Sanctions for Non-Practicing Licensed Attorneys

September 10th, 2010 by Bruce A. Campbell

(From the DRI Today blog, originally posted on September 2, 2010 03:03 by Bruce A. Campbell)


Attorneys searching for a silver lining could find a dark cloud of sanctions.

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

Read the rest of the article on the DRI Today blog.


A Viewpoint on Disclosure of Malpractice Insurance by Texas Lawyers

July 26th, 2010 by Bruce A. Campbell

ABA AdvisoryThe July 2010 edition of LPL eAdvisory, an enewsletter from the ABA Standing Committee on Lawyers’ Professional Liability, published my article about the recent decision of the Texas State Bar not requiring disclosure of malpractice insurance by Texas lawyers.  This article is different from other discussions on the topic because it seeks to explore the underlying cultural changes that are driving the debate about disclosure.

On April 14, 2010, the Texas Supreme Court informed the Texas State Bar that it would not require mandatory disclosure of professional liability insurance by Texas attorneys. In a letter to State Bar President Roland Johnson, Chief Justice Jefferson wrote, “Having considered the State Bar’s recommendation and the materials’ supporting the recommendation, the Court will retain the status quo.”

It is significant that Chief Justice Jefferson chose the words “retain the status quo” because it helps us understand why Texas rejected the ABA’s recommendation to disclose professional liability insurance.

Read More: A Viewpoint on Disclosure of Malpractice Insurance by Texas Lawyers


Proposals Would Affect Conflict-of-Interest Rules

June 8th, 2010 by Bruce A. Campbell

(“Fish are our friends.” Photo composition of Bruce A. Campbell photos: shark and clown fish.)

The proposed amendments to the Texas Disciplinary Rules of Professional Conduct could change the ethics rules for Texas lawyers. The State Bar of Texas published a second set of proposed rules on its website in April. Although each of the  proposed amendments is important, the conflict-of-interest rules are particularly worthy of discussion; space constraints permits discussion of only a few.

Five of the existing disciplinary rules primarily govern conflicts of interest.

  • Rule 1.06 governs current-client conflicts;
  • Rule 1.09 addresses former-client conflicts;
  • Rule 1.08 concerns prohibited transactions;
  • Rule 1.07 is sometimes known as the lawyer-intermediary rule; and
  • Rule 1.10 concerns lawyers who are, or were, employed in government service.

Read the full article published in Texas Lawyer 17 May 2010.


What Would Happen If We Were Unable To Discipline Unethical Behavior?

May 6th, 2010 by Bruce A. Campbell

The Board of Bar Examiners weeds out candidates who, although they would like to be lawyers, do not possess the necessary good moral character or are otherwise unfit to practice law. In my State of Texas, they disbar or accept resignations in lieu of disbarment about 50 lawyers a year. There would be no one equipped to deal with the problem.

What if the Bar did not have the ability to sanction or disbar unethical lawyers? Who would protect clients from lawyers who do not attempt to play by the ethical rules?

There would be no one equipped to deal with the problem.

We only need to look across the border into Mexico to see an example of this situation. Unlike Texas, where membership in the Texas Bar is mandatory, lawyers in Mexico are not required to belong to any bar association. If they are members of a bar association and do something that would warrant disbarment by the local bar association, they can 1) withdraw from the bar association and continue to practice law or 2) move to another part of Mexico where they join a new bar association and continue to practice law. Sanctions by the bar association have little impact on lawyers in Mexico.

Not long ago, the law school in Oaxaca, Mexico, invited me to their campus to discuss suggestions I have for addressing the problems
Bruce A. Campbell (right) with some of the attorneys in Oaxaca, Mexico. He was accompanied by Dale Howe, who spoke about social ethics. (l to r) Licenciada Raquel, Licenciado Taide, Licenciado Pedro Martinez, Licenciado Telesforo Pizarro, Dale Howe, Bruce Campbell, Esq.
created by lawyers who could not be effectively sanctioned. The solution that I proposed identified two areas that must be addressed:

  • Collaboration: Form a small group of the most highly regarded lawyers and judges who could come together and agree on certain rules that cannot be compromised. The affiliation is announced in the local news media and on the group’s Internet site.
  • Public disclosure: If a member violates a rule, the group would disclose in the local news media and on the group’s Internet site 1) the fact of the violation and 2) the sanction imposed.

This solution provides some very real benefits:

  • The peer pressure produced by the example of highly regarded lawyers and judges would encourage other lawyers to adopt an enforceable code of ethics.
  • Announcements of the group’s membership and disciplinary actions provides the public with assurance that the group holds itself accountable to the ethical practice of law, which unaffiliated lawyers and judges could not easily provide.

The net result of implementing this proposal is that the public would ultimately weed out the lawyers who prey on clients. If individuals did not hire unethical lawyers, those lawyers might adopt ethical practices out of economic necessity.

The response was positive. We are now discussing when we will be able to return to Oaxaca in order to continue the dialogue. This kind of issue takes a long time to resolve and working solutions may not be adopted during my lifetime. My hope is that by openly discussing the issue, we might ultimately lead to a result of making it very difficult for unethical practitioners to survive economically.

In closing, I want to make it clear, that even without the consequences of sanctions and disbarment, many lawyers in Mexico endeavor to be good and faithful servants to their clients. It is the self-serving lawyers who give the profession a black eye, cause harm to their clients, and need a new legal ethic.

Images of Oaxaca, Mexico:


Recovery of Sanction Fees: Who Does the Money Belong To?

February 3rd, 2010 by Bruce A. Campbell

View BrochureHave you ever wondered about what the right thing to do is if a plaintiff is awarded a monetary sanction in addition to a jury award or a settlement? Whose money is it? This issue and several others will be a discussed at the CLE seminar:

Strategies for Damages and Attorney Fees
LIVE • Dallas • February 18-19, 2010
VIDEO • Houston • March 25-26, 2010

At 11:15 AM on Thursday, Bruce A. Campbell will present “Recovery of Sanction Fees: Who Does the Money Belong To?”

View the brochure.


Texas Judges Still Have Online Lawyer "Friends" — But For How Long?

January 8th, 2010 by Bruce A. Campbell

Blue McCaws photo by Bruce A Campbell Unlike Florida, New York, and South Carolina, Texas does not appear to have an opinion addressing the question of whether Texas Judges can participate in online social networking.

Texas judges are currently allowed to choose who they will “friend” in social networking media. Judge Susan Criss of Galveston’s 212th District Court says she follows her ethical canons and is careful about what she says and who she friends. She “friends” all lawyers in order to avoid an appearance that she favors one side over another. (Judge Criss was a panelist in the ABA program, “Courts and Media in the 21st Century,” presented on July 31, 2009.)

The Ethical Canons that Criss referred to are Canon 2B and Canon 4A:

Texas Canon 2B: A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

Texas Canon 4A: Extra-judicial duties in general.
A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; or
(2) interfere with the proper performance of judicial duties.

While the Canons do not, on their face, prohibit Texas judges from social networking, some, like Judge Orlinda Naranjo of Travis County’s 419th District Court, have chosen not to participate. (“Social Networks Help Judges Do Their Duty,” Miriam Rozen. Law Technology News, August 25, 2009.)

Comparison Between The Model Rules And The States’ Rules

Chart of Judical Canons
(Click on image to open larger chart in new window.)

Even though the canons are essentially the same, the opinions range from prohibiting judges from “friending” lawyers (See Online Social Networking For Judges: Florida Prohibits Judges To “Friend” Lawyers), to allowing judges to “friend” lawyers (New York Permits Judges To “Friend” Lawyers), to encouraging judges to “friend” people in the community (South Carolina Permits Judges To Participate in Social Networks).

Many Texas judges enjoy a collegiate relationship with lawyers. For example, the Galveston County Young Lawyers host a judicial reception as:

an informal atmosphere outside the courtroom where young lawyers could network with the area judges…. Attendance by the judiciary is always strong and truly affords the attorneys a chance to mingle with the judges in front of whom they practice.

It is important to note that the lawyers socialize with the judges “in front of whom they practice.” It is this type of relationship that formed the basis for prohibiting online social networking for Florida judges.


South Carolina Permits Judges To Participate in Social Networks

December 31st, 2009 by Bruce A. Campbell

View Bruce A Campbell's photos on Flickr
Kittiwakes “networking” in Whittier, Alaska. © Bruce A. Campbell
South Carolina judges are free to participate in online social networking. In response to the question about whether a judge can “friend” law enforcement officers and employees of the court, the South Carolina Advisory Committee on Standards of Judicial Conduct issued the following conclusion in October 2009:

A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate. (Opinion 17-2009)

The opinion states:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR.

The opinion references Canon 2(A), Rule 501, SCACR in support. Both Rule 501 (Code of Judicial Conduct) and SCACR (South Carolina Appellate Court Rules) outline appropriate and inappropriate behaviors, which are summarized by Canon 2(A),

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

South Carolina Opinion Differs
From The Florida And New York Opinions

While the relevant Canons of South Carolina do not differ significantly from the Canons of Florida or New York, each state has interpreted them differently. Florida prohibits judges from “friending” lawyers who may appear before them (See Online Social Networking For Judges: Florida Prohibits Judges To “Friend” Lawyers), New York permits judges to “friend” anyone as long as it does not compromise the integrity of the judiciary (New York Permits Judges To “Friend” Lawyers), and South Carolina comes close to encouraging judges to participate in online social networking.

The commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.

Problems Of The Opinion

There are two problems with the opinion that are relevant to our discussion of judges “friending” lawyers.

  1. The opinion does not specifically address the issue if online social networking between judges and lawyers. On the one hand, the conclusion limits the opinion to approving networking between judges and “law enforcement officers and employees of the Magistrate.” On the other hand, the use of “community” in the discussion of the opinion suggests that it applies to a much broader context.

Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.

 

  • Like the New York Opinion, the South Carolina opinion focuses on principle rather that concrete examples. Therefore, the decision about what constitutes questionable activities will have to be made on a case by case basis.
  • The Strength Of The Opinion

    There strength of the opinion lies in its brevity. The single condition for participating in online social networking is “do not discuss anything related to the judge’s position as magistrate.”

    Conclusion

    The South Carolina Opinion allows online social networking between judges, law enforcement, and employees of the Magistrate. Its weaknesses include 1) a narrow focus (judges, law enforcement, and Magistrate employees) with possible extrapolation to the larger community and 2) the lack of concrete examples. Its strength is its single qualification “do not discuss anything related to the judge’s position as magistrate.”

    This is Part 3 in a series about “Online Social Networking For Judges.” In the next blog, I will consider how Texas might be influenced by these opinions.


    Comment on Disciplinary Rules’ Proposed Amendments

    December 28th, 2009 by Bruce A. Campbell

    The Texas Supreme Court proposed amendments to the Texas Disciplinary Rules of Professional Conduct that are broad and extensive:

    • 5 newly defined terms that apply to the entire body of rules
    • 40 revised rules
    • 4 new rules — five if you count Rule 1.00, the new terminology rule
    • 11 rules that have not been amended except through the terminology changes added by Rule 1.00.

    Not since January 1, 1990 have the Disciplinary Rules undergone this level of revision. Significantly, after the 1990 revisions to the Rules, the number of disciplinary sanctions against Texas lawyers experienced a substantial increase approximately a year after the rules changed. And, the number of sanctions did not return to normal even nine years later. (“Lady or the Tiger? Opening the Door to Lawyer Discipline Standards,” Bruce A. Campbell, Fla. Coastal L.J. Vol. 1, p.232-36 (1999). If there was one lesson to be learned from the last time the Rules were substantively amended, it is that it can take a decade or more for lawyers to conform their conduct to substantial changes in the Rules.

    You may want to read my comments in Texas Lawyer on proposed changes to rules governing:

    • Informed Consent
    • Affiliated Lawyers and Entities
    • Prospective Clients

    Online Networking For Judges Is Not On The Rocks: New York Permits Judges To "Friend" Lawyers

    December 23rd, 2009 by Bruce A. Campbell

    sea lion networkUnlike their Florida counterparts, New York State judges are free to participate in online social networking with no greater restriction than is already placed upon them by virtue of their office. A January 29, 2009 opinion issued by the State of New York’s Advisory Committee on Judicial Ethics states:

    Provided that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network. A judge choosing to do so should exercise an appropriate degree of discretion in how he/she uses the social network and should stay abreast of the features of any such service he/she uses as new developments may impact his/her duties under the Rules. (Opinion 08-176)

    The opinion identifies “the question [as] not whether a judge can use a social network but, rather, how he/she does so.” The guidelines for New York judges using social networking advises judges to:

    1. Recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly. (E.g., in previous opinions, links to advocacy groups are not permitted but links to news articles are permitted.)
    2. Consider whether any such online connections, alone or in combination with other facts, rise to the level of a “close social relationship” requiring disclosure and/or recusal.
    3. Avoid engaging in communication with those who informally ask questions about or seek to discuss their cases, or seek legal advice.
    In summarizing the guidelines, the opinion states that the guidance given by the opinion:

    . . . can only be, a non-exhaustive list of issues that judges using social networks should consider. The Committee urges all judges using social networks
    to, as a baseline, employ an appropriate level of prudence, discretion and decorum in how they make use of this technology, above and beyond what is specifically described above.

    In short, the opinion acknowledges the judge’s ability to discern situations
    to avoid and to abide by the canons and rules that already exist.

    New York State Code of Judicial Conduct

    The New York opinion identifies Canons 2(B) and (C) and Canon 4(A) as applying to the topic of online social networking. In particular:

    A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment. (NY Canon 2B)

    A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness. (NY Cannon 2C)

    A judge shall conduct all of the judge’s extrajudicial activities so that they do not:
    (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
    (2) detract from the dignity of judicial office; or
    (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office. (NY Cannon 4A)

    The New York Opinion recognizes the risks and advantages of participating in social networking and allows judges the freedom to participate if they so choose.

    New York’s Opinion Is The Polar Opposite Of Florida’s Opinion

    New York’s approach to regulating the behavior of judges stands in stark contrast with the recent opinion issued by the Florida Judicial Ethics Advisory Committee (Opinion 2009-20), which essentially prohibits judges from “friending” attorneys on the basis that it may possibly convey “a special position to influence the judge.” (See Online Social Networking For Judges: Florida Prohibits Judges To “Friend” Lawyers.) While the canons of each state are similarly worded, the interpretation by each state has produced opposite results.

    The Strength Of The Opinion

    The strength of the New York Opinion is clear: the responsibility for discerning the appropriate use of online social networking media rests squarely on the shoulders of the judges who use it.

    The Committee cannot discern anything inherently inappropriate about a judge joining and making use of a social network. A judge generally may socialize in person with attorneys who appear in the judge’s court, subject to the Rules Governing Judicial Conduct.

    The judges of New York are expected to act in a mature manner that is consistent with the rules and opinions that govern their position, regardless of the forum.

    Conclusion

    The New York Opinion protects online social networking between judges and the lawyers that may appear before them. Its strength is that it provides a broad set of guidelines that are to be applied through the wisdom of the judges.

    This post is Part 2 in a sereis discussing Online Social Networking For Judges. In the next blog, I will review the South Carolina Opinion in this topic, which somewhat extends the New York position.


    Online Social Networking For Judges: A Clear No For Florida Judges

    December 18th, 2009 by Bruce A. Campbell

    If Facebook were a country, it would be the fourth most populous country in the world. Considering that Facebook did not exist 10 years ago, that is explosive growth. With that kind of growth, the question of whether lawyers and judges would join online social networking groups was not a question of whether but of when and what rules apply. In this series, we are going to look at some of the responses to judicial online social networking. There are two polar opposite approaches to the situation.

    Photo of Ape by Bruce A CampbellThe “NO!” Pole

    The recent opinion of the Florida Judicial Ethics Advisory Committee (Opinion 2009-20) is a clear “NO!” to the question of:

    Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”

    The reason for disallowing judges to “friend” lawyers is that it may possibly convey “a special position to influence the judge.”

    The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.

    In support of the decision, the Committee cited the Code of Judicial Conduct.

    A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment. A judge shall not lend the
    prestige of judicial office to advance the private interests of the judge or
    others; nor shall a judge convey or permit others to convey the impression that
    they are in a special position to influence the judge. A judge shall not testify
    voluntarily as a character witness. (Florida Canon 2B)

    A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
    (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
    (2) undermine the judge’s independence, integrity, or impartiality;
    (3) demean the judicial office;
    (4) interfere with the proper performance of judicial duties;
    (5) lead to frequent disqualification of the judge; or(6) appear to a reasonable person to be coercive. (Florida Canon 5A)

    While the Committee acknowledged “[c]omplete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives” (Comment 5a), it reasoned that a judge must “accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly” (Canon 2A).

    The Minority Opinion

    The minority opinion is noteworthy because it recognizes that the social networking term “friend” does not indicate a position of influence.

    The minority concludes that social networking sites have become so ubiquitous that the term “friend” on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term “friend” on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a “friend” in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard. In this sense, the minority concludes that identification of a lawyer who may appear before a judge as a “friend” on a social networking site does not convey the impression that the person is in a position to influence the judge and does not violate Canon 2.

    Problems with the Opinion

    There are at least three problems with the Florida Opinion:

    1. The opinion fails to recognize that participants in online social networking understand that, in context, “friend” means “contact” or “acquaintance” rather than a relationship of obligation. The Facebook term “friend” and the LinkedIn term “contact” do not convey “the impression that the lawyer is in a position to influence the judge.”
    2. The opinion specifically prohibits judges from networking with lawyers “who may appear before the judge.” Since it would be a maintenance nightmare to “unfriend” lawyers when they are on a judge’s docket and it is impossible to predict every lawyer that might appear before a particular judge, it seems likely that judges will decline to “friend” all lawyers in order to avoid violating the opinion. The opinion could easily be extended to apply to litigants, their employees, relatives, friends, etc. The safest course for a Florida judge will be to say no to any online social networking.
    3. The opinion isolates judges from their peers. Judges were lawyers who enjoyed collegiate relationships with other lawyers. However, once elected to the bench, they can no longer enjoy the network of lawyers who probably helped the judge to be elected.

    Strength of the Opinion

    The strength of the opinion is that it provides a relatively clear demarcation between appropriate and inappropriate behavior. Simply put, if a judge is “friends” with a lawyer that appears in his/her court, the judge is in violation of the opinion.

    Conclusion

    The Florida Opinion prohibits online social networking between judges and the lawyers that may appear before the judge. Its strength is that it provides a measurable standard of conformity. Its weaknesses are the failure to adopt the common understanding of friend, the result that all online relationships between Florida judges and lawyers are likely to be eliminated, and that it isolates judges from the peers.

    In the next blog, I will review the New York Opinion in this topic, which takes a position at the opposite pole from the Florida Opinion.