New York City Bar Urges Rule Change

People are suffering across the United States because of the COVID-19 pandemic. Attorneys and law firms continue to provide essential legal services people need. Lawyers in New York City want to do more.

Like most states, New York attorneys are prohibited from providing financial assistance to clients. As inhumane as it sounds, doing so can violate New York Bar ethics rules. Leaders are working to change that.

An amendment to the New York ethics rules would let lawyers help their clients with basic living necessities, such as food and medication. The change is necessary so that attorneys who help clients do not violate ethics rules.

New York City Bar Supports the Humanitarian Exception

The New York City Bar Association sent a letter to the Chief Judge of New York State and the Presiding Justices of the New York Supreme Court Appellate Divisions. The letter calls for the immediate adoption of the proposed amendment to the New York Rules of Professional Conduct Rule 1.8(e).

The letter reminds the justices that the coronavirus has severely affected many New Yorkers. Businesses have closed, individuals have lost their jobs, and thousands of people have been ill because of the pandemic. Many people are going without basic living essentials because of the financial hardships caused by the pandemic.

Lawyers have come forward to offer their services for free to individuals who need legal services but cannot afford an attorney. Those same lawyers want to help their clients with their basic needs, but the current ethics rules prevent them from providing this vital humanitarian relief.

Ethics Rules Prohibit Financial Assistance for Clients

The current New York State Rules of Professional Conduct prevents attorneys from giving financial aid to their clients.

Rule 1.8(e) states that a lawyer who is representing a client in pending litigation or in connection with contemplated litigation cannot guarantee or advance financial aid to a client. The attorney may advance court costs or the expenses of litigation. The advancement of costs and expenses may even be contingent upon the outcome of the case.

According to Mirman, Markovits & Landau, a personal injury law firm in New York City, “the rule allows an attorney to pay the court costs and expenses of litigation if the client is a pro bono client. Lawyers may even pay court costs and expenses in cases in which their fees are payable as a percentage of the recovery in the case.”

The rule does not permit an attorney to buy groceries for a client. It does not allow an attorney to help a client obtain medical care or medication that the client needs. The rule does not let an attorney buy shoes of a client’s child who desperately needs another pair of shoes.

Proposed Amendment Adds an Exception for Humanitarian Relief

The NYC Bar Association stated in a March 2018 report that New York’s bar should take the lead in improving access to justice. Additionally, it should be easier for lawyers to act on their charitable desires and dedication to public service.

With the devastation caused by COVID-19 in New York, that statement takes on new meaning and purpose. The report also pointed out that other states have adopted a humanitarian exemption.

The proposed change in the rules of professional conduct creates a humanitarian exception to Rule 1.8(e). The change would allow a lawyer providing services to a client for free to offer financial aid to indigent clients. The rule would also apply to not-for-profit legal services, law school clinical programs, and pro bono programs at law schools.

Under the amendment, the lawyer or organization cannot promise financial aid as a way to retain clients. Lawyers cannot use the promise of financial aid as a way to encourage a person to remain the attorney’s client. Also, lawyers who offer financial aid cannot advertise or make known that the attorney is willing to provide financial aid to indigent clients.

The amendment to create the humanitarian exception has the backing of the New York State Bar Association.

Removing the Barrier Preventing Lawyers From Serving Their Clients

The NYC Bar Association asked the Courts to adopt the amendment now to allow lawyers to serve their clients in meaningful ways. If the Courts are unwilling to approve the amendment, the Bar asked the Courts to consider a temporary solution.

The Bar suggested that the Courts approve the humanitarian exemption until the COVID-19 state of emergency ends. A temporary order allows lawyers to provide much-needed aid to clients affected by the coronavirus pandemic.

Attorneys see how their clients are struggling. They are aware people are hungry and in need. They need the Courts to give them permission to help.

 

Read More

New California Rules of Professional Conduct 2018

For nearly three decades, the Rules of Professional Conduct for attorneys in California have remained largely unchanged. That is, until now. The State Supreme Court recently approved a major overhaul of the ethics rules that affect more than 250,000 attorneys in the Golden State. In total, there are 69 new and/or modified rules. These new rules of ethics will go into effect on November 1, 2018.

If you’re an attorney in the state of California you’ll need to brush up on your new ethical obligations. Here are 10 of the most important things you need to know about the new Rules of Professional Conduct.

1. Don’t Use Confidential Information to the Disadvantage of a Client

Under the new rules, attorneys are prohibited from using confidential information about a client to their disadvantage. You may only use confidential information to disadvantage a client if that client has provided consent in writing. A breach of your client’s trust violates the duty of loyalty. [Rule 1.8.2]

2. Plea Deals Require Written Consent

If you practice criminal law, you’ll need to make sure that your client fully understands the consequences of submitting a guilty or nolo contendere plea. Why? You need your client’s written consent in hand before a court will approve either plea. It’s your job to make sure that your client fully understands the repercussions of entering any plea other than “not guilty.” [Rule 1.8.7]

3. You Must Act With Your Client’s Best Interests At Heart

Ethical rules affecting attorneys have always encouraged attorneys to do what is best for their clients. The new California Rules of Professional Conduct impose new diligence requirements to reinforce this idea. As an attorney, you are now required to act with “commitment and dedication” to your client’s interests. You are also prohibited from unnecessarily delaying, disregarding, or neglecting matters that are important to your client’s legal issue. [Rule 1.3]

4. Be Careful When Drafting a Will or Financial Instrument

Attorneys are prohibited from preparing a legal document, such as a Last Will and Testament, that gives the lawyer (or their family members) a substantial gift. The only times when this will be acceptable is if:

  1. The attorney is related to the client, or
  2. The client has also sought additional legal advice from another attorney.

[Rule 1.8.3]

5. Confidentiality Extends to Prospective Clients

Attorney-client privilege and confidentiality are essential for proper legal representation. Under the new rules, attorneys must extend confidentiality to all clients, including those who are inquiring about legal representation. Clients need to be forthcoming with attorneys when trying to find appropriate legal counsel. This can only happen when clients feel comfortable sharing personal, intimate, and potentially-damaging information with an attorney. So if you’re a personal injury lawyer and offer free consultations, you will want to make sure your intake team understands that the rules of confidentiality extend to all prospective clients, even if they do not become actual clients.  [Rule 1.18]

6. Supervise Young Attorneys and Aides Closely

If you hold a position of authority in your firm, you need to make sure that you supervise your subordinates. The people who work for you also have an obligation to abide by the Rules of Professional Conduct. It’s your job to make sure that they follow rules of ethics and provide the best possible legal services to your clients. [Rules 5.1 – 5.3]

7. Rules on Discrimination Are Stronger

The new rules expand the state’s ban on discrimination and harassment in the workplace. Attorneys are now expressly prohibited from unlawful discrimination and harassment in the representation of clients. This applies to representation, termination, and the refusal to represent a client. Unlawful discrimination and harassment are defined by state and federal law. The State Bar reserves the right to look into allegations of unlawful conduct even if no prior complaints have been filed. [Rule 8.4.1]

8. Sex With Clients is Prohibited

Attorneys hold the fates of their clients in their hands. It can be easy for attorneys to take advantage of this position of power. Clients may feel pressured into engaging in sexual relations with their attorney to secure the best possible outcome in their case. Under the new rules, however, attorneys are expressly forbidden from having sex with a client. Sex is only permissible if the attorney and client had a sexual relationship that predated the attorney-client relationship. [Rule 1.8.10]

9. You’re Prohibited From Doing Things That Lack a Substantial Purpose

When you represent a client, time is money. In addition to pursuing an outcome that serves their client’s best interest, an attorney must also act diligently and with purpose. Under the new rules, attorneys are prohibited from engaging in conduct that has no substantial purpose. Conduct will be considered to lack a substantial purpose if the only intent is to cause unnecessary expense or delay.

10. Fees Have to Be Fair and Transparent

Fees are always a highly-contested issue. In California, ethics rules prohibit attorneys from charging fees that are unconscionable. The new Rules of Professional conduct help to clarify when fees may be unconscionable.  Under the new rules, fees may be considered to be unconscionable if the attorney has:

  • Failed to disclose material facts to the client,
  • Fraudulently misled the client, or
  • Intentionally overreached when negotiating a fee.

Unconscionability extends to flat fees, retainers, and contingent fees. [Rule 5.1]

Violating the Rules of Professional Conduct can have serious professional consequences. All attorneys must become familiar with all new ethical requirements before the rules become effective on November 1, 2018.

About the Author: Sherwin Arazani is a civil litigation and personal injury attorney at Citywide Law Group, a Los Angeles, CA based law firm. In this post, he covers the latest updates to the California Rules of Professional Conduct for attorneys. For more information, visit citywidelaw.com.

Read More

What Happens If A Partner at My Firm Asks Me To Something Unethical?

What happens if a partner or supervisor at your law firm asks you to do something unethical? Can you carry out the requested task? Does the fact that your boss asked you to engage in the unethical behavior protect you from possible administrative sanctions? What happens if you don’t know that the request was unethical and do it anyway? Should or must you report the unethical request to an appropriate party? The decisions an attorney must make every day are often laced with ethical dilemmas. The choices you make after a superior asks you to do something unethical are no different. Attorney Adam Burke explains how the Ohio Rules of Professional Conduct apply to these ethics situations.

The ABA Model Rules of Professional Conduct and the Ohio Rules of Professional Conduct (“ORPC”) both speak directly to this issue. However, as with any other ethical issue, certain circumstances may make it difficult to arrive at one specific answer. Generally, an attorney is bound by applicable ethics rules “notwithstanding that the lawyer acted at the direction of another person.” So, if you work in a law firm and your supervisor directs you to engage in unethical behavior you are still responsible for your own actions. If you engage in the unethical behavior you may be guilty of breaching Ohio’s Rules of Professional Conduct.

However, there are circumstances in which a subordinate attorney may escape consequences for unethical actions. In Ohio, Rule 5.2 states that a subordinate attorney does not violate Professional Conduct if they act “in accordance with a supervisory lawyer’s reasonable resolution of a question of professional duty.” This means that if an issue arises that does not have a clear ethical course of action the superior attorney may make a judgment call about how to resolve it. ORPC Rule 5.2, Comment [1] provides an example of determining whether the interests of multiple clients conflict. There is no clear resolution based on current regulations. A supervisor’s “reasonable resolution” of this issue should prohibit you, the subordinate, from facing charges of unethical conduct. 

A subordinate may also escape the consequences for unethical actions if he or she did not have knowledge that the superior’s request was unethical. ORPC Rule 5.2, Comment [2] provides that if your superior asks you to file a frivolous pleading, you may not be guilty of an ethics violation if you did not know that the pleading was frivolous. Lack of knowledge of the unethical conduct can be considered as a factor when determining if you, the subordinate, are guilty of an ethics violation.

If you are a subordinate attorney who receives direction to engage in unethical conduct you may also be duty bound to report your superior’s misconduct. ORPC Rule 8.3 plainly states that an attorney who has unprivileged knowledge of an ethical violation “that raises a question as to any lawyer’s honesty, trustworthiness, or fitness as a lawyer…shall inform a disciplinary authority.” This is true regardless of whether reporting the superior’s ethical breach would also implicate yourself or another attorney.

The preamble of the ORPC makes it abundantly clear that the legal profession is vital to the maintenance, preservation, and well-being of society. Attorneys cannot contribute to the preservation of society if legal professionals are not held to an extremely high ethical standard. Ohio attorneys are, therefore, required to self-regulate the profession and hold others to a heightened standard. Failure to disclose another attorney’s unethical behavior, regardless of seniority in a law firm or court of law, is one’s own ethical failure in the eyes of the ORPC.

However, a takeaway from ORPC Rule 8.3 should be that the knowledge of the unethical behavior must be based on unprivileged information. If you learn of your superior attorney’s unethical conduct but cannot disclose such conduct without breaking privilege, you are generally prohibited from doing so. While the Ohio Rules of Professional Conduct places a significant burden on attorneys to “self-regulate” and “self-govern” the profession, it also respects the sanctity of attorney-client privilege. Unless your client waives privilege in order to allow you to disclose this ethical violation you may not do so.

The choices you make after your superior asks you to do something unethical are important. If you have unprivileged knowledge of unethical behavior – including requests for you to engage in unethical behavior – you are duty bound to report it. Just because a partner at your firm asks you to do something does not generally reduce your responsibility to adhere to the code of ethics. There are exceptions to the general rule, but it is often best to proceed with caution and toe the ethical line.

 
Read More

My Client Confessed Privately: What Should I Do?

You’re having a pretrial strategy meeting with your client who has been charged with a crime. During your discussion, your client blatantly tells you that he is guilty of the charges against him. As his attorney, you may wonder what your legal and ethical obligations are in this situation. The United State Criminal Code and California Rules of Professional Conduct provide guidance for attorneys who find themselves struggling to come up with the answer.

As your client’s attorney, you are under no legal obligation to share his admission of guilt with anyone else. You are still bound by attorney-client privilege and must maintain the character of this respected tradition. Courts have routinely and consistently held that the attorney-client privilege is a cornerstone of the relationship’s dynamic, calling it “one of strict fiduciality and confidentiality” and “sacred and confidential.”

Just because your client confesses to the crime they have been accused of committing does not mean that they will be found guilty in a court of law. In California and the United States, there is a presumption of innocence. Your client is innocent unless and until:

  1. a jury or judge finds them guilty in a court of law, or
  2. they knowingly and willingly confess their guilt to the court.

Your job, as a lawyer, is not necessarily to prove that your client is not guilty, but rather to defeat the prosecution. Your job is to make it as difficult as possible for the prosecution to carry their substantial burden of proof. Having knowledge of your client’s guilt does not prohibit you from attacking the prosecution’s case.

However, there are certain legal and ethical handcuffs imposed by such a confession that may make your job considerably more difficult.

As an attorney, you may not suborn perjury. Subornation of perjury is the crime of persuading, encouraging, or permitting testimony you know to be false in a legal proceeding. It would be illegal (and unethical) for you to put your client on the witness stand, allow him to author an affidavit, or permit him to testify in a deposition if you knew that the testimony he was going to provide was false. Encouraging and/or permitting your client – who you know to be guilty – to testify to his innocence or to facts that you know to be untrue is a crime. If charged and convicted of subornation of perjury, you could face up to five years in prison and/or substantial monetary fines.

While courts have been protective of the attorney-client relationship, they have been equally as protective of the sanctity of the courtroom. Courts have consistently held that attorneys who knowingly and willingly permit falsehoods and lies to be introduced as the truth shall face significant consequences. California courts have explicitly expressed that attorneys have a responsibility to not only “dissuade” clients from offering “perjurious testimony,” but also to take meaningful steps toward ensuring that such testimony is not offered to mislead the court.

Not only is it a crime to permit your client to offer perjured testimony when you know it to be false, but it is also an act of contempt. California’s Business and Professions Code provides that an attorney who misleads the court has committed an act of “moral turpitude” that is “cause for discipline.” Attorneys who permit clients to offer perjured testimony or who willfully mislead the court with false information may face professional sanctions such as disbarment, actual suspension, or reproval.

If your client confesses you are generally under no obligation to present that information to the court. Rather, you are duty-bound by attorney-client privilege to protect your client’s statements and to provide a proper legal defense. Your client may have confided in you about his perceived guilt, but that not necessarily mean that he is guilty of the charges against him, or that the prosecution has the evidence to support a conviction.

While you may not offer perjured testimony and must be diligent in ensuring that the court is not deceived or misled by information you know to be false, you can still tenaciously defend your client against the charges with which he is faced. Once you have knowledge of your client’s guilt it is important to be more attentive to the words you use, the witnesses you call, and the evidence you present. Failure to act purposefully could result in significant legal and professional consequences.

Once you have knowledge of your client’s guilt it is important to be more attentive to the words you use, the witnesses you call, and the evidence you present. Failure to act purposefully could result in significant legal and professional consequences.

About the Author: Ambrosio Rodriguez is criminal defense attorney and owner of The Rodriguez Law Group, a leading criminal defense firm in Los Angeles, CA. He attended Georgetown University Law Center and is a former prosecutor with over 20 years experience.

Read More