Ethics Curbstone first rolled out in the July/August 2005 issue of Res Gestae. I occasionally hear from readers. It is gratifying to know that they often agree with me, but I always learn more when readers tell me they disagree and 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.”
Other than deadlines, the thing I’ve struggled with most is probably the silliest. Our profession increasingly reflects the diversity of our society. Good for us. So far as I can tell the only downside of diversity is the dreaded choice between masculine and feminine pronouns. I’m too much of a purist to use the dodge of “they” or “them” when context calls for a singular pronoun. My solutions have been tentative and awkward. Then someone suggested a great one: in every other column, all actors will be female. In the others they will be male.
I occasionally hear from an ISBA member who remembers a column topic and wants to know how to get her (this is a feminine column) hands on a back issue. Did you know they are available (for free!) to ISBA members through Casemaker on the ISBA website: www.inbar.org? I thought it might be fun to run an annotated table of contents where I reflect a bit further on some of the column topics and provide a listing of five years worth of columns.
Thanks for reading and without further ado…
Trust Accounts and More, July/August 2005
This short column on trust account management is a second-class resource. For the good stuff, go right to the source—the trust account guide on the Disciplinary Commission’s website: http://www.in.gov/judiciary/discipline/docs/trust-guide.pdf. Plus, on April 13, the Commission partnered with ICLEF to present a three-hour seminar on managing trust accounts. The steady flow of overdraft reports the Commission receives suggests that a goodly number of lawyers could use some remediation. Keep an eye out for future seminars.
What Do You Do When You Receive a Grievance? (September 2005)
Ten good bullet points for responding to a grievance. I’d write the same list now that I’m on the other side of the street.
An Advertising Primer: Part 1 (October 2005)
An Advertising Primer: Part 2 (November 2005)
Carefully analyze your advertising (and yes, your website) in light of the Rules of Professional Conduct. Don’t leave your law license in the hands of an ad salesperson.
Finder’s Fee or Kickback? You Decide (December 2005)
The ethical perils that arise when lawyers make money when their clients sell structured settlement annuities.
Trust Account Debit Cards and a Footnote on Client Confidentiality (January/February 2006)
As courts have gone to and will increasingly go to electronic filing, the trust account niceties of paying filing fees electronically are discussed here.
Disciplinary Commission Rolls Out New Website (March 2006)
Pure fluff shamelessly promoting the Disciplinary Commission’s new website. It does contain a lot of useful information.
Turning Due Process on Its Head: Ethical Limitations on Ex Parte Practice (April 2006)
Indiana has had a lot of lawyer and judicial disciplinary action relating to improper ex parte practice. Why do we need constant reminders that the adversary system assumes that there will be an adversary present?
Lawyers and Judicial Criticism (May 2006)
This was a bit of polemic about criticism of judges. Indiana is, rightfully I think, fairly conservative when it comes to tolerating judicial criticism. To make life complicated, lawyers are in a special position to know when judges are not serving the public and have a duty to do something about it.
Migratory Lawyers and Other Exotic Species (June 2006)
Lateral movement of lawyers and the complicated ethical issues that accompany them, including the appropriate and inappropriate uses of screening. This topic is more timely today as lateral hires seem to be increasing.
Message in a Bottle: Lawyers and Alcohol (July/August 2006)
An impassioned pitch for the great folks at the Indiana Judges and Lawyers Assistance Program. They are there to help. They can help if you have a problem with alcohol, drugs or mental health issues or if you know someone else who does. Check them out at: http://www.in.gov/judiciary/ijlap or call them toll free at (866) 428-5527.
It Takes Two to Tango: Autonomy and Interdependence in Lawyer-Client Decision-Making (September 2006)
A fairly theoretical exploration of the question of client versus lawyer control in legal representations.
Taking the Vice Out of Pro Hac Vice: Temporary Admission and Local Counsel (October 2006)
If you sponsor out-of-state counsel for temporary Indiana admission, read this column. It will save your foreign colleague some heartache. Plus, here’s a tip: as local counsel, you do your out-of-state counsel a big favor to remind them to either pay their registration fee each year between January 1 and January 30 or let the Supreme Court Clerk know that the case has terminated.
No November 2006 article
I forgot to set my alarm and overslept. Susan Ferrer, my editor extraordinaire, published without me.
Splitting the Baby: Dividing Fees Between Successive Contingent Fee Lawyers (December 2006)
The title says it all. Fight if you must, but try to keep the client out of it.
Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data (January/February 2007)
I’m re-thinking my position on this one—that it’s generally unethical to mine opposing counsel’s communications for metadata. There are now 14 ethics opinions on the topic out there. They all agree that the sending lawyer has a duty to scrub documents for metadata that might reveal client confidences. They are all over the map on whether it is improper to go looking for metadata in digital communications from opposing counsel. I find it to be personally offensive. However, this is one of those fascinating topics where legal ethics is trailing technology. With the risks presented by metadata more widely known, there will be increasingly little sympathy for the lawyer who lets client confidences out of the bag through metadata and decreasing condemnation of lawyers who look for it.
Top Ten 2006 Professional Responsibility Stories (March 2007)
This was the first of my annual top ten columns. They are fun to write if not particularly enlightening to the reader.
Lawyer Bashing: The Curious Case of Cully Stimson (April 2007)
This was apropos of nothing in particular other than it made me angry that a Department of Defense lawyer would urge a corporate boycott against law firms whose lawyers provided pro bono representation to Guantanamo detainees. It gave me a platform to riff on the interesting question of whether lawyers are rightly criticized for their choice of clients. I think the answer to that question is hard, but interesting.
Ten Ways to Stay Out of Trouble (May 2007)
Ten fairly simple ideas about staying out of trouble with your clients and the Disciplinary Commission.
Ministering Justice: The Prosecutor’s Special Role (June 2007)
Michael Nifong’s misguided prosecution of members of the Duke lacrosse team was a springboard for talking about how prosecutors are special lawyers with special ethical responsibilities.
Making the World Safe for Medical Malpractice Cases (July/August 2007)
This was an olive branch to the Indiana Trial Lawyers Association after they succeeded in changing the law in a lawyer discipline case involving a claim of excessive fees in a medical malpractice case.
File, File, Who’s Got the File? Client Rights to Return of Property (September 2007)
A first cut at a very difficult question—difficult because there is precious little law in Indiana to guide lawyers; difficult because the law from other jurisdictions is all over the place.
The Graying of the Legal Profession (October 2007)
Musings about the fact that many of us (well, all of us, actually) are getting older. It mentioned the services of JLAP and highlighted the new Indiana rule, Admission and Discipline Rule 23(27), creating an attorney surrogate program for lawyers who die, disappear or become disabled without having made adequate provisions for protecting their clients.
Sale of Living Trusts and the Role of Lawyers (November 2007)
Anticipates the outcome of State ex rel. Indiana State Bar Association v. United Financial Systems, 926 N.E.2d 8 (Ind. 2010) (enjoining the unauthorized practice of law and ordering disgorgement of fees).
Zealotry v. Zeal: Thoughts About Lawyer Civility (December 2007)
A feel-good piece about being good lawyers for our clients and still getting along with each other. We can usually be better lawyers for our clients by getting along.
Neither Fish Nor Fowl: The Prospective Client (January/February 2008)
Rule of Professional Conduct 1.18, a fairly new arrival on the scene, tries to steer clear passage between the Scylla of total stranger status and the Charybdis of complete client status. Not always an easy chore. Just ask Odysseus.
Top Ten 2007 Professional Responsibility Stories (March 2008)
Two of my choices for top story highlighted the increasing sanctions-driven attention to discovery disputes, especially involving electronically stored information. There was much more to come and I revisited the topic in March 2010.
Economic Entanglements Between Lawyers and Clients (April 2008)
A mini-hornbook on Rule of Professional Conduct 1.8(a) involving business and other adverse economic transactions between lawyers and clients.
My Brother’s Keeper: The New Attorney Surrogate Rule (May 2008)
This column revisited the attorney surrogate rule, Admission and Discipline Rule 23(27), that I first wrote about in October of 2007. A committee of your ISBA has just issued a handbook to assist lawyers who find themselves in the position of cleaning up a disabled, deceased or missing lawyer’s law practice. Look for it soon on the ISBA website.
Unbundled Legal Services or Limited Scope Representation (June 2008)
Almost all representations are limited in scope in some way. But when those limitations get to the point where a lawyer guides a client part way through a legal process, but leaves the client to handle some aspects of the matter by herself, interesting ethical questions arise.
How Unappealing: Ethics Issues In Appointed Appellate Representation (July/August 2008)
Inspired by a spate of complaints at the Disciplinary Commission that seemed to reveal a troubling pattern of appointed counsel failing to pay attention to the basic elements of prosecuting their clients’ appeals.
Trust Accounts in a Time of Bank Failures (September 2008)
Recent bank failures prompted this column on insurance coverage of trust accounts and concerns about funds in trust in excess of deposit insurance limits. There have been some important developments since this column ran. Federal regulations designed to strengthen confidence and liquidity in the banking system provided for deposit insurance coverage with no dollar limit. This was a temporary measure that is due to expire on December 31, 2010, but might be renewed for an additional year. This unlimited coverage is optional and banks must pay an extra premium for it. So if you keep a large balance in your trust account, you might want to check to see if your bank has opted out. Coverage for banks that opt out is capped at $250,000. The $250,000 limit is itself temporary and is scheduled to roll back to the traditional $100,000 after December 31, 2013.
Divided Duty: Reporting Misconduct (Part I) (October 2008)
Divided Duty: Reporting Misconduct (Part II) (November 2008)
A two-part series exploring the Rule 8.3 duty to report misconduct of other lawyers. It also addressed some of games lawyers try to play by using threats of reporting as leverage to secure concessions from opposing parties.
Warning! Scam Artists At Work (December 2008)
This column, with its tabloidesque title, was ripped from the headlines. My friends, when your e-mail inbox lights up with a message purportedly from a foreign company wanting you to collect money, after which the money to be collected promptly appears in the form of a certified check and the promise of a fee that is too good to be true—it is too good to be true. It is fraud. Even today, lawyers keep getting stung by this scam to the tune of hundreds of thousand dollars.
Top Ten 2008 Professional Responsibility Stories (January/February 2009)
The usual array of lawyerly and judicial hijinks on display.
Dancin’ With Them What Brung Ya: Electing Appellate Judges (March 2009)
This was my defense of the Indiana method for selecting our appellate judges and a mini-amicus brief in support of the petitioners in Caperton v. A.T. Massey Coal Co. The Supreme Court decided the case at the end of the 2008 term, holding that it just doesn’t smell right (that’s technical terminology for violates due process) when a state supreme court justice stays on a case after taken huge donations of campaign funds from the CEO of one of the parties in an important case before the court. 129 S.Ct. 2252 (2009).
What’s In Your Trust Account? When Clients Pay By Credit Card (April 2009)
A discussion of the vexing problem of properly handling trust funds that clients pay using credit cards. There is a solution.
Sex and Intimacy: Emotional Entanglements With Clients (May 2009)
Just say no to sex with clients.
Will You Take Fries For That? Bartering for Legal Services (June 2009)
The very process of writing this column caused my thinking to evolve. Bartering for legal services raises serious ethics issues.
Of Marc Dreier and Roscoe Pound: A Rant on Professionalism (July/August 2009)
I was fed up. Bernie Madoff? Well, at least he wasn’t a lawyer. But when I read about Marc Dreier and saw the lifestyle he led with his ill-gotten gains, I knew I was up for a good old fashioned rant. Plus, it made me feel better.
A Firm By Any Other Name Is Just As Conflicted: Quasi-Law Firms and Imputed Conflicts of Interest (September 2009)
A recent Indiana Supreme Court lawyer discipline case was the occasion to caution lawyers that when they join together in close, but informal, associations, difficult confidentiality and conflict of interest issues arise.
A Preview of Upcoming U.S. Supreme Court Cases About Lawyers (October 2009)
A review of cases set for oral argument during the 2009 term that deal specifically with lawyers and the law of lawyering.
Recent Rule Changes of Special Interest to Lawyers (November 2009)
A summary of rule changes effective January 1, 2010 to rules dealing with IOLTA, provisional and business counsel law licenses, confidentiality of Board of Law Examiner’s records, lawyer discipline procedures and limited liability law firms.
Refunding Fees to Clients (December 2009)
A discussion of nonrefundable legal fees, retainers, holding fees in trust and refunding unearned fees.
Top 10 Professional Responsibility Stories of 2009 (January/February 2010)
Another year, another opportunity to reflect on interesting local and national professional responsibility stories.
Proposed Amendments to Lawyer Advertising Rules (March 2010)
Describes proposed amendments to Indiana lawyer advertising rules that are still under Supreme Court advisement as of the date of this writing.
In-House Counsel and Unauthorized Practice of Law (April 2010)
Highlights the requirements for becoming specially licensed to practice law in Indiana as in-house counsel under the business counsel license.
Electronically Stored Information and Spoliation of Evidence (May 2010)
Focuses on several recent cases involving sanctions against parties and counsel for improperly handling discovery of electronically stored information.
Of Telephonic Homophobia and Pigeon-Hunting Misogyny: Some Thoughts on Lawyer Speech (June 2010)
A discussion of Rule of Professional Conduct 8.4(g)’s prohibition against engaging in certain types of bias or prejudice in a professional capacity.