Archive for the tpoic: ‘legal ethics’

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

Thursday, May 6th, 2010

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:

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

Friday, January 8th, 2010

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

Thursday, December 31st, 2009

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

    Monday, December 28th, 2009

    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

    Staying Within the Lines: Proposed Rule Changes Could Blur the Lines for Attorneys

    Friday, December 11th, 2009

    photo by Bruce A. Campbell The proposed changes to the Texas Disciplinary Rules of Professional Conduct could make it difficult for attorneys to practice “within the lines.”

    One example of blurred boundaries is the definition of an “affiliated lawyer” in Rule 1.00(c)(iii).

    A lawyer is “affiliated” with a firm if either the lawyer or the lawyer’s professional entity… has any other relationship with that firm, regardless of the title given to it, that provides the lawyer with access to the confidences of the firm’s clients that is comparable to that typically afforded to lawyers in category (i)…

    Category (i) is defined as “a shareholder, partner, member, associate, or employee of that firm.”

    How will the definition of affiliated lawyers create conflicts problems? Consider the following scenario.

    A law firm brings in a contract lawyer to work on one particular matter but either 1) fails to limit the contract lawyer’s access to other clients’ matters on the firm’s computer or 2) fails to restrict the contract lawyer from hearing conversations related to other clients by firm lawyers within the office. The firm has probably provided “access to the confidences of the firm’s clients,” which is a condition for the contract lawyer to become an affiliated lawyer. By inadvertently making the contract lawyer an “affiliated the lawyer,” the firm now faces the potential of unforeseen conflicts of interest based on the past representations of the contract lawyer.

    This is just one possible outcome from the proposed changes to the Disciplinary Rules. I will be posting more discussions about what lies ahead with the proposed amendments to the Disciplinary Rules.

    Photo and processing by Bruce A. Campbell.

    Dangers of Social Networking for Attorneys

    Wednesday, November 12th, 2008

    Photo by Bruce CampbellCompromising or inappropriate pictures, statements, or other information on social networking sites may hinder an attorney’s opportunity for employment, obtaining a license to practice law, or even result in suspension of a law license. Attorneys must recognize that their portrayal on social networking sites is considered a reflection of personal character. Read more about the dangers of social networking in “Choose Your Friends Wisely” – the next article in the Texas Lawyer legal ethics series, written by Bruce A. Campbell.

    Read the article on law.com.
    Download a PDF of the article.

    (Photo © Bruce A. Campbell)

    And you thought your day was bad?

    Wednesday, May 21st, 2008

    Eclipse by Bruce A. CampbellIn Qualcomm Inc. v. Broadcom Corp.,1 a Federal Judge for the Southern District of California handed Qualcomm and six of its retained attorneys severe sanctions relating to “monumental” discovery violations after attorneys for Qualcomm failed to produce “tens of thousands” of e-mails until after trial. Specifically, the court stated that Qualcomm violated its discovery obligations by failing to produce more than 46,000 e-mails and documents that were requested in discovery (which Qualcomm agreed to produce). The court noted that Qualcomm failed to present any evidence attempting to explain or justify its failure to produce the documents. The court also found that it was likely one or more of the retained lawyers chose not to look into the correct location of the documents and accepted the unsubstantiated assurances of Qualcomm that its searches were sufficient. Of the eighteen attorneys representing Qualcomm, three were deemed responsible for the discovery failure because they handled Qualcomm’s discovery responses and production of documents, while three more were deemed responsible for the discovery violation because they did not perform a reasonable inquiry to determine whether Qualcomm had complied with its discovery obligations.

    As sanctions, the court ordered Qualcomm to pay Broadcom for all of its attorneys’ fees and costs, which totaled $8.5 million dollars. To address the potential ethical violations, the court also referred six of Qualcomm’s retained attorneys to the State Bar of California.

    If nothing else, the Southern District Court of California’s response to Qualcomm and its attorneys shows that discovery creates the risk of substantial potential exposure.

    _________
    12008 WL 66932

    Legal Ethics Discussions

    Wednesday, August 8th, 2007
    What does the terminology “Legal Ethics” mean? Some would say the combination of those two words is an oxymoron. Nevertheless, in order to understand what legal ethics entails, it is helpful to understand what is meant by the terminology.

    Ethics can be defined as the set of standards that allow us to evaluate human motive and conduct, and help us distinguish right from wrong. Some professions, law being one of them, have a separate set of professional rules that govern the actions of their members.

    Almost a century ago the American Bar Association (“ABA”) reacted to claims that almost anyone could become a lawyer, and that the profession was losing its status. The fruit of the ABA’s efforts was the first code of professional ethics for U.S. lawyers, the Canons of Ethics, which was introduced in 1908. The Canons of Ethics set out rules governing the client-lawyer relationship, duties of a lawyer to the client, rules for interaction with non-clients, advertising, and other rules intended to maintain the integrity of the legal profession. The Canons of Ethics were adopted in various forms by the Bar Associates of the various states. Curiously, over the years there has been relatively little written about what is intended in general about legal ethics. Instead, the focus has been on particular conduct of specific lawyers and judging whether the conduct satisfied the ethical rules or not.

    Nevertheless, about 60 years ago a New York court did discuss the definition of “legal ethics”. The context in which the court’s discussion occurred arose when a property owner accused the lawyer who had worked for the other side of being “unethical” without describing how. The lawyer filed a slander claim asserting that being called “unethical” besmirched his professional representation. In discussing the terminology legal ethics the court pointed out:

    ‘Legal ethics’ is defined in Ballentine’s Law Dictionary (1930) as ‘the usages and customs among members of the legal profession involving their moral and professional duties toward one another, toward the clients and toward the courts’. . .

    The court further pointed out that Black’s dictionary defined “Legal Ethics” as:

    ‘that branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client.’ Kraushaar v. Lavin, 42 N.Y. Sup. 857, 859 (NY. 1943).

    The court in Kraushaar further observed that:

    A person licensed to practice law must conform not only to the standards of ethical conduct generally but also to the professional standards of conduct which from time immemorial have characterized the legal profession. The latter are, in part, embodied in the Canons of Professional Ethics adopted in this state by the . . . Bar Association but, as stated in the introductory paragraph of the Canons, ‘the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned. . . . (citations omitted).

    As the court observed:

    Membership in the bar is a privilege burdened with conditions. . . . There are four phases of qualifications for admission to the Bar: (1) Academic training; (2) legal training; (3) moral character; (4) belief in the form of and loyalty to the government of the United States.’ Upon admission the lawyer becomes ‘an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.’ In short, ‘the practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study. Because of the nature of the duties performed by the lawyer moral character and general fitness are as essential after admission as ‘at the moment of admission’ and in disciplinary proceedings ‘the examination into character is renewed.’

    In the upcoming editions we will explore many of the ethical issues with which lawyers must grapple or potentially risk the loss of their license.