Category Archives: Legal Ethics

TBJ Article: Law in a Time of Pandemic

The Texas Bar Journal recently published an article about how the bar responded to the Spanish Rule between 1918-1920. Written by Mr. Stephen Pate, the article discusses how courts began closing in October 1918, with Tarrant County deciding to close all courts until the “epidemic had subsided”.

Could you imagine the same being done today?

During the epidemic, San Antonio noticed that both the epidemic and military service depleted venire planes. Again, could you imagine trying to emplace a jury where there were not enough jurors?

What is interesting to note from the article is that despite the October 1918 crest, there was a flare up in 1919, but courts were open (although understaffed) and continued to operate.

What does history tell us about today though?

Essentially, we must be able to help each other. The judiciary found a way to have Judges cover matters in various adjacent courts. Though this increased the workload, it allowed justice to continue to operate. Without the wheels of justice continuing to steam along, the Rule of Law may not have been preserved. Today, we have many avenues (arguably a product of Digital Era Governance) that allow for courts to continue along.

Additionally, law firms are finding a way to meet clients and pursue matters with minimal interruption to the level and caliber of service they provide. What might be interesting is whether the proposed Rule 13.05 will allow for solo-practitioner firms to survive COVID-19, like some multi-attorney firms might be able to.

Read the full article from Mr. Pate in the Texas Bar Journal here: https://heinonline.org/HOL/P?h=hein.barjournals/texbarj0083&i=384

Disaster Planning for the Legal Profession

Disaster Planning for the Legal Profession

As disasters seem to be becoming more foreseeable, what areas should the legal community start looking towards to prepare themselves for the professional ethics delima.

The following is an excerpt from the forthcoming publication of “Operation Disaster Defender: A Multi-Disciplinary Approach to Preserving Access to Justice and Client Property Through Disaster Preparedness” set to publish in the Western Michigan Cooley Journal of Practical and Clinical Law in May 2018.

Though no method will guarantee a lawyer’s ability to safeguard client property during a disaster, both self assessed and accredited programs recommend or imply that a lawyer should consider several common areas while developing an emergency action plan. These areas include: (1) planning, (2) facilities, (3) communication, and (4) insurance.

First, at the outset of representation, a lawyer should consider including a provision in the client engagement letter detailing how the client’s property will be handled during a disaster or emergency situation. [1] This can range anywhere from a highly detailed manual or a brief few paragraphs that outline each parties’ duties and responsibilities.

Second, he or she should consider storing client property off site with a reputable fiduciary organization that focuses on safeguarding client property either online or in a secure storage facility. [2] Many times theses organizations have personnel, systems, and expertise dedicated to ensuring the survival of the property during a disaster.

Third, a lawyer should consider contacting clients to arrange for them to pick up his or her  property temporarily during a forecasted disaster, especially if it is not immediately needed for his or her  cases. [3] Though, conceptually, this practice might run afoul of the model rule’s if the client lacks the ability to store the property during a disaster themselves.

Finally, he or she should review insurance policies and determine whether the right type of insurance policy has been purchased at the right amount for the client’s property. [4] This is a good practice not only at work, but at home. Many times, individuals will buy insurance and forget to review it at least annually to ensure adequate coverage.

Ultimately, developing an emergency action plan focuses on reducing the number of questions a lawyer needs to answer when time counts. Answering these questions well in advance of a disaster will also allow the lawyer to find the best solutions to fit his unique situation. However, the issue with self assessed standards is that there is no confirmation of the actual accomplishment of preparedness objectives before a disaster strikes.

References:

[1] Mark L. Tuft, Techno Ethics: Practicing Law in Harm’s Way, 23 GP Solo Disaster & Recovery (2006), http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/2006_dec_technoethics.html (last visited Mar. 4, 2016). On March 5, 2016 a search across both Lexis Advanced and Westlaw Next produced no cases or situations where lawyers faced disciplinary or civil liability for their lack of preparation for a disaster.

[2] Id.

[3] Id.

[4] Carol M. Langford, The Ethical Duties of Disaster Preparation, The Cal. B. J. (Feb. 2006), http://archive.calbar.ca.gov/Archive.aspx?articleId=73830&categoryId=73746&month=2&year=2006 (last visited Mar. 4, 2016).

State Bar of Texas Annual Meeting – Day 2 Review

Friday was the second day of Continuing Legal Education (CLE) and meetings for the State Bar of Texas. Here is my take on some of the events attended and topics discussed.

Today was the second day of the State Bar of Texas’ Annual Meeting, hosted in Fort Worth, Texas this year. Though the location rotates every year, this is the first time since 2010 that the conference has been held in Fort Worth. There were many great events and discussions on a wide variety of topics available to attend today. Here is the highlights of some of the major ideas shared during a small handful of the presentations today:

  • Setting up Your Practice & Solo Solo: These two sessions discussed some of the unique issues that Solo Practitioners and small law firms face in getting established and actually running the business side of the law firm. One of the biggest questions revolved around client trust funds and when a lawyer actually earns the retainer. There have been some new ethics decisions from the State of Texas directly on point to the issue.
  • Military Justice Update: A View From the Bench: This was a great seminar talking about the recent changes in the 2015 National Defense Authorization Act (“NDAA”) that changed the way medical records can be requested and used during a Court Martial proceeding. This was presented by recently retired Lieutenant Colonel Faulkner, a former Military Judge from Fort Hood, Texas. Essentially, instead of the Military Judge reviewing the documents in-camera (meaning only the judge reviews it and then decides whether it is admissible or not) there must now be some level of cause shown before the Military Judge can begin the the in-camera review. This was a great session that brought up some interesting issues around the concept of “privileges” (i.e. the ability to exclude relevant evidence for a good reason like the husband-wife privilege or the priest-partitioner privilege) and how this new law expands or contracts  the scope of current privileges.
  • General Lunch Session with Guest Speaker S.C. Gwynne: This was an incredible speaking event. Mr. Gwynne wrote the recently published “Empire of the Summer Moon” which talks about the waning days of the Comanche Empire in Texas. The big take away (which I echo from my experience deployed in Afghanistan) is that culture means everything. It is likely immature and inappropriate to view a problem solely through your own cultural lens, history, and social norms. You must view the problem through both sides in order to develop a lasting and adequate resolution. (i.e. the Comanches spent several decades rating other tribes back and forth. This was their cultural norm. To those who were settling Texas, it was barbaric).
  • Disaster Planning and Recovery: This was an awesome session with Mr. Paul Martin of the National Association of Mutual Insurance Companies. In this presentation he broke down the concept of disaster preparedness and why even solo firms need to think about it. Many of the things that Mr. Martin presented were actually echoed almost everything I spoke about in my recent paper “Operation Disaster Defender”.

State Bar of Texas Annual Meeting – Day 1 Review

State Bar of Texas Annual Meeting – Day 1 Review

Today was the first day of Continuing Legal Education (CLE) and meetings for the State Bar of Texas. Here is my take on some of the events attended and topics discussed.

Today was the first day of the State Bar of Texas’ Annual Meeting, hosted in Fort Worth, Texas this year. Though the location rotates every year, this is the first time since 2010 that the conference has been held in Fort Worth. There were many great events and discussions on a wide variety of topics available to attend today. Here is the highlights of some of the major ideas shared during a small handful of the presentations today:

  • Advertising Rules and Social Media Usage for Attorneys: Though one might think that the State Bar vets all attorney ads for “tastefulness.” That really isn’t their job. The State Bar actually seeks to ensure that ads are not misleading or fraudulent to the public.
  • Legal Perspectives on Drone Regulation and Liabilities: This is an area to watch very closely. The FAA came out with proposed regulations in February 2015 and closed the comment period recently. We are still waiting to see what the new regulations will be for commercial (that includes government) and hobby/recreational Unmanned Aerial System (“UAS” aka “Drones”). Though some Fire, Police, and Emergency Management Departments might hope; there is skepticism that local governments will obtain a separate regulatory scheme apart from commercial business applications.
  • Fit for Flight: A Critical Look at Mental Health in the Pilot Community, and the Science Behind the FAA’s Fitness for Duty Standards: This was interesting in the fact that an analogy could be drawn to first responders in the sense that they are similarly placed in high stress situations as part of their duties. (Sometimes what I call “complete and utter boredom interrupted by moments of sheer terror”) It is interesting that this same concept of mental fitness hasn’t completely parted over to the Police, Fire and Emergency Management professions, given some of the concerns over suicide and mental illness within some of the professions. I believe that it might be a matter of time before we begin seeing industry wide application of similar principals. It won’t be a carbon copy of the system (that would be somewhat inappropriate and economically infeasible for most small departments); however, some of the best practices might be ported over.
  • Liability Insurance: Key Practice Pointers for Litigators: One of the major take aways is that there can be an additional counsel brought in during an insurance case to represent issues related to Insurance Policy coverage rates. The whole role of this attorney its to represent the actual policy (where the insured and insurer’s interest align). For example, if the insured and insurer both come to a conclusion in court on what the settlement ought to be, this third attorney would be the one to raise the red flag if the contract (insurance policy) will not cover the settlement reached.

Legal Ethics of Safeguarding Client Property During Disasters

Legal Ethics: Safeguarding Client Property During Disasters

Considering legal ethics: How far must a lawyer go to safeguard property entrusted to them in the event of a disaster? Are lawyers ethically required to have a plan or just take precautions as circumstances dictate?

When considering legal ethics: How far must a lawyer go to safeguard property entrusted to them by a client or third party during a disaster? The American Bar Association’s (“ABA”) Model Rule of Professional Conduct (“Model Rules”) 1.15 requires a lawyer to safeguard client funds and other property entrusted to the lawyer during representation of the client. Many states’ ethics rules provide great detail on a lawyer’s duty to safeguard fund; however, they typically provide little guidance on safeguarding tangible property. Very few cases and ethics opinion speak directly on safeguarding client property during a disaster, collectively they indicate that a lawyer should develop an emergency action plan for handling client’s property—including case files—in the event of a disaster. This article will analyzes a lawyer’s ethical duties under the ABA’s Model Rules and the American Law Institute’s Restatement of the Law (3d) of the Law Governing Lawyers (“Restatement”). Issues relating to possible civil or criminal liability will not be discussed.

What is a Disaster?

A disaster is an emergency situation that exceeds a community’s ability to control and either temporarily or permanently disrupts the community’s sense of normality.[1] Disasters are classified as either a technological or natural disaster. Technological disasters are man-made events, usually associated with either intentional or negligent conduct of others.[2] Examples of technological disasters include (i) war, (ii) civil unrest and rioting, (iii) terrorism, (iv) major transportation accidents, (v) arson, and (vi) structure fires. Natural disasters are extreme meteorological or geological events that cause damage, disruption, and casualties usually leaving a community unable to function normally without outside assistance”.[3] Examples of natural disasters include: (i) tornados, (ii) hurricanes, (iii) earthquakes, (iv) landslides, and (v) flooding. Over 350 major disaster declarations have been issued since 2010, usually for natural disasters.[4]

What is a lawyer required to do in order to properly safeguard client property?

Comment 1 to Model Rule 1.15 states “a lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances”.[5] Restatement §44 similarly describes the lawyer’s duty to take “reasonable steps to safeguard the funds or property.”[6] Comment e to §44 further elaborates by stating several factors that should be weighed in evaluating the reasonableness of the steps needs to take in order to adequately safeguard the property: (i) the circumstances, such as the property’s: market value, special value to the client or third-person, or difficulty to replace (if known to the lawyer), (ii) the property’s transferability or convertibility, (iii) the property’s susceptibility to loss or other damage, (iv) the reasonable customs of lawyers in the community, (v) and the availability and cost of alternative methods of safekeeping.[7] A lawyer may modify their obligation with a client’s written informed consent on terms serving “some purpose other than the convenience or profit of the lawyer”.[8]

As each state adopted language consistent with the Restatement or Model Rule’s approach to safeguarding client property, they focused heavily on safeguarding funds and less on other property. Some ethics Opinions, such as Florida Bar’s 72-37, provide some insight in expecting a lawyer to “act prudently” while safeguarding client property.[9] Mississippi Bar’s Ethics Opinion 254 even states, “good common sense should provide answers to most questions that arise”.[10] Theoretically, safeguarding of a client’s tangible personal property even includes client files, which are also considered to be property of the client.[11]

Courts and disciplinary boards take the circumstances surrounding a disaster into consideration when determining the appropriateness of disciplinary action.[12] [13] However, since a lawyer is required to hold property with the care of a professional fiduciary, it is reasonable to conclude that a lawyer having notice impending disaster can only meet their ethical obligation by preparation and implementation of an emergency action plan.[14] Additionally, failure to create or implement an emergency action plan that leaves client files and property in a “vulnerable, unsecured, law office” can also run a risk of violating Model Rule 1.6 (confidentiality).[15] Ultimately, a lawyer charged with safeguarding client and third-party property before a disaster is in the best position to avoid ethical violations during a disaster.

What should an attorney do to meet their ethical obligation?

Though no method will guarantee a lawyer’s ability to safeguard client property during a disaster, there are four basic areas a lawyer should consider while developing their emergency action plan. First, at the outset of representation consider including a provision in the client engagement letter detailing how the client’s property will be handled during a disaster or emergency situation.[16] Second, consider storing client property off site with a reputable fiduciary organization that focus on safeguarding client property either online or in a secure storage facility.[17] [18] Third, consider contacting clients to arrange for them to pickup their property temporarily during a forecasted disaster, especially if it is not immediately needed for their case.[19] Finally, review insurance policies and determine whether the right type of insurance policy has been purchased at the right amount for the client’s property.[20] Ultimately, development an emergency action plan focuses on reducing the number of questions a lawyer needs to answer when time counts. Answer these questions well in advance of a disaster will also allow the lawyer to find the best solutions to fit their unique situation.

Conclusion

Given that disasters are becoming increasingly more common, it would be imprudent for lawyers to regard disasters as simply, “acts of God”.[21] It is very safe to assume that rules of professional conduct in the legal profession will not be suspended regardless of the circumstances a disaster may impose upon a community.[22] However, taking the time to develop an emergency action plan will reduce a lawyer’s risk of violating ethical standards while safeguarding client property and confidentiality during an emergency or disaster.

Sources

[1] Perry, Ronald. What Is a Disaster?: New Answers to Old Questions, 25-28. Philadelphia, PA, 2005.

[2] Pappas, Fay. “Note: Gulf Coast Blowout: How the BP oil spill is corroding Communities and what Attorneys & Policymakers must do to stop it.” Univ. of Fl. Journal of Law and Pub. Pol. 22 (2011): 229.

[3] Petrucci, Olga. The Impact of Natural Disasters: Simplified Procedures and Open Problems. Rijeka: InTech Europe, 2012. 111.

[4] “Disaster Declarations by Year.” Accessed June 25, 2015. https://www.fema.gov/disasters/grid/year.

[5] Dzienkowski, John S. “2014 ABA Model Rules.” In Professional Responsibility, Standards, Rules and Statutes 2014-2015, p. 47. 2014-2015 ed. St. Paul, MN: West Academic Publishing, 2014.

[6] Dzienkowski, John S. “Restatement (Third) of Law Governing Lawyers.” In Professional Responsibility, Standards, Rules and Statutes 2014-2015, p. 641.

[7] “Safeguarding and Segregating Property, Comment e.” In Restatement (Third) of Law Governing Lawyers, §44. Vol. 1. West Publishing Company, 2014.

[8] Ibid.

[9] Zehmer. “Professional Ethics of the Florida Bar Opinion 72-37.” The Florida Bar. November 27, 1972.

[10] “Ethics Opinion No. 254 of the Mississippi Bar.” The Mississippi Bar: 254. December 8, 2005.

[11] Keim, James. “Law Office Disaster Preparedness: The Liability and Ethics of Attorneys.” The Florida Bar Journal 80, no. 5 (2006): 26.

[12] Varnado, Sandra, and Dane Ciolino. “Reconsidering Lawyers’ Ethical Obligations in the Wake of a Disaster.” The Professional Lawyer 19, no. 4 (2009): 8-19.

[13] Nava, Brenna. “Comment: Hurricane Katrina: The Duties and Responsibilities of an Attorney in the Wake of a Natural Disaster.” St. Mary’s Law Journal 37 (2006): 1153-192.

[14] Dzienkowski, John S. “2014 ABA Model Rules.” p. 47.

[15] Varnado, “Reconsidering Lawyers’ Ethical Obligations in the Wake of a Disaster” p. 8-19.

[16] Ibid.

[17] Ibid.

[18] Keim, James. “Law Office Disaster Preparedness.” p. 26.

[19] Ibid.

[20] Langford, Carol. “Ethical Duties of Disaster Preparation.” California Bar Journal. February 2006. Accessed June 20, 2015. http://bit.ly/1Cuo8f2.

[21]Tuft, Mark. “Practicing Law in Harm’s Way.” TECHNO ETHICS. 2006. Accessed June 20, 2015. http://goo.gl/kwEfdw.

[22]Ibid.