You’re relatively new to law practice. (Congratulations on your graduation and new job in a pandemic, by the way.) You studied the rules and maybe passed the MPRE. But you’re still learning and your on-the-job training has been, well…the partners are really busy.
Long story short, you messed up. In retrospect, that’s clear. Your client complained to the OLR and now you have to answer an inquiry.
Is your newbie-ness and perhaps not-great advice from your supervisor a defense to grievance?
A question I get frequently, often in the initial consultation, is whether the lawyer can offer to settle the matter financially with their client to make everything go away.
This is a “no, not everything” answer.
A year ago, my colleagues and I sat around the conference table, trying to parse what health authorities were saying and what it might mean for law practice generally and our work specifically. We discussed what would happen if people needed to quarantine, and whether we should make sure everyone was set up to receive email remotely, or what might happen in a worst-case scenario, if we had to shut down for a few weeks.
Over the last couple of days, friends have forwarded articles containing interviews with members of the ex-president’s impeachment trial team, asking if they really should be spilling the tea like that?
This is a question I do get generally, so let’s call this a FAQ: Aren’t these things supposed to be confidential? Are lawyers really supposed to talk to media other than to say “no comment”?
By now, just about every lawyer has received multiple forwards of the Lawyer Zoom Cat video. For those of you not so lucky, a Texas lawyer accidentally appeared at Zoom court with a filter activated that turned him into a talking cat.
I remember we got the Character & Fitness talk, the one telling us to get help if we needed help (but disclose the help on the application, please) and otherwise focusing on our missteps and how that could cost us bar admission. The professor giving the talk, a Jesuit priest who taught ethics and evidence, admonished us to sanitize our social media: “Do not post pictures of you doing keg stands, wearing naught but a thong.” It was not professional, he said.
The Wisconsin State Bar Standing Committee on Professional Ethics (of which I am a member) recently approved Formal Opinion EF-21-01, which clarifies when you can threaten someone with criminal prosecution to gain advantage in a civil manner.
I remember at the end of the George W. Bush administration, some comedians said that the Obama administration would put them out of business, what with Obama’s lack of propensity for scandal or gaffes. While of course that didn’t happen (the comedy world survived Obama’s tan suits and fancy mustard just fine), I’ve been asked (once) whether I am worried I won’t have blog fodder after all of the ridiculous election and Trump-related litigation is over.
This is the non-lawyer version of a question I get a lot from lawyer clients—”how long is this disciplinary proceeding going to take?”
Unfortunately for lawyers facing discipline and curious lay folks alike, there’s no real answer. I know people get tired of hearing this from lawyers, but really, “it depends.” Every disciplinary authority has its own internal case processing goals, but it is often difficult to determine whether a particular case will fall within the guidelines.
Breaking up is hard to do. (After all, it’s cuffing season.) This axiom is as true in a professional setting as it is in a personal one. How to ditch your quarantine bae before they’re vaccinated is beyond the scope of a legal ethics blog (as is whether I should ever use the term “quarantine bae” ever again). But firing a client and withdrawing from representation is sometimes absolutely necessary, regardless of what the calendar says. Perhaps they won’t return your calls, or are refusing to pay your bill, or you can’t see eye to eye about the objectives of representation. Some clients and cases are just albatrosses that you can’t and shouldn’t see through.
This happens frequently when lawyers are in the news—social media lights up with calls to disbar them for doing whatever the posters believe was out of line. Now, as someone with an increasingly public practice, I wait with bated breath to see if and when the virtual torches and pitchforks come for my license. I’d like to say I’d see it as a badge of honor, but probably in action I would not be as amused.
This post is not about whether any lawyer currently in the news deserves discipline, but about the process.
All eyes are on the Middle District of Pennsylvania, which is set to hear arguments in one of the Trump Campaign’s voting lawsuits today. Enter Rudy Giuliani, who has applied for pro hac vice admission despite his last federal court appearance being before some lawyers were born.
However, it looks like Rudy may have some problems right out of the gate, in addition to all of his other problems.
That’s right, if you can believe it, Ethicking.com launched one year ago, on October 24, 2019.
…so, what a year, huh?
Like anyone who set out to do anything a year ago, this did not go as I’d planned. Sure, I did manage to keep up with the blog generally, updating every couple of weeks or so (and sometimes more often, though not quite at the weekly frequency I’d hoped). I thought I’d be writing about ABA opinions, nerd friends, and best practices, and I did that. And, sadly, I knew at this time last year, barring some very rapid advancement in medical science (or, as he called it, “a meteor crashing to Earth with the cure”) I would be posting a eulogy for my dear friend and mentor at some point.
Can I be disciplined professionally for off-duty conduct?
The answer is, of course (say it with me) it depends.
Anyhow, today he discovered something familiar to most lawyers—the joys of recreating his week, after the fact. Truth is, he couldn’t remember exactly what he did when, so he made some educated guesses.
We’ll call that good enough for this purpose, but is it good enough for lawyers?
Almost a year ago (wow), I wrote a bit about the State Bar Car Crash Symposium Heckler, who spent some quality time during my presentation lecturing us about the fact that sometimes plaintiff’s counsel and defense counsel are friendly with one another. (He also cornered me after my presentation, which dealt broadly with dealing with emotional situations, and complained that I didn’t consult with religious authorities about breaking bad news to a client. Oh well.)
And it does happen—sometimes I do see my existing friends on the other side of the caption, and sometimes I become friends with people on the other side after the litigation is over.
Every now and again, I’ll be blogging some answers to questions I get frequently. (I’ll be sorting these under the category, “FAQ,” and will leave the debate as to whether that should be pronounced “fack” or “eff-A-cue” to a later date.)
One question I get frequently enough that I have the State Bar Ethics Committee opinion number* memorized, so we’ll tackle it first: “My former client has a big outstanding balance and now wants a copy of their file. Can I hold their file until they pay up?”
!["Why isn't [Lawyer Villain In the Media] Disbarred Already?"](https://images.squarespace-cdn.com/content/v1/5d93821f16ea12193a39cbf7/1610230956148-Y2U3R0JGBTT4JUUO5FKS/image-asset.jpeg)
