Ethics/Professional Responsiblity

Florida Supreme Court Alters CLE Rules to Withhold Approval from Programs with Diversity Policies

When we listen and celebrate what is both common and different, we become wiser, more inclusive, and better. That quote from Pat Wadors highlights the importance of listening to diverse points of view. Unfortunately, the Florida Supreme Court doesn’t agree.

In April, the Florida Supreme Court announced that it would not approve any Continuing Legal Education (CLE) course submitted by any sponsor “that uses quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants.” The Court issued this pronouncement after the Business Law Section of The Florida Bar adopted a diversity policy for CLE panelists.

Florida’s ruling is far from the norm. Most states require lawyers to take a certain number of CLE courses every year to maintain their licenses. The majority of states either encourage or have policies relating to the composition of CLE panels, so that attendees can benefit from diverse viewpoints. For example, the American Bar Association requires that that CLE panels with three or more panelists have diversity based on race, ethnicity, gender, sexual orientation, disability, or other.

To justify its ruling, the Florida Supreme Court cited past U.S. Supreme Court decisions, concluding that the CLE diversity policy is inconsistent with anti-discrimination laws. However, fair and equal opportunity is best achieved when people from all backgrounds and experiences participate. Policies like the one adopted by the ABA help eliminate bias and expand diversity and inclusion in the legal profession. Let’s hope that the Florida Supreme Court reconsiders its Order and recognizes the importance of and the need for diverse viewpoints to help its state’s lawyers understand the issues facing them.

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Yes, You Can Pay A Fact Witness – Sometimes

Whether, and when, and how much, you can pay a fact witness who is testifying is an ethical dilemma for lawyers. Fortunately, there is guidance for attorneys to help them figure out when they can, and when they can’t pay a fact witness. Attorney Daniel J. Siegel, Chair of the Pennsylvania Bar Association Legal Ethics Committee explains the ins and outs of the situation in his column in the Summer 2020 issue of The Philadelphia Lawyer, the quarterly magazine of the Philadelphia Bar Association.

Siegel’s article focuses on Pennsylvania Rule of Professional Conduct (RPC) 3.4, which seems to prohibit paying fact witnesses. However, there are circumstances where it is allowed. According to the Pennsylvania Bar Association Legal Ethics Committee Formal Opinion 2019-100, lawyers can pay a fact witness for two reasons. First, for expenses reasonably incurred in attending and testifying. Second, reasonable compensation for loss of time in attending and testifying.

What is considered reasonable will vary on a case-by-case basis, but payment of fact witnesses will always be subject to RPC 3.4(b)’s explicit disallowance of compensation that is “contingent upon the content of the witness’ testimony or the outcome of the case.” Since payment arrangements may be disclosed during discovery or cross-examination, these arrangements must be transparent.

Click here to read Dan Siegel’s column. Dan’s and his firm, the Law Offices of Daniel J. Siegel, LLC, provide ethical, and techno-ethical guidance and disciplinary representation for attorneys. Give them a call at (610) 446-3457 or click here to send an email.

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New Pa. Bar Ethics Opinion – Obligations of Lawyers Working Remotely

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility today issued Formal Opinion 2020-300 – Ethical Obligations of Attorneys Working Remotely. The Opinion is intended to provide global guidance to attorneys working from home, not only during the COVID-19 pandemic, but also for those who will work remotely even after the situation returns to “normal.” I am a Vice Chair of and the incoming Chair of the PBA Committee and a contributor to the Opinion. Click here to read the Pa. Bar Association Formal Opinion.

The Opinion provides an ethical analysis of the obligations of attorneys and their staff about how to best comply with their obligation to preserve client confidentiality. In the Introduction, the Opinion states:

“At a minimum, when working remotely, attorneys and their staff have an obligation under the Rules of Professional Conduct to take reasonable precautions to assure that:

  • “All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information;
  • Information transmitted through the Internet is done in a manner that ensures the confidentiality of client communications and other sensitive data;
  • Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form;
  • Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud;
  • Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; and,
  • Appropriate forms of data security are used.

This Opinion adopts conclusions from the American Bar Association’s Formal Opinion 477R and provides practical – use-it-now – suggestions for how attorneys can adopt best practices.

My law firm, Law Offices of Daniel J. Siegel, LLC, and my consulting firm, Integrated Technology Services, LLC, provide techno-ethical guidance to attorneys about the issues addressed in the Opinion, and I have been writing and lecturing about these topics for more than a decade.

If you are a lawyer or firm administrator and need guidance on the ethical and/or the technological issues confronting attorneys and staff working remotely, contact Dan Siegel, Christa High or Pam Myers; we are the pioneers of techno-ethics and are here to help you.

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Hamlet & Lawyer Advertising

Ah Hamlet, the famous line, “The lady doth protest too much, methinks,” came to mind last in the context of lawyers, lawyer advertising, and the Rules of Ethics. As many people know, the majority of our firm’s clients are lawyers and law firms, who trust us to provide ethical guidance, as well as representation before the Disciplinary Board of the Pennsylvania Supreme Court. I also write and lecture about ethics for various publications legal. One of my most recent ethics columns, in The Philadelphia Lawyer, the Philadelphia Bar Association’s award-winning magazine, discussed changes to the American Bar Association Model Rules of Professional Conduct relating to attorney advertising. My opinion was that because no attorney has ever been disciplined for violating the advertising rules, changing them (and making them far weaker in my opinion) would be a meaningless gesture.

Click here to read my column. You can come to your own conclusion.

One lawyer read the column and accused me of  “using a professional periodical to serve [my] own agenda. It also seems like an attempt to at best criticize our Firm/your competitors, and at worst defame them for being unethical and violating the rules of professional responsibility.”

My agenda, as I responded, is “that we should have Rules that are enforced, enforceable, and complied with.” Lots of Rules apply to lawyers; in fact everything we do involves Rules. Yet it remains my belief that the advertising Rules aren’t enforced. As my column noted, “Examination of the published disciplinary decisions on the Pennsylvania Supreme Court website confirms the absence of any public discipline for advertising rules violations.” In other words, no lawyers have ever been publicly disciplined for violating the Pennsylvania advertising Rules.

I then asked a few people if they thought my article was directed at any firm, any practice area, or any identifiable group other than lawyers whose advertisements appear to be contrary to the Rules. They thought my column was law firm neutral, and merely highlighted the opinion I have espoused for years. 

Thus, as one person noted, the lawyer doth protest too much.  

Oh, and ironically, one law firm I represent, for which I provide guidance about advertising content, including TV and radio, called for advice shortly after I heard from the other lawyer. They weren’t offended by my column.

I guess, again referring to Hamlet, it depends on whose petard is being hoisted.

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Professionals @High_Risk on Social Media

Pundits swiftly smacked down Rosanne’s recent racist and anti-Semitic tweets, comparing them with New York Lawyer Aaron Schlossberg’s videotaped, racist rant against people for standing in front of him in a line. In a situation, where honestly, blameless people were supporting a local business, Attorney Schlossberg fumed at them shamelessly, calling them undocumented immigrants for inconveniencing him. He went so far as to threaten to report them to “ICE” (the deportation and enforcement branch of the United States Customs Immigration Service (USCIS)).

This has raised a question of whether the “digital divide” is blurring the line between opinionated and derogatory. Have we abandoned the ancient wisdom passed down to us from prior generations?

  • “If you would not feel comfortable saying it to your grandmother, then don’t put it in writing.”
  • “If you wouldn’t want to see it in the newspaper, then don’t say it.” Or,
  • “If you don’t have anything nice to say, then don’t say anything at all.”

Sound familiar?

Of course, the novelty and thrill of seeing one’s opinion in print makes social media platforms addictive. Facebook builds upon the indescribable feeling that getting “likes” simulates. It cannot be understood from a rational dimension separate from the feelings that posts create. There are millions of people on Twitter; rationally speaking, does your opinion even matter? The rational answer is generally no, not even if you’re the President of the United States.

As we increasingly publicize our own views, we simultaneously begin to believe that our views are important. By narrowing our focus on our limited perspective, we may fail to honestly assess the valid opinions of others. We lose our audience. We gain only extreme followers who share our views. As a result, the world around us begins to shrink. Our newsfeed populates with limited perspective.

Like Roseanne or Schlossberg, professionals are the most high-risk population on social media because they can lose their reputation, clients, dignity and prestige from a poorly worded post. As we have the most to lose, we must think twice about what we say, how we say it, and be ever mindful of the risks of posts being conscience-shocking, racist, bigoted, and/or incriminating. Is your opinion perhaps unique only because no one would ever actually say it to their grandmother?

Not only does social media pose a risk to a professional’s reputation, it may put an injured person at risk if they post on Facebook, or put an attorney at risk for attorney discipline or a legal malpractice claim if they reveal client information online. If you or someone you know has a personal injury matter or you are a lawyer with a professional discipline matter, call the Law Offices of Daniel J. Siegel, LLC, the lawyer other lawyers call for advice.

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The Small Firm Difference – A Freudian Slip of the Tongue That Tells the Truth

We are often asked why a client should hire a small firm where clients speak directly with their attorney rather than a larger firm, with a large staff, large overhead, and levels of bureaucracy?

When it comes to heavily advertised areas of law such as workers’ compensation and personal injury, there may be another enormous difference: many of the larger firms have to feed their seemingly endless advertising budgets and pay for their TV ads and billboards. As a result, their business model (that’s what they call it) requires them to “move” files (in other words, settle cases) rather than fight every case as much as possible — even if that means going to trial, filing an appeal, or merely waiting to settle the case until the best tactical moment. After all, trials, appeals and waiting all take time, don’t generate fees, and don’t pay the advertising agencies’ bills.

Recently, one large advertising law firm included a page on its website in which it said that they “aren’t afraid to back down from any opponent.” That’s right, they are not afraid to back down from an opponent. Well, they are telling the truth. If they fought every case the way they should, it could mean a trial or an appeal, or waiting months until it’s the best time to settle. That’s why they aren’t afraid to back down.

Our office doesn’t have an advertising agency, we don’t have billboards, and we don’t run TV ads. We’re small, allowing us to provide client-focused representation that does what’s right for our clients, even if it means waiting months to settle a case to assure our client receives the maximum settlement.

We aren’t afraid to fight, and we don’t back down.

Insurance companies and defense attorneys know that we go as far as needed for our clients. They know this, and they know that they will have to either fight us, or pay top dollar to settle our clients’ case.

Some firms aren’t afraid to back down.

We aren’t afraid to fight long and hard if we have to. We don’t need to feed the advertising machine. That’s our small firm difference.

 

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Available Soon – Fee Agreements in Pennsylvania (6th Edition) – Edited by Attorney Daniel J. Siegel

Almost hot off the presses. I just received a copy of the cover of my newest book, Fee Agreements in Pennsylvania. I edited the book (now in its 6th edition) and authored one chapter. The book will be available for purchase in the next few weeks from the publisher, the Pennsylvania Bar Institute. The book provides practical and ethical guidance that will help attorneys draft comprehensive fee agreements, and contains sample fee agreements covering a wide range of practice areas. My office regularly provides guidance to attorneys about how to improve their agreements and avoid fee disputes with clients.

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12 Rules for Lawyers to Ethically Deal With Social Media

For lawyers, the issue of social media – whether it is their use of it or, God forbid, their clients’ use of it – is one that seems to pervade every area of their practices. As a result, many attorneys prefer the “head in the sand” approach, hoping that if they ignore it, it will go away.

To assist lawyers in dealing with social media, and help them address their concerns head-on, I authored an article, “12 Rules for Ethically Dealing With Social Media,” which appeared in the February 2017 issue of Business Law Today, published by the American Bar Association Business Law Section.

The article is based on my experience with clients; representing and counseling other attorneys and law firms; and as the primary author of multiple ethical guidance opinions published by the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility (of which I am a Vice Chair) and the Philadelphia Bar Association Professional Guidance Committee.

In the article, I outline twelve important rules for attorneys dealing with social media, regardless of the nature of their practices. Click here to read the article.

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Dan Siegel Featured in Legal Intelligencer, Discusses New Ethics Rule Relating to the Sale of Law Practices

The September 28, 2016 issue of the Legal Intelligencer, the daily newspaper of the Philadelphia legal community, features comments by Havertown Attorney Dan Siegel. The article, “Rule Change Allows New Retirement Route for Solos,” discusses the amendments to Pennsylvania Rule of Professional Conduct 1.17, which regulates the manner in which attorneys may sell all or a portion of their law practices.

Previously, Rule 1.17 drastically limited the ways solo attorneys could sell their practices. Siegel, who is the author of Changing Law Firms: Ethical Guidance for Pennsylvania Law Firms and Attorneys, Second Edition, regularly represents attorneys who are impacted by this Rule. The article notes that Siegel “has been advocating for a change in the rules ‘for some time.'” The article also quotes Siegel, who explained that “The old rule created significant obstacles that basically only existed for solo attorneys who were trying to wind down practice or change practice areas.”

The new Rule becomes effective on October 24, 2017.

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Lawyers & Social Media – Adding Flames to Fires

Ah, social media. Facebook, Yelp, you name it, social media is out there, and lawyers are using – and misusing it. Here are some recent examples that highlight the issues confronting us – and why it is best to recognize the problems up front – so you don’t have to hire me to represent you in front of the Disciplinary Board later.

Consider Attorney John Mahoney of Washington, DC, who got into a conflict with a former client, who thought his fees were excessive, and his expenses were unwarranted and unnecessary. The client also was displeased with his representation during mediation.

The client posted comments about the attorney on a website. In his response, Attorney Mahoney revealed specific information about the case, the client’s emotional state, and what transpired during your attorney-client relationship – although he did not identify the client by name. Although the investigation did not support the client’s allegations against the attorney, he nevertheless violated the Rule of Professional Conduct 1.6’s prohibition against revealing client confidences.

In particular, the lawyer included the name of the client’s employer, the dates on which certain events occurred, and other detailed information that could lead back to his former client. He added to his problems by violating Rule 8.4(c) when he “posted a further response on the website concerning Disciplinary Counsel’s investigation of the client’s allegations and Disciplinary Counsel’s statements. Specifically, although Disciplinary Counsel advised you that your postings on the website about the client were inconsistent with your obligations under Rule 1.6, you posted another response on the website stating that Disciplinary Counsel had ‘clear[ed]’ you and quoted a sentence from a letter that omitted information about the Rule 1.6 violations that we found meritorious.” Click here to read the DC Disciplinary Decision.

Or, consider Attorneys John Robertelli and Gabriel Adamo, whose New Jersey Supreme Court case focuses on procedural issues regarding the New Jersey Disciplinary process. With that caveat, the case’s genesis was Facebook. Here’s what happened:

“On March 10, 2007, a police car driven by a sergeant with the Oakland Police Department allegedly struck a pedestrian, Dennis Hernandez. Hernandez claimed that he suffered permanent injuries, and commenced suit against the Borough, the police department, and the sergeant. Plaintiffs, who are attorneys licensed in New Jersey, were employed by the law firm that represented the defendants in the lawsuit. In order to obtain information about Hernandez, plaintiffs directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s “friends.” The [Office of Attorney Ethics (OAE)] contends that plaintiffs directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account. She therefore submitted a “friend request” to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.

“Hernandez learned of the firm’s actions during discovery in the lawsuit, and objected to defendants’ use at trial of the documents that the paralegal obtained from his Facebook page. He also filed a grievance with the District II-B Ethics Committee, asserting that plaintiffs violated the RPCs by contacting him directly through his Facebook page without first contacting his attorney. The Secretary of the District II Ethics Committee, with the consent of a public member, declined to docket the grievance, having concluded that the allegations, if proven, would not constitute unethical conduct. Hernandez’s attorney then contacted the Director of the OAE (Director) and requested that the OAE review the matter and docket it for a full investigation and potential hearing.

“After further investigation, the Director filed a complaint against plaintiffs with the District XIV Ethics Committee. Plaintiffs requested that the Director withdraw the complaint, contending that the OAE was precluded from proceeding after the DEC declined to docket the grievance. The Director refused to withdraw the complaint, and plaintiffs filed a complaint in the Superior Court to enjoin the OAE from pursuing the matter. The trial court dismissed the complaint, holding that the Supreme Court and the ethics bodies that it established have exclusive jurisdiction over attorney disciplinary matters. The Appellate Division affirmed the trial court’s determination in an unpublished decision.”

The New Jersey Supreme Court granted plaintiffs’ petition for certification and held that, consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.” Click here to read Robertelli v. New Jersey Office of Ethics.

All because of Facebook.

In short, be careful, get guidance, and avoid being too social on social media.

 

 

 

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