Getting Paid: Tips, Techniques and Ethics

person's hands using mobile phone for online banking and image of moneyClients can easily become dissatisfied when they don’t understand the lawyer’s fees or billing practices. Lawyers lose money when they fail to capture their time properly and do not approach billing and invoicing from the client’s perspective. Improper billing practices and poor client communication surrounding fees can result in ethics complaints. But by making a few simple changes to your billing and collections practices, you can improve your collection rates and your relationship with clients.

Ethics and Professionalism Credit(s): 0.5
Law Practice Management Credit(s): 0.5

Monroe County Bar Association Solo and Small Firm Conference – LinkedIn Breakout session

Using LinkedIn Ethically and Effectively

LinkedIn is the premier business network and the one often most suited to lawyers. It can be a powerful tool for attracting clients and referrals and furthering business relationships. But there are some potential ethical traps that need to be avoided as well. This session will cover some ways that you can maximize your results on LinkedIn within the bounds of the rules of professional conduct.

Tech Summit: New York State Bar Association

The 2019 Tech Summit is a two-day event which will be held at the Crowne Plaza in Times Square, NYC. The packed two-day schedule includes presentations on everything from cybersecurity to PDFs, i-devices and admissibility of tech-related evidence. Get your CLE credits for the year, along with important tech information by joining me at the Summit!

Lawyers’ Anonymous Online Activity Still Subject to Ethical Rules

Anonymous lawyer
Anonymity won’t necessarily shield lawyers from ethical obligations

I’ve said it before, but apparently, it bears repeating:

Don’t say anything online that you wouldn’t say in a room full of people.

But perhaps we need to add an addendum, “…even if you think you are making your comments anonymously.”

Case in point: in December 2018, the Supreme Court of Louisiana issued an opinion disbarring an attorney because of anonymous posts he made on the internet.

The lawyer in question had been an Assistant United States Attorney in the Eastern District of Louisiana for 27 years. But despite his experience and seniority, he was disbarred after it was discovered that he made numerous anonymous posts on the website of a New Orleans newspaper between 2007 and 2012.

The posts commented on cases being handled by lawyers in his office at the U.S. Attorney, including cases he himself prosecuted, and in many of those posts, he opined on the guilt or innocence of parties involved.

As lawyers increase their participation on the internet, both on social media and on other sites that allow commentary and discussion, more and more seem to be getting into trouble because they are forgetting that, as lawyers, they have ethical obligations and other restrictions on their behavior and even on their First Amendment rights.

In this case, in addition to the ethical rules, both Department of Justice and U.S. Attorney’s office regulations restricted or forbid attorneys from making statements outside of the courtroom about both criminal and civil proceedings.

When you join the profession, particularly if you take a job representing the government or the people, you voluntarily agree to be held to a higher standard. You take an oath to abide by certain ethical rules and standards that govern your behavior, both online and off, and these standards apply even when you are not in the office or the courtroom. These ethical obligations need to be taken seriously.

In this case, the lawyer admitted that he was the author of the online comments, but claimed that he posted the comments as a means to alleviate stress, and that he did not intend to influence others or the outcome of the cases, nor did he expect that his actions would do so since he posted anonymously and did not identify himself as an AUSA. Accordingly, he did not believe he had violated the Rules of Professional Conduct. However, he later filed a stipulation in which he admitted to violating Rules 3.6 (regarding trial publicity), 3.8 (responsibilities of prosecutors and other government lawyers), and 8.4 (misconduct in attempting to violate the Rules of Professional Conduct or engaging in conduct prejudicial to the administration of justice).

The office of disciplinary conduct claimed that making public posts about pending cases and investigations had a substantial likelihood of prejudicing the proceedings and heightening public condemnation of the accused, in violation of Rules 3.6 and 3.8, and that his actions also violated Rule 1.7.

Rule 1.7 is the conflict of interest rule, specifically where a lawyer’s professional judgment could be adversely affected by the lawyer’s own financial, business, property or personal interests. In this case, it was found that the attorney violated this rule by putting his own needs and interests above those of his client, (the U.S. Attorney’s Office) who had an interest in those cases being investigated and prosecuted without interference or impediments.

The fact that one of the cases the attorney commented on resulted in a mistrial which was granted at least in part due to his comments, that his online commentary had received “significant media attention”, that his actions were found to have negatively impacted New Orleans’ recovery after Hurricane Katrina, and that they caused delay and additional expense in several pending proceedings were further evidence that his online commentary caused actual harm or the potential for harm. Coupled with the extent and number of his postings, the Supreme Court found that these facts justified a more significant sanction than suspension.

Although the disciplinary committee recommended that the attorney be suspended with a one year deferment, the disciplinary board ultimately determined that disbarment was the appropriate penalty because, despite the fact that the attorney did not intend to cause a mistrial, “his conduct with regard to Rule 3.8(f) was intentional, as there is clear evidence that respondent intended to heighten public condemnation of various individuals being investigated or prosecuted by the USAO. As recounted in the formal charges, respondent’s comments speculated on the guilt of various individuals subject to prosecution or investigation and cast these individuals in a very negative light.”

The disciplinary board also found that the attorney was, in fact, attempting to influence others about the guilt of individuals involved in the investigations or prosecutions being discussed.

The respondent filed an objection to the disciplinary board’s decision, and in its opinion, the Supreme Court of Louisian stated, in part,

” In this age of social media, it is important for all attorneys to bear in mind that “[t]he vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1058 (1991). As the Court in Gentile wisely explained, “[a] profession which takes just pride in these traditions may consider them disserved if lawyers use their skills and insight to make untested allegations in the press instead of in the courtroom.” Id. Respondent’s conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet. In summary, considering respondent’s position of public trust as a prosecutor, his knowing and intentional decision to post these comments despite his acknowledgment that it was improper to do so, and the serious harm respondent’s conduct has caused both to individual litigants and to the legal profession as a whole, we must conclude he has failed to comply with the high ethical standards we require of lawyers who are granted the privilege to practice law in this state. The only appropriate sanction under these facts is disbarment.”

Although the respondent attorney claimed that his PTSD, diagnosed by a treating psychologist who testified at the disciplinary hearing, should be a mitigating factor in the determination of the discipline to be applied, the court found that his claims did not rise to the level of a mental disability because the psychologist testified that the respondent operated at a high level and knew right from wrong, and the attorney himself testified that he knew he should not be posting extrajudicial comments.

The court’s opinion notes,

“When asked why he engaged in commenting in a prohibited way, respondent candidly admitted that he was angry over public corruption and he vented this anger in the caustic criticism leveled against all who, in his judgment, warranted accountability, even though he knew this was improper. Respondent’s own testimony reveals he was aware that he should not post these comments, yet he decided to do so anyway. Clearly, any mental disability from which respondent suffered did not prevent him from knowing his actions were wrong.”

As a result, the court found that the respondent did not and could not prove that his mental disability (PTSD) caused the misconduct in question.

Bottom line: don’t put your career and your license in jeopardy. If you need to “vent” – which can be perfectly legitimate in a stressful profession such as law – pick another way to do it instead of posting online or in any other public venue. Seek professional help, if necessary.

Managing Your Online Reputation: Leveraging Praise and Ethically Addressing Criticism

Modern consumers of legal services are increasingly turning to the internet to find and vet lawyers. Word of mouth referrals no longer take place solely through personal contact. Even a referral from a trusted friend or advisor will be followed up by a Google search of the lawyer’s name and/or a scan of various review sites ranging from Avvo to Yelp, LinkedIn or others.

This course will show lawyers why online participation matters, cover the basic ethics issues that arise with posting client feedback and responding to online reviews and provide some do’s and don’ts for managing your reputation online. You’ll learn how to take advantage of positive reviews and client feedback and how to respond to negative online comments.

  • Why online participation matters
  • Ethical issues with lawyer reviews and ratings online
  • Monitoring online commentary about you and your firm
  • Effectively counteracting negative online reviews
  • How to obtain good client feedback
  • Using positive reviews and feedback to your best advantage
  • A step by step approach to managing your online reputation
Join us live on November 28, 2018, or check out the program on demand at a later date!

 

Ethical Issues and Implications on Lawyers’ Use of LinkedIn

Social media sites such as Facebook, Twitter and LinkedIn have become part of every lawyer’s daily life, and they can be helpful tools for expanding your professional presence and marketing your practice, as well as valuable investigative tools. But the same ethical rules that govern lawyers’ conduct also apply to their use of social media, and that can raise some concerns for lawyers in their use of these tools.

This webinar will focus on the ethical use of LinkedIn as a marketing and professional development tool, but will also touch on broader ethical pitfalls in lawyers’ use of social media in general, both for marketing purposes and as a litigation tool, discussing some of the rules and opinions that apply. Some of these issues are:

  • Is your LinkedIn Profile Advertising?
  • Staying away from false or misleading statements
  • Do you need a disclaimer on your LinkedIn profiles?
  • How do the solicitation rules apply to LinkedIn?
  • Do the “specialties” and “Skills and Endorsements” sections of LinkedIn raise ethical problems?
  • Should I ask for client recommendations on LinkedIn?
  • Confidentiality issues – what you can and cannot say about clients and cases on LinkedIn and how to communicate ethically with potential clients
  • Unauthorized practice of law and inadvertent attorney-client relationships
  • Who lawyers can and should connect to on social media

Ethics credit available in:

Alabama
Alaska
Arizona
Arkansas
California
Kansas
Maine
Mississippi
Missouri
Nebraska
New Jersey
New Mexico
New York
Oklahoma
Oregon
Pennsylvania
Tennessee
Wyoming

(This is a “simulive” rebroadcast of a previously recorded presentation. I will be available during the rebroadcast to answer questions.)

Register for this broadcast here.

Shaping Your Narrative – Online Reputation Management

In this ABA TECHSHOW session, Gyi Tsakalakis and I will be discussing online reputation management–when consumers need a hotel or a restaurant, they turn to online rating services to find the best. When prospective legal clients need a lawyer, more and more are now turning to the web to see which lawyers rate the best and which ones fail the test. It may sound absurd but you need to start worrying about what others are saying about you and your practice online. This session will review various online attorney review sites, discuss ways to leverage positive reviews in your online marketing, and how to deal with those nagging negative reviews. We’ll also cover the relevant ethics rules.

Avoiding Ethical Problems in Online Legal Marketing

This live program is now available on CD or DVD from the New York State Trial Lawyers Association. The program offers a full 4 ethics credits – enough ethics for your biennial registration.

This important program on using social media to market your practice without falling into any ethical quagmires.

 

The program features top speakers on social media ethics who will address avoiding ethical pitfalls within your website, blogs, LinkedIn, Facebook as well as best practices.

We will also focus on the application of advertising rules to LinkedIn, specifically:
• NYS Rule 7.1: False or misleading statements
• Disclaimers on LinkedIn profiles (Rule 7.1 and 7.3)
• Solicitation (Rule 7.3)
• Specialization and “expertise” (Rule 7.1 and 7.3, NYSBA Opinion 972)
• LinkedIn Skills and Endorsements – reciprocal recommendations (Rule 7.2) and other issues
• Client recommendations on LinkedIn
• Confidentiality – what you can and cannot say about clients and cases on LinkedIn; confidentiality issues in communicating with clients/potential clients electronically (Rule 1.6)
• Unauthorized practice of law and inadvertent attorney-client relationships (Rules 1.18 and Rule 5.5)
• Who lawyers can and should connect to on social media

There is also be a discussion on the use of Facebook, including:
•“Friend” requests – which requests should and should not be accepted
• What ethical issues are there when “friending”
• Ethical considerations in researching juror’s, parties’, and witness’s social media presence
• What can and can’t attorneys advise clients about incriminating social media postings

The program also includes comments from the Grievance Committee concerning the Committee’s perspective as to how attorneys are getting into trouble with advertising rules using social media.

FACULTY:
Chair: Annamarie Bondi-Stoddard
Pegalis & Erickson LLC

Fred Cohen, Esq.
Founder, Amicus Creative Media, LLC

Stacey Sharpelletti, Esq.
Assistant Counsel to the Grievance Committee for the 10th Judicial District

Allison Shields, Esq.
President, Legal Ease Consulting

Aaron Zerykier, Esq.
Farrell Fritz, PC
Secretary of the Social Media Committee, Commercial and Federal Litigation Section of the NYSBA