An issue that has recently flooded the pages of the New York Times is the rapidly increasing cost of attending law school, despite the economic climate this country is currently experiencing.  Law school tuition is rising four times faster than the cost to attend an undergraduate institution, yet the amount of students attending has also increased despite the heavy debt they will incur and the tight job market they will enter after graduating.  Many people in various legal positions have contributed their opinions to the debate of whether it is necessary for law schools to take action to lower costs, and if so, how that should be accomplished.  

The first law school in the United States was established in 1784 and the school viewed its students as apprentices, not as scholars.  However, in 1878 the American Bar Association (“ABA”) was formed and began enacting limitations on law schools.  For instance, in the 1890s the ABA pushed states to limit the number of people admitted to the Bar.  In 1906, the Association of American Law Schools also contributed to the transformation of law schools by adopting a requirement that law school consist of three years of study.

Since the formation of law schools, the organization of these institutions has experienced changes.  It is less common to see militant professors, as portrayed in the 1973 movie The Paper Chase, and more common to witness professors simply asking for volunteers in class and not berating students if they did not read an assignment.  Even the length of time that a person has to go to law school has changed.  Recently, schools such as Northwestern University School of Law have begun to offer an accelerated program in which a student can complete their Juris Doctor (“J.D.”) in two years instead of three.  

Despite all these changes, though, many people in the legal field are frustrated with how much it costs to attend law school as well as the make-up of law schools.  One common complaint, as detailed in The New York Times article, “What They Don’t Teach Law Students: Lawyering,” is that law students are leaving school with no practical training, leaving firms the task of having to prepare new associates to become lawyers on the firm’s dime, or that of clients.  Many suggestions have been offered as to how to remedy this issue in a way that would train law students to become lawyers and alleviate some of the financial costs law schools and students face.  One suggestion has been to decrease the amount of credits students must take.  Another proposal has been to replace the third year of law school with an apprenticeship, which was the focus of the first law schools, instead of forcing students to engage in more coursework.

A proposition that has generated a lot of discussion is the idea of replacing full-time faculty with adjunct faculty.  Currently, the ABA requires that its accredited schools have a ratio of twenty students or less to one full-time faculty member.  A ratio of thirty students to one full-time faculty member is not in compliance with the ABA standards, but many of these full-time professors do not have practical legal experience because law schools look to hire scholars and not people who have spent years practicing law.  On the other hand, an adjunct professor is an experienced practitioner by definition.  

Besides lacking practical experience, it is more expensive to employ full-time faculty as opposed to adjunct faculty.  About half of a law school’s budget is spent on faculty salary and benefits, and about eighty percent of that budget goes toward full-time faculty.  Alternatively, adjunct faculty make a few thousand dollars a year to teach a course.  

With the current economic climate, it is vital that changes are made among different institutions, including law schools that will keep costs down.  While no method is a guaranteed solution, staffing more adjunct faculty is something that should be considered and this type of change would need to be initiated by the ABA.  Even though modifications to the organization of law schools may make law school administrations and professors uneasy, if adjustments are not made, the make-up of the legal profession may experience unwanted changes.  The New York Times article states that, “the nature of legal work itself is evolving, and the days when corporations buy billable hours, instead of results, are numbered.”  If law students continue on the path of failing to obtain practical experience, their chances of succeeding in this dismal market will remain poor.

A recent Seventh Circuit opinion indicates that plaintiffs' counsel in a class action suit that engages in misconduct will not likely be able to adequately represent the class.  In Creative Montessori Learning Centers v. Ashford Gear LLC, No. 11-8020 (7th Cir. Nov. 22, 2011), Judge Posner's opinion overturned the district court's class certification because the district court applied a standard that was too lenient for misconduct on the part of plaintiffs' counsel. 

The named plaintiff, Creative Montessori Learning Centers, sued Ashford Gear LLC for violating the Telephone Consumer Protection Act, 47 U.S.C. § 227.  The Act provides that the recipient of an unsolicited fax can be compensated up to $1,500 for each fax.  There are 14,573 other members of the class who collectively claim to have received 22,222 unsolicited faxes. 

Plaintiffs' attorneys, attorneys from Bock and Hatch, specialize in bringing suits under the Act, but used some unethical tactics to initiate the suit.  The attorneys contacted a fax broadcasting company that faxes advertisements on behalf of advertisers.  Then the attorneys asked the broadcasting company for information about faxes it had sent – and promised to keep the information confidential.  But instead of keeping the information confidential, the attorneys used the information to drum up lawsuits.  The attorneys found violators of the Act and potential plaintiffs.  Notably, the attorneys found Montessori, the named plaintiff, and misleadingly told them that a class action already existed.     

This behavior prompted defense attorneys to argue that the class should not be certified because plaintiffs' attorneys behaved unethically and would not be able to adequately represent the class.  However, the district court applied an egregious misconduct standard, and found that the conduct was not egregious and certified the class.  On appeal, the Seventh Circuit applied a different standard. 

The Seventh Circuit emphasized the importance of ensuring that plaintiffs' counsel can adequately represent a class.  The court noted that class plaintiffs lack the knowledge and monetary stake to allow them to monitor their lawyers.  Therefore, courts have to take great care in ensuring that plaintiffs' counsel will fulfill their fiduciary duties.  The court then held that the district court erred by applying an egregious misconduct standard; rather, any misconduct on behalf of plaintiffs' counsel should create a serious doubt that plaintiffs' counsel is fit to represent a class.  The court then remanded the case back to the district court so the district court could determine whether the class should be certified. 

With this decision, the Seventh Circuit is leaving less room for unethical conduct on the part of plaintiffs' counsel in class action litigation.  It is a decision that will likely be welcomed by defense counsel and class plaintiffs alike. 

William F. Auther is a partner with an active trial practice in business litigation and Kelly M. McInroy is an associate in the Phoenix office of Bowman and Brooke LLP.  

These days, many depositions are videotaped.  If a deposition is being videotaped, is there still a need for a court reporter?  Is a stenographic (“hard copy”) transcript necessary?  This issue is currently the subject of debate in Texas and across the country, with interest groups taking positions on both sides.

 On one hand, hard copy transcripts have practical advantages over video depositions.  First, hard copies allow attorneys to take part in their favorite pastime – copious amounts of highlighting and tabbing.  Additionally, most cases require careful attention to the facts, and hard copy transcripts make it easier to cite to the record.  In short, whether it is due to personal preference or the manner in which people learn, some people will probably always prefer working with hard copies.

At the same time, video depositions have unique advantages over hard copy transcripts.  In the era of C.S.I., jurors expect attorneys to use technology.  And video evidence is often more compelling and entertaining than a transcript.  Video depositions capture mannerisms, body language, and attitudes that would otherwise go unnoticed.  Because of this, adverse witnesses and opposing counsel are more likely to mind their manners when being videotaped.  Of course, there are exceptions to every rule, and video footage of a witness losing control can be pure gold.  For example, when the witness in the infamous Texas Style Deposition told the examining attorney that he had “a case of incipient verbal diarrhea,” a paper transcript would never have done it justice. 

As other commentators have noted, both video depositions and traditional hard copy transcripts have their place.  When used correctly, each form of “transcript” compliments the other.  Because of the limitations of videotape-only depositions, however, traditional hard copies (and court reporters) are here to stay . . .  for now.

On August 4, 2001, the American Bar Association's standing committee on ethics and professional responsibility issued formal opinion 11-461 entitled, "Advising Clients Regarding Direct Contacts with Represented Persons."  As a general rule under ABA model rule 4.2, a lawyer cannot communicate with a person that a lawyer knows is represented by counsel without the opposing counsel's consent to the communication.  This rule extends to the use of an intermediary as an agent to communicate with the represented person.  However, it is also sometimes useful for litigants or parties to a transaction to be able to communicate with each other even though they have their own counsel.  In such instances, the parties maintain the right to communicate directly.  Sometimes these communications may require a lawyer's assistance.

Advising your clients on this point is considered proper.  The primary question addressed in the newly issued opinion is whether a lawyer can advise and assist a client in communicating directly with a represented party without violating Rule 4.2.  The ABA Committee felt that there was tension regarding the lawyer's ability to assist the client and effectuating direct client to client contact. 

The ABA Committee had previously stated in formal opinion 92-362 that a lawyer can ethically advise a client to communicate directly with a represented adversary to determine if the adverse party's lawyer had informed them of a settlement offer.   In the new opinion, the committee states directly that "the decision to communicate directly with a representative person may be the client's idea or the lawyer's.  Some decisions and opinions suggest the counsel may be violating the rules prohibiting communication with a representative party by encouraging or failing to discourage a client speaking directly to the other party."  A concern remained under existing rules that a lawyer might run afoul of Rule 4.2 by "scripting" or "masterminding" a client's communication with a represented person.   The Committee stated that "what constitutes 'scripting' or 'masterminding' the communication is not clear, but such a standard, if too stringently applied, would unduly inhibit permissible and proper advice to the client regarding the content of the communication, greatly restricting the assistance the lawyer may appropriately give to a client."  The Committee concluded that without violating Rules 4.2 or 8.4, a lawyer can give assistance to a client regarding substantive communications with a represented party that could include what subjects are to be addressed regardless of whether the lawyer or the client proposes that the communication take place.  The lawyer may review, redraft and approve a letter or an outline for a conversation that the client wishes to use in the communications with the adversary.  The client may also request that the lawyer draft the basic terms and an agreement that he or she wishes to discuss with an adversary.   Nonetheless, some examples of overreaching do remain. 

The committee references several of them in its opinion stating that they include "assisting the client and securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.  To prevent such overreaching, a lawyer must, at a minimum advise her client to encourage the other party to consult with counsel before entering into allegations, making admissions or disclosing confidential information.  If counsel has drafted a proposed agreement for the client to deliver to her represented adversary for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement."  

As discussed in the webinar presented by the Lawyers’ Professionalism and Ethics Committee in December of 2010 (available as a podcast from DRI), outsourcing certain “legal” activities (as well as offshoring those activities) is viewed with great mistrust in the legal community.  The Connecticut legislator’s recent attempt to regulate the industry, while certainly sympathetic, fails to comprehend both the activities generally being outsourced and the responsibilities of the supervising attorney.  The activities which are generally outsourced (and sometimes offshored ) frequently involve document review – an activity frequently assigned to paralegals within larger firms.  The responsible supervising attorney must be licensed to practice law in the appropriate jurisdiction.  That licensure requirement is the same for document reviews being performed by in-house paralegals, just as it is when the review is performed by outsourced personnel.

Indeed, we are anything but unsympathetic to the plight of graduates of law schools not having jobs upon graduation.  However, some of those same graduates might be able to find opportunities in performing work, such as document reviews, on an out-sourced basis.

Worldwide, the workforce is evolving and expanding into global markets.  The relatively-recent innovations of the internet and other technological advances perhaps speed those changes.  Rather than trying to resist change, we as a profession should strive to evolve with the changes to become a more professional and more efficient resource to our clients.

When we were law students or young lawyers we all heard at least one lecture about the virtues of professionalism. They all focused on some variation of the Golden Rule of doing unto others as we would have others do unto us. Some of us even signed pledges to the effect that we would always incorporate those lessons on professionalism in our practice. I suspect most of us feel like we took those lessons to heart but nonetheless, we have all too often encountered other lawyers who have long ago forgotten the professionalism lessons of their legal youth. However, as mature practitioners, we should know better how to respond to bad behavior by our opponents even though it often seems that is not the case. While we all believe that we behave professionally by not initiating inappropriate conflict, it is how we respond to difficult lawyers that is probably the truest test of our own professionalism.

It is easy to behave civilly when met with civil behavior. It is a much greater challenge when we feel that we have been treated unfairly by opposing counsel. However, we should meet that challenge by acting civilly anyway. I believe that we should "turn the other cheek" when we encounter someone who does not deserve it not because we owe it to the obnoxious person who is causing the problem, but because we owe it to the profession as a whole.

Whether intentional or not, people tend to view reactions to bad behavior as disproportionate. When someone hits you, hitting them back even harder rarely has the deterrent effect that one would hope. More likely, another return blow will follow. Such conflicts in the legal profession are rarely physical, but all too often verbal exchanges can get out of hand. These exchanges have become even more common in email, which allows the author to hide behind his or her keyboard and which are frequently read by the recipient as conveying a hostile tone. These kind of exchanges don’t just affect the lawyers involved, but the profession as a whole as uncivilized behavior becomes increasingly accepted as normal.

Perhaps the best way to combat unacceptable behavior and prevent it from becoming acceptable is to strive to respond to ugliness with grace. By doing so, we can all help to lower the overall hostility level of our profession. The next time a lawyer speaks harshly to you, try to respond only to the substance of the issue and ignore the tone, outrageous comments or personal criticism. If it makes you feel better, write that nasty reply email but don’t send it. You may not get the full catharsis of showing the initiating lawyer how clever you are or giving them a piece of your mind, but if enough lawyers will simply ignore the venom of their opponents, eventually nice will become normal again.

There are many career options for non-practicing licensed attorneys. (See for example, 300+ Things You Can Do With A Law Degree.) Although non-lawyers working in these careers are not obligated to adhere to lawyer disciplinary rules, licensed attorneys are. To their great surprise, the non-practicing lawyers might find themselves subject to disciplinary action for conduct in careers outside of the practice of law.

An Example From The Federal Government

Politics is a popular career for non-practicing licensed attorneys. Often times it is a natural step to move from practicing law to making law.

At the Federal level, all Representatives must abide by the House Ethics Rules. Those who are lawyers must also, answer to their licensing State Bar. Bar Associations have sanctioned lawyer-politicians for actions committed while serving in government offices. Most notable:

• Former President Richard Nixon was disbarred from New York in 1976 for obstruction of justice related to the Watergate scandal.
• Former Vice President Spiro Agnew, having pleaded no contest to charges of bribery and tax evasion, was disbarred in 1974 from Maryland, the state he had previously served as governor.
• Former President Clinton received a 5-year suspension from the Arkansas State Bar for false statements he made in the matter with Ms. Lewinsky.

What Is The Basis For Sanctions?

We can consider the current situation of Congressman Charles Rangel, who has been charged in Congress with, among other things, underreporting taxes. Congressman Wrangel's conduct could be sanctionable under New York Rule 8.04, which reads, in part,

A lawyer… shall not:
      · · ·
(b) engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Comment 2 to Rule 8.04 states,

Many kinds of illegal conduct reflect adversely on fitness to practice law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for illegal conduct that indicates lack of those characteristics relevant to law practice. Violations involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice are illustrative of illegal conduct that reflects adversely on fitness to practice law… A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

Sanctions could be based on the same facts as the House Ethics Committee's allegations. For example, Congressman Rangel's alleged…

… failure to report rental income related to Punta Cana on his Federal income tax returns [is alleged to have] violated the Internal Revenue Code. (Statement Of Alleged Violation (SAV), ¶ 245, see ¶ 119-133 of the SAV for details regarding the Punta Cana rental)

Congressman Rangel responded formally to the Ethics Committee that he:

… acknowledged publicly, prior to the establishment of the Investigative Subcommittee, that his tax returns omitted rental income derived from his investment in the Punta Cana resort located in the Dominican Republic and that he had filed amendments and paid additional taxes. Congressman Rangel [advised that he] has done everything within his power to fulfill his legal obligations in this regard, and to the best of his knowledge, nothing further is required. (Statement p. 20)

He also stated on the House Floor:

The fact that there was negligence on the part of the person that for 20 years did it and the fact that I signed it, does not really give an excuse as to why I should not apologize to this body for not paying the attention to it that I should have paid to it. (Address 03:02:33)

Have Lawyers Been Sanctioned For Violating The Internal Revenue Code?

Lawyers have been sanction for violating the Internal Revenue Code. For example:

Aaron Bertel, a lawyer in New York State, received a three-year suspension for conspiracy to defraud the United States and the Internal Revenue Service and for filing fraudulent income tax returns. (268 A.D.2d 112, 706 N.Y.S2d 101)

Marie Klarman, a lawyer in New York State, received a one-year probation for knowingly filing a false personal income tax return in which she deducted mortgage interest that she was not entitled to deduct. (Klarman paid the additional taxes she owed.) (22 A.D.3d 953, 802 N.Y.S.2d 267)

Alberto Pirro, Jr., a lawyer in New York State, received a three-year suspension for several counts of tax evasion and tax fraud. (Pirro had an otherwise unblemished record, accepted full responsibility, and noted that the tax returns were prepared by a CPA.) (305 A.D.2d 22, 759 N.Y.S.2d 527)

Bonnie Strunk, a lawyer in New York State, was disbarred based on her felony tax conviction (Criminal Tax Fraud in the Fourth Degree, a class E felony, for failing to file her 2008 personal income tax return while having a tax liability in excess of $3,000).

A Warning for Non-Practicing Licensed Attorneys

Even if a lawyer is not engaged in the practice of law, he is still answerable to the entire criminal law. And, his conduct must not reflect adversely on his character or fitness to practice law, even if the conduct is not criminal. To the extent that a lawyer's character and fitness are called into question, he may find himself stripped of his law license, even if his non-lawyer counterparts would otherwise suffer no consequences.

Bruce A. Campbell is the managing director in the law firm of Campbell & Chadwick, P.C. He has defended lawyers and other professionals on a variety of malpractice and other tort claims for more than 25 years. He has published more than 50 articles and authors a blog about legal ethics. Mr. Campbell may be reached by email or at 972-277-8585.

Recently, the New Jersey Supreme Court suspended an attorney for making indecent proposals to at least four female clients in exchange for discounted legal fees or free legal work.  His defense, in part, was that he was “joking;” his office atmosphere was “relaxed,” allowing for conversations regarding very personal subjects; and that he never intended to insult or demean any clients.  Nevertheless, the four women who complained believed he was offering discounted legal fees in exchange for sexual favors.  Again.  To quote an ESPN football commentator, “Come on, man!”

Please do not misunderstand.  I enjoy a good joke as much (maybe more) as the next person.  In fact, I used to get a bit hacked off when I would walk in an office, and the guys would stop telling what was probably a funny joke because it was slightly off-color – out of fear of offending me.

But, really, it is past time for all attorneys (and professionals) to exercise what the military refers to as “situational awareness.”  Most people do not come to an attorneys’ office for stand-up comedy.  What might seem funny outside the office (or not funny but might result in a slap in a face in a bar), is simply not appropriate in the context of a legal consultation.  Does a state Supreme Court actually have to tell people that?

Perhaps the biggest joke is the imposition of “sensitivity training” before the attorney in question can return to practice.  Have any of you ever sat through a “sensitivity training” class?  Red lights; yellow lights; and green lights are simply not practical training tools when a person, such as an attorney or any other professional, deals with highly emotional situations such as the filing of a lawsuit; a divorce; or bankruptcy.

So, please tell me a good joke at one of the receptions at the Annual Meeting (my rules – must be funny; and I cannot have heard it before), but PLEASE do not try to joke about sexual favors to your clients.  They probably will not think it is funny.

Link to the original article: http://www.law.com/jsp/article.jsp?id=1202464064588&Lawyers_Indecent_Proposals_to_Female_Clients_Bring_OneYear_Suspension

We recently experienced an incident with a Plaintiff’s counsel in a bankruptcy Adversary Proceeding.  In a letter proposing a settlement, he threatened to file criminal charges against our client (which would have been totally unwarranted) and/or report our client to administrative regulatory authorities (which would have been equally unwarranted) if our client did not settle.  Doing research on whether such threats involve improper ethical conduct, I was surprised at what I learned.  I had gone into my research thinking that the answer was clear and that such conduct would be considered unethical.  What I found was counterintuitive.  The variety of approaches ranged from perspectives that such conduct was unethical to allowing such conduct as long as the threat is related to the client’s claim, the lawyer has a well-founded belief that both the civil claim and the criminal charges are warranted, and the lawyer making the threat is not misusing the criminal process. 

The following are informative sources that I have found:  A.B.A. Formal Op. 92-363 (1992) Use of Threats of Prosecution In Connection With a Civil Matter; A.B.A. ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT 438-439 (5th ed.) (surveying various approaches); Indiana State Bar Legal Ethics Committee, Op. 1 (2008) Attorney’s Threat to Report Adverse Party to Professional Licensing Commission, as reported in 51 RES GAESTE 34 (June 2008); Timothy D. Webb, Concomitant Negotiations of Civil and Criminal Claims, 63 BENCH & BAR MINN. 22 (2005); Kenneth L. Jorgensen, Ethics Advisory Opinions, 60 BENCH & BAR MINN. 12 (2003); Patrick Emery Longan, Ethics In Settlement Negotiations:  Foreward, 52 MERCER L. REV. 807 (2001); Debra S. Katz, Julie Chambers, Attorneys’ Ethical Responsibilities During Settlement Negotiations, ALI-ABA COURSE OF STUDY ADVANCED EMPLOYMENT LAW AND LITIGATION, SG047 ALI-ABA 1153 (2001). 

I would be curious to have responses from people who have experienced this, what you did about your situations with respect to reporting, and whether you are aware of any other authorities, to include bar association opinions, addressing this area. 

Our law firm recently encountered a situation where a lawyer, who we know, had his son working for him.  The son took the lead in many of the activities between our firm and the plaintiff.  He was present at meetings; he ostensibly assisted the client.  In short, our lawyers thought that they were dealing with a lawyer.  In fact, one of our lawyers asked the individual where he had graduated from law school.  He told our lawyer that he had graduated from a particular law school, but he never indicated that he was a member of the State Bar. 

After some extensive dealings with this individual, one of our lawyers decided to check.  He learned that the individual was not a member of the State Bar.  He confronted the individual and was advised that the individual had graduated from a particular law school but was not “barred” in the state mentioned.  That was the term that he used.  We confirmed that the individual, who was the lawyer’s son, was not a member of the State Bar, but that he was a law school graduate.

Our dilemma was whether there were grounds to report the lawyer for having aided and abetted in the unauthorized practice of law.    Our internal debate centered around whether there was the unauthorized practice of law and whether there was sufficient information to have “knowledge of a violation of,” the criminal code which would provide grounds to report the lawyer for aiding and abetting an individual in the unauthorized practice of law.  After much consideration, investigation, and research, we concluded that we did not have enough information to “know” that there had been the unauthorized practice of law.  Assessing the son’s activities, we concluded that he had, in fact, done nothing more than what a paralegal might have done under many circumstances.  To our knowledge, he never held himself out to the public to be a lawyer.  He was not on the pleadings.  He never attended any court appearances as counsel.  There were simply facts created that allowed our lawyers to mistakenly infer that he was a lawyer. 

In the end, we concluded that he was not holding himself out to the public to be a lawyer.  While our lawyers had inferred that he was functioning as a lawyer, he had never done anything or said anything that would have held himself out, specifically, to be a lawyer.  While we did not know what his client felt, we concluded that there was not the unauthorized practice and, therefore, there was no duty to report the lawyer for aiding and abetting.

I would be curious to know if any of you have had any similar experience.  Frankly, it was discomforting, but, there was enough ambiguity in the dealings between our firm and that individual where we felt there were not sufficient grounds to move forward.  Regarding the duty to report, please see Doug Richmond’s article on our website titled:  Reporting Lawyer Misconduct, 50 FOR THE DEFENSE 76 (2008).