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    Dolores Dorsainvil
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The Challenges of Lawyer Regulation

The legal profession and its regulators are facing new issues and challenges more so now than ever before. It seems like every time we turn around, there is a flurry of e-mails, articles, conferences, seminars, courses, and ethics opinions surrounding these new issues, new questions, and new challenges.

These “challenges” arise from a number of factors – things like technology, globalization, and the economic crisis are driving forces in how it is that lawyers are providing legal services to their clients. The practice of law has changed. It is certainly not what it used to be. There was a time when a lawyer could practice in their own shop in their corner of the world, and a lawyer in another jurisdiction would never come to know it. Now we have what we call the spillover effect, where a regulatory development in one jurisdiction can have effects and consequences in one’s home jurisdiction.

But the reality is that the legal profession is steeped in tradition. And the profession, as a whole, has a desire to maintain its core values. As a result, regulation proves difficult and is slow to address these challenges. Lawyer regulation is not keeping up with the pace of life’s changes.

As a result, the ABA’s Ethics 20/20 Commission, created in 2009, was charged with reviewing the ABA Model Rules of Professional Conduct and examining the evolution of the practice of law and the lawyer regulation system. The Rules of Professional Conduct, at the time they were adopted, did not contemplate the legal marketplace today. After years of study, Ethics 20/20 recommended changes – although not revolutionary, they have offered much-needed guidance on a wide range of ethics issues that have been arising with greater frequency due to globalization and rapid changes in technology. Below is a highlight of some of these changes:

Technology -Competency
The new Rule 1.1 does not impose any new obligations on lawyers but it does shine the spotlight on a lawyer’s need to remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.

We no longer live in a society where lawyers can solely rely on secretaries and support staff to handle technological concerns. Lawyers need to be technologically proficient so that they are able to properly advise clients as necessary. This may mean stepping out of a comfort zone but it is absolutely necessary in this day and age.

Technology – Confidentiality
The internet has become a major part of the practice of law. Lawyers are enlightened about the possibilities that technology offers. Here are just a few ways that lawyers are using technology:

  •  Most attorneys have remote access to their office and their client files;
  •  Lawyers rely on smart phones and mobile devices to share data about their clients’ matter; and
  •  Some lawyers are using cloud based computing to store their client’s information.

Questions about ethical obligations as it relates to data privacy and security are new areas for lawyers. To address this, the new Rule 1.6 added language which states that lawyers must make “[r]easonable efforts to prevent inadvertent disclosures.” While this duty has existed under the prior rules, the modifications make clear that this affirmative duty extends to data privacy, security and reliability. Additionally, the Comments to Rule 1.6 offer further guidance on what factors are considered when determining whether an attorney has made “reasonable efforts” in securing client’s information.

Historically, when communicating with clients, lawyers would either set up a meeting, have a phone call or write a letter and send it by snail mail. Now, lawyers are using other forms of technology to better communicate with clients, i.e., e-mails, text messaging, and social media.

Lawyer mobility
Historically, lawyers typically spent their entire career with the same firm that they joined right out of law school. However, with the economic crisis and its effect on the legal market, lawyers today are changing employers several times and are looking to for ways to form new partnerships and associations. They need the ability to disclose limited information to lawyers in other firms to detect conflicts of interest. The amendment to Rule 1.6 now provides more protection to client’s confidences and gives the lawyers the ability to make lateral moves be more mobile.

Life is moving at an exponential pace. And while the ABA has made great strides to edit the Rules of Professional Conduct and make them more practical for today’s practitioner, I would encourage you all to think about the further improvements that you can recommend to address what is now becoming common practice. Embrace change. Talk to your bar association officers and regulation counsel so that these new “issues” do not ripen into misconduct.


Preparing for a Disaster and A Lawyer's Ethical Obligations

Storm WarningWith the unpredictable weather patterns that have plagued our country earlier this year, as lawyers, we may think that the only thing that these weather systems (i.e. tornados, hurricanes, wild and flash flooding to name a few) may affect is our personal property or our vacation plans.  While storms like hurricanes are considered unusual for Maryland, we know that in recent history the rash of devastation and destruction caused by major storms, such as Hurricane Sandy and Hurricane Irene, have caused fatalities and millions of dollars in damage.

A natural disaster can shut down a lawyer’s law firm causing loss of revenue and data, prohibit access to critical client files and information, prevent access to the court system, and even cause unintentional disclosures [1]  which would result in an attorney running afoul of the ethical Rules of Professional Conduct.   In order to mitigate the risks caused by such disasters, it is prudent for a lawyer to have a disaster recovery and business continuity plan.

Many law firms do not have such a plan prepared and, unfortunately, begin to think about developing one once disaster strikes, which is oftentimes, too late. Critical aspects to a good disaster recovery and business continuity plan include taking several key steps:

  1. Analyze your data. Take a minute to analyze your office’s communication systems.  Determine what type of data your firm stores, the data’s format, and know where this data is stored. The most important data, of course, are the client files. Many lawyers keep hard copies of files stored in file cabinets, which reduces the risk of damage during some emergency systems.  However, especially in cases of flooding, it is always a good idea to have an electronic copy of this data scanned into the firm’s system.  This data may later be transmitted through several forms of electronic devices as well so it is advisable to find out from staff members where they either store or review the firm’s data.
  2. Backup your data. It is critical to the survival of your practice to back up your data. It is wise to also have an electronic database of client files either kept off-site or accessible through the cloud so that in the event of disaster, a firm can maintain client information, quickly contact the client, and establish business continuity at another location if it becomes necessary. [2]
  3. Test your Plan. No need to wait for disaster to strike to evaluate how effective your recovery plan is. If there are any vulnerable areas in your plan, make the necessary updates.  During your testing period, it will be important to get input from all of your employees to identify if there are any problems or breaches with the recovery plan. [3]
  4. Evaluate. Review the overall effectiveness of your plan. As technology is constantly changing, a continuous evaluation of your plan will require you to remain vigilant and perhaps use new software or tools which will require you to remain competent in that area. [4]

It is better to be prepared and never have the need for your disaster recovery plan then to face a natural disaster and have to start from square one.

[1] Unintentional disclosures implicates Maryland Lawyers’ Rule of Professional Conduct 1.6 (Confidentiality of Information)  which states:

  1. A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
  2. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
    1. to prevent reasonably certain death or substantial bodily harm;
    2. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
    3. to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
    4. to secure legal advice about the lawyer’s compliance with these Rules, a court order or other law;
    5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
    6. to comply with these Rules, a court order or other law.

[2] While backing up data, lawyers need to be mindful of their ethical obligation under MLRPC 1.6 to ensure that client matters are kept confidential. It is always advisable to review the firm’s general policies and procedures to ensure that client confidentiality is not compromised– especially if data is stored in or passes through devices such as smartphones, portable computers, tablets, I-pads, servers, or in the cloud.

[3] Communication is the most important element of disaster planning.  Communication with your employees, clients, vendors, courts, and opposing counsel is key to a successful disaster recovery plan.

[4] In 2012, the American Bar Association amended the Model Rules of Professional Conduct Rule 1.1 (Competence) and added a new provision to Comment [8] which now advises attorneys, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

Ethics & Social Media

The legal profession is usually the last profession to adapt to new models with regard to business development. However, with the advent of the internet and the far-reaching effects of various social media platforms, more and more lawyers are finding innovative avenues to use these platforms in their business models.

Social media is a great marketing tool that has many benefits. What’s not to love? It is an inexpensive way to provide exposure, to give lawyers name recognition, and most importantly, it generates clients. For example, lawyers are creating attorney blogs to share relevant information about their practice and recent developments in the law. Lawyers are also using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm. These updates include firm announcements, speaking engagements, sponsorships, successes, or any upcoming legal or community service events.  Social media can provide another form of easy access for a lawyer to communicate with other lawyers in similar professional circles, with clients, as well as with friends and family. Additionally, social media is also an easy way to perform basic due diligence and legal research when a lawyer desires additional information about an opposing party, a potential witness, opposing counsel, or any other third parties.

BusinesswomanLawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. An attorney, when making a post to a social media platform may expose confidential or proprietary information. This is especially common when a lawyer posts information about a recent success in a matter such as a favorable verdict, or when a lawyer shares an anecdote about their challenges either in court, with opposing counsel, or with a difficult client. These type of posts are unauthorized disclosures and violate a lawyer’s duty to keep a client’s matter confidential as stated in Rule 1.6 which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the Rule.

Lawyers also must adhere to their jurisdiction’s ethical Rules that deal with lawyer advertising. Lawyers must only make truthful statements that are not misleading in their advertisements and these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client. See Rule 7.1. For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true but in order for a prospective client to appreciate a lawyer’s skill-set it would be important to know that the lawyer has only had 3 jury trials. Similarly, it is a violation of the Rules to create a Facebook page where you state your firm name, i.e. “Smith & Associates” if in fact you are a solo practitioner and do not have any associates within your firm. Lastly, a lawyer should be aware that although social media makes transmission of information effortless and easier, lawyers are still prohibited from soliciting prospective clients through real-time electronic contact. See Rule 7.2.

In conclusion, social media is clearly more than just a fad. However, lawyers must exercise careful judgment when using these tools and should be aware of the issues that may arise from its use. With that said, a careful review of the ethical Rules is critical to a lawyer’s understanding of how to effectively and properly use social media platforms.

Do You Accept Credit and Debit Card Payments from Clients? Important Information For Lawyers Who Do

The Illinois Attorney Registration and Disciplinary Commission (IARDC) reports that the Internal Revenue Service (IRS) has added a new regulation to Section 6050W of the Tax Code that could potentially negatively impact lawyer trust accounts as the recent regulations will take effect on January 1, 2013.

Please read the notice in its entirety posted at https://www.iardc.org/IRSCreditCardWarning.pdf

Lawyers with long firm names who may have abbreviated either with their credit card processing company or with documents filed with the IRS should take care to ensure that the firm names are an EXACT match to avoid the 28% withholding penalty that will result.  Such a penalty on an attorney’s trust account may cause the balance to fall below the entrusted funds amount which could result in an unintentional misappropriation and any overdraft on an attorney’s trust account would trigger a Bar Counsel inquiry.

Please take note and check with your credit card company today to ensure that your information is accurate.

Dolores Dorsainvil is a Senior Staff Attorney with the Office of Bar Counsel.

Noisy Withdrawals and Rule 1.6 (Confidentiality)

A client stands accused of a violent crime that has caught significant media attention. The case, a sensational one, has the lawyer at odds with his client and, to make matters worse, has provided for a difficult working relationship. The lawyer contemplates terminating the attorney-client relationship but is not certain how to do so.

Then he gets a great idea.  The lawyer will convene a press conference and announce to the several media outlets in attendance that he is parting ways with the accused.  At the press conference, the lawyer goes further, and ends up revealing some of the frustrating aspects of the representation.  The lawyer discloses that his client has gone “rogue,” that he had difficulty communicating with his client and, to illustrate that point, he shares the fact that the client has not returned his telephone calls, e-mail messages, or text messages in several days. The lawyer also states that although he believes in his client’s innocence, he is concerned about the client because he believes the client may suffer from mental health issues.

Harmless enough, right? Wrong.

Here is another scenario:  A lawyer realizes that she has been retained by what some may refer to as “the client from hell.”  In addition to being generally disagreeable, the client will not follow any of the lawyer’s advice or counsel and has taken to a course of action all on her own. To top off this frustrating relationship, the lawyer’s client has failed to pay the lawyer for a great amount of time spent providing legal services, including attendance at several court hearings. The client has not even acknowledged any of the past invoices billed on the legal matter, and has lied to the lawyer about paying the bill.  The lawyer decides that she will terminate the relationship and withdraw from the matter.

The lawyer files a motion to withdraw with the court and in it, she explains, in great detail, her reasons for the withdrawal.  The lawyer does this because she assumes that there is a greater likelihood that the court will grant the motion if the court understands the difficult circumstances which the lawyer faced representing “the client from hell.” The more information that the court has, the more likely that they will grant the relief sought.

Makes sense, right? Wrong.

A client may terminate the attorney-client relationship at any time for any reason. However, a lawyer may terminate the representation only for the reasons set forth in Rule 1.16(a) and 1.16(b) (Declining or Terminating Representation) of the Maryland Lawyers’ Rules of Professional Conduct.  When deciding whether a lawyer can safely withdraw from a representation, or to better understand the instances when a withdrawal from a representation is a mandatory duty placed on the lawyer or whether it is permissive, a lawyer should read this Rule as it delineates the proper procedure for withdrawing from a representation.  It is imperative for a lawyer who is contemplating ending a relationship, even an antagonistic one, to remember, to take care to protect the client’s interests.  If a lawyer chooses to end the relationship by way of either course of action described above, he or she has engaged in ethical misconduct.   Maryland Rule 1.16(b) states, in pertinent part, “…[a] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client . . . .”  The Rules prohibit a lawyer from painting a client in a negative light (even if the information is technically true) and/or revealing the intricacies of the attorney-client relationship as this could cause a material adverse effect on the client’s interests.  Further, this conduct may also violate Maryland Rule 1.6 (Confidentiality of Information) which prohibits a lawyer from disclosing a client’s confidence or secret. As you know, trust is the hallmark of an attorney-client relationship, therefore, in the example of calling for a press conference, the lawyer’s conduct is fraught with peril in that, by doing so, in addition to violating a client’s trust and confidence, negative attention could be brought to the client’s legal matter which may cause legal harm to the client.

The second scenario mentioned is what is referred to as a “noisy withdrawal” – the filing of a motion with a court that reveals a client’s confidence or secret.  Comment [3] to Maryland Rule 1.16 provides guidance to practitioners who may find themselves in an unenviable situation where they may have to file a motion to withdraw from a matter. A lawyer may cite “irreconcilable differences” between the lawyer and the client as the basis for the need to terminate the relationship.  If the court requires further explanation for the withdrawal, a lawyer should think about ways to ensure the that he/she keeps the client’s confidentiality as well as comply with the ethical Rules by either filing a motion under seal or requesting an in camera review.[1]

Determining whether or not to terminate a representation can be a very tough decision. But when faced with this tough decision,  a lawyer should always consult the Maryland Lawyers’ Rules of Professional Conduct because a lawyer’s duty to preserve the client’s interests and confidences continues even when the representation does not.  See also Maryland Rule 1.9 which discusses duties owed to former clients.

[1] When a matter is pending before a court, a lawyer must get the permission of the court as a prerequisite to withdraw. See Maryland Rule 1.16(c).

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