sun
et al. (Google Search for "A Primer on What Lawyers Can Say About Judges")

What Makes You So Special? Qualcomm Revisited

noreply@blogger.com (Bruce A. Campbell) — Thu, 17 Jul 2008 13:29:00 +0000

Acroterions adorn each corner of Dallas' historic courthouse "Old Red." These gargoyle-like figures have a serpent's body, bat's wings, and the head and legs of a lion—characteristic of the Romanesque fascination with grotesque and monstrous creatures. (Acroterion is from the Greek word for "summit.") The most recent blog focused on Qualcomm Inc. v. Broadcom Corp. In Qualcomm, a Federal Judge for the Southern District of California handed Qualcomm and six of its retained attorneys severe sanctions for "monumental" discovery violations after the attorneys for Qualcomm failed to produce "tens of thousands" of electronic documents until after trial. Only six of the nineteen retained attorneys representing Qualcomm were sanctioned which begs the question, "Why?"

According to the court, one group of sanctioned attorneys were responsible for the initial discovery failure because they handled or supervised Qualcomm's discovery responses and production of documents. The court specifically noted that had any of these attorneys insisted on reviewing Qualcomm's records regarding the locations searched and terms utilized, they would have discovered the inadequacy of the search and the suppressed documents.

One attorney tried to avoid responsibility and represented to the court that he had requested a more thorough document search, but that Qualcomm refused to do so. According to the court, "if that attorney was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production, then he should have obtained the assistance of supervising or senior attorneys." If the supervising senior attorneys were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence.

The court also found that a second group of attorneys were responsible for the attorney discovery violation because they also did not perform a reasonable inquiry to determine whether Qualcomm had complied with its discovery obligations. The court stated that these attorneys knew or should have known that particular statements in an e-mail received from Qualcomm contradicted Qualcomm's trial arguments and the attorney had an obligation to verify that it had been produced in discovery or to immediately produce it. The court stated that if the receiver attorney lacked the experience to recognize the significance of the document, then a more senior or knowledgeable attorney should have assisted him. The supervising attorney should have recognized the importance of the document from his involvement in Qualcomm's motion practice and trial strategy sessions.

The court found that if these two groups of attorneys had conducted a reasonable inquiry, they would have discovered the inadequacy of Qualcomm's search and the suppressed documents.

The court indicated that a third group of attorneys were responsible for the discovery failure because they did not conduct a reasonable inquiry into Qualcomm's discovery production before making specific factual and legal arguments to the court.

Yet another lawyer who was the primary liaison with another firm representing Qualcomm, and who was privy to the evolving theories of the case was found to have engaged in sanctionable conduct. This attorney was made aware of the discovery of electronic documents at Qualcomm and was in the best position both to understand their significance and to communicate any concerns.

The court found the remaining thirteen attorneys were less culpable than their sanctioned counterparts because the remaining attorneys did not "significantly participate in the preparation or prosecution of the case" or "participate in aspects of the case [related to the discovery issue]." The court also stated that although it was a close call, it would decline to sanction attorneys that did not begin working on the case until after discovery had closed and those that monitored the case for impact on separate Qualcomm/Broadcom litigation.

And you thought your day was bad?

noreply@blogger.com (Bruce A. Campbell) — Wed, 21 May 2008 21:37:00 +0000

In Qualcomm Inc. v. Broadcom Corp.,¹ a Federal Judge for the Southern District of California handed Qualcomm and six of its retained attorneys severe sanctions relating to "monumental" discovery violations after attorneys for Qualcomm failed to produce "tens of thousands" of e-mails until after trial. Specifically, the court stated that Qualcomm violated its discovery obligations by failing to produce more than 46,000 e-mails and documents that were requested in discovery (which Qualcomm agreed to produce). The court noted that Qualcomm failed to present any evidence attempting to explain or justify its failure to produce the documents. The court also found that it was likely one or more of the retained lawyers chose not to look into the correct location of the documents and accepted the unsubstantiated assurances of Qualcomm that its searches were sufficient. Of the eighteen attorneys representing Qualcomm, three were deemed responsible for the discovery failure because they handled Qualcomm's discovery responses and production of documents, while three more were deemed responsible for the discovery violation because they did not perform a reasonable inquiry to determine whether Qualcomm had complied with its discovery obligations.

As sanctions, the court ordered Qualcomm to pay Broadcom for all of its attorneys' fees and costs, which totaled $8.5 million dollars. To address the potential ethical violations, the court also referred six of Qualcomm's retained attorneys to the State Bar of California.

If nothing else, the Southern District Court of California's response to Qualcomm and its attorneys shows that discovery creates the risk of substantial potential exposure.

_________
¹2008 WL 66932

Problems With Representing Family and Friends

noreply@blogger.com (Bruce A. Campbell) — Thu, 24 Apr 2008 20:32:00 +0000

At some point, every lawyer receives a telephone call from a family member or friend that starts off with "I need your help with a simple will." For many lawyers the legal issues involving in the drafting of a will, simple or not, are way outside the scope of the lawyer's ordinary practice.

View a reprint of this article published in Texas Lawyer on April 28, 2008.

Stay Tuned . . .

noreply@blogger.com (Bruce A. Campbell) — Mon, 10 Dec 2007 20:25:00 +0000

Stay tuned for a discussion of the efforts by the ABA to create a uniform set of ethics rules governing lawyers throughout all American jurisdictions that will be published in the Texas Lawyer in late January 2008.

Is this a Sacred Cow?

noreply@blogger.com (Bruce A. Campbell) — Wed, 03 Oct 2007 13:34:00 +0000

The issue of sacred cows is important to any discussion of legal ethics. When we talk about sacred cows, more often than not, we are talking about a rule, idea or concept lacking in intellectual substance or foundation. Oftentimes rules, ideas or concepts are built up over time. Many times they are based on popular notions that fit society's beliefs. Nevertheless, sometimes those beliefs or notions are wrong.

Frequently, when a sacred cow is held up to analytical scrutiny it will perish. In an ideal situation, sacred cows are ground into intellectual hamburger and quickly dismissed because they lack an intellectual foundation. Sacred cows sometime meet their demise because of a change in society. Nevertheless, some sacred cows survive quite a long time. Sometimes discerning whether an idea or rule is a sacred cow is difficult.

Legal ethics rules should not merely be someone's interpretation of what a disciplinary rule should or ought to provide. Instead, each aspect of the disciplinary rules should be carefully scrutinized. The acid test is whether the rule makes sense in light of the totality of the scheme established by the disciplinary rules. A single ethical rule should not be considered in a vacuum. This is especially because the disciplinary rules set the floor level for what conduct is acceptable for lawyers and is consistent to create an overarching system of rules. Interpretations of the disciplinary rules should therefore be consistent with the comments and with other positive law. The problem is that quite often commentators, ethics committees and others can add gloss to the disciplinary rules that was never intended by the rules, and is inconsistent with the overall scheme of the rules.

Not long ago, one of the sacred cows of Texas legal ethics met its demise. For years, it was unethical for Texas lawyers to surreptitiously tape record telephone conversations with their clients and third parties. ("Be Careful What You Say: A Lawyer May Be Recording You!" Bruce A. Campbell. PLUS Journal, September 2007.) As is discussed below, for nearly thirty years the Professional Ethics Committee of the State Bar of Texas (the "Ethics Committee") had asserted based upon their interpretation of the Rules that such tape recordings were unethical. Not long ago, the interpretation of the Ethics Committee changed. The question that still remains is should lawyers be allowed to record all other communications with clients and third parties without their knowledge. If a recording of a telephone call is permissible, does that mean that surreptitious recordings of in person meetings should also be permissible? We will have to wait for an answer to the questions of when recordings are permissible in situations other than telephone calls.

The problem with slaying ethical cows is that it adds more uncertainty to the practice of law. Nevertheless, ethical rules just like most things in life will be subject to change. Or as the head coach of the Dallas Mavericks used to say, "It ain't over until the fat lady sings." Hopefully we will continue to see the demise of sacred cows in legal ethics. And, hopefully we will not have too many unanswered questions in the meantime.

Character and Fitness Concerns? A Shattering Experience

noreply@blogger.com (Bruce A. Campbell) — Fri, 14 Sep 2007 14:46:00 +0000

In our last post, we touched on the meaning of the term "legal ethics". This time we will look at the prequel -- that is, what types of issues can arise that will prevent an otherwise qualified applicant from becoming a lawyer, and thus being subject to the requirements of "legal ethics."

Four or more years of college tuition, room, board and books, followed by three or more years of the same for law school leaves many students drained financially, mentally, and emotionally. It must be quite shattering to then learn that the Board of Bar Examiners either will not permit them to take the bar exam, or will not license them because of alleged character or fitness defects.

At or about the time most applicants enter law school they fill out an application that is submitted to the Board of Law Examiners. This application starts the process of review by the Board who assesses the character and fitness of the candidate to practice law. An applicant is required to possess good moral character. Nevertheless, there is an inherent difficulty in assessing "good moral character" to practice law. "Good moral character," standing alone, can be "easily adapted to fit personal views and predilections, [and] can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." Konigsberg v. State Bar, 353 U.S. 252, 263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1967). At best, what the Board does is look at past conduct of the applicant and makes a prediction about how the applicant will behave in the future.

The Board of Law Examiners is not without guidance in evaluating "good moral character." TEXAS GOV'T CODE ANN. Section 82.028(c) authorizes the Board to conduct investigations, but expressly circumscribes the power of the Board in making this determination such that:

The board may not recommend denial of a license and the supreme court may not deny a license to an applicant because of a deficiency in the applicant's moral character or fitness unless:

the board finds a clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client or obstruct the administration of justice if the applicant were licensed to practice law.... (emphasis added).

The purpose of requiring a candidate to have good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients or will result in obstruction of the administration of justice, or in a violation of the Texas Disciplinary Rules of Professional conduct. Tex. R. Gov. Bar Adm'n. IV(b).

The assessment of character and fitness looks at issues such as debt, chemical dependency, criminal records and dishonesty, among other things. The Board is to determine whether those acts show that an applicant has a negative character trait that is likely to cause the applicant to injure a client or violate the disciplinary rules. Such a character trait "usually involve[s] either dishonesty or lack of trustworthiness in carrying out responsibilities," but "other character traits [may be] relevant." RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b). There must additionally be "substantial evidence" of a "clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client [or violate the DISCIPLINARY RULES] if the applicant were licensed to practice law ..." TEX.GOV'T CODE Section 82.028(c); RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b), XV(i)(5) (1992). The most salient character traits involve either dishonesty or lack of trustworthiness in carrying out responsibilities. RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b) (1992).

Assuming an adverse decision is made against a candidate by the Board of Bar Examiners, it that the end of the line? The short answer is probably not, but each situation is different and requires careful studied analysis. There have been instances when the Board's decision has been wrong, and a court has overturned the decision of the Board.

For instance, in Board of Law Examiners v. Alritt, 2001 WL 838378 (Tex. App. -- Austin, 2001) Arlitt had passed the Bar examination, but was not licensed because the Board found that Alritt had negative character attributes of dishonesty and lack of respect for the judicial process. The Board found that Alritt had filed contradictory statements under oath, failed to disclose involvement in an adversary proceeding in bankruptcy court and had been personally sanctioned twice. The district court found that the contradictory statements, made about her homestead and in the bankruptcy court, were not supported by substantial evidence. The two sanctions against Arlitt were for going to the court ex parte without giving notice to the other side and getting a bond released to her. The court found that because she was not yet licensed and "had not yet practiced law, was aware her ex parte conduct was improper," but did not indicate a lack of respect for the judicial process, just ignorance. The court accordingly reversed the decision of the Board.

Similarly, in Board of Law Examiners v. Coulson, 48 S.W.3d 841 (Tex. App. -- Austin, 2001) an applicant successfully challenged an adverse decision by the Board. In Coulson, the candidate disclosed in his application that he had undergone treatment for alcohol and substance abuse almost twenty years before. Upon receiving his probationary license, Coulson was told he would have to be evaluated by a social worker and a Board evaluator, and see a Master Addiction Counselor. Despite testimony by both counselors that Coulson did not suffer from chemical dependency, and similar testimony from his father, wife, employer and former classmate, the Board determined that "there was a clear and rational connection between the Applicant's possible chemical dependency,... and the likelihood that he might fail to discharge properly his duties to a client, a court or the legal profession. In overturning the Board's decision, the district court found that Section 82.038 of the Tex. Gov. Code required there to be a present chemical dependency before imposing a probationary license. The court of appeals agreed and found that there was insufficient evidence to find a present chemical dependency. The court of appeals reemphasized an earlier decision it had issued disapproving of the use of attendance at Alcoholics Anonymous ("AA") to support a finding of present chemical dependency. The Court of Appeals pointed out that it would be hard to imagine how anyone could overcome the stigma of chemical dependency if the Board was allowed to use participation in AA meetings against a person who was still in recovery.

The unpaid debts of an applicant have also been used as a basis by the Board to deny the applicant a law license. Although the Board may not use blanket rules barring from practice all applicants, who possess indicia of "financial irresponsibility," failure to pay debts when due can be a basis to deny a candidate a law license. For instance, Board of Law Examiners v. Stevens, 868 S.W. 2d 773 (Tex. 1994) a candidate who had not paid taxes for 14 years and who had several unpaid judgments for unpaid debts, but who was licensed in Louisiana sought to obtain a Texas law license. The Texas Supreme Court pointed out that a fourteen-year failure to pay taxes and the failure to satisfy three overdue judgment debts constituted substantial evidence that the candidate had a demonstrated longstanding lack of financial responsibility. This was substantial evidence that the candidate suffered from a persistent inability to discharge, or unreliability in carrying out, significant obligations under the Texas Disciplinary Rules of Professional Conduct. The applicant was not permitted to obtain a Texas law license.

So what is the moral to the story of the character and fitness issue? An applicant who wants to become a lawyer must expect to be held up to the standards established by the Disciplinary Rules. The Board of Bar Examiners will make a prediction of whether the applicant is likely, in the present future, to violate the Disciplinary Rules or injure a client. The Board's determination can be challenged, but if there is substantial evidence that supports the Board's determination, then the Board's determination is likely to be sustained. On the other hand, if the Board's determination more closely resembles a blanket prohibition or lacks a rational foundation, then the Board's determination may be overturned and the applicant may become a lawyer. Similar to our last post, which asked the question: what is legal ethics, here the heart of the issue turns on what do the Disciplinary Rules require. In our next post, we will begin the march through an examination of what the Disciplinary Rules require.

Legal Ethics Discussions

noreply@blogger.com (Bruce A. Campbell) — Wed, 08 Aug 2007 15:40:00 +0000

What does the terminology "Legal Ethics" mean? Some would say the combination of those two words is an oxymoron. Nevertheless, in order to understand what legal ethics entails, it is helpful to understand what is meant by the terminology.

Ethics can be defined as the set of standards that allow us to evaluate human motive and conduct, and help us distinguish right from wrong. Some professions, law being one of them, have a separate set of professional rules that govern the actions of their members.

Almost a century ago the American Bar Association ("ABA") reacted to claims that almost anyone could become a lawyer, and that the profession was losing its status. The fruit of the ABA's efforts was the first code of professional ethics for U.S. lawyers, the Canons of Ethics, which was introduced in 1908. The Canons of Ethics set out rules governing the client-lawyer relationship, duties of a lawyer to the client, rules for interaction with non-clients, advertising, and other rules intended to maintain the integrity of the legal profession. The Canons of Ethics were adopted in various forms by the Bar Associates of the various states. Curiously, over the years there has been relatively little written about what is intended in general about legal ethics. Instead, the focus has been on particular conduct of specific lawyers and judging whether the conduct satisfied the ethical rules or not.

Nevertheless, about 60 years ago a New York court did discuss the definition of "legal ethics". The context in which the court's discussion occurred arose when a property owner accused the lawyer who had worked for the other side of being "unethical" without describing how. The lawyer filed a slander claim asserting that being called "unethical" besmirched his professional representation. In discussing the terminology legal ethics the court pointed out:

'Legal ethics' is defined in Ballentine's Law Dictionary (1930) as 'the usages and customs among members of the legal profession involving their moral and professional duties toward one another, toward the clients and toward the courts'. . .

The court further pointed out that Black's dictionary defined "Legal Ethics" as:

'that branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client.' Kraushaar v. Lavin, 42 N.Y. Sup. 857, 859 (NY. 1943).

The court in Kraushaar further observed that:

A person licensed to practice law must conform not only to the standards of ethical conduct generally but also to the professional standards of conduct which from time immemorial have characterized the legal profession. The latter are, in part, embodied in the Canons of Professional Ethics adopted in this state by the . . . Bar Association but, as stated in the introductory paragraph of the Canons, 'the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned. . . . (citations omitted).

As the court observed:

Membership in the bar is a privilege burdened with conditions. . . . There are four phases of qualifications for admission to the Bar: (1) Academic training; (2) legal training; (3) moral character; (4) belief in the form of and loyalty to the government of the United States.' Upon admission the lawyer becomes 'an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.' In short, 'the practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study. Because of the nature of the duties performed by the lawyer moral character and general fitness are as essential after admission as 'at the moment of admission' and in disciplinary proceedings 'the examination into character is renewed.'

In the upcoming editions we will explore many of the ethical issues with which lawyers must grapple or potentially risk the loss of their license.