What Are the Most Common Attorney Ethics Violations?

What Are the Most Common Attorney Ethics Violations?

Attorneys are held to high ethical standards. They often are privy to very sensitive information about their clients. Sharing that information inappropriately would constitute a breach of attorney-client privilege.

That’s just one example of an ethics violation. Unfortunately, ethics violations do occur. Some types are more common than others. The most common include the following:

Violations Resulting from Lack of Technological Literacy

It’s important to understand that not all ethics violations are intentional. For example, some attorneys are required to use technology they’re not familiar or comfortable with. They may thus accidentally allow sensitive client information to leak.

Many vendors offer training programs to assist in this area. An attorney who worries they might accidentally mishandle client information due to a lack of familiarity with new technologies should enroll in such a program.

Client Neglect

Sometimes, attorneys take on more cases they can handle. They may have good intentions when doing so. Many genuinely believe they can manage all the cases they accept.

This can cause them to stretch their bandwidth too thin. As a result, they might not give clients the attention they deserve.

The best way to avoid this violation is to pay attention to how stressed you are about the size of your caseload and how honest you are when clients ask if you’ve completed certain tasks. Ask for help from colleagues and take on fewer cases in the future if you notice any signs that you’ve taken on more than you’re equipped to handle.

Unreasonable Fee Modifications

The American Bar Association’s Model Rule 1.5 prohibits attorneys from charging unreasonable fees for their services. Some lawyers violate this rule when they attempt to modify their fee arrangements.

Clients need to thoroughly understand the nature of a fee arrangement. Contracts must address the scope of work that will be covered by a flat fee. They must also clearly explain how and why a fee arrangement could be modified. Violations are less likely to occur if clients know precisely what they’re getting into financially when hiring a lawyer.

Accepting ‘Accidental’ Clients

It’s becoming increasingly common for attorneys to offer potential clients advice via the internet. This can cause problems when potential clients believe that an attorney answering their questions now represents them.

To guard against attracting accidental clients, an attorney should ensure their website and social media pages feature disclaimers making it clear that answering someone’s questions doesn’t make an attorney their official legal representative. They should also generally only offer advice to potential clients who appear to be genuinely interested in hiring a lawyer.

Creating Hostile Witnesses

There are instances when criminal defense attorneys will interview witnesses who later become hostile during a trial, making statements that conflict with the statements they made during their initial interviews. This could potentially put the lawyer in a position to have to personally testify in a case in which the lawyer is also acting as an advocate, which is not permitted under the rules.

The best way to prevent this is to abide by the directions of ABA Criminal Justice Standard for the Defense Function 4-4.3(f). When interviewing a potential witness, an attorney should do so in the presence of another trustworthy and credible individual. This can help them more easily corroborate their account of the interview if a witness becomes hostile.

Exaggerating Qualifications

Attracting clients is a goal of most lawyers. To attract more clients, some attorneys exaggerate their credentials or even make false claims.

For example, a personal injury attorney trying to grow their business may make statements that seem to indicate they are experienced with courtroom litigation. This could be an ethics violation if, in reality, they actually settle almost all of their cases out of court.

It’s understandable that attorneys want to attract clients and grow their firms. However, honesty is always critical when speaking to one’s experience and qualifications. Any exaggerations or lies can result in problems for both an attorney and their clients.

Finally, some experts point out that an attorney’s personal life can cause them to commit ethics violations. If an attorney feels pressure to earn more money for their family, they might take on too much work and cope with the stress by developing substance abuse problems or simply neglecting their clients. 

This doesn’t need to happen. Being an attorney can be demanding, but it’s much less stressful in the long run if a lawyer takes steps to avoid the common ethics violations listed here. 

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Could Using Clubhouse Pose Certain Ethical Problems For Lawyers?

Could Using Clubhouse Pose Certain Ethical Problems For Lawyers?

It’s become increasingly common in recent years for professionals across a wide range of industries and fields to use social media as a means of finding clients and customers. Attorneys are no exception. 

Clubhouse is one app that some attorneys have begun using in this capacity. This unique social media platform allows users to join audio-only chat rooms on various topics. Some of these topics can relate to areas of the law.

How Are Attorneys Using Clubhouse?

Some attorneys who have successfully used Clubhouse to grow their client bases have chosen to host their own chat rooms. By doing so, they’re able to deliver presentations to demonstrate their skills and knowledge. Basically, Clubhouse can serve as another platform for content marketing.

Other attorneys report using Clubhouse for networking purposes. They point out that speaking in a Clubhouse chat room is in many ways similar to speaking at a conference. The difference between the two is that geography can limit who can attend a conference where a lawyer is speaking. With Clubhouse, an attorney can reach a far larger audience than they might by presenting in person.

Many also use the app as an educational tool. For example, immigration attorney Carol Williams has found that Clubhouse allows her to learn more about the struggles professionals in related industries may face. As Williams states, “[f]rom my perspective, it is always helpful to know what the pain points are, or conversely, what you love so I can help give you more of what you love and less of what you don’t.” Clubhouse has apparently made learning about said pain points even easier for Williams.

Ethical Considerations When Using Clubhouse

However, some question whether using the app in this way could be unethical. The primary concerns among lawyers tend to be related to client confidentiality. Because using blogs and social media as marketing tools has become commonplace among attorneys, the American Bar Association has had to update its rules to address these topics. Clubhouse may be another platform that must be considered in future updates to the ABA’s rules.

Additionally, lawyers need to be extremely careful when discussing legal topics on Clubhouse. They must not say anything that could be interpreted as specific legal advice. While they can give general recommendations, they must remember that specific guidance can only come from a hired attorney who understands the nuances of a particular case. Remembering to not give specific advice can naturally be difficult when using an audio-based app that lets users respond to questions immediately.

That said, some lawyers say they believe discussing the law on Clubhouse is no different than in other settings. One such attorney is Francesca Witzburg. She’s an attorney who has been relying on social media to help her grow a client base after leaving Dentons. 

According to Witzburg, “I don’t see any difference in me standing up at a city bar event or a New York State Bar event and talking about the law versus being on these platforms. I think the same level of care applies; it’s just in a different medium.”

It’s worth noting that some of the concerns regarding attorneys’ use of Clubhouse might also be a result of the app’s age. Clubhouse was initially released for the iPhone in early 2020. An Android-friendly version of the app has only been available since May 2021. As is often the case with new social platforms, there are questions about whether the app will allow users to take advantage of it in a way that could be considered unethical. 

These types of worries are natural and appropriate in the legal profession. Attorneys must walk a fine line when networking and marketing their services. They need to find ways to show they are experts in their areas of the law, while also ensuring they don’t violate the rules established by the ABA. 

In other words, there may eventually be instances (if there have not been already) when attorneys misuse Clubhouse. That said, as of now, it’s too early to say whether attorneys should refrain from using the app entirely.

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Giuliani's Law License Temporarily Suspended For Ethics Violation

Giuliani’s Law License Temporarily Suspended For Ethics Violation

On Thursday, June 24, a New York court temporarily suspended Rudy Giuliani’s license to practice law in the state. The ethics violation that prompted the suspension involved false statements Giuliani made. Some believe Giuliani made these statements in an attempt to overturn former President Donald Trump’s loss in the 2020 presidential race. Others argue his statements could have resulted in riots or similar dangerous situations.

What Did the Court Say About Giuliani’s Statements?

Giuliani’s statements suggested rampant voter fraud occurred during the election. He failed to provide evidence to support such claims. In response, an attorney disciplinary committee requested that his license be suspended. They argued Giuliani’s statements represented a violation of professional conduct rules.

The court agreed and recommended a suspension since Giuliani’s statements posed an “immediate threat” to the public. Thus, the court suspended Giuliani’s license, although disciplinary proceedings remain ongoing.

According to the court, “[t]he seriousness of [Giuliani’s] uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden.”

What is the Legal Community Saying About the Suspension of Giuliani’s License?

Ronald Minkoff submitted the initial complaint to the New York Attorney Grievance Committee. He did so on behalf of multiple lawyers and lawyers’ groups. Minkoff states that suspending Giuliani’s license is a “once-in-a-lifetime decision.”

He also emphasizes its importance. This decision may signal to attorneys that they must always act honestly.

These kinds of temporary (or interim) suspensions are quite rare. New York University legal ethics professor Stephen Gillers says he was “gladdened” by the decision to suspend Giuliani’s license. He was also surprised. Gillers states the standard for justifying such decisions is “very high.”

Gillers also states that the circumstances surrounding this particular decision are unique. An attorney is usually subject to an interim suspension if it’s shown that they’ve cheated their clients in some manner. However, that’s not what happened here.

The rules Giuliani violated prohibit attorneys from making false statements to courts and other parties. According to the decision, an attorney’s false statements can “erode” public trust in lawyers and the legal profession in general.

The buildup to this moment has been significant. Previously, Rep. Bill Pascrell, Jr. (D-NJ) filed an ethics complaint stating Giuliani had “participated in frivolous lawsuits and used our nation’s courts to assault public confidence in the United States electoral system, violating the New York Rules of Professional Conduct.” The New York State Bar Association has indicated they’ve received “hundreds” of complaints regarding Giuliani’s conduct.

Some experts have stated that this case is also unique because Giuliani is a celebrity. Disciplinary authorities often hesitate when taking action against famous individuals. Celebrities typically have substantial resources they can use to fight back against disciplinary action.

Disciplinary authorities also tend to refrain from moving forward when a case involves political matters. To many, the fact that they acted now says a lot about the severity of Giuliani’s misbehavior.

What Happens Now?

Again, this is only a temporary suspension. Disciplinary proceedings still need to conclude. However, the court has stated that Giuliani’s misconduct “will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.”

Giuliani himself has dismissed the suspension of his license as a political decision. He claims the decision “could have been written by the Democratic National Committee.” According to Giuliani, the decision was made “to shut [him] up.” He added that the suspension wasn’t justified because none of his statements resulted in “a protest, a riot, an incident, an anything.”

Still, it appears other courts agree with the New York court’s decision. On July 7, Giuliani’s license to practice law in Washington, DC, was also suspended. The suspension will remain in effect pending the outcome of his New York disciplinary proceedings.

There’s reason to believe that Giuliani will face long-term consequences for his misconduct. We must wait and see how the disciplinary proceedings conclude. Generally, though, many see the suspension of his license as a major development in legal ethics.

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You Can Practice in Florida Remotely if You're Licensed in Another Jurisdiction, Court Says

You Can Practice in Florida Remotely if You’re Licensed in Another Jurisdiction, Court Says

Remote working has been a helpful change for many working professionals across a variety of industries. But lawyers practicing remotely in Florida and other states have worried for some time whether practicing their trade is legal or not. Many remote lawyers lack the licenses to practice in their new home states.

The American Bar Association has strict rules regarding where and how lawyers can practice law, especially if they aren’t licensed for specific jurisdictions or states. Fortunately for remote lawyers, the ABA recently released a ruling explaining the specifics of the rule and how they apply to remote workers in this new digital age.

What Does Model 5.5 State?

The American Bar Association’s Model Rule 5.5 essentially states that lawyers can’t practice law in a legal jurisdiction unless authorized by the rules. In other words, they can’t practice in jurisdictions where they don’t have the appropriate authority. In most cases, authority is gained by passing the state or jurisdiction bar exam.

For example, a Florida attorney cannot practice law in a Georgia city without taking the Georgia bar.

Additionally, Model Rule 5.5(b) states that lawyers can’t establish offices or other “systematic and continuous presence[s],” in the jurisdiction where they aren’t licensed to practice law. So lawyers can’t set up law offices in states where they aren’t licensed, either.

Why Have Some Lawyers Worried About Breaking the Law?

The COVID-19 pandemic has led many working professionals, including lawyers, to commute remotely to work. Remote workers now use digital platforms and telecommuting software to handle most of their job responsibilities.

Additionally, the pandemic has required many people to relocate. Certain lawyers may have relocated to Florida to continue their law practices online if they were unable to stay in their home states for financial reasons.

On the surface, these activities may seem to be in violation of ABA Model Rule 5.5. But the recent ruling by the ABA has clarified that it is not necessarily so. 

The ABA’s Ruling – What Does it Mean for Lawyers Practicing Remotely in Florida?

The ABA issued its ruling on December 16, 2020, and came to a beneficial conclusion for remote legal workers. If a lawyer only deals with cases in their original jurisdiction, they aren’t breaking the law. This is true even if they carry out that work remotely from another jurisdiction. 

Here’s a basic example:

  • A lawyer originally based in Virginia moves to Florida because of financial problems due to the pandemic
  • They continue to practice law and handle Virginia cases while remotely working from Florida

They do not carry out legal duties in Florida, where they are not licensed. So they are not breaking the law and can continue their practice without worrying.

Therefore, lawyers working remotely in Florida and other states have nothing to worry about. They just can’t handle cases in their new local jurisdictions.

What About Establishing Offices?

Regarding Model Rule 5.5(b), the ABA’s opinion settled the full meaning of “establish” as seen in the rule. The ABA concluded that a lawyer doesn’t technically “create” an office if they are only “incidentally” in a certain area or jurisdiction.

For example, imagine a Georgia lawyer who came to Florida because of COVID-19 or another reason. They then began to practice remotely. They would not necessarily have set up a Florida legal office and would not violate Model Rule 5.5(b).

The court stated that remotely practicing attorneys need to take reasonable steps to make their jurisdiction clear. For example, a lawyer’s website, business cards, advertising, and other promotional material must clearly indicate the practicing lawyer’s jurisdictional limits.

So a Tennessee lawyer practicing in Florida remotely would still need their website to show their Tennessee law office’s address and information.

This ruling is further reinforced by Model Rule 5.5(c)(4). This states that lawyers can provide their legal services on a temporary basis in a new local jurisdiction. The circumstances surrounding their move to a new location must be reasonable. Additionally, they can only provide legal services for parties in their licensed jurisdictions.

What Does This Mean for Remote Lawyers?

At this time, it means that remote lawyers can continue offering their legal services to people in their home jurisdictions. However, most remote lawyers will still want to return home sooner rather than later. Temporary remote practice seems to be the key takeaway from the model rule.

And remember, remote lawyers still have the same duty to supervise subordinate lawyers and non-lawyer staff members, even if they are all working remotely.

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