CBA New Lawyer Training

z

New Lawyer TRAINING

presented by Jason Beehler + Chris WeberColumbus Bar Association

December 15, 2015

z

How?

2

What?

Why?

Our Role

z

Part 1How did we get here?

1

z

AttentiveFairRespect

Good WriterOrator

Open-minded

PerspectiveProactive

Thoughtful

Logical

Detail-Oriented

Just

ControlledSmart

HonestHard Working

Focused

Considerate

z

A little history

z

French thinker

1831-32

“Democracy in America”

z

Joe Jamail Depo in Texas for case in

Delaware

It goes about as well as that last depo

Jamail calls opposing counsel an a**shole

Belittles his trial skills

Says “You could gag a maggot off a meat wagon.”

z

Show cause why you shouldn’t be barred from ever

appearing in Delaware again.

I’d rather have a nose on my ass

than ever appear in Delaware again.

Joe Jamail

z

“If there were no bad people, there

would be no good lawyers.”

z

Gallup PollHonesty + Ethical Standards

z

What percentage of people said that

lawyers have “high” or “very high” ethical

standards?

z

Who’s ahead of us?

z

Nurses Teachers

ClergyAccountantsMilitary

Bankers

EngineersCollege Profs

Contractors

MDs

Pharmacists

Journalists

ChiropractorsAuto Mechanics

FirefightersDay Care Providers

Funeral Directors

Police Officers

z

Who’s behind us?

z

Senators Realtors

Business ExecsStockbrokers

UnionsBankers

Congress

Ad Execs

TV Reporters

HMO ManagersLobbyists

Insurance salesmanCar salesman

Telemarketers

z

CBA Survey 500 non-lawyers polled

z

Public Opinion of Lawyers

Make Too MuchGreedyCaringEthicalHonest

Put Clients 1stSolve Problems

Smart

z

More interested in making money than serving

clients?

Agree/Strongly agree47%

Disagree/Strongly disagree41%

z

Lack fundamental integrity?



z

Use complicated language most people cannot

understand?



z

Arrogant?


Disagree/Strongly disagree

45%

No opinion15%

z

Only available for richpeople?



No opinion14%

z

Source of Opinion

News + Media

Don't Know

Friend's Experience

Overall Impressions

Lawyers I Know

TV

z

Even lawyers don’t like lawyers

z

19% Dissatisfied with life

z

Would not become lawyers again24%

z

46% Do not desire to remain in law practice

z

42% Felt lonely/remote from others

z

16% Consume 3-5 alcoholic beverages a day

z

are unhappy with their careers

Lawyers say that they…

wouldn’t become lawyers again

wouldn’t advise others to become lawyers

hope to leave practice of law

z

Part 1What is professionalism?

2

z

Take 5 minutes +think of an example of unprofessional behavior that you have experienced.

z

PessimisticCynicalLiars

UptightVain

Stubborn

UnreasonableConceited

Dispassionate

Poor Social Skills

Out of Touch

Mean

ControllingBossy

UnhappyOverbearing

Don’t return calls

Egotistical

z

ABA Commission Report (1986)

Social changes of the 50s, 60s + 70s

Rise in number of attorneys

Younger bar

Kinship among specialists > bar as whole

Technology

Expense of litigation

z

What does professionalism

mean?

z

“Ethics is that which is required and

professionalism is that which is expected.”

Georgia Supreme Court

z

Professionalism

Ethics

z

HOW BAD IS IT?

z

Commission on Professionalism

To promote professionalism among attorneys

+ Monitor + coordinate professionalism in courts, bar associations + law schools

+ Develop educational materials

z

A Lawyer’s CreedA Lawyer’s Creed

z

Aspirational Ideals

z

Lawyers’ primary obligations are to the institutions of law

and the betterment of society

z

In the end, it’s simple…

z

Part 1Why should we care?

3

z

Professionalism – Ethics

CONTINUUM

z

To Opposing Party

You are a sh*!head PhD

z

To Judge

You are a marginal

incompetent

z

To Opposing Counsel

[insert obscenities here]

z

Court’s Response

Part of the role of an attorney is to remove

himself from emotions of the moment

z

Tacky Advertising

z

Part 1Our role

4

z

Why did you want to be a lawyer?

z

AttentiveFairRespect

Good WriterOrator

Open-minded

PerspectiveProactive

Thoughtful

Logical

Detail-Oriented

Just

ControlledSmart

HonestHard Working

Focused

Considerate

z

CBA Survey 500 non-lawyers polled

z

Most Favorable Things Lawyers Do?

Help people41%

17%Protect Rights

21%Provide good representation

12%Uphold Justice

z

“What is, however, surprising and unsettling is how reluctant attorneys have been to address

conditions of practice over which they have control.”

z

People thinking about law school.

z

What would improve your impression of lawyers?

Communicate more honestly with clients

89%

More fully explain fees to clients

85%

z

presented by Tom SigmundOhio Society of CPAs Mega Tax ConferenceDecember 7-8, 2015

Dos +DON’Ts

Deposition

z

DOs+ Review local rules+ Cooperate on scheduling+ Arrive on time+ Disconnect devices+ Be courteous and civil+ Be prepared+ Go off the record, if necessary

z

DON’Ts

+ Depose to burden/harass+ Instruct witness not to answer+ Coach the deponent+ Be rude or degrading+ Beat opponent to the punch

z

DOs+ Be prepared+ Dress appropriately+ Arrive on time+ Disable electronic devices+ Be accurate+ Stand when addressing judges+ Stipulate to facts not in dispute

z

DON’Ts

+ Ad hominem attacks+ Interrupt+ React negatively or display+ Move freely without consent+ “You’ve committed reversible error”

z

Ohio tips on our handout

Are standards of professionalism

learned behaviors?

z

Be part of the solution

So . . .

Mind your manners

Cooperate

Be reasonable

Mentor

Use available resources

z

In Law Office Management

BestPRACTICES

z

EngagementLETTER

The Importance of an

Avoid Stumbling into a Lawyer-Client Relationship

z

DefineCLIENT

“Dear Ms. _____ (officer of corp.), we are pleased

to provide our legal services to you.”

z

Client = Corporation

z

Not officers

z

May later be adverse to

officer

z

Corporation = all affiliates?

z

Address in engagement

letter

z

Avoid conflict later

z

DefineSCOPE

z

Avoid “Re: Legal

Representation”

z

Define exactly

z

Benefits to ClarityAvoid

blame for unrelated matters

Defines when representation

ends

Conflicts: easier to beadverse to

former client

z

Gentle Termination

LETTER“We enjoyed representing [client] in this matter, and look forward to working

with you in the future should the need arise.”

z

+ Confirm that no conflict exists

+ Get informed consent confirmed in writing

z

No secrets between joint clients

Confidences must be shared

z

Other Considerations for Engagement Letter

z

Other ConsiderationsFlat fee – RPC 1.5(d)(3)

Add language – may be entitled to refund

Refund if early termination

ODC v. Summers2012-Ohio-1144

Where does $$ go?

“Earned upon receipt”Operating account

z

Sharing FeesNot in Same Firm

z

Rule 1.5(e) Permissible if:Division in proportion to services performed by eachEach lawyer assumes joint responsibility for matter/availableIncludes joint/severable liability for malpracticeClient consent: identify each lawyer and division of fees

z

Doing Business with Clients

Rule 1.8(a) – explain in writing

Terms, risks/disadvantages to client

Reasonable alternatives

Lawyer’s role

Advisable to consult with another lawyer

z

ProperlyDECLININGRepresentation

Prospective clients

RPC 1.18: Communications are confidential

Confirmation in writing unable to take

Consider whether to inform of applicable S/L

z

Additional Tips

z

Key Areas to COMMUNICATE

When seeking conflict waiver

Settle/appeal

Client objectives

Means to accomplish goal (litigation tactics)

Updating on status

When client requests information

z

How to COMMUNICATE

z

How toWITHDRAW

RPC 1.16

Client engages in illegal/ fraudulent conduct

Client insists upon action lawyer considers “repugnant”

Or which lawyer has “fundamental disagreement”

z

Grounds toWITHDRAW

Client fails to fulfill obligationfinancial or otherwise

Lack of payment

Lack of communication

Warn that will withdraw unless obligation met

“Unreasonable financial burden” on lawyer

Representation rendered “unreasonably difficult”

“Other good cause”

z

Withdrawal ConsiderationsMinimize risk to client

Notice/opportunity to retain new counsel

Cooperate with transition

Refund earned fees

Litigation: permission from court

Careful with client confidences

Submit motion in camera

z

Outsourcing

Board Opinion 2009-6

Client consent

Give details of arrangement

Lawyer responsible

Know/trust who retaining

Fee charged

z

AncillarySERVICES

RPC 5.7 – subject to RPC?

Yes if – Not “distinct” from legal services

Yes if – Don’t inform client that NOT legal services

Cannot require clients to use as condition

z

MANAGEMENTof Non-Lawyers

z

Lawyer responsible for conduct if:

+ orders, knows or ratifies+ Manager/supervisor knows;

fails to take remedial action

z

RPC 5.3

“conduct compatible to lawyer’s professional obligations”

“Direct supervisory authority”

Firm manager

z

Law FirmADVERTISING

z

RPC 7.1

“false, misleading, nonverifable”

“unjustified expectation”

z

RPC 7.2

Can advertise

“shall not give anything of value

to a person for recommending

lawyer’s services”

z

DirectCONTACT

RPC 7.3

“shall not” when “significant motive” is

pecuniary gain”

Exceptions: + contacting a lawyer+ contacting “family,

close personal or prior relationship”

z

WrittenSOLICITATION

Those in need of legal services

Disclose how became aware (police reports)

Do not evaluate case

“ADVERTISEMENT ONLY”

z

RPC 7.5

No trade name

“And Associates” is misleading

Deceased/retired names? Yes.

“Partnership”? True?

z

Client Funds

z

1 The Rule

2 How to Lose Your License

3 Best Practices

z

Your $

Client$

z

Rule 1.15A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

z

Rule 1.15 [cmt 1]A lawyer should hold property of others with the care required of a professional fiduciary.

z

“Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior… the level of conduct for fiduciaries [has] been kept at a level higher than that trodden by the crowd.”

- Benjamin Cardozo

z

Rule 1.15 [cmt 1]All property that is the property of clients or third persons . . . must be kept separate from the lawyer’s business and personal property and, if moneys, in one or more trust accounts.

z

IOLTA?

z

Your $

Client$

z

Funds

IOLTA Account

Accurate Financial Records

ID + Safeguard

Accurate Records

Other Property

z

For Funds:

1 Copy of fee agreements

2 Client fund records

3 Bank account records

4 Maintain bank statements

5 Monthly reconciliation

z

Other Property

z

1 Keep a record

2 Identify property

3 Date received

4 Who it belongs to

5 Date of distribution

For Other Property:

z

Rule 1.15(d)Receive funds or property belonging to client or third person.

z

Receive funds/property belonging to client or 3rd party:

1 Promptly notify

2 Promptly deliver

3 Render an accounting if asked

z

Rule 1.15(e)Possess funds or property in which two or more persons claim an interest = hold funds/property until dispute resolved.

z

Rule 1.15(e)Also have to notify the disputing parties of the competing claims, and consider filing a court action to resolve.

z

1 The Rule


3 Best Practices

z

“There are few ethical breaches which impact more negatively on

the integrity of the legal profession than the misuse of client funds.”

z

“We have consistently held that misappropriation of client funds is an egregious violation of a lawyer's

ethical responsibilities.”

z

How much does the Ohio Supreme

Court care?

z

R.C. 4705.10(A)(4)The depository institution shall notify the office of disciplinary counselor other entity designated by the supreme court on each occasion when a properly payable instrument is presented for payment from the account, and the account contains insufficient funds.

z

Excuse #1I’m stupid

z

Richland County Bar v. Davis

Attorney said he didn’t know he was supposed to use escrow or trust accounts.

z

Cleveland Bar Association v. Rubinstein

Attorney “did not intend” to harm clients by mishandling funds.

z

CBA v. Thompson

Lawyer was under a “misapprehension” regarding propriety of paying office

expenses out of trust account.

z

Richland County Bar Association v. Davis

Cleveland Bar Association v. Rubinstein

CBA v. Thompson

z

Excuse #2My secretary is stupid

z

ODC v. Lile

Employee’s use of client funds for office expenses was obvious, not for personal benefit, and necessitated by lawyer’s lack of cash flow.

z

ODC v. Kick

Lawyer’s secretary wrote extra paychecks to herself out of client trust account funds.

z

ODC v. Lile

CBA v. Thompson

ODC v. Kick

z

Rule 5.3Attorney has responsibility to ensure assistant’s conduct is “compatible with the professional obligations of the lawyer.”

z

Gov. Bar Rule VAggravating Factors

+ Prior disciplinary offense+ Dishonest/selfish motive+ Pattern of misconduct+ Multiple offenses+ Lack of cooperation in

disciplinary process+ False evidence or statements+ Refusal to acknowledge wrongful

conduct+ Failure to make restitution

Mitigating Factors+ No disciplinary record+ No dishonest/selfish motive+ Restitution efforts+ Cooperative attitude+ Character/reputation+ Other sanctions+ Mental/drug issue+ Other interim rehabilitation

z

Excuse #3I forgot

z

Cleveland Bar Association v. Snow

Attorney “forgot” to pay client’s medical providers out of settlement funds and withdrew

funds from trust account by mistake.

z

Excuse #4I really needed the $

z

CBA v. Herron

Lawyer withdrew trust account funds to pay his own bills and expenses.

z

ODC v. Bubna

Attorney allowed two personal creditors to deduct funds from client trust accounts.

z

CBA v. Winkfield

Attorney “routinely misappropriated client funds for personal use.”

z

Cleveland Bar v. Herron

ODC v. Bubna

CBA v. Winkfield

z

Excuse #5Another client really

needed the $

z

ODC v. Lawrence

Attorney replaced funds taken from one trust account with funds taken from another.

z

ODC v. Mesi

Attorney “loaned” one client the trust account funds of another client.

z

ODC v. Lawrence

ODC v. Mesi

z

Excuse #6It helped the client

z

ODC v. Sopkovich

I withdrew funds from client’s account so it would look like he had fewer assets and was

therefore qualified to receive public assistance.

z

Excuse #7I wrote the check

immediately

z

ODC v. Zarensky

Lawyer put settlement check in operating account, and immediately wrote

client a check for her portion.

z

Excuse #8I was trying to make

the client more money

z

Rule 1.15 [cmt. 3A]Client funds in IOLTA “unless the lawyer determines the funds can otherwise earn net income.”

z

Cleveland Bar v. Louden

Lawyer withdrew funds from trust account. Claimed that he had an opportunity to make

more money for the client.

z

1 The Rule


3 Best Practices

z

Hypo #1Retainer

z

IOLTA

z

Hypo #2Advance on Fees

z

What’s the difference?Retainer

A lump sum fee paid by the client

to engage the lawyer at the outset of the

matter.

AdvanceA portion of the fee paid to the

lawyer before the lawyer performs

work.

z

I know we may not have a great case, but

file and let’s see if they’ll settle.

Client

z

They don’t.

z

Hypo #3Prepaid Expenses

z

Hypo #4Settlement Check

z

ODC v. Zarensky

Lawyer put settlement check in operating account, and immediately wrote

client a check for her portion.

z

Hypo #4Lawyer’s Money

z

When?

z

Reasonable time.

z

What if the client disputes your fee

amount?

z

Rule 1.15 [cmt. 3] Distribute undisputed portion

Don’t have to send to client what you reasonably believe client owes

Hold disputed funds in trust and lawyer has to suggest resolution

z

Hypo #6Client Money

Unrelated to Rep

z

Rule 1.15A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

z

Hypo #7Earned upon receipt

retainer

z

What is it?

z

Earned Upon Receipt

A true "earned upon receipt retainer" is one paid to a lawyer for which the only consideration given is the promise to represent the paying client and no other party in a particular matter.

z

But the court does not love

them

z

Cuyahoga County Bar v. Okocha

“Such retainers are appropriate only in very limited circumstances.”

z

Agreement to remain available

and forego employment by

client’s competitor

Security for attorney to

provide services for a new or financially

unstable client

z

Lesson1 Don’t try to claim a

“nonrefundable retainer”

2 Also don’t take 40% in addition to retainer

z

Better include a sentence in your engagement letter stating that the client may be entitled to a refund at the end of the representation.

WARNING

z

Hypo #8Evergreen retainer

z

+ Lawyer draws down as earned.

+ Client replenishes.

First Type

+ Lawyer keeps for entire duration of representation.

+ Refunded to client at the end.

Second Type

z

Thank You!Jason BeehlerKegler Brown Hill + [email protected]/beehler614-462-5452

z

Thank You!

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

CBA New Lawyer Training

Law

Transcript of CBA New Lawyer Training