This is the second of a two-part annotated table of contents of columns published during the second five years of Ethics Curbstone’s ten-year run. Together with last month’s column and A Five Year Retrospective, Vol. 54, No. 1 Res Gestae 15 (July-August 2010), this is a comprehensive review of all Ethics Curbstone columns to date.
Usher Considered: Identity Theft and Unwelcome Advances (June 2013)
This column was an attempt to take a more interesting look at Matter of Usher, 987 N.E.2d 1080 (Ind. 2013). The case was mostly a no-brainer as far as the outrageousness of the misconduct. There is no good purpose in discussing cases that have little more than gossip value. See, e.g., Matter of Keaton, 29 N.E.2d 103 (Ind. 2015). Usher was that, for sure, but it also had some interesting tidbits tucked into it; such as the Court’s curious rationale for not finding a violation of Rule of Professional Conduct 1.8(g) and its declination to find that the respondent engaged in the criminal act of identity theft, which would be a violation of Rule of Professional Conduct 8.4(b). I didn’t understand the Court’s reasoning for the former conclusion, and I was disappointed that the Court did not give a reason for the latter conclusion.
Should Lawyers Be Responsible for Protecting Public Policy? (July-August 2013)
This was a little thought piece inspired by Perkinson v. Perkinson, 989 N.E.2d 758 (Ind. 2013). It was an effort to explore the difficult line between the role of lawyers as zealous client advocates and lawyers as having some responsibility for promoting public policy that might be at odds with their clients’ interests. I hope lawyers take the time to ruminate about the moral (as opposed to legal ethics) implications of our work.
Through a PRISM or the Looking Glass? Client Confidentiality in the Post-Snowden Era (September 2013)
This was intended to scare lawyers about the threats to client confidentiality that are presented by new technologies. Nothing wrong with a little healthy paranoia. The days when lawyers could act like understanding technology was not part of the package of important professional responsibilities are long gone. For the Luddites amongst us, putting our heads in the sand is not an option. Learn it or hire someone skilled in current technology, like your grandchild.
Lawyers and Judicial Criticism Revisited (October 2013)
Matter of Dixon, 994 N.E.2d 1129 (Ind. 2013), is essential reading in helping lawyers navigate the treacherous shoals that lie between appropriate judicial criticism in service of client advocacy and criticism that runs afoul of Rule of Professional Conduct 8.2(a). Among its contributions is the opinion’s summary of important past cases. The opinion also acknowledged that there can be constitutional issues presented when lawyers use speech to criticize judges, but it did not reach and did not need to reach the constitutional questions.
I Swear or Affirm: Lawyers and Notaries Public (November 2013)
Lawyers sometimes think of notarization of documents as a mere formality and no big deal. Au contraire, friends. There are statutory requirements for the notarization of documents that notaries must observe. When lawyers are also notaries, they must abide by those requirements. When they use notaries, as they often do, they must not try to influence them to cut corners. This column was a small effort to give notaries who work for lawyers permission to push back hard when they are pressured to do what the law says they shouldn’t. Shame on the lawyers who put their subordinates into a pickle like that.
No December 2013 column. Gone fishin’, caught daydreaming, forgot to set my alarm, dog ate my homework.
Rule 1.8 Conflicts of Interest and Client Consents to Conflicts (January-February 2014)
This was the penultimate column in a series of columns devoted to conflicts of interest. Rule of Professional Conduct 1.8 is a hodge-podge of specific applications of the principles of current-client conflicts of interest found in Rule of Professional Conduct 1.7. Lawyers who have a conflict-of-interest concern who stop with Rule 1.7 might well find themselves in trouble.
Thoughts on Law Firm Management and Supervision (March 2014)
Rules of Professional Conduct 5.1 and 5.3 are often overlooked, but they are important. They govern the circumstances when lawyers can be held accountable, not for directly doing anything wrong, but for failing to keep bad stuff from happening when they manage law firms or supervise other lawyers. This column takes those rules apart and explains them.
Managerial and Supervisory Responsibility for Avoiding Conflicts of Interest (April 2014)
One important managerial and supervisory responsibility lawyers have is to take care that conflicts of interest are identified and dealt with before they sneak up from behind and bite you in the rear quarters. The devil is not normally in the existence of a direct conflict of interest; it is in the imputation of conflicts of interest within a law firm. Taking off from the foundation laid by the previous month’s column, this column applies those principles to the detection and avoidance of conflicts of interest.
The Not-So-Confidential Conditional Agreement for Discipline (May 2014)
A lot of mystery enshrouds the lawyer discipline process—sometimes by design; sometimes not. This column discussed two recent, troubling lawyer discipline cases that seemed to shine a published-opinion light on matters that Admission and Discipline Rule 23 indicates should be confidential. This column used these two cases as a launching pad to discuss the resolution of lawyer discipline cases through a mechanism known as a conditional agreement for discipline. Rule 23 has some important confidentiality provisions that are designed to create incentives for (or at least, not disincentivize) lawyers who want to try to resolve discipline cases by agreement. When, as in these cases, a corner is lifted on information that should be confidential, that important structure of incentives is threatened.
Law Tiger, Hidden Dragon: New Uncertainties with Lawyer Advertising (June 2014)
Cover story. Whoo-hoo! And a pretty neat cover to boot. The Supreme Court’s decision in a lawyer discipline case, Matter of Anonymous, 6 N.E.3d 903 (Ind. 2015), was the grist for this column on lawyer advertising. It suggested that lawyer advertising as regulated in Indiana was not for the faint of heart and bemoaned a missed opportunity for the Supreme Court to use the case as an occasion to discuss the important distinction between collective advertising (okay) and for-profit lawyer referral services (not okay).
Breaking Up Is Hard to Do: Lawyers and Competition (July-August 2014)
A hat tip to Neil Sedaka for the title. Lawyers have become like married people. They don’t stay together as long as they used to. When married people divorce, the former spouses are pretty much free to go about their business. Not so lawyers. We are generally prohibited from keeping former law firm colleagues from competing after they leave. Rule of Professional Conduct 5.6(a). This column discussed the application of that rule in a lawyer discipline case. Matter of Truman, 7 N.E.3d 260 (Ind. 2014).
Odds and Ends: Some Recent Cases of Interest, September 2014
Ethics Curbstone usually opts more for depth than breadth—meaning columns don’t usually consist of blurbs on lots of cases and instead focus on a particular case, issue or theme. That said, sometimes the cases roll out faster than can be done justice in a ten-times-a-year column. This was a catch-up column on several cases that should be of interest to lawyers who aren’t legal ethics wonks. The case I would like to have written about in more detail was Drake v. Dickey, 2 N.E.3d 30 (Ind. Ct. App. 2013), opinion on transfer, 12 N.E.3d 875 (Ind. 2014) (vacating footnote on an appellate procedure question in Court of Appeals opinion and otherwise summarily affirming). It is deserving of more in-depth treatment for its potential implications for what we might have assumed was the general inviolability of attorney-client communications. The legal issue in the case was whether discussions between a client and lawyer can form the basis for a claim against the law firm of tortious interference with a contractual relationship.
Pro Bono and Pro Bono Reporting (October 2014)
The Supreme Court created a new rule, Rule of Professional Conduct 6.7, effective January 1, 2015 that mandates the reporting of some, but not all, pro bono work on lawyer annual registration statements. This column discussed the rule the important new distinction between pro bono legal work that falls within Rule 6.1 and the subset of reportable pro bono legal work governed by Rule 6.7. It also critiqued the new rule, which had engendered a fair amount of teeth-gnashing within the bar.
Can the Attorney-Client Privilege and the Work Product Doctrine Be Defeated by Equitable Considerations? (November 2014)
This was the first of two columns inspired by Purdue University v. Wartell, 5 N.E.3d 797 (Ind. Ct. App. 2014). It was mostly a discussion of the case, but it was also a critique of the concept advanced by the Court of Appeals in dicta that a party could be equitably estopped from asserting the attorney-client privilege or work-product protection.
When Lawyers Investigate (December 2014)
This was the second of two columns inspired by Purdue University v. Wartell, 5 N.E.3d 797 (Ind. Ct. App. 2014), an important opinion discussing privilege issues that can arise when lawyers take on the role of investigators. Rather than discussing the case, it mused about the lessons to be drawn from it and what lawyers should do to protect privilege if they are acting as investigators incident to an attorney-client relationship.
Lawyer Discipline in 2014: An Annotated Report from the Front Lines (January-February 2015)
Most lawyers are interested in what the Supreme Court has to say in lawyer discipline cases. The bar probably doesn’t care that much about the statistics related to lawyer discipline. This column was an effort to present lawyer discipline statistics from 2015 with annotations giving a fairly detailed description of how lawyer discipline procedure that lies behind those statistics works. It is a pretty thorough resource for understanding some of the inner workings of the lawyer discipline process.
Wandering Through the Back Alleyways of Rule 8.4(d): What Is Conduct Prejudicial to the Administration of Justice (March 2015)
Rule of Professional Conduct 8.4(d) says it is professional misconduct to engage in conduct prejudicial to the administration of justice. This column looked at and analyzed five-year’s worth of cases that included a Rule 8.4(d) violation and made some observations that will be shown to be right or wrong depending on what the next Rule 8.4(d) case that comes down the line says.
Monroe Freedman (1928-2015): The Passing of Legal Ethics Giant (April 2015)
They probably won’t make any more Monroe Freedmans. His footprint in the area of law practice I care about was immeasurably large. He was brilliant, provocative and often maddening. Life is never dull with the Monroe Freedman’s of the world in our midst. We should treasure them.
Splitting the Baby Revisited: Lawyer Fee Fights (May 2015)
This column revisited the topic of dividing fees when lawyers split up, also discussed in the December 2006 column. Cohen & Malad v. Daly, 17 N.E.2d 940 (Ind. Ct. App. 2014), provided an opportunity to discuss it again and also to suggest that there remains a gap in Indiana jurisprudence about what equitable fee rights a lawyer in a contingency fee representation should have when the lawyer withdraws from the representation without good cause or when the client fires the lawyer for good cause. The column highlighted a Minnesota case that did a fine job of summarizing the case law in this area and concluded that the lawyer who abandons a client in a contingent fee matter without good cause has no equitable right to compensation. In Re Petition for Distribution of Attorney’s Fees between Stowman Law firm, P.A. and Lori Peterson Law Firm, 855 N.W.2d 760 (Minn. Ct. App. 2014).
Rule of Professional Conduct 6.7, Version 1.1 (June 2015)
The October 2014 column discussed and critiqued the new Rule of Professional Conduct on mandatory pro bono reporting. Thereafter, the Supreme Court made signficant tweaks to the rule and amended it effective April 30, 2015. This column explains those changes and how the amended reporting rule works.
Lawyer Advertising and Client File Rights (July-August 2015)
This column publicized an important new national report on lawyer advertising by the Association of Professional Responsibility, of which I am a proud member. I was pleased to read that the report devoted a small section to a survey of lawyer advertising enforcement and some ideas about regulating it that I wrote when I was still on the regulator’s side. Lundberg, Some Thoughts About Regulating Lawyer Advertising, 34 ABA Nat’l Conference on Prof’l Responsibility (May 28-31, 2008).
See you next month.