A. Client Confidentiality?
The following points are intended to facilitate a discussion about practices for maintaining client confidentiality.
- Discuss the importance of client confidentiality.
- Discuss common mistakes that inadvertently cause violations of client confidentiality and share practical pointers in and outside one?s office for safeguarding confidential information. Among other things, examples for discussion could include:
- Discuss proper procedures for file keeping and ensuring that clients who visit your office do not see information about other client matters;
- Discuss the propriety of discussing your client?s case in public (even at the courthouse);
- Discuss the consequence of discussing confidential information with your client when a third party is present by invitation of your client (like a spouse);
- Discuss office procedures for maintaining and destroying client files which impacts client confidentiality; and
- Discuss the potential hazards of using email and fax to communicate confidential information about a case.
- Give specific examples of client information which is confidential and when such information should or should not be revealed, including, among others: the propriety of disclosing that you have been retained by someone; disclosing the name of your client to a third party; or sharing information about your client?s case to opposing counsel during negotiations.
- Discuss a lawyer?s obligations with regard to revealing client fraud. Specifically discuss the differences between the Colorado Rules of Professional Conduct and the Model Rules of Professional Conduct, which they may have learned in law school.
- Discuss a lawyer?s obligation to maintain confidentiality of clients who consult with the lawyer but who do not hire him or her, or who the lawyer ultimately refuses to represent.
- Discuss a lawyer?s obligation to maintain client confidences after the termination of the attorney-client relationship.
- Discuss the practical concerns that arise when a third party pays for a client?s representation and wants to communicate to the client?s lawyer about the representation.
- Discuss client confidentiality issues likely to arise in the new lawyer?s practice area. For example:
- When the new lawyer?s client is a corporation, which communications are confidential and with whom at the corporation can the new lawyer discuss confidential information?
- When the new lawyer?s client is the government (or a government entity), with whom can the new lawyer discuss confidential information? What obligation does the new lawyer have to inform the public about the matters being prosecuted? What obligation does the new lawyer have to inform the victim of a crime about an investigation or prosecution of a suspect?
- Discuss practical issues that must be resolved when sharing office space with lawyers not in the same firm regarding safeguarding confidential information of clients. What if the lawyers share staff like a receptionist, secretary, or a paralegal?
- Discuss how to handle a situation where a lawyer inadvertently receives a document containing what appears to be privileged information about an opposing party in pending litigation.
- Discuss the exceptions to allowing disclosure of confidential information, and provide examples of situations where such exceptions would apply. Share with the new lawyer your firm?s procedures to ensure that the law firm staff does not inadvertently disclose client confidences. Discuss the tips in the article: Kirk R. Hall, Not So Well-Kept Secrets, http://apps.americanbar.org/legalservices/lpl/downloads/secrets.pdf.
B. Conflicts of Interest?
The following points are intended to facilitate a discussion about how to screen for, recognize and avoid conflicts of interest.
- Discuss the importance of adequately screening for conflicts of interest. Share with the new lawyer the firm?s procedure for screening for conflicts (if in an internal mentoring relationship) or the mentor?s office procedure for screening for conflicts (if in an external mentoring relationship).
- Explain the importance of including prospective clients and declined clients in a conflicts database. Are these clients treated like former clients in terms of conflicts? What does this mean if another client comes along with interests adverse to the prospective client that never hired the lawyer?
- Discuss different types of conflicts of interest that can arise, particularly in the new lawyer?s practice area(s) or office setting.
- Give examples of conflicts which can be waived with informed consent. Explain how to document your clients? consent to conflicts.
- Discuss the substantial relationship test which, when met, prohibits a lawyer from representing a client against a former client. Discuss whether informed consent by the former client can cure the conflict.
- Discuss the article: Todd C. Scott, Conflict-Checking Systems: Three Great Ways to Effectively Manage Conflict Checking, GP/Solo Law Trends & News Vol. 2, No. 2, http://tinyurl.com/d9hu7kg.
- Discuss screening walls, when they apply and practically speaking, how a law office manages them. What may the new lawyer share with others within the same firm if a screening wall exists? What is the office protocol for such matters?
- Discuss how conflicts are handled when a lawyer changes firms. Should a lawyer be concerned about the same issues when hiring non-lawyer personnel who come from another firm?
- Discuss the propriety of working on a case where opposing counsel is a spouse, close relative, or any person with whom the lawyer shares a close personal relationship. Does client consent cure the potential problem?
Margaret Graham Tebo, Make a List, Check It Twice: A Good Conflicts-Checking System Helps Protect You From Ethics Violations, ABA Journal, Feb 2006, http://www.abajournal.com/magazine/article/make_a_list_check_it_twice/.
Harry H. Schneider Jr., An Invitation to Malpractice: Ignoring Conflict-of-Interest Rules Can Open Pandora?s Box, ABA Standing Committee on Lawyers? Professional Liability On-Line Resources, http://apps.americanbar.org/legalservices/lpl/downloads/invitation1.pdf.
Lawyers? Professional Indemnity Company, Managing a Conflict of Interest Situation, On-line Practice Aids, http://www.practicepro.ca/practice/conflict/ident.asp.
Harry H. Schneider Jr., An Invitation to Malpractice (Part II): Once a Conflict of Interest Is Spotted, Take Action Promptly, ABA Standing Committee on Lawyers? Professional Liability On-Line Resources, http://tinyurl.com/kpnqm95.
C. Office Working Relationships
The following points are intended to facilitate a discussion about the roles and responsibilities of paralegals, secretaries, and other office personnel and how to establish good working relationships with others in the same office who are support staff, colleagues, or senior attorneys.
- Explain to the new lawyer each non-lawyer employee?s role in the mentor?s office/firm, including the employee?s title, job duties, and relationship to the new lawyer (if any) if in an in-house mentoring relationship.
- Discuss the importance of having support staff on your team and treating them with respect.
- Share suggested ?dos and don?ts? of dealing with support staff, colleagues, and those more senior than the new lawyer. Discuss when it may be appropriate (or not) to socialize, provide gifts, or discuss potentially controversial issues such as politics or religion.
- If the new lawyer has an assistant, secretary and/or paralegal, explain the types of tasks that are appropriate (and inappropriate) to ask each of them to do.
- If in an internal mentoring relationship, discuss other support resources and when it would be appropriate to assign work to them.
- If in an in-house mentoring relationship, discuss the office culture in terms of the types of tasks new lawyers are expected (although perhaps not told) to do rather than support staff. For example, if in an office where many lawyers share one secretary, do the newer lawyers handle tasks like making their own changes to documents or making their own copies so that the secretary can focus on doing those tasks for the more senior lawyers?
- If in an in-house mentoring relationship, discuss any considerations or prohibitions in asking support staff to put in time outside of normal office hours, including whether requests for overtime must be approved, whether overtime requests must only be made on a limited basis, and how much advance notice is typically expected when asking staff to stay later than normal office hours.
- If in an in-house mentoring relationship, discuss the specific skills and knowledge each support staff member has from which the new lawyer can learn or benefit.
- Make suggestions about how to handle difficult situations where the new lawyer?s assistant/secretary is not performing as expected. If mentoring in-house, explain any procedures that are in place to address this type of problem.
- Discuss the types of behavior that constitute the unauthorized practice of law in Colorado and to the extent possible, define the ?practice of law.? Discuss an attorney?s ethical obligation to prevent the unauthorized practice of law and provide specific tips on how to prevent non-lawyer personnel from inadvertently (or intentionally) engaging in it.
- Discuss the office policies that are in place to prevent the unauthorized practice of law by non-lawyer staff.
- Share with the new lawyer appropriate ways to monitor the work product of support staff for which the new lawyer is ultimately responsible as an attorney.
- Suggest appropriate ways for the new lawyer to socialize and get to know other attorneys and judges in the community.
- Discuss the types of social or office behaviors that could be perceived as detrimental for a new lawyer?s career, both with colleagues inside and outside of the new lawyer?s office.
- If mentoring in-house, discuss the office culture with regard to decision-making and the new lawyer?s authority to do so.
MRPC 5.1, 5.2, 5.3 Commentaries:
Successful Business Planning for the Moderate Income Client, Colorado Bar Association Moderate Means Task Force, http://www.cobar.org/index.cfm/ID/22688/DPWAJ/Representing-the-Moderate-Income-Client.
Colorado Bar Association Law Practice Management Resources can be found on the CBA website at?http://www.cobar.org/index.cfm/ID/20124/dplpm/Practice-Management.
D. How to Involve Clients in their Case?
The following points are intended to facilitate a discussion about the responsibilities of the client and the lawyer in decision-making and the best ways to involve a client in the case.
- Discuss the ethical importance and necessity of involving clients in decision-making in their cases.
- Provide examples of the types of decisions in the mentor?s practice in which s/he involves the client, including, among other things, the way in which the client is involved, the reasons for involving the client in those instances, and the reasons for not involving the client in certain decisions which the Mentor makes.
- Discuss the difficulty in knowing what instructions are given (or not given) by a client and some traps that a lawyer (particularly in the new lawyer?s practice area) can fall into regarding identifying the client instructions.
- Share best practices that the mentor has adopted in his/her practice to document client instructions for his/her files, including confirming in writing to the client the instructions which were given and the steps which were or were not taken.
MRPC 1.2 Commentary: http://tinyurl.com/4mxzuq8.
The following points are intended to facilitate a discussion about handling the discovery aspect of litigation including tips for preparation and proper behavior during depositions.
- Share with the new lawyer general ways to properly draft and respond to written discovery. Discuss the inadvertent production of documents.
- Share with the new lawyer proper behavior and examples of ways not to behave in depositions. Discuss the potential consequences for improper behavior. To the extent that you have experienced a lawyer acting improperly in depositions, share those experiences with the new lawyer.
- Discuss generally how to properly advise and prepare your client or witness for a deposition. What constitutes improper advice and/or preparation?
- Discuss professional ways to handle a situation where opposing counsel is acting improperly or unprofessionally during a deposition.
- Discuss the types of disputes that would warrant calling a judge for resolution during a deposition.
- Review the civil and local rules regarding discovery and depositions.
MRPC 3.3 Commentary: http://tinyurl.com/mx6qtgv.
The following points are intended to facilitate a discussion about the most important points when negotiating with another lawyer and potential issues associated with negotiations.
- Discuss generally how a lawyer should prepare for negotiation of a legal matter, including when and how negotiation should be initiated, particularly in the new lawyer?s area of practice.
- Discuss ways to involve the client in negotiation.
- Share with the new lawyer tips for negotiating with an attorney with years of experience, a friend, or someone with whom you do not get along.
- Discuss generally the ethics and professionalism issues in negotiating on behalf of your client. In particular, discuss the duty to disclose facts which have a material impact on the negotiation as reflected in Rule 4.1.
- Talk about the skills that are needed to be an effective negotiator and how to acquire them.
- Share ?best practices? with the new lawyer on how to appropriately deal with others on behalf of your client. Review the tips in the attached article: Jeffrey D. Diener, When Negotiating, Shed Your Armor, The Young Lawyer, Vol. 10, No. 7, May 2006.
- Share with the new lawyer stories of attorneys who have ultimately harmed their client because of their incivility and lack of consideration in dealing with opposing counsel, the judge or the jury.
Thomas Noble, Improving Negotiation Skills: Rules for Master Negotiators, http://library.findlaw.com/2001/Jan/1/130785.html.
G. Common Malpractice and Grievance Traps?
The following points are intended to facilitate a discussion about common malpractice and grievance traps and how to recognize and avoid common pitfalls.
- Discuss malpractice traps and tips for avoiding them.
- Discuss common grievance problems that arise, particularly in the new lawyer?s practice area(s), and ways to avoid them.
- Give the new lawyer practical pointers on the types of practices in which s/he should engage to minimize client dissatisfaction and client complaints, including the best ways to communicate with your client and to involve your client in their representation.
- Share with the new lawyer procedures to ensure that the law firm staff does not inadvertently disclose client confidences.
- Suggest resources that the new lawyer can consult for making important ethical decisions, including the following:
- Provide suggestions for finding ethics counsel and when such action is recommended;
- Identify helpful ethics materials and discuss the importance of supplementing general ethics resources with independent research;
- Identify ethics inquiry services of bar associations, such as the Colorado Bar Association Ethics Hotline at http://www.cobar.org/index.cfm/ID/20202/CETH/Ethics/; and
- Discuss procedures for requesting or researching ethics advisory opinions of bar associations, such as the Colorado Bar Association informal and formal opinion services at http://www.cobar.org/index.cfm/ID/20202/CETH/Ethics/.
- Discuss the reasons for maintaining malpractice insurance and considerations for choosing the right policy. Discuss the attached Checklist for Purchasers of Professional Liability Insurance of the ABA Standing Committee on Lawyers? Professional Liability (LPL), http://apps.americanbar.org/legalservices/lpl/insurancechecklist.html. The ABA Standing Committee on Lawyers’ Professional Liability has a free hotline at http://apps.americanbar.org/legalservices/lpl/hotline.html and the CBA?s Lawyers Professional Liability Committee has a resource center found at http://www.cobar.org/index.cfm/ID/20110/CPLI/Lawyers-Professional-Liability/.
- Discuss the best time to involve a malpractice carrier in a claim against you for malpractice liability or ethical misconduct.
- Discuss the impropriety of settling claims for malpractice with your client.
- Discuss the impropriety of asking your client to sign a fee agreement that provides for arbitration in the event of a fee dispute, malpractice claim, or ethical misconduct allegation.
CLE Colorado, Inc. ?Practicing with Professionalism,? http://cle.cobar.org/Seminars/EventInfo/sessionaltcd/PC022714V.aspx.
CBA Ethics Committee and Hotline, http://www.cobar.org/index.cfm/ID/20202/CETH/Ethics/.
CBA Lawyer Professional Liability, http://www.cobar.org/index.cfm/ID/20110/CPLI/Lawyers-Professional-Liability/.
H. Dealing with Others On Behalf of Your Client?
The following points are intended to facilitate a discussion about appropriate ways (including ethical concerns and protocol) for dealing with others on behalf of your client.
- Discuss a lawyer?s ethical obligation to be honest with other parties and the court in all dealings with them.
- Discuss the importance of dignified, honest, and considerate transactions.
- Discuss the importance of reputation and how a lawyer?s conduct dealing with others in a case is pivotal to his or her reputation.
- Share ?best practices? with the new lawyer on how to appropriately deal with others on behalf of your client.
- Share with the new lawyer stories of attorneys who have ultimately harmed their client because of their incivility and lack of consideration in dealing with opposing counsel, the judge or the jury, or because they failed to properly and fully represent their clients.
- Share with the new lawyer stories of attorneys who have encountered ethical difficulties due to a failure to adequately communicate with their clients, colleagues within their organization, opposing counsel, and the court.
I. Unethical and Unprofessional Misconduct by Another Lawyer
The following points are intended to facilitate a discussion about how to deal with unethical and unprofessional misconduct by another lawyer.
- Discuss a lawyer?s obligation to report lawyer/judge misconduct, including the reasons why lawyers should report other lawyers? misconduct and to whom such misconduct should be reported.? Discuss the concepts of ?knowledge? and ?non-privileged information? in the context of the Rule.
- Discuss the types of factors which should be considered in determining whether misconduct should be reported to a tribunal, disciplinary agency, prosecutor?s office, or other authority.
- Discuss the following situations and suggest the most appropriate authority (if any) to whom the conduct should be reported and the reasons therefore:
- Continuous discovery abuse by opposing counsel;
- Opposing counsel filing frivolous lawsuits or lawsuits merely to harass your client;
- Egregiously unprofessional conduct during litigation;
- Suspected theft by an attorney of a former client?s funds;
- Suspected financial misconduct by a lawyer who is guardian for an incompetent person;
- An attorney?s failure to pay expert fees or other costs of litigation;
- Theft of COLTAF monies by a lawyer in your firm;
- Abusive and disrespectful behavior toward counsel and/or witnesses by a judge;
- Client neglect because of suspected substance abuse or mental health issues of another attorney;
- Erratic and unfair behavior by a judge because of suspected substance abuse or mental health issues;
- Opposing counsel representing a party with whom there is a conflict of interest; and
- Unauthorized practice of law by an attorney licensed in a jurisdiction other than Colorado.
- Discuss a lawyer?s obligation to assist in and provide information about a lawyer or judge?s conduct in an inquiry by a tribunal or other authority investigating that lawyer or judge.
- Discuss the appropriate action for a new lawyer who suspects that a partner in the firm has committed misconduct. Discuss the procedure when an associate in the firm is suspected of misconduct.
- Discuss what the new lawyer could do in the following scenarios: if unsure whether a partner or associate?s conduct is inappropriate and suspects that it might be; if a superior in the new lawyer?s firm instructs the new lawyer to do something that the new lawyer believes to be unethical, such as under/over-reporting billable hours and if the pairing is internal, what internal resources exist, if any?
- Suggest Colorado Bar Association resources listed below that the new lawyer may consult for making important ethical decisions.
MRPC 8.3: http://tinyurl.com/mjbfyn7.?
CLE Colorado, Inc. ?Practicing with Professionalism,? http://cle.cobar.org/Seminars/EventInfo/sessionaltcd/PC022714V.aspx.?
CBA Ethics Committee and Hotline, http://www.cobar.org/index.cfm/ID/20202/CETH/Ethics/.
CBA Lawyer Professional Liability,?http://www.cobar.org/index.cfm/ID/20110/CPLI/Lawyers-Professional-Liability/.
J. Grievance Process and Disciplinary Investigation?
The following points are provided to facilitate a discussion about the grievance process and disciplinary investigation procedures in Colorado, and the role of the Office of Attorney Regulation – www.coloradosupremecourt.com.
- Discuss the types of conduct that would merit a disciplinary investigation.
- If the new lawyer works in the same firm/organization, is there an internal disciplinary process of which he/she should be aware?