Ethics Curbstone first rolled out in the July-August 2005 issue of Res Gestae. It’s been ten years. Thanks for reading.
An Introductory Note
I continue to hear from readers. It is remains gratifying to know that they often agree with me, but I still love hearing from readers who disagree and tell me why. I hope the column has been helpful while remaining true to its modest, original purpose: “It’s in the nature of a curbstone opinion—you get what you pay for.”
Continuing the first five-year retrospective that ran in the July-August 2010 issue of Res Gestae, herewith is a retrospective of the second five years in the form of an annotated table of contents of those columns. Because of its length, it is being published in two issues—this month and next. An archive of past Res Gestae issues back through 2013 is available on the ISBA website: www.inbar.org under the “Media” tab.
I am delighted to introduce my new co-author. Caitlin Schroeder is a Litigation Department Associate in Barnes & Thornburg’s Indianapolis office. She graduated summa cum laude from the IU Maurer School of Law in 2011. Before joining our firm, she was a law clerk for the Honorable William T. Lawrence of the U.S. District Court for the Southern District of Indiana. I am excited about partnering with her in this enterprise. After this retrospective column, which is replete with it, we will try to abjure use of the first person pronoun “I.” For Caitlin’s benefit, who, unlike me, has far more years of practice through her windshield than in her rear-view mirror, the excessive candor and downright stupidity you might occasionally read in this column should be attributed to me, not her.
Finally, I want to thank Susan Ferrer, the editor of Res Gestae throughout the entire tenure of this column. She is the editor di tutti editors. She is light-footed grace under deadline pressure. She is diplomatically eagle-eyed. She is the mother who instructs you to wear galoshes to school by sweetly asking if you really want to get your nice shoes soaked. You don’t even know what hit you.
A Second Five-Year Retrospective
Mental State Under the Rules of Professional Conduct (September 2010)
This column discussed two lawyer discipline cases applying Rules of Professional Conduct requiring knowledge as a mental state. It includes some observations based on a law review article by Prof. Nancy Moore on the general topic of what proof of mental state is required in lawyer discipline cases. Don’t stick your head in the sand hoping to avoid the effect of inconvenient, adverse facts.
Listen, Do You Want to Know a Secret? Keeping Client Confidences (October 2010)
This column uses a key case to discuss how client information learned from an acquaintance who later becomes a firm client must be treated as confidential under Rule of Professional Conduct 1.6(a) even if some of the information could be found in the public record. Matter of Anonymous, 932 N.E.2d 671 (Ind. 2010). The ethical duty of confidentiality is distinct from, albeit related to, the attorney-client evidentiary privilege. It can be shocking how broad the duty of confidentiality is.
The Amended Lawyer Advertising Rules (November 2010)
Now controlling for almost five years, the lawyer advertising rules are still worth a close read, as is this article that highlights Indiana’s continuing conservative stance on lawyer advertising.
What’s in a Name? The New Restriction on Firm-Like Names (December 2010)
Following on my previous column, this column analyzes an amendment to the Rules of Professional Conduct regarding law firm names. Lawyers who are not formally associated with each other in a limited liability entity or general law partnership (such as space sharers) should cease using names like, “Smith & Jones, an association, not a partnership.”
Foreign Lawyer Practice Before Executive Branch Agencies: Recent Developments, (January-February 2011)
Foreign counsel seeking admission to practice before administrative agencies must apply for temporary admission to the Indiana Supreme Court under Admission and Discipline Rule 3(2) or risk the unauthorized practice of law.
Fun with Refundability: When Lawyers Owe Their Clients Money (March 2011)
This was an overview of three general fee types and their refundability. Be careful how you describe the refundability of a fee in your fee agreement. There are risks with not saying enough or saying too little.
Choosing Clients Wisely: A Key to Fulfillment in the Practice of Law (April 2011)
Representations that involve client-lawyer compatibility, challenging subject matters, and fair compensation – or at least two of the three – are most likely to yield fulfilling work. This column describes eight factors to consider when deciding whether to accept a proposed representation.
The Zone of Personal Privacy for Judges and Lawyers (May 2011)
It may surprise some, but judges and lawyers are human beings who have their own personal interests and views. This column explores to what extent those personal interests and views could rise to the level of a conflict of interest, and to what extent we anticipate that those interests and views are left at the courtroom door when deciding or handling a case.
Conflicts of Interest: An Overview (June 2011)
The first in an occasional series delving into conflicts of interest, this article provides a high-level overview of current and former client conflicts and informed consent relating to those conflicts.
Lawyers and Wellness (July-August 2011)
This article heralded the creation of the ISBA Standing Committee on Wellness. The message today is at least as important as it was four years ago: you must take good care of yourself to be able to take good care of your clients.
DSK and the Ethics of Criminal Prosecution (September 2011)
The criminal prosecutor’s role as representative of a sovereign whose interest is in doing justice—not simply winning—carries with it unique challenges, which this column explores.
Fees and Feasibility: Getting Paid (October 2011)
Two attorney discipline cases regarding fees yielded two important rules. First, under Rule of Professional Conduct 1.8(a), attorneys must take steps to protect their clients’ interests when they renegotiate fees if there is even a chance that the amended fee agreement will disadvantage the client. Second, a contingency fee that appears reasonable at the outset may become unreasonable in light of developments in the representation; in that case, the fee agreement may need to be reformed. Check out the article and the full opinions for the details.
Insurance Coverage for Disciplinary Defense (November 2011)
If you find yourself the subject of a disciplinary grievance, take a deep breath, calendar the response deadline, consider hiring an attorney, and consult your malpractice insurance policy, which can provide significant benefits to ease this stressful time.
Mandatory Reporting of Child Abuse by Lawyers (December 2011)
If Rule of Professional Conduct 1.6(b) permits the disclosure of otherwise confidential information relating to suspected child abuse, Indiana’s child abuse reporting statute might require lawyers to report it under some circumstances. The Indiana State Bar Association Legal Ethics Committee just issued Opinion No. 2 of 2015 on this very topic. It was published in the July-August 2015 edition of Res Gestae.
Chief Justice Randall T. Shepard: An Appreciation, Reminiscence and Retrospective (January-February 2012)
Honoring the Chief Justice on the verge of his retirement from the Indiana Supreme Court, this column reviews the history of lawyer discipline cases during his tenure with a focus on the dissent patterns in those cases.
Ready, Aim, Disclose: Understanding the Power of the Email “Send” Button in Your Law Practice (March 2012)
Together with guest co-columnist Jeff Goens, executive director of the International Legal Technical Standards Organization (ILTSO), this column investigates how an email travels from client to lawyer and back and the ethical implications of safeguarding those communications. It was timely in 2012, and with news of many significant data breaches since then, it remains an important issue.
Current Client Conflicts of Interest (April 2012)
Returning to an occasional series on conflicts of interest, this column offers an overview of current client conflicts in hopes of tuning your conflicts-of-interest radar.
The Disappearing First Free Bite at the DUI Apple (May 2012)
Professional lore was that non-prosecutor attorneys would not be professionally disciplined as the result of a single, non-aggravated, alcohol-related criminal conviction. That may still be true, but the case discussed in this column raises a question about that.
I’ve Looked at Life from Both Sides Now: The Meaning of Agreed Discipline Orders (June 2012)
This column described the process behind agreed discipline orders and put forward some ideas about how the Supreme Court should carefully scrutinize conditional agreements for discipline and be reluctant to give precedential value to the orders of discipline that emerge from them.
Former Client Conflicts of Interest (July-August 2012)
As part of the occasional series on conflicts of interest, this column gives a general overview of former client conflicts of interest, how to analyze them, and how to avoid finding yourself in the midst of one.
Cooperation With and Contempt of Lawyer Regulation (September 2012)
Indiana has especially powerful tools for compelling lawyer cooperation with the professional discipline process. The costs of failing to respond to a grievance can be significant, including indefinite suspension from the practice of law. Make sure your address on the Roll of Attorneys is up to date, and make sure you timely respond if the Disciplinary Commission comes calling.
We Really Are All in This Together: Imputation of Conflicts of Interest (October 2012)
Returning again to conflicts of interest, this column analyzes imputation of conflicts of interest and its exceptions, including ethical screens. It bears repeating: diligently maintain your conflicts checking system.
Lawyers Are People Too: A Story (November 2012)
At a recent event, the Honorable Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana encouraged attorneys to tell more stories as a starting point for personal reflection about personal and professional roles. I shared one of mine and challenged you to share yours. Have you?
When the Walls Come Tumblin’ Down: Multijurisdictional Practice (December 2012)
Thanks to Indiana’s own John Mellencamp for inspiring the title. This column addresses the ins and outs of the unauthorized practice of law, with special emphasis on foreign-licensed in-house counsel who are eligible to be licensed as business counsel (Admission and Discipline Rule 6(2)) and foreign-licensed lawyers providing legal services on a temporary basis in Indiana. See Admission and Discipline Rule 6(2) and Rule of Professional Conduct 5.5, respectively.
I’m Sorry, So Sorry: The Element of Remorse in Professional Regulation (January-February 2013)
I hope my allusion to the Brenda Lee classic did not pass you by. Remorse or perceptions or misperceptions thereof play an important role in lawyer discipline and reinstatement and bar admissions. I had the opportunity to think a bit more deeply on this intriguing topic thanks to having been a panelist on a related topic at the 2013 ABA National Professional Responsibility Conference. This column might be a good place to start if you find yourself in a legal representation where client remorse is a relevant consideration.
Moral Dissonance in the Practice of Law (March 2013)
This qualifies as one of my personal favorites. It’s one of those thought pieces that mulls over the fundamental role of lawyers in the legal system. Are we moral eunuchs? Where does our role as non-judgmental and amoral client agents end and our role as independent moral actors begin? Nobody will read this column and get any concrete suggestions about staying out of trouble as a lawyer. However, if I stop caring about some of the basic questions that underlie my profession and my condition as human being with a sense of right and wrong, I might as well still be building silos on farms.
We’re (Not) All In This Together: Aggregate Settlements (April 2013)
Aggregate settlements can be tricky and it is a mistake for lawyers to forget that Rule of Professional Conduct 1.8(g) regulates them. This column used Matter of Ross, 982 N.E.2d 295 (Ind. 2013), as the occasion to discuss aggregate settlements. The Ross case was a straightforward and fairly benign application of these principles. Some of you may recall the Kentucky Fen-phen aggregate settlements where lawyers were disbarred, criminally convicted and sentenced to do many years of hard time in federal prison. This is serious business.
Oh Canada: The Limited Duty to Refund Fixed Fees (May 2013)
Matter of Canada, 986 N.E.2d 254 (Ind. 2013), was an interesting case because it was a rare example of a lawyer not completing all of the work in a fixed fee representation, but not being subjected to discipline for failing to refund some portion of the fee. This is a perfect opportunity to mention that the Indiana State Bar Association Legal Ethics Committee will soon be issuing a legal ethics opinion discussing the related topic of when fixed fees or some portion of fixed fees must be held in trust until earned. We plan to write about that opinion once it is released.
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