All Posts

Posted in Blog on June 20, 2019   |  by Gary Burger

Answers to the top 6 ethics questions

From our CLE, Debbie champion and I did a fantastic ethics presentation. Here are the top 6 answers to ethics questions I find lawyers and lay people have.

1.What are the two most often reported rule violations?

RULE 4-1.3: DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client.

RULE 4-1.4: COMMUNICATION (a) A lawyer shall: (1) keep the client reasonably informed about the status of the matter; (2) promptly comply with reasonable requests for information; and

(3) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

2. Does a lawyer have to turn another lawyer in?

Rule 4-8.3:

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rule 4-8.3 does not require disclosure of information otherwise protected by Rule 4-1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

3. Does substance abuse affect our profession?

Rule 16.01. (b) Substance abuse causes or contributes to incompetence and malpractice of the law by lawyers and judges, which damages the public and the legal profession. Substance abusers neglect clients, violate rules of professional and judicial conduct and commit crimes.

In order to maintain public confidence in the legal profession and the disciplinary process, the committee shall strive to address substance abuse or addiction problems among lawyers or judges before said abuse or addiction results in complaints or grievances against those lawyers or judges and, when complaints or grievances have been filed, to assist in promptly resolving those complaints or grievances, thereby serving the public and the profession.

The Missouri Lawyers' Assistance Program is a professional, confidential counseling program for members of The Missouri Bar, immediate family members who reside with them, and law students. Through a variety of free services, MOLAP helps individuals overcome personal problems such as depression, substance abuse, stress, and burnout.

Services include:

•Counseling. All Bar members have unlimited, 24/7 access by phone to a licensed clinical social worker (call (800) 688-7859). MOLAP also makes referrals to professional resources as indicated.

•Crisis intervention. MOLAP coordinates crisis intervention services for individuals and law firms.

•Education and Prevention. MOLAP offers educational programs and articles on topics such as stress, substance abuse, depression, and quality of life. In addition, a series of questionnaires helps members screen themselves for a variety of problems.

All MOLAP services are free of charge and strictly confidential.

Or Call me on my cell at 314-799-4848. I am a member of the MOLAP and the Missouri Intervention Committee.

4. What to do if you get an ethics charge?

Well, you can hire an ethics lawyer for more serious violations of handle it on your own.

Draft non conformational response to Alan Pratzel’s letter citing rules, formal and informal advisory opinions and/or case law.

Say why did you not violate any ethics rule

Your response, along with the complaint and any reply will go to the Regional Disciplinary Commission with jurisdiction for their review. They can dismiss, recommend admission, or if really bad, send straight to Supreme Court/OCDC.

The purpose of discipline is not punish the attorney, but protect the public and maintain the integrity of the legal profession.” In re Kanzanas, 96 S.W.3d 803, 807-08 (Mo. banc 2003).

5. Can you ask for FaceBook, Avvo, SuperLawers and Google likes or reviews – give something of value?

Rule 7.2(c) prohibits providing a thing of value in return for a recommendation for services, i.e. a lawyer cannot pay someone to send him or her a case or to recommend a client to him or her for money.

Distinction between seeking an honest review and seeking an endorsement for a lawyer? A review can be positive or negative, and the attorney requesting the review does not know what he or she is going to get.

The Comment to the MO rule states: “A lawyer is allowed to pay for advertising permitted by this rule but otherwise is not permitted to pay another person for channeling professional work.”

The comments to the ABA rule says “lawyers are not permitted to pay others for recommending a lawyer or services over channeling professional work to them.” The comment also makes it clear that there are a lot of ways that lawyers can pay for being recommended: a lawyer can pay for advertising and communications; a lawyer can pay for employees, agents, and vendors to market for them; a lawyer can pay for business development and staff and web designers and social media consultants; a lawyer may pay others for generating client leads such as internet based client leads; a lawyer may pay the usual charges for a legal service plan or loyal referral service; a lawyer may refer cases to another professional or lawyer with the promise that the other professional will in return refer clients to the lawyer.

Online Legal Marketplaces

Online legal platforms such as Avvo, Legal Zoom, and Rocket Lawyer bring with them the potential for ethical complaints.

Avvo ended its Avvo Legal Services product in 2018, due to concerns it was in violation of legal ethics rules. The platform offered online clients limited legal services provided by a participating lawyer for a flat-fee, determined by Avvo. Client satisfaction was “guaranteed.” Avvo defined the lawyer’s flat-fee, the scope of representation, and the type of services offered. Avvo paid the lawyer after the service was complete, but the lawyer was required to pay a “marketing” fee back to Avvo.

State bar ethics committees in eight states – New Jersey, Virginia, Indiana, Pennsylvania, Ohio, Utah, New York and South Carolina - issued opinions that a lawyer’s participation in the program, and similar programs, violated multiple state ethical rules. Four aspects of the program were found to be the most problematic:

Avvo determining the scope and price of the representation interfered with the lawyer’s independent professional judgment (Model Rule 5.4);

Avvo collecting and retaining the full legal fee until the legal work was completed prevented the lawyer from fulfilling her duties to safeguard a client’s funds and to refund unearned fees at the end of the representation (Model Rules 1.15 and 1.16)

Avvo’s “satisfaction guarantee” prevented a lawyer from being professionally independent. (Model Rule 5.4) and

The “marketing” fee charged to the lawyers was not a reasonably permitted advertisement cost (ABA Model Rules 1.5 and 7.2), but instead found to be an improper fee splitting/sharing with a for-profit, non-lawyer (Model Rule 5.4), and/or an improper payment for a recommendation/referral (Model Rule 7.2)

6. Do you or should you file a Motion for Sanctions?

MRCP 56.01- Motion for Protective Order

MRCP 61.01- We rarely, if ever, do this.

(a) Failure to Make Discovery: Sanctions - For the purpose of this Rule 61, an evasive or incomplete answer is to be treated as a failure to answer.

(b) Failure to Answer Discovery Answers - Courts may enter an order striking pleadings/dismissing the action/render a judgment by default against the disobedient party – it can grant additional time to serve answers, but shall provide that if the party fails to answer the interrogatories within the additional time allowed, the pleadings of such party shall be stricken/ action shall be dismissed or default judgment shall be rendered.

(c) Failure to Answer Request for Admissions - Nonanswer shall be taken as admitted. If a party denies document genuineness and then other party proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order for expenses and attorney fees.

(d) Failure to Produce Documents, and Things or to Permit Inspection – Trial court can refuse to allow the disobedient party to support or oppose claims, strike pleadings or parts thereof, stay further proceedings until the order is obeyed, dismiss the action, Order treating failure to obey as a contempt of court; or pay the reasonable expenses, including attorney fees

(e) Failure to Appear for Physical Examination - Court may make any order

(f) Failure to Attend Own Deposition – Court may take any action. (g) Failure to Answer Questions on Deposition - Questioner may move for an order compelling an answer; may complete or adjourn the deposition examination before applying for an order. If the motion is granted, shall require the party/deponent to pay movant’s expenses and attorney's fees, unless action was substantially justified

Thanks for having me MC the Maximum Lawyer conference last week to over 150 Lawyers.