2014 Professional Responsibility Seminar

z

RECENTDEVELOPMENTSpresented by Geoffrey Stern

z

Lawyers + Criminal Conduct

presented by S. Michael Miller + Rasheeda Khan

z

Lawyers Disciplined for Felony Conduct in 2014+ Leslie William Jacobs: filing false tax return

+ Kenneth McElroy: forgery and tampering with evidence

+ Suzanne Land: filing false documents with the IRS

+ Robert Carl Schuler: filing false tax return

+ Geoffrey Parker Damon: theft of fees from law firm and clients

+ George Zane Pappas: making a false statement to a court

z

Judges with Recent Criminal Convictions+Bridget McCafferty: false statements to the FBI +Harry Jacob, III: sex with prostitutes, falsification of court records (only misdemeanors)

+Tracy Hunter: unlawful interest in a public contract

z

Interim SuspensionGov Bar Rule V(5)(A)(3)

+Presiding judge submits a certified copy of judgment entry to Secretary of Board

+Secretary notifies Court

+Supreme Court may enter an order issuing immediate suspension

+Disciplinary hearing takes place after all appeals are concluded

+ If win on appeal, attorney is reinstated

+Disciplinary proceeding continues

z

Investigation Phase

Evidentiary Hearing

Board Report

Objections

Supreme Court Issues Decision on Sanction

z

Lawyers on Felony Interim Suspension in 2014+ Mohammed Noure Alo: conspiracy to commit bribery, wire fraud

and money laundering+ William B. Feldman: pandering child pornography+ Jason C. Grossman: pandering child pornography + Gerald Salters: felony trespassing in a habitation + Gregory Alan Cohen: attempted tampering with evidence,

attempted obstruction of justice + Kenneth Schuman: Unlawful interest in a public contract+ Javier Armengau: rape, kidnapping, public indecency, GSI

z

Lawyers on Felony Interim Suspension in 2014+Mark Doumbas: bribery +Ronald Lee Rosenfeild: failure to account for and pay over employment tax

+James William Thomas, Jr.: theft from the elderly +Giles Timothy Marshall: bribery

z

Factors to Consider When Issuing Sanction:

z

Mitigating Factors

+Absence of a prior disciplinary record+Absence of a dishonest or selfish motive+Timely good faith effort to make restitution or to rectify consequences of misconduct

+Full and free disclosure to disciplinary Board or cooperative attitude toward proceedings

+Character or reputation+ Imposition of other penalties or sanctions+Chemical dependency or mental disability under specified circumstances

z

Aggravating Factors

+ Prior disciplinary offenses

+ Dishonest or selfish motive

+ Pattern of misconduct

+ Multiple offenses

+ Lack of cooperation in the disciplinary process

+ Submission of false evidence, false statements or other deceptive practices during the disciplinary process

+ Refusal to acknowledge wrongful nature of the misconduct

+ Vulnerability of/resulting harm to victims of the misconduct

+ Failure to make restitution

z

Sanctions for Lawyers with Felony Convictions in 2014+ Leslie William Jacobs: filing false tax return

(2 years with credit) + Kenneth McElroy: forgery + tampering with evidence

(indefinite - no credit) + Bridget McCafferty: false statements to the FBI (indefinite - no credit)+ Suzanne Land: filing false documents with the IRS

(indefinite suspension with credit)+ Robert Carl Schuler: filing false tax return

(indefinite suspension – with credit) + Geoffrey Parker Damon: theft of fees from law firm + clients

(disbarment)+ George Zane Pappas: making a false statement to a court

(2 years – no credit)

z

Disciplinary Counsel v. Jacobs

z

Disciplinary Counsel v. Land+ Big law firm estate-planning lawyer with wealthy clients

+ Prepared estate planning documents and filed tax returns with fraudulent amendments and affidavit

+ Land gets sued for malpractice for giving bad advice

+ Fabricated an email to the client to make it look like she gave the correct advice 2 years ago

z

Disciplinary Counsel v. Hillis+ Zanesville attorney elected part-time law director for

Zanesville, OH

+ Discovery of Hillis with known prostitute in his parked car on private property

+ Arrested + charged and pleaded no contest to misdemeanor offenses of solicitation + criminal trespass

+ Sanction: 6-month suspension, stayed

z

Disciplinary Counsel v. Mecklenborg

+ Charged with OVI in Indiana; License suspended for refusing test

+ 4 days later, tried to renew Ohio license + denied being under suspension or having any pending citations

+ Misdemeanor conviction – applying for a license during suspension

+ Sanction: Public Reprimand

z

Columbus Bar Assn. v. Armengau

z

Thank You!

S. Michael [email protected]

Rasheeda [email protected]

z

Ethics Issues for In-House Counsel

presented by Christopher Weber

z

Ethics Rules Apply to

+May 2014: Business Law Today

+“Little assistance from ethics opinions/CLE”

+“IHC gets short end of stick”

z

In-House Counsel

z

Kickback TRILOGY

Zuckerman Linick Kanter

z

OSBA v. Zuckerman

+ IHC for Glidden (Linick)+ Refers cases to Zuckerman - OC+ Zuckerman kicks back Linick ½ of fee earned

z

OSBA v. Zuckerman

Held:+ Splitting fees w/o consent+ Payments in exchange for legal work+ 1-year suspension

z

ODC v. Linick

+ Zuckerman facts+ Linick also refers cases to Kanter+ $174,000 of work+ Kanter gives Linick $38,000 in gifts

z

ODC v. LinickHeld:+ Panel: 1-year stayed suspension

+ Glidden supports Linick (although fired him)

+ Linick repaid Glidden

+ Board: 1 year stay 6

+ Court: 1-year suspension (like Zuckerman)

z

OSBA v. Kanter

Held:+ 2 year suspension (Panel/Board recommend 1 year)+ Lied to disciplinary authorities+ Improper use of trust account

z

“undermine integrity/reputation of legal professionals”

Court’s message on “kickbacks”

z

ODC v. Troller

+ IHC for Clopay Corp+ Failed to register+ Worked on litigation, contracts+ 2-year stay 6

z

ODC v. Brown

+ Brown a trust officer and IHC for Bank + Stole $$+ Indefinite suspension

z

ODC v. Doan

+ Doan - IHC for Title Co. in Ohio+ Admitted in Kentucky but not Ohio+ Resigns in Kentucky+ Ohio prohibits future conduct

z

Swofford v. Eslinger+ Shooting victims sue Sheriff+ Plaintiff sends preservation letter to Sherriff’s IHC

(Lane)+ Lane did not issue litigation hold+ Evidence destroyed – laptop, electronic data, guns

dissembled

z

Swofford v. EslingerHeld:+ Notifying EEs not enough

+ “Affirmative steps to monitor compliance”

+ “bad faith destruction” – inference that evidence unfavorable

+ Lane jointly/severally liable for fees/costs

z

Suroweic v. Capital Title+ Capital sued over failure to disclose liens+ Capital’s IHC (Phelps) on notice of potential

litigation+ fails to: (1) issue litigation hold; (2) suspend doc

retention/destruction; (3) Search e-discovery properly

z

Suroweic v. Capital TitleHeld:+ Duty to preserve evidence+ IHC liable for fees/costs relating to later

proper discovery

z

Cache v. Land O’Lakes+ Land O’Lakes IHC issued litigation hold+ But no steps to monitor compliance + Held: "litigation hold" without more insufficient+ IHC has duty to monitor compliance+ Ensure available responsive info produced

z

PIC Group v. LandCoast Insulation

+ IHC did not timely issue litigation hold+ No attempt to collect data+ Special Master appointed to investigate + IHC destroys info on morning of SM’s visit

z

PIC Group v. LandCoast InsulationHeld:+ Acted with “callous/careless attitude toward discovery”

+ Ordered to produce contents of wiped computer

+ Pay plaintiff’s attorney’s fees/costs

+ Pay SM expenses

+ Defendants pay – not carrier

z

+RPC 1.13+Client = organization+Not officers, directors, EEs+IHC get cozy with management+Client lines blurred+IHC must make clear

Client Identity

z

Advance Waiver

Asked to represent officer (unrelated matter)

Get advance waiver

If corp. then adverse to officer (employment dispute)

If corp. then adverse to officer (employment dispute)

z

Joint Representation

Both corp. + EE (i.e. litigation)

Identify potential conflicts

Get consent

Encourage right to seek independent counsel

No secrets

If conflict arises, get advance waiver to represent corp.

z

Yanez v. Plummer+ IHC for Union Pacific+ Wrongful discharge case+ IHC Defends depo of Yanez (UP EE)+ Yanez feared testimony would harm company+ IHC assured Yanez “I am your attorney”

z

Yanez v. Plummer+ Q’s by plaintiff’s counsel – denied seeing accident

+ IHC cross examines Yanez

+ Shows signed document indicating he saw accident

+ UP fires Yanez for dishonesty

+ Yanez sues for wrongful termination, legal mal against IHC

+ Held: IHC had conflict for representing UP and Yanez

+ IHC - equal duties of loyalty to both

z

AC Privilege

+RPC 1.6

+IHC performs non-legal business functions

+IHC communications - Presumption against privilege

z

Neuder v. Batelle+ Wrongful discharge lawsuit

+ IHC was member of deciding committee

+ Plaintiff sought committee minutes/communications

+ Where business and legal intertwine –“legal advice must predominate” to be protected

+ “when legal advice is merely incidental to business advice, privilege does not apply”

z

Neuder v. Batelle

+ Committee’s primary purpose – terminate plaintiff+ A business purpose+ IHC acting in business capacity as committee member+ IHC self serving affidavit insufficient

z

Marten v. Yellow Freight+ Wrongful discharge+ IHC voting member of personnel committee+ Business purpose predominates over legal issues + Where IHC involved, “apply privilege cautiously and

narrowly lest mere participation of attorney be used to seal off disclosure”

z

Alomari v. ODPS

+ Relied on Neuder+ Where business/legal intertwine –“legal advice

must predominate” to be protected+ IHC at mtg to give legal advice+ A/C privilege applied

z

Neuberger v. Lola Brown

+ Where “IHC involved, presumption that attorney’s input is more business than legal”

+ Apply “heightened scrutiny” to IHC communications+ Prevent corporate clients from hiding behind veil of

secrecy by using IHC as conduits of otherwise unprivileged info

z

Kincaid v. Wells Fargo

+ Litigation – discovery of IHC emails+ Apply “heightened scrutiny”+ Privileged if “clear showing that given in legal

capacity”+ Serving “primarily as legal advisor”

z

Lindley v. Life Investors Insur.

+ Business advice not privileged+ Must show “primarily a legal purpose”+ If mixed business/legal, redact only primarily legal+ If “inextricably intertwined,” does legal purpose

outweigh business purpose

z

Henderson Apt. v. Miller

+ EEs must be seeking legal advice+ Cc IHC on communications not enough+ Protection:

+ Caption email –“confidential/for purpose of legal advice”+ “litigation related”

z

Conflicts

+ RPC 1.7 – clients directly adverse+ Client = company+ Simultaneous rep of corp. affiliate + Aligned – no problem+ Adverse – a problem

z

Bowles v. Nat’l Assn. of Home Builders

+ NAHBRC - wholly owned sub of NAHB

+ NAHB and NAHBRC enter into Licensing agreement

+ Dispute re: legality of agreement

+ Negotiations/exchanges of opinions between OC/IHC

+ NAHB + NAHBRC were adverse

z

2008-2 NYC Ethics Opinion

+ Cautions parent to secure OC for sub

+ When sub is not wholly owned by parent

+ Separate entities

+ Separate interests

+ May not become apparent until later

+ Litigation – parent and sub both defendants

+ Interest may diverge

z

Obligations When Outsourcing

+Document production+Legal research+Owe duties under RPC 1.1, 5.1 and 5.3 +ABA Opinion 08-451+Investigate background +Workspace security+Client consent

z

Thank You!

Christopher Weber, DirectorKegler Brown Hill + [email protected]/weber614.462.5415

z

presented by Jonathan Coughlan

CONFIDENTIALITYWhat Can We Reveal + When?

z

Three Variables Govern Confidentiality

The information’s source

The time at which the lawyer obtained the information

The information’s content

z

Code to Rules – Progress?

+Code – client confidences + secrets+E.C. 4-4 –“This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.”

+Rule 1.6 –“ A lawyer shall not reveal information relating to the representation of a client…”

z

Three Related Bodies of Law

Attorney-client privilege

Work product doctrine

1.6 confidentiality

z

Let’s talk

Confidentiality Variable #1 The information’s source

z

+There is a difference of opinion as to the confidentiality of some information.

+Most lawyers would assume that matters that are generally know are not confidential.

+Yet, that is not the what the Rules suggest.

+Rule 1.6 would seem to cover everything that a lawyer learns during the course of a representation.

z

+No matter the source

+Rule 1.8(b)– A lawyer shall not use information relating to the representation of a client to the disadvantage of the client unless the client consents after consultation.

+Rule 1.9– Deals with former clients. This rule excepts from the confidentiality requirement for former clients information that has become generally known.

+No such exception in 1.6 for current clients.

z

Restatement on the Law Governing Lawyers+Confidential information does not include “generally known” information, which common sense would indicate that lawyers may freely disclose and use without the client’s consent.

+But lawyers may not use even ‘generally known” information to the detriment of the client.

+And just what is considered “publicly known” is a matter of debate.

z

Let’s talk

Confidentiality Variable #2 The time at which the lawyer obtained the information

z

+As in the Cicero case, information learned before there is an attorney client relationship can be protected.

+And as the restatement tells us, information acquired before or after the representation is confidential, so long as it is not generally known and it relates to the representation.

z

Let’s talk

Confidentiality Variable#3 The information’s content

z

Prohibits disclosure of “information relating to the representation of a client.”

z

A lawyer shall not use information relating to the representation to the disadvantage of the client unless client gives informed consent.

z

“Information acquired by the lawyer in the course of representing a client may not be subsequently used or revealed by the lawyer to the disadvantage of the client.”

z

Scope of Confidentiality

+Without regard to the client’s request for confidentiality – rule is automatic

+Even if not protected by att/cl privilege+Regardless of when the lawyer learned of the information

+Even if the information is not detrimental to the client+Whatever the source of the information

z

Work Product

Attorney-Client

Privilege

z

Simple Legal RepresentationA (driver) + B (passenger) come in to hire lawyer because they were injured in an

automobile accident

Initial interview with prospective clientsRule 1.18 applies

Confidentiality applies even if not retained

If not retained, unable to represent party with adverse interest in the same or substantially related

matter, if rec’d harmful info ….

z

A + B Case

+Lawyer proceeds to represent A + B+Works up case and ultimately submits demand+B comes in alone, says – being investigated by FBI for insurance fraud – staged accident

+B asks you not to tell A….+Joint defense agreement? Each acknowledged that there are no secrets as between them?

+Now have conflicting duties as to two clients

z

Can Just as Easily Happen in Transactional Setting+Two clients come in to set up an LLC+Agree to include provision guaranteeing loans to the LLC

+Separately one of the clients comes in and says “I have bad credit, let’s leave this provision out.”

+And please don’t tell my business partner

z

In Either Situation…

+Lawyer can’t proceed with representation, so should she withdraw?

+ If the lawyer has submitted the chiropractor’s bills as part of the settlement demand, doesn’t she have to withdraw the demand and withdraw from the representation?

z

Can the Lawyer Withdraw the Demand?

Wouldn’t withdrawing the demand be harmful to the client?

Is the lawyer able to disclose the fraud?

z

“to mitigate substantial injury to the financial interests or property of another that resulted from the client’s

commission of an illegal or fraudulent act, in furtherance of which the client has used the lawyer’s services.”

z

A lawyer shall not … assist a client, in conduct that the lawyer knows is illegal or fraudulent.

z

A lawyer shall not knowingly fail to disclose a material fact when disclosure is necessary to avoid

assisting an illegal or fraudulent act by a client.

z

And What About the Other Client?

Can you disclose to the other client?

Can you not tell the other client?

z

Akron Bar v. Holder+ Holder represented individuals setting up charter schools

+ He introduced client A to these existing clients as A purportedly had relevant experience

+ Turns out A had a criminal history of felonies that included fraud and writing bad checks

+ Holder learned this when A testified at a deposition

+ Holder fired A as a client

+ Could Holder alert his other clients now doing business with A?

z

Akron Bar v. Holder+ Holder sued A for back fees + fraud (for not disclosing his

criminal history)

+ Holder attached a copy of A’s deposition to the complaint

+ He then send copies of the complaint (with the deposition) to his other clients

+ Under DR 4-101 (which talked about client confidences and secrets) – this was a violation

+ Duty to former client’s confidences outweighed duty to current client

z

Conflicting Duties + Interests

z

A lawyer shall provide competent representation and shall abide by the client’s decisions concerning

the objectives of the representation.

z

A lawyer shall not use information relating to the representation to the disadvantage of the client unless client gives informed consent.

z

“Information acquired by the lawyer in the course of representing a client may not be subsequently used or revealed by the lawyer to the disadvantage of the client.”

z

Thank You!

Jonathan E. Coughlan, DirectorKegler Brown Hill + [email protected]/coughlan614-462-5455

z

Online Edition presented by Jason H. Beehler + Kailee Goold

zz

Anglo-Irish Bank Intern IncidentA cautionary tale.

zz

October 31, 2007

Intern sends this email to his boss:

“I will not be able to come into work tomorrow. Something came up at home

and I had to go to New York this morning for the next couple of days. I apologize for the delayed notice.”

zz

Boss replies by email:

“Thanks for letting us know – hope everything is ok in New York.

(cool wand)”

November 1, 2007

zz

Lesson:You are NOT invisible online

zz

How Lawyers Interact Online

zz

Michael Downey at Armstrong Teasdale

“This is, in a way, still like the Wild West.”

zz

+I do a lot of probate litigation.

+Friend of mine visits my LinkedIn page and endorses me for will preparation.

Problem?

zz

A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the

lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered

as a whole not materially misleading.

zz

It is professional misconduct for a lawyer to . . . engage in any conduct involving dishonesty, fraud,

deceit, or misrepresentation . . .

zz

Someone I don’t know visits my LinkedIn page and endorses me for probate litigation.

+ Probably okay+ It’s not false or misleading

Problem?

zz

I go on my LinkedIn page and list “probate litigation” under “Specialties.”

Problem?

zz

A lawyer shall not state or imply that a lawyer is a specialist in a particular field of law, unless both of the following apply:

(1) The lawyer has been certified as a specialist by an organization approved by the Supreme Court . . . (2) the name of the certifying organization is clearly

identified in the communication.

zz

You and I agree that we will endorse each other (reciprocal endorsement).

Problem?

zz

A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may pay . . . reasonable costs

of advertisements . . .

zz

Opinions

+New York: can’t list a false specialty (Rule 7.4)+South Carolina: no exaggerating skill, experience, or results; no unjustified expectations about results. (Rule 7.1)

+Illinois: no false, misleading information (including outdated and no longer accurate) (Rules 7.1, 8.4)

zz

Mark Zuckerberg

“The question isn’t ‘What do we want to know about

people?’ The question is, ‘What do people want to share about

themselves.’”

z

Can a judge friend a lawyer who appears as counsel in a case before the judge?

zz


Advisory Op. 2010-7

Sure.

zz


But judge can’t:

• View a party’s Facebook page

• View a witness’s Facebook page

• Comment on a pending case

• Give legal advice

zz


Also:Judge has to disqualify him or herself if the online activity creates potential for bias or prejudice.

zz


Yes, but judges can’t participate the same way other members of the public can participate.

zz


No.

z

What about from the lawyer’s side? Can a lawyer friend a judge?

zz

What about from the lawyer’s side? Can a lawyer friend a judge?

I don’t know.

Why are you asking me?

zz

It is professional misconduct for a lawyer to do any of the following:

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate

the Ohio Rules of Professional conduct or other law.

zz

Can a lawyer friend a judge?

+ Also rife with possibility for ex parte communication

z

Judge B. Carlton Terry, Jr.

+Child custody case

+Became Facebook friends with lawyer for dad

+Communicated with lawyer on Facebook about the case

+Conducted internet research about mom’s photography business and poetry

z

N.C. Disciplinary Authority

+Ex parte communication

+ Independent judicial research, not evidence

+Sanction: public reprimand

zz

Employment Case+ You represent former employee in wrongful discharge claim

+ In discovery, you get a list of employer’s employees

+ Client tells you who employees X and Y are disgruntled

+ You send Facebook friend requests to X and Y to see what they’re saying about employer online that they might not say in depositions

Problem?

zz

… [A] lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be

represented by another lawyer in the matter, unlessthe lawyer has the consent of the other lawyer or is

authorized to do so by law or a court order.

zz

It is professional misconduct for a lawyer to . . . engage in any conduct involving dishonesty, fraud,

deceit, or misrepresentation . . .

zz

Employment Case+Same setup

+Unrepresented third-party witness

+You create a dummy Facebook page designed to be of interest to the witness, and send Facebook friend request to the witness

Problem?

zz

… [A] lawyer shall not knowingly . . . make a false statement of material fact or law

to a third person . . .

zz

What do you do?

zz

If you think any tweets are legal advice, you’re crazy town.

zz

+ Not false/misleading+ Not really advertising

Case finally over. Unanimous verdict! Celebrating tonight.

Problem?

zz

Another great victory in court today! My client is delighted. Who wants to be next?

Problem?

zz

Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible

for its content.

zz

(c) Every electronic communication from a lawyer soliciting professional employment from a prospective client shall:

(3) Conspicuously include . . . at the beginning and ending of any recorded or electronic communication the recital –

“ADVERTISING MATERIAL” OR “ADVERTISING ONLY”

zz

+ Need name and address+ Need “ADVERTISEMENT ONLY”

Another great victory in court today! My client is delighted. Who wants to be next?

Problem?

zz

+ Not false/misleading+ Probably not advertising+ No representation about quality of work

Just published an article on wage and hour breaks. Let me know if you would like a copy.

Problem?

zz

Pay $300 for preparation of a standard will. I usually charge $450 to prepare a will.

I have lots of experience preparing wills. Redeem by clicking here.

Pay $300 for preparation of a standard will. I usually charge $450 to prepare a will.

I have lots of experience preparing wills. Redeem by clicking here.

Problems?

Save Your Assets

zz

A lawyer shall not give anything of value to a person for recommending the lawyer’s services

except that a lawyer may pay . . . reasonable costs of advertisements . . .

zz

A lawyer or law firm shall not share legal fees with a nonlawyer, except in any of the

following circumstances:

[Groupon not listed].

zz

A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance,

to be withdrawn by the lawyer only as fees are earned or expenses incurred.

zz

As part of the termination of representation, a lawyer shall . . . deliver to the client all papers and

property to which the client is entitled.

zz

CONFLICTS

zz

+ misleading advertising+ lawyer-client engagement+ conflicts+ duties to prospective clients+ fee sharing with non-lawyers+ safekeeping of property

zz

Be careful:

+ competence+ not false/misleading+ add a disclaimer + terminate representation+ refund where necessary

zz

Thank You!

Kailee [email protected]

@kaileegoold

Jason H. [email protected]

2014 Professional Responsibility Seminar

Law

Transcript of 2014 Professional Responsibility Seminar