New Lawyer Division PRMCLE Meeting

DuPage Judicial Center - ARC 9/12/18

11:45 AM – Noon Welcome/Introductions Lisa Murphy, Section Chair

Noon – 1:00 PM Program

Do the Evolution: Ethically Keeping Pace with Reputation Management and Technology Melissa Smart – Litigation Group Manager & Senior Counsel, ARDC

See Attached for Speaker’s Bio

Ms. Smart will discuss the ever-changing professional responsibility landscape and how practitioners can keep pace with changes and expectations related to an attorney’s ethical obligations in reputation management and the use of technology. This presentation is a discussion of ethical obligations of attorneys who use, or intend to use reputation management.

Next Meetings: 10/4/18 – New Lawyer Division Planning Meeting: 4:00pm Bar Center Conference Room. All are welcome to attend

10/15/18 – Kick off Pro Bono Week MCLE Meeting: 4:00pm Bar Center Classroom. Cecilia Najera & Dave Clark will be speaking on Pro Bono Opportunities in DuPage County

11/15/18 – James DeAno & Jason Wilkins will be speaking on “Courtroom Etiquette” at 12pm in the Attorney Resource Center

DCBA Events: 9/20/18 – Happy Hour at Granite City, Featuring the New Lawyer Division

9/26/18 – Fall Member Picnic at Danada House in Wheaton

 

Earn CLE Online!

DCBA OnDemand CLE is Now Powered by IICLE The Illinois Institute for Continuing Legal Education (IICLE®) and the DuPage County Bar Association (DCBA) are excited to offer a new IICLE®Share collaboration to provide DCBA members a high quality and reliable online learning experience. Members can find the link to The Illinois Institute for Continuing Legal Education (IICLE) on the DCBA website under “Legal Community”OnDemand CLE Online CLE Catalog

View & Print All CLE Certificates through the DCBA Website:

Manage Profile -> Professional Development (under content & features) and choose the icon to the left of each meeting to print your certificate directly or choose to have them emailed to you to save to your computer (you MUST be logged in to view this feature)

 

Melissa A. Smart

Illinois ARDC

Melissa A. Smart is Litigation Group Manager and Senior Counsel at the Illinois AttorneyRegistration and Disciplinary Commission of the Supreme Court of Illinois (ARDC) where shesupervises a group of litigation attorneys and staff, investigates charges of lawyer misconductand prosecutes disciplinary cases. Ms. Smart obtained her B.A. in Liberal Arts and Sciencesfrom the University of Illinois at Urbana-Champaign. She received her law degree from TheJohn Marshall Law School, graduating cum laude. Ms. Smart began working at the ARDC as alaw clerk in 1997 and became Counsel for the Administrator in 1999. As a member of the

Commission's staff for over fifteen years, she has investigated thousands of charges ofprofessional misconduct and has been responsible for over 100 different formal disciplinaryproceedings filed in the Supreme Court of Illinois or before various Commission Boards. Shehas tried dozens of matters before the Commission Hearing Board.

Ms. Smart is past Chair of the YLS Professional Responsibility Committee of the Chicago BarAssociation and currently serves on the Illinois State Bar Association Standing Committee onthe Attorney Registration and Disciplinary Commission. She has lectured and presentedworkshops regarding professional responsibility and disciplinary law to numerous barassociation groups, government agencies, law firms, private organizations and law schools.She has appeared as a guest on various radio programs to discuss her knowledge of the Rulesof Professional Conduct and issues related to professional responsibility. She has beenselected to work on pilot programs for the Illinois Supreme Court Commission onProfessionalism, which have developed model courses on professional responsibility and CLEcourse facilitation. She was named a Member of the Joint Illinois State Bar Association/ChicagoBar Association Special Committee on Ethics 2000 which reviewed existing Illinois ethicsguidelines and suggested changes to the Illinois Supreme Court, which formed the basis for theNew 2010 Illinois Rules of Professional Conduct. Ms. Smart is the Eastern Regional Reporterfor the National Organization of Bar Counsel Current Developments Project. In that capacity,she summarizes professional responsibility statutory changes and case law throughout theEastern Region of the United States and analyzes and summarizes developments and trends atnational conferences held twice a year. Ms. Smart was also recently appointed to serve as amember of the Ad Hoc Committee of the National Organization of Bar Counsel to review andmake recommendations regarding the Report from the National Task Force on Lawyer Weil-Being.

HAPPY HOURDCBA

DuPage County Bar Association | 126 South County Farm Road, Wheaton, IL 60187-4597 Phone (630) 653-7779 | Fax (630) 653-7870 | bar@dcba.org | www.dcba.org

We also thank our September Happy Hour Sponsors:

Enjoy free appetizers and cocktails from our generous host…

www.dcba.org

September 20, 20185:30 pm to 7:30 pmGranite City1828 Abriter Court, Naperville, 60563

Please RSVP at www.dcba.org. Those who RSVP will be automatically entered into the drawing for a Nothing Bundt Cake. Must be present to win.

Spotlight Section: The DCBA New Lawyers Division provides resources to meet the needs of attorneys new to the practice of law. Come learn more about what the Division can do for you regardless of your years in practice as you build your professional network or meet your next hire.

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DUPAGE

COUNTY BAR

ASSOCIATION

NEW LAWYERS

SECTION

SEPTEMBER 12, 2018

ETHICALLY KEEPING PACE

WITH REPUTATION

MANAGEMENT AND

TECHNOLOGY

DO THE EVOLUTION

Melissa A. SmartLitigation Manager & Senior Counsel

Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois

BUBBADefense attorneys engage in:

“…among the most shocking, unethical, and

unprofessional [misconduct] as has ever been brought before this

Court.”

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THE FLORIDA BAR V. ROBERT D. ADAMS & ADAM ROBERT FILTHAUT,

CASE NOS. SC14-1054 AND SC14-1056 (FLA. AUGUST 25, 2016)

FALLOUT

Campbell’s DUI dismissed

Tampa police Sgt, former Commander DUI task force FIRED

Diaco PERMANENTLY DISBARRED

Adams PERMANENTLY DISBARRED

Filthaut PERMANENTLY DISBARRED

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Arrest disrupted civil proceeding

“Deliberate and malicious” effort by Rs to improperly affect outcome of civil case

AND

Deliberate interference with courts and justice system

Inexplicable

Egregious

Spiteful

Malicious

FINDINGS

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Just to name a few…

Rule 3.4(g) - present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter;

Rule 3.5 (d) – conduct intended to disrupt a trial;

Rule 3.6 – extrajudicial statements;

Rule 4.4 – using means that have no substantial purpose other than to embarrass, delay or burden a third person;

5.1(c) – Responsibilities of Partners, Supervisors;

5.3 – Responsibilities Regarding Nonlawyer Assistants;

8.4 – Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation.

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ARDC MISSION

STATEMENT

The mission of the ARDC is to promote and protect the

integrity of the legal profession, at the direction of the Supreme Court, through

attorney registration, education, investigation, prosecution and

remedial action.

Approximately 94,778 lawyers

64,175 (68%) in Illinois

30,603 (32%) report principal address outside of IL

first-year enrollment at U.S. law schools fell to 1970s

levels

38% female; 62% male; <1% non-binary

Appx 4th largest attorney pop. in the US

During 2017, ARDC docketed 5,199 investigations

(the 6th year of decline and the lowest number since 1988)

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5,199 Investigations Docketed*(Down from 5,401 in 2016)

AREA OF LAW:

1,218 – Criminal (23%)

652 – Domestic Relations (13)

509 – Real Estate (also, landlord-tenant) (10%)

486 – Tort (personal injury/property damage) (9%)

71 – Local Government Problems (1%)

*Against 3,782 different attorneys

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INVESTIGATIONINFORMATION

WHERE DO GRIEVANCES COME FROM?

Supreme Court Rule 752/Commission Rule 51 = any source whatsoever

Most grievances = attorneys’ clients

Also based upon: Reports from members of general public Reports from attorneys’ spouses Self-reports Newspaper articles Reports from disciplinary agencies in other jurisdictions Reports from other attorneys

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2017 COMPARISON:TYPE OF MISCONDUCT ALLEGED

1,959Neglect 260

Incompetence

ATTORNEY-CLIENT RELATIONS

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“Prosecution” Function

AREA OF LAW INVOLVED IN DISCIPLINARY COMPLAINTS

FILED IN 2017

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TYPES OF MISCONDUCT ALLEGED 2017 FORMAL PROCEEDINGS

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How Are Lawyers Using Social Media In 2016? By: Nicole Black, February 2, 2016, MyCase Blog Home »https://www.mycase.com/blog/2016/02/how-are-lawyers-using-social-media-in-2016-infographic/

LAWYERS & SOCIAL MEDIA

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2017 Survey Results: Lawyers’ Use of Social Media for MarketingMarch 15, 2017, Editorial Daily Dispatch, Digital Marketing, Legal Marketing, Social Media

https://www.attorneyatwork.com/2017-survey-results-lawyers-use-of-social-media-marketing/

LAWYERS & SOCIAL MEDIA

How Are Lawyers Using Social Media In 2016? By: Nicole Black, February 2, 2016, MyCase Blog Home »https://www.mycase.com/blog/2016/02/how-are-lawyers-using-social-media-in-2016-infographic/

LAWYERS & SOCIAL MEDIA

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A FRIENDLY REMINDER

BECAUSE…

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HOW DO YOU ETHICALLY PROTECT YOUR

ORM?

“REPUTATION MANAGEMENT”

Lawyer Misconduct Cases Involving‘Lawyer Review’ Web Sites Appear to beon the Rise;

Conduct usually involves thepublication of protected information;

The first reported case was In theMatter of Margrett A. Skinner(Georgia) in 2013.

NOBC  Current  Developments  Trend  February  2016

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IN THE MATTER OF MARGRETT A. SKINNER, 7 5 8 S . E . 2 D 7 8 8 ( G A . M AY 1 9 , 2 014 ) = P U B L IC R E P RIM A ND

“This is simply false. The person did not reveal all the facts of his situation up front

in or first and second meeting…I feel badly for him but his own actions in

beating up a female coworker are what cause the consequences he is now so

upset about.”

In re Betty Tsamis, 2013PR00095, (Jan. 14, 2014) = reprimand

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.

IN THE MATTER

OF DAVID J.

STEELE

49S00-1509-DI-527

INDIANA DEC. 1, 2015

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Mr. Steele was disbarred for incentivizing clients to post positive Avvo ratings and punishing those who posted negative

reviews, responding to them with online comments that sometimes disclosed

confidential information. Oh….and he also misappropriated appx $150,000 of client funds, threatened

clients and staff and made false statements that were: “virtually

pathological in frequency and scope.”

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In the Matter of Svitlana E. Sangary13-O-13838-DFM (Cal . September 11 , 2014)

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S U S P E N D E D F O R T W O Y E A R S , S TAY E D A F T E R 6 M O N T H S F O L L O W E D B Y T H R E E Y E A R S P R O B AT I O N

ADVERTISING

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Accomplished author who has written articles for the LA Times online, the Los Angeles Bar Journal, and Hustler magazine:

“A Law Unto Herself”The criminal defense attorney is star-struck, young and unorthodox. But don't be fooled. She's also Ivy League, savvy and successful.

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RPC 7.2, comment 1:Inform public about legal servicesInterest in expanding public info about legal services should prevail over tradition.

Any restrictions?

WHY ARE LAWYERS ALLOWED TO ADVERTISE?

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Can’t be false or misleadingCan’t contain material

misrepresentationTruthful statements can also be

misleading if omit facts necessary to make statement as a whole not misleading

RPC 7.1:COMMUNICATIONS CONCERNING LAWYER’S SERVICES

A lawyer shall not make a statement that the lawyer knows tobe false or with reckless disregard as to its truth or falsityconcerning the qualifications or integrity of a judge,adjudicatory officer, or public legal officer, or of a candidatefor election or appointment to judicial or legal office.”

False statements by lawyer about judicial officers canundermine the public confidence in the administration ofjustice. Comment 1

A lawyer’s speech may be limited more than that of a layperson. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071

RULE 8.2 (A) LIMITS ON LAWYER’S FREE SPEECH

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IN RE

DENISONM.R. 27522, 2013PR00001 (Sept. 21, 2015)

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WHAT DID THE BLOG SAY?

“…I am an attorney running a blog on http://www.marygsykes.com/which appears to be a very corrupt case, with corruption reaching to the highest levels, including the ARDC….”

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WHAT DID THE BLOG SAY?

“…politically connected judges andtheir puppet attorneys (the GAL’s)would be exposed for what theyare: money grubbing, family strifechurning leeches that create nothingbut pain and misery in a family whileswiping free parking money out of awell funded estate.”

WHAT DID THE BLOG SAY?

“In scary shades of Greylord revisited,JD notices that CF and AS are walkingthe hallways in the judges’ privateareas BEHIND the court room (12/21/11status)… But unescorted trips to thejudges’ private area is a sure fireindicator of corruption… .”

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WHAT DID THE BLOG SAY?

“Nothing like the time honored true fashion ofif you don’t like what the order said when theparties agreed, just get the judge behind closeddoors and get her to alter it. And do itmessily and have two “entered” stamps on it.Even a grammar school child can forge a parentalnote with more skill and care than the minimalamount which was taken in this matter to coverup the tracks of their torts by these bumblingmiscreants!”

WHAT DID THE BLOG SAY?

“They say you can’t fight city hall, but what aboutthe mob? What about city hall and the mob?

Interesting questions. Good going Larkin, Opryszekand (not so) Smart.

Kudos for getting in bed with these dangerouspeople.Next thing, you need to learn to fly a plane.Just great. Cocaine and the ARDC. Amazing. All thistime everone thought it was the powdered donuts inthe break room.”

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Repeatedly made statementsconcerning the integrity of judges,knowing that those statements werefalse, or made with reckless disregardfor their truth or falsity;

Suspension - three years, UFO(September 21, 2015)

Interim suspension - March 2014

In re Joanne Denison, No. 2013PR00001

IN RE DENISONM.R. 27522, 2013PR00001 (Sept. 21, 2015)

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A PLEADING:

http://marygsykes.com/2016/02/21/something-smart-today-garage-sale-5700-n-natoma-ave-chicago-2-to-5-pm/

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ANCILLARY LITIGATION

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In re Joyce Nanine McCoolNo. 2015‐B‐0284 (Louisiana June 30, 2015)

ANOTHER EXAMPLE OF CYBER‐BLITZING

Louisiana = suspension of a year and a day “social media blitz” spearheaded by lawyer who represented mother alleging child abuse by the father in a child custody/visitation battle

McCool used Twitter, etc to publish misleading and inflammatory statements about the judges, to promote the petition, and to try to influence the judges in pending litigation. The website promoting the online petition contained sealed information about the cases, the

disciplinary board said.

McCool “by her own admission was unhappy with the decisions rendered in the matters she was litigating,” the disciplinary board said. “After her legal procedural options were exhausted, she decided to launch a social media campaign to influence the presiding judges. Consequently, respondent knowingly, if not intentionally, spearheaded a social

media blitz in an attempt to influence the judiciary.”

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“Shouldn’t judges base decisions on evidence?”

“GIMME GIMMIE GIMMIE Evidence!

Want some? I got it. Think u can convince a judge to look at it? Sign this petition… .”

“Judges are supposed to know shit about

… the law … aren’t they

And like evidence and shit?

Due process?”

SOME TWEETS….

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PMBR

.

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TYPES OF GRIEVANCES THAT CAUSE THE MAJORITY OF ARDC INVESTIGATIONS (2016)

.

.

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.

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AMENDED RULE 756(E)(2)AMENDMENTS OF JANUARY 25, 2017

Proactive Management-Based Regulation.

Focus on law firm management, i.e., ethical infrastructure.

Proactive rather than reactive.

Aim:

Reduce number of disciplinary complaints

Minimize malpractice claims & client dissatisfaction

PMBR

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Begins with 2018 registration year.

Applies to Illinois lawyers who are:

in private practice; and

don’t maintain malpractice insurance.

PMBR

4-hour interactive, online self-assessment of firm systems

Either complete the course or obtain malpractice insurance to register for 2019

Free, CLE accredited course

Confidential results, not accessible to ARDC and not discoverable.

Self-assessment every two years if no malpractice ins

PMBR (CONT’D)

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Supreme Court Rule 794(d) to requires all Illinois lawyers subject to the MCLE requirements complete one hour of diversity and inclusion CLE and one hour of mental health and substance abuse CLE as part of the professional responsibility CLE requirement.

-The amendment does not affect the total number of hours required to fulfill the professional responsibility requirement, which remains at six, or the total number of CLE credits required in each two-year reporting period, which remains at 30. -Lawyers may alternatively continue to fulfill the required six hours of professional responsibility CLE by completing the Illinois Supreme Court Commission on Professionalism’s Lawyer-to-Lawyer Mentoring Program, as set forth in Illinois Supreme Court Rule 795(d)(11).

CLE REQUIREMENT OF DIVERSITY/INCLUSION AND MENTAL

HEALTH/SUBSTANCE ABUSE

Supreme Court Rule 794(d)

(amended April 3, 2017, eff. July 1, 2017 & begins with attorneys with the two-year reporting period ending June 30, 2019)

New Commission Rule on Diversion – Com. Rules 56 and 54 (adoptedSept. 26, 2016, eff. Nov. 18, 2016). In September 2016, the Courtapproved new ARDC Commission Rule 56 ("Diversion") and amendedARDC Commission Rule 54 ("Closure by Administrator") which allow for theclosure of an investigation by the ARDC in certain matters if the lawyeragrees to complete one or more activities, services or programs thataddress the issues that may be causing grievances. Under ARDC Rule56(a), diversion is available in all circumstances, except those involvingmisappropriation, certain criminal acts, unreimbursed injury, anddishonesty, fraud, deceit or misrepresentation. The objective of thediversion program is to encourage early identification and resolution ofissues that negatively affect an attorney's ability to properly representclients and that contribute to grievances. The diversion program is moreflexible than deferral under ARDC Rule 108, which requires admission ofmisconduct by the attorney and approval by the Inquiry Board. Diversionoffers incentives to an attorney to enter into an agreement, including theimmediate closure of the investigation and the offering of resources for theattorney to improve practices, and will encourage attorneys to enter intodiversion agreements.

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QUESTIONS?

Illinois Ethics Rules, Client Trust Account Handbook &Free MCLE webinars:

www.iardc.org

Questions about IOLTA & Enrollment Forms:

Lawyers Trust Fund: www.ltf.org

ARDC Ethics Inquiry Hotline for Guidance on Rules:

Chicago office(312) 565-2600 or (800) 826-8625

Springfield office(217) 522-6838 or (800) 252-8048

RESOURCES