CBA New Lawyer Training
222
z New Lawyer TRAINING presented by Jason Beehler + Chris Weber Columbus Bar Association December 15, 2015
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Transcript of CBA New Lawyer Training
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New Lawyer TRAINING
presented by Jason Beehler + Chris WeberColumbus Bar Association
December 15, 2015
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How?
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What?
Why?
Our Role
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Part 1How did we get here?
1
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AttentiveFairRespect
Good WriterOrator
Open-minded
PerspectiveProactive
Thoughtful
Logical
Detail-Oriented
Just
ControlledSmart
HonestHard Working
Focused
Considerate
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A little history
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French thinker
1831-32
“Democracy in America”
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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.”
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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
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“If there were no bad people, there
would be no good lawyers.”
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Gallup PollHonesty + Ethical Standards
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What percentage of people said that
lawyers have “high” or “very high” ethical
standards?
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Who’s ahead of us?
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Nurses Teachers
ClergyAccountantsMilitary
Bankers
EngineersCollege Profs
Contractors
MDs
Pharmacists
Journalists
ChiropractorsAuto Mechanics
FirefightersDay Care Providers
Funeral Directors
Police Officers
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Who’s behind us?
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Senators Realtors
Business ExecsStockbrokers
UnionsBankers
Congress
Ad Execs
TV Reporters
HMO ManagersLobbyists
Insurance salesmanCar salesman
Telemarketers
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CBA Survey 500 non-lawyers polled
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Public Opinion of Lawyers
Make Too MuchGreedyCaringEthicalHonest
Put Clients 1stSolve Problems
Smart
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More interested in making money than serving
clients?
Agree/Strongly agree47%
Disagree/Strongly disagree41%
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Lack fundamental integrity?
Agree/Strongly agree19%
Disagree/Strongly disagree60%
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Use complicated language most people cannot
understand?
Agree/Strongly agree60%
Disagree/Strongly disagree33%
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Arrogant?
Agree/Strongly agree40%
Disagree/Strongly disagree
45%
No opinion15%
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Only available for richpeople?
Agree/Strongly agree48%
Disagree/Strongly disagree38%
No opinion14%
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Source of Opinion
News + Media
Don't Know
Friend's Experience
Overall Impressions
Lawyers I Know
TV
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Even lawyers don’t like lawyers
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19% Dissatisfied with life
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Would not become lawyers again24%
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46% Do not desire to remain in law practice
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42% Felt lonely/remote from others
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16% Consume 3-5 alcoholic beverages a day
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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
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Part 1What is professionalism?
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Take 5 minutes +think of an example of unprofessional behavior that you have experienced.
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PessimisticCynicalLiars
UptightVain
Stubborn
UnreasonableConceited
Dispassionate
Poor Social Skills
Out of Touch
Mean
ControllingBossy
UnhappyOverbearing
Don’t return calls
Egotistical
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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
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What does professionalism
mean?
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“Ethics is that which is required and
professionalism is that which is expected.”
Georgia Supreme Court
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Professionalism
Ethics
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HOW BAD IS IT?
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Commission on Professionalism
To promote professionalism among attorneys
+ Monitor + coordinate professionalism in courts, bar associations + law schools
+ Develop educational materials
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A Lawyer’s CreedA Lawyer’s Creed
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Aspirational Ideals
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Lawyers’ primary obligations are to the institutions of law
and the betterment of society
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In the end, it’s simple…
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Part 1Why should we care?
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Professionalism – Ethics
CONTINUUM
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To Opposing Party
You are a sh*!head PhD
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To Judge
You are a marginal
incompetent
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To Opposing Counsel
[insert obscenities here]
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Court’s Response
Part of the role of an attorney is to remove
himself from emotions of the moment
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Tacky Advertising
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Part 1Our role
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Why did you want to be a lawyer?
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AttentiveFairRespect
Good WriterOrator
Open-minded
PerspectiveProactive
Thoughtful
Logical
Detail-Oriented
Just
ControlledSmart
HonestHard Working
Focused
Considerate
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CBA Survey 500 non-lawyers polled
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Most Favorable Things Lawyers Do?
Help people41%
17%Protect Rights
21%Provide good representation
12%Uphold Justice
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“What is, however, surprising and unsettling is how reluctant attorneys have been to address
conditions of practice over which they have control.”
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People thinking about law school.
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What would improve your impression of lawyers?
Communicate more honestly with clients
89%
More fully explain fees to clients
85%
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presented by Tom SigmundOhio Society of CPAs Mega Tax ConferenceDecember 7-8, 2015
Dos +DON’Ts
Deposition
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DOs+ Review local rules+ Cooperate on scheduling+ Arrive on time+ Disconnect devices+ Be courteous and civil+ Be prepared+ Go off the record, if necessary
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DON’Ts
+ Depose to burden/harass+ Instruct witness not to answer+ Coach the deponent+ Be rude or degrading+ Beat opponent to the punch
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DOs+ Be prepared+ Dress appropriately+ Arrive on time+ Disable electronic devices+ Be accurate+ Stand when addressing judges+ Stipulate to facts not in dispute
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DON’Ts
+ Ad hominem attacks+ Interrupt+ React negatively or display+ Move freely without consent+ “You’ve committed reversible error”
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Ohio tips on our handout
Are standards of professionalism
learned behaviors?
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Be part of the solution
So . . .
Mind your manners
Cooperate
Be reasonable
Mentor
Use available resources
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In Law Office Management
BestPRACTICES
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EngagementLETTER
The Importance of an
Avoid Stumbling into a Lawyer-Client Relationship
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DefineCLIENT
“Dear Ms. _____ (officer of corp.), we are pleased
to provide our legal services to you.”
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Client = Corporation
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Not officers
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May later be adverse to
officer
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Corporation = all affiliates?
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Address in engagement
letter
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Avoid conflict later
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DefineSCOPE
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Avoid “Re: Legal
Representation”
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Define exactly
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Benefits to ClarityAvoid
blame for unrelated matters
Defines when representation
ends
Conflicts: easier to beadverse to
former client
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Gentle Termination
LETTER“We enjoyed representing [client] in this matter, and look forward to working
with you in the future should the need arise.”
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+ Confirm that no conflict exists
+ Get informed consent confirmed in writing
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No secrets between joint clients
Confidences must be shared
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Other Considerations for Engagement Letter
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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
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Sharing FeesNot in Same Firm
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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
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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
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ProperlyDECLININGRepresentation
Prospective clients
RPC 1.18: Communications are confidential
Confirmation in writing unable to take
Consider whether to inform of applicable S/L
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Additional Tips
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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
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How to COMMUNICATE
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How toWITHDRAW
RPC 1.16
Client engages in illegal/ fraudulent conduct
Client insists upon action lawyer considers “repugnant”
Or which lawyer has “fundamental disagreement”
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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”
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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
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Outsourcing
Board Opinion 2009-6
Client consent
Give details of arrangement
Lawyer responsible
Know/trust who retaining
Fee charged
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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
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MANAGEMENTof Non-Lawyers
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Lawyer responsible for conduct if:
+ orders, knows or ratifies+ Manager/supervisor knows;
fails to take remedial action
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RPC 5.3
“conduct compatible to lawyer’s professional obligations”
“Direct supervisory authority”
Firm manager
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Law FirmADVERTISING
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RPC 7.1
“false, misleading, nonverifable”
“unjustified expectation”
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RPC 7.2
Can advertise
“shall not give anything of value
to a person for recommending
lawyer’s services”
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DirectCONTACT
RPC 7.3
“shall not” when “significant motive” is
pecuniary gain”
Exceptions: + contacting a lawyer+ contacting “family,
close personal or prior relationship”
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WrittenSOLICITATION
Those in need of legal services
Disclose how became aware (police reports)
Do not evaluate case
“ADVERTISEMENT ONLY”
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RPC 7.5
No trade name
“And Associates” is misleading
Deceased/retired names? Yes.
“Partnership”? True?
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Client Funds
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1 The Rule
2 How to Lose Your License
3 Best Practices
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Your $
Client$
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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.
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Rule 1.15 [cmt 1]A lawyer should hold property of others with the care required of a professional fiduciary.
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“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
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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.
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IOLTA?
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Your $
Client$
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Funds
IOLTA Account
Accurate Financial Records
ID + Safeguard
Accurate Records
Other Property
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For Funds:
1 Copy of fee agreements
2 Client fund records
3 Bank account records
4 Maintain bank statements
5 Monthly reconciliation
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Other Property
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1 Keep a record
2 Identify property
3 Date received
4 Who it belongs to
5 Date of distribution
For Other Property:
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Rule 1.15(d)Receive funds or property belonging to client or third person.
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Receive funds/property belonging to client or 3rd party:
1 Promptly notify
2 Promptly deliver
3 Render an accounting if asked
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Rule 1.15(e)Possess funds or property in which two or more persons claim an interest = hold funds/property until dispute resolved.
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Rule 1.15(e)Also have to notify the disputing parties of the competing claims, and consider filing a court action to resolve.
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1 The Rule
2 How to Lose Your License
3 Best Practices
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“There are few ethical breaches which impact more negatively on
the integrity of the legal profession than the misuse of client funds.”
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“We have consistently held that misappropriation of client funds is an egregious violation of a lawyer's
ethical responsibilities.”
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How much does the Ohio Supreme
Court care?
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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.
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Excuse #1I’m stupid
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Richland County Bar v. Davis
Attorney said he didn’t know he was supposed to use escrow or trust accounts.
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Cleveland Bar Association v. Rubinstein
Attorney “did not intend” to harm clients by mishandling funds.
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CBA v. Thompson
Lawyer was under a “misapprehension” regarding propriety of paying office
expenses out of trust account.
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Richland County Bar Association v. Davis
Cleveland Bar Association v. Rubinstein
CBA v. Thompson
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Excuse #2My secretary is stupid
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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.
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ODC v. Kick
Lawyer’s secretary wrote extra paychecks to herself out of client trust account funds.
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ODC v. Lile
CBA v. Thompson
ODC v. Kick
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Rule 5.3Attorney has responsibility to ensure assistant’s conduct is “compatible with the professional obligations of the lawyer.”
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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
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Excuse #3I forgot
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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.
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Excuse #4I really needed the $
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CBA v. Herron
Lawyer withdrew trust account funds to pay his own bills and expenses.
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ODC v. Bubna
Attorney allowed two personal creditors to deduct funds from client trust accounts.
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CBA v. Winkfield
Attorney “routinely misappropriated client funds for personal use.”
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Cleveland Bar v. Herron
ODC v. Bubna
CBA v. Winkfield
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Excuse #5Another client really
needed the $
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ODC v. Lawrence
Attorney replaced funds taken from one trust account with funds taken from another.
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ODC v. Mesi
Attorney “loaned” one client the trust account funds of another client.
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ODC v. Lawrence
ODC v. Mesi
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Excuse #6It helped the client
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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.
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Excuse #7I wrote the check
immediately
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ODC v. Zarensky
Lawyer put settlement check in operating account, and immediately wrote
client a check for her portion.
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Excuse #8I was trying to make
the client more money
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Rule 1.15 [cmt. 3A]Client funds in IOLTA “unless the lawyer determines the funds can otherwise earn net income.”
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Cleveland Bar v. Louden
Lawyer withdrew funds from trust account. Claimed that he had an opportunity to make
more money for the client.
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1 The Rule
2 How to Lose Your License
3 Best Practices
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Hypo #1Retainer
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IOLTA
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Hypo #2Advance on Fees
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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.
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I know we may not have a great case, but
file and let’s see if they’ll settle.
Client
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They don’t.
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Hypo #3Prepaid Expenses
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Hypo #4Settlement Check
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ODC v. Zarensky
Lawyer put settlement check in operating account, and immediately wrote
client a check for her portion.
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Hypo #4Lawyer’s Money
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When?
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Reasonable time.
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What if the client disputes your fee
amount?
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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
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Hypo #6Client Money
Unrelated to Rep
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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.
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Hypo #7Earned upon receipt
retainer
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What is it?
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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.
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But the court does not love
them
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Cuyahoga County Bar v. Okocha
“Such retainers are appropriate only in very limited circumstances.”
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Agreement to remain available
and forego employment by
client’s competitor
Security for attorney to
provide services for a new or financially
unstable client
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Lesson1 Don’t try to claim a
“nonrefundable retainer”
2 Also don’t take 40% in addition to retainer
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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
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Hypo #8Evergreen retainer
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+ Lawyer draws down as earned.
+ Client replenishes.
First Type
+ Lawyer keeps for entire duration of representation.
+ Refunded to client at the end.
Second Type
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