Top 10 Ways to Become a Statistic on a Bar Ethics Website

Transcription

1 Top 10 Ways to Become a Statistic on a Bar Ethics Website Steve Gracey TriHealth 619 Oak Street, Suite 601 Cincinnati, OH (513) Steve_Gracey@trihealth.com John S. Leinicke Wicker, Smith, O Hara, McCoy & Ford, P.A Ponce de Leon Blvd, Suite 800 Coral Gables, FL (305) jleinicke@wickersmith.com

2 Stephen M. Gracey is associate general counsel for Risk and Insurance Management at TriHealth, Inc. TriHealth is the owner and operator of an integrated health care delivery system in Cincinnati, Ohio. Mr. Gracey is an active member of several DRI committees, including current service as membership vice chair and young lawyers liaison to the DRI Corporate Counsel Committee. John S. Leinicke is an associate in Wicker Smith s Coral Gables, Florida, office, handling matters in construction litigation, premises liability, and complex provider fraud. While attending law school at the University of Miami, Mr. Leinicke served as an elected member of the University of Miami Honor Counsel, a student organization responsible for investigating and adjudicating alleged violations of the School of Law s Honor Code. Admitted to practice in the state of Florida in 2009, He is a member of DRI, the Florida Bar, the ABA, and the Dade County Bar Association. Mr. Leinicke currently serves DRI s Young Lawyers Committee as vice chair for its Civility and Professionalism Subcommittee.

3 Top 10 Ways to Become a Statistic on a Bar Ethics Website Table of Contents I. The Pressures of the Practice II. Why Lawyers, Particularly, May Be Susceptible to Ethical Misconduct III. Research A. #10 Just One More for the Road B. #9 Chinese Walls Made of Chinese Drywall C. #8 Ignore That Pesky Discovery D. #7 Ignore that Pesky Suspension of Your Law License E. #6 Get In Trouble Across the Border (of Another State) F. #5 Appear in a Mug Shot G. #4 Ignore That Pesky Bar Complaint H. #3 Be a Huge Jerk I. #2 It s Only Borrowing If I Pay It Back, Right? J. #1 Fall Asleep at the Switch IV. Mitigating Factors V. How to Protect Yourself Top 10 Ways to Become a Statistic on a Bar Ethics Website Gracey and Leinicke 449

4

5 Top 10 Ways to Become a Statistic on a Bar Ethics Website I. The Pressures of the Practice The pressures of being a young lawyer are both numerous and well documented. As reported in the Wall Street Journal, the average billable hour requirements for first year attorneys can range from 1,600 to over 2,000 hours a year. Lawyers also practice under the explicit expectation of quality work product. As Kentucky Supreme Court Justice Bill Cunningham recently wrote, lawyers are constantly subjected to [t]he pressing need that is found in all professions the heavy obligation of getting it right. Whether it s making the proper diagnosis in medicine or designing a bridge that won t collapse, the lawyer is likewise faced with the pressure of getting it right every day. At next Thursday s closing of a multi-million dollar real estate deal, the lawyer had better make certain all liens have been released and there is no misprint or missing signatures in the paper work. A misstep could cause the client delays and thousands of dollars. Or it may be the criminal defense lawyer standing by his client as the jury returns to the courtroom with a verdict. The client will either go out the front door with mama or out the back door with the sheriff to prison. That defense lawyer only hopes and prays that, if his client is convicted, it s because of the evidence and not his mistakes. Personal debt is also a constant presence for young practitioners. U.S. News & World Report calculated that in 2011, the average tuition for the top 20 graduate law schools in the country was $45,569 per year. Assuming three years of law school, the average cost of law school for a graduate of the top twenty law schools in the country is $136,707. On top of billing requirements and student debt loads, young attorneys are often expected to begin to develop clients and build a book of business. Justice Cunningham posited that the pressures listed above can take a heavy toll on an attorney s psyche. He pointed to a survey by John Hopkins University among 10,000 adults showed that, of all occupational groups, attorneys suffered from the highest signs of clinical depression, and a recent report by Michael Cohen, Executive Director of Florida s Legal Association, showing that percent of their group are alcoholics, as opposed to 10 percent of the general population. We know that the practice of law can lead to a long and deeply fulfilling career. But in light of the heavy burdens which come with the job, is it any wonder that occasionally, lawyers make mistakes which spiral out of control into full blown Bar complaints? II. Why Lawyers, Particularly, May Be Susceptible to Ethical Misconduct Two recent scholarly articles posit a reasonable explanation for why attorneys are often seen as particularly prone to ethical failings. In short: lawyers are too smart for our own good, and it is easy to get away with doing the wrong thing. Jonah Lehrer s June 2012 New Yorker article Why Smart People Are Stupid discusses research conducted at James Madison University on bias blind spot, or the individual s tendency to assume that other individuals are more likely to experience cognitive errors. Essentially, humans are really good at spotting mistakes in the decisions of others, but are often unable to spot the same mistakes in ourselves. Furthermore, the study showed that the smarter an individual was, the more likely that individual was to experience bias blind spots. It was hypothesized that that smart people assume they will make less mistakes than other less intelligent individuals, leading to quicker, more reckless decision making and therefore a higher occurrence of common mental mistakes. Top 10 Ways to Become a Statistic on a Bar Ethics Website Gracey and Leinicke 451

6 The effects of bias blind spot are likely exhibited when an attorney decides to drive while intoxicated, play loose with the rules of discovery, or exhibit unprofessional behavior at a deposition. When observed in others, this same behavior appears clearly improper, but often we lack the ability to identify it as such when we are the ones doing it. In his May 2012 Wall Street Journal article Why We Lie, Dan Ariely discussed how extensive scientific research shows that everyone cheats just a little bit. According to Ariely: Except for a few outliers at the top and bottom, the behavior of almost everyone is driven by two opposing motivations. On the one hand, we want to benefits from cheating and get as much money and glory as possible; on the other hand, we want to view ourselves as honest, honorable people. Ariely s research found that there were many factors that correlated with increased cheating by his research subjects: lack of supervision, previous immoral acts, others benefiting from our dishonesty, encountering dishonesty in others, and the ability to rationalize potential conflicts of interest. He concludes that while few people steal to a maximal degree, many good people cheat just a little here and there, such as fibbing to round up our billable hours. Is it no surprise then, that actions resulting in attorney discipline often occur in situations of lax oversight and little personal accountability? The practice of law requires a great amount of personal integrity and intellectual fortitude. Attorneys often deal with matters which are not wholly black or white, but shifting shades of grey. As evidenced by the research conducted for this presentation, attorneys, in general, are able to ethically deal with the ambiguities of the practice. In fact, the percentage of attorneys who actually commit dishonest conduct is quite small (less than a quarter of a percent of active practitioners). It is hoped that by making young attorneys aware of the most common pitfalls of their brothers- and sisters-in-arms, next year s list of disciplined attorneys on Bar ethics websites will be a few names shorter. III. Research This presentation is based on a multi-jurisdiction survey conducted on bar discipline reports from the calendar year of The 12 jurisdictions surveyed were Arizona, California, Colorado, Florida, Illinois, Minnesota, New Jersey, New York, Pennsylvania, Texas, Virginia, and the District of Columbia. As calculated by the ABA in its National Lawyer Population by State paper, in 2010 the number of active lawyers per capita in the surveyed jurisdictions was: STATE 2010 POPULATION District of Columbia # LAWYERS ACTIVE & RESIDENT (2010) # LAWYERS / 10,000 RESIDENTS (2010) ATTORNEY DISCIPLINE 2010 ( percent OF ACTIVE ATTORNEYS) 610,589 49, (0.2 percent) New York 19,577, , (0.008 percent) Illinois 12,944,410 60, (0.001 percent) New Jersey 8,732,811 40, (0.3 percent) Minnesota 5,290,447 22, (0.1 percent) Annual Meeting October 2012

7 California 37,266, , (0.002 percent) Colorado 5,095,309 19, (0.5 percent) Pennsylvania 12,632,780 47, (0.008 percent) Florida 18,678,049 62, (0.2 percent) Texas 25,213,445 77, (0.3 percent) Virginia 7,592,119 22, (0.4 percent) Arizona 6,676,627 13, (0.5 percent) This session will discuss the top ten reasons attorneys are discipline based on a multi-state survey of bar disciplinary findings. In the 12 jurisdictions surveyed, 1,203 attorneys were disciplined in The presentation will analyze the discipline-worthy act, the ethics rule it violated, the type of punishment that was given by the bar, and how the attorney could have handled the situation differently. Upon examining the bar statistics for the above 12 jurisdictions, the following is the top ten reasons why attorneys were disciplined in descending order. A. #10 Just One More for the Road Attorneys were disciplined for a DUI violation or for some other substance abuse problem. The most common form of discipline imposed was a suspension, but the range of disciplines was from public reprimand to disbarment. The Model Rule of Professional Conduct that was violated in these cases was Rule 8.4 Misconduct: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. B. #9 Chinese Walls Made of Chinese Drywall Attorneys were disciplined for a conflict of interest and/or improper use of client information. The most common form of discipline imposed was a suspension, but the range of disciplines was from public reprimand to disbarment. The Model Rules of Professional Conduct that were violated in these cases were Rule 1.6 Confidentiality Of Information, Rule 1.7 Conflict of Interest: Current Clients, and Rule 1.8 Conflict Of Interest: Specific Rules: Rule 1.6 Confidentiality Of Information Top 10 Ways to Become a Statistic on a Bar Ethics Website Gracey and Leinicke 453

8 A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Rule 1.7 Conflict Of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing Rule 1.8 Conflict Of Interest: Specific Rules (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. C. #8 Ignore That Pesky Discovery Attorneys were disciplined for a violation of rules of court. The most common form of discipline imposed was a suspension, but the range of disciplines was from censure to disbarment. The Model Rule of Professional Conduct that was violated in these cases was Rule 3.4 Fairness to Opposing Party and Counsel: A lawyer shall not: (a) unlawfully obstruct another party s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except Annual Meeting October 2012

9 when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person s interests will not be adversely affected by refraining from giving such information. D. #7 Ignore that Pesky Suspension of Your Law License Attorneys were disciplined for practicing law after their law license was suspended. The most common form of discipline imposed was a suspension, but the number of attorneys disbarred for this offense was very close in number to the number suspended. The range of disciplines was from public reprimand to disbarment. The Model Rule of Professional Conduct that was violated in these cases was Rule 5.5 Unauthorized Practice Of Law; Multi-jurisdictional Practice Of Law: (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so E. #6 Get In Trouble Across the Border (of Another State) Attorneys received reciprocal discipline from other states in which they were licensed to practice when they were disciplined in another state. The most common form of discipline imposed was a suspension, but the range of disciplines was from censure to disbarment. There is no specific Model Rule of Professional Conduct for reciprocal discipline. Each jurisdiction has created its own rule for this. F. #5 Appear in a Mug Shot Attorneys were disciplined for being convicted of a felony. The most common form of discipline imposed was disbarment. The range of disciplines was from probation to disbarment. The Model Rule of Professional Conduct that was violated in these cases was Rule 8.4 Misconduct: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. G. #4 Ignore That Pesky Bar Complaint Attorneys were disciplined for failing to respond to a bar inquiry or investigation. The most common form of discipline imposed was a suspension, but the range of disciplines was from public reprimand to dis- Top 10 Ways to Become a Statistic on a Bar Ethics Website Gracey and Leinicke 455

10 barment. The Model Rule of Professional Conduct that was violated in these cases was Rule 8.1 Bar Admission and Disciplinary Matters: An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. H. #3 Be a Huge Jerk Attorneys were disciplined for acting contrary to obligations as an officer of the court. The most common form of discipline imposed was a suspension, but the range of disciplines imposed was from censure to disbarment. The Model Rules of Professional Conduct that were violated in these cases were Rule 3.3 Candor Toward The Tribunal and Rule 3.4 Fairness to Opposing Party and Counsel: Rule 3.3 Candor Toward The Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Rule 3.4 Fairness to Opposing Party and Counsel See Section II.C. above I. #2 It s Only Borrowing If I Pay It Back, Right? Attorneys were disciplined for misappropriation of client funds. The most common form of discipline imposed was a suspension, but the range of disciplines imposed was from public reprimand to disbarment. The Model Rule of Professional Conduct that was violated in these cases was Rule 1.15 Safekeeping Property: Annual Meeting October 2012

11 (a) A 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. Funds shall be kept in a separate account maintained in the state where the lawyer s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation. (b) A lawyer may deposit the lawyer s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose. (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. J. #1 Fall Asleep at the Switch Attorneys were disciplined for failing to represent their clients and/or keeping their clients informed. The most common form of discipline imposed was a suspension, but the range of disciplines imposed was from censure to disbarment. The Model Rules of Professional Conduct that were violated in these cases were Rule 1.1 Competence and Rule 1.4 Communication: Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.4 Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. Top 10 Ways to Become a Statistic on a Bar Ethics Website Gracey and Leinicke 457

12 (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. IV. Mitigating Factors The severity of the discipline given by the respective disciplinary authority for each jurisdiction was aggravated or mitigated by several factors. First and foremost, you should always comply with a disciplinary investigation and be completely candid with the hearing officer(s). Many attorneys received a more severe discipline simply because they failed to abide by the terms of sanctions previously imposed on them. Still other attorneys received additional sanctions because, in addition to the underlying violation, they simply ignored the Bar s inquiry. Other aggravating factors included lack of restitution to client when misappropriating funds, attempts to conceal facts, and prior disciplinary history. On the other hand, the disciplinary authority gave a less severe discipline for the following reasons: lack of prior disciplinary record, immediate reporting of the problem, admitting misconduct from outset, accepting full responsibility for actions, cooperating during the investigation proceedings, no client was harmed or no funds were due to any client or third party, the attorney took significant meaningful actions to correct the problem and prevent it from happening again, providing full restitution and showing remorse. Finally, the subjective intent of the attorney is often a considerable factor in the eventual outcome of a Bar complaint. While a truly innocent mistake may still result the imposition of discipline, the evidence shows that selfish, vindictive, or overtly fraudulent motives almost always received a harsher punishment from the Bar. V. How to Protect Yourself Although the above shows the top 10 discipline violations, there were many other types of violations that resulted in severe disciplinary action, including disbarment. To you, something may appear to be a minor violation that will not cause anyone harm. But, even minor violations may still result in severe disciplinary action. Therefore, to avoid becoming a statistic on a bar ethics website you should encourage a culture of honesty; think about what you are doing; take care of yourself by getting enough sleep, exercising, eating well and taking time for yourself; getting help for an identified substance abuse problem; and go to a superior if you are concerned about a potential violation by you or a colleague Annual Meeting October 2012