Monthly Archives: August 2011

Legal Ethics & Fee Agreements

Legal Ethics – two little words that make the hairs on every attorney’s neck stand up. What does ethics mean to you – is it just another required MCLE course?

There is obviously a reason why legal ethics is mandatory in almost every state.  Knowing your ethical obligations and acting responsibly will ensure that you get to keep that law license you worked so hard for.

If you need dreaded legal ethics units or if you could use some help when it comes to a

ttorney’s fees and fee agreements, we have been lucky enough to work with renowned attorney James E. King of the King Law firm. Mr. King has put together an excellent two-hour course on fees and fee agreements.[1] In the course Mr. King discusses case law, advisory opinions, and Model Rules to detail both the ethics and reasonableness of attorney fees.

Here is my favorite quote from the course:

“If one pays peanuts, one only expects to hire monkeys.”

The fee agreement ensures that you get paid and a well-written fee agreement means that you get to keep the fees that you have earned – provided that they are ‘reasonable.’ It may also prevent action from the State Bar or a malpractice proceeding.[2] In addition to ensuring that you get paid, the fee arrangement also serves as the roadmap of the relationship between the attorney and the client.[3] And it protects you because it is the contractual agreement between the attorney and client and it

memorializes the terms of the agreement.

I will leave you with one last quote from Abraham Lincoln (compliments of Mr. King) that comes from a speech he gave to a group of young lawyers in Illinois over a century ago:

“A lawyer’s time and advice are his stock in trade.”

The course can be found here: Fee Agreements: Ethics & Reasonableness


[1] Mr. King is the founder of the King Law Corporation in San Diego and specializes in attorney fee disputes, legal ethics, and advises corporate counsel and law firms on litigation costs. Mr. King has testified as an expert witness on numerous attorney-client fee disputes and has represented prominent clients such as Heisman Trophy winner Rashan Salaam, Prince Fahd Aziz of Saudi Arabia, and attorney Robert Shapiro. Mr. King serves as a Special Master for the State Bar of California and is Vice-Chair of the Fee Arbitration Committee for the San Diego County Bar Association. Mr. King also lectures and publishes works on the ethics and reasonableness of attorney fee ethics and other legal ethics topics.

[2] As soon as an attorney files a claim for unpaid bills from the client, the client usually turns around and files a malpractice suit and seeks to have the lawyer’s fees reduced. Without a solid fee arrangement, an attorney may have his or her bills reduced by 25% or disgorged completely if there have been egregious ethical slip-ups.

[3] It sets the boundaries for the entire attorney-client relationship. Don’t like answering phone calls? If you charge the client for excessive calls, they will be less likely to call you every 5 minutes for updates on the case. Have a problem terminating clients? Make sure to include a clause that makes them pay for any extra copying of papers or files at the termination of the representation.

Some N.J. Attorneys May Complete all 24 MCLE Units Online

Good news for New Jersey attorneys who reside outside the state. You may now be able to fulfill all 24 of your MCLE units through online study.

Generally, New Jersey attorneys are allowed to fulfill up to one-half of their CLE requirement (12 Units) through courses offered in alternative verifiable learning formats. Alternative verifiable learning formats include:[1]

  • Videotape
  • Audiotape
  • Remote place viewing or online internet computer presentations
  • Satellite simulcast
  • Teleconferencing
  • Videoconferencing
  • Internet computer self-study
  • Or other type of remote learning format authorized by the Board

Normally, courses taken through alternative verifiable learning formats are allowed to account for no more than twelve credit hours per compliance period under the New Jersey MCLE rules. However, on July 21, 2011, the Supreme Court of New Jersey approved a number of changes to the Regulations of the Board on Continuing Legal Education:[2]

BCLE 201:2 – Requirements for newly admitted attorneys

BCLE 201:6 – Teaching CLE

BCLE 201:8 – Allowing for 100% alternative coursework in certain circumstances through alternative verifiable learning formats such as online video and audio

BCLE 401:4 – reporting requirements for newly admitted attorneys

BCLE Regulation 201:8 was amended to allow attorneys who do not live or work in New Jersey more flexibility when it comes time to fulfill their MCLE requirement. These attorneys may be allowed to take all of their credits through alternative verifiable learning formats such as online audio or video.[3] This exception also applies for those New Jersey attorneys that obtain a medical certification.

Further attorneys in New Jersey may also reciprocity credit from courses completed in another MCLE state such as New York.

Can attorneys meet the NJ requirement in another state?

New Jersey attorneys who are satisfying the CLE requirement of another state or who are taking courses approved for CLE by another state will receive 1:1 credit for courses approved in that jurisdiction through reciprocity. However, attorneys should be aware that there are differences in requirements from state to state. Those attorneys must ensure that they are also meeting the requirements of New Jersey’s program. For example, New Jersey requires that four credits be taken in courses related to ethics and/or professionalism.

For example, an attorney licensed in both the Empire state and the Garden state could apply their online CLE Units from New York towards their New Jersey MCLE requirement.

Luckily, Attorney Credits is an Approved Provider of MCLE in New York and we will soon be offering online CLE courses for New Jersey (N.J.) attorneys as well.

See:  AMENDMENTS TO THE REGULATIONS OF THE BOARD ON CONTINUING LEGAL EDUCATION APPROVED BY THE SUPREME COURT

http://www.judiciary.state.nj.us/notices/2011/n110729a.pdf

NEW JERSEY:

https://njcourts.judiciary.state.nj.us/web0/cle/index.htm


[1] See BCLE 201:8. Alternative verifiable learning formats.

[2] New Jersey Amends Their MCLE Rules – Effective Immediately

http://www.ginascleblog.typepad.com/

[3] The rule now states (underlined changes): Lawyers who do not reside or work on a regular and continuous basis in New Jersey or in another mandatory CLE jurisdiction for the entire compliance period or who are medically certified as unable to attend live courses: Courses taken through alternative verifiable learning formats, if approved for CLE course accreditation, may account for 100% of the credit hours required in a compliance period; provided, however, that this shall apply only during such time as (i) the lawyer does not reside or work on a regular and continuous basis for the entire compliance period in New Jersey or in another mandatory CLE jurisdiction or (ii) a licensed physician certifies to the Board that the lawyer is unable to attend live courses.

#mistrial

California jurors that just can’t resist tweeting about that ‘whacked out defense lawyer’ may now end up behind bars for six months.

Last week California officially banned jurors from tweeting, texting, or using smartphones to discuss or research details of their case.[1] Authored by Assemblyman Felipe Fuentes and signed by Governor Jerry  Brown, AB 141 tries to combat a growing problem. Judges across the country have been forced to declare mistrials and overturn jury verdicts in numerous cases after learning of jurors electronic misconduct.  The enactment of the new law shows the ill effects of technology on the law as every juror with a smartphone that Facebooks, blogs, tweets, and Googles threatens the sanctity of our legal system.

Many are questioning whether the new law will actually deter jurors – but at least it’s a step in the right direction.  Some have gone as far as to propose digital sequestration for jurors in high profile cases, although at least now California judges will have a little more power to persuade jurors to act responsibly when it comes to their social media activity.

Specifically, the new California law augments existing jury instructions and requires trial judges to inform jurors of the new ban on sharing information electronically and outside research. The California courts system’s Judicial Council has noted that jurors’ use of electronic devices has become “an increasingly significant threat to the integrity of the justice system.”[2] Facebooking jurors will now face charges of criminal contempt for up to six months if they are found guilty of using electronic and their iPads and Androids to conduct research or disseminate information about the trial.

AB 141 “requires the court, when admonishing the jury against conversation pursuant to these provisions, to clearly explain, as part of the admonishment, that the prohibition of the use of electronic or wireless devices applies to all forms of communication, electronic research, or dissemination of information about a case. The bill would require the officer in charge of a jury to prevent any use of an electronic or wireless device to communicate, research, or disseminate information about a case.” (see: California bans jurors from utilizing social media to discuss their cases)

While technology has been quite beneficial for attorneys and the practice of law, it has also had its downside – especially on the courtroom, a place where information is highly monitored and guarded by the judge and attorneys.  While the law looks to protect information, technology has made it increasingly easy to disseminate information rapidly to wide groups of people.

A juror with a smartphone can be a dangerous threat to a criminal defendant’s six amendment right to a fair trial and the equity of civil proceedings.

Consider these examples of electronic misdeeds:[3]

  • A Michigan judge fined a juror $250 last fall and ordered her to write an essay on the Sixth Amendment.  The defendant commented online that she thought the defendant was guilty – before the defense had even presented its case.
  • In the corruption trial of former Baltimore Mayor Sheila Dixon, five jurors ‘friended’ each other and then posted comments about their jury experience on Facebook, even after the judge admonished them to stop their electronic communications.
  • Jurors have also used their phones to look up criminal records and investigate crime scenes through Google Maps.  Because this information was not presented at trial it could be considered prejudicial.
  • During deliberations a jury foreman in a murder case used his camera phone to take a picture of the alleged murder weapon. He later posted the photo of the a 15-inch saw-toothed knife to his blog. The juror also used his blog as a platform to broadcast information and research about the trial.
  • Even television weatherman Al Roker found himself in hot water after tweeting photos of his jury duty experience back in May 2009. Roker used his phone to post pictures of the New York State Supreme Court jury lounge in Manhattan County.  Although the pictures were taken in the jury lounge, the pictures included shots of his fellow jurors.

Personally, I can’t wait for the first juror to get locked up for tweeting. I could imagine that jailhouse conversation when the first inmate walks up to him and asks, “what are you in for?”  Tweeting.


[1] I have been tracking the negative effects of technology on the courtroom for quite a while now. See Ethics (still applies) in a Web 2.0, World, Social Media: Positive or negative affect on the law?, Social Media Creates New Quandaries, Trick or Tweet? How About a Mistrial?

[2] New California Law Prevents Tweeting, Texting by Jurors

[3] Some examples taken from Jurors Gone Wild.

Ethics (still applies) in a Web 2.0 World

Twitter, Facebook, LinkedIn, Myspace, YouTube … now Google+.  Ten years ago we knew that we would live a part of our lives online – now with iPads and Androids it seems like almost all of our waking hours are spent online. And if you consider the fact that your phone probably tracks your every movement – and you have your phone on you at all times – you are perpetually online in a sense.

It’s no secret that millions of people are on Facebook and LinkedIn. And judging by the amount of time my Aunt spends on Farmville, people spend a LOT of time on Twitter,  YouTube and Facebook. It’s only surprising that attorneys have just begun to harvest Web 2.0.

Divorce, criminal law, and personal injury attorneys are increasingly scouring social media websites for any type of useful evidence on witnesses, jurors, opposing litigants and attorneys. A DA in Texas not only gave his lawyers iPads, but he was also considering offering jurors free WiFi in court if they agree to ‘friend’ his office on Facebook – thus granting his attorneys better access to their information.[1]

But is this ethical conduct?  Sometimes it’s very hard to tell because there is very little guidance out there – this is uncharted terrain.

With the amount of information available in Web 2.0, more regulatory bodies have began addressing the subject. I recently covered this subject in a recent post To Friend … Or Not to Friend? that discussed Legal Ethics Opinion 2011-2 from the San Diego County Bar Association.[2] The San Diego Bar opinion states that the ethical rules bar an attorney from making an ex parte request of a represented party.

Three recent ethics opinions from New York have also started to define the ethical boundaries for attorneys looking to exploit information on social networking sites.[3] According to Ethics Opinion 843 attorneys may ethically  use the information posted in public areas of a social media website. In some cases it’s even ethical to use a ‘friend request’ to obtain information from an unrepresented person’s social networking site without disclosing the reasons for the request. Many regulatory bodies, however, draw the line at tricking or deceiving a person by using a fake name to friend a person involved in the litigation – the same result that was reached in New York City Bar Formal Opinion 2010-2.[4]

Lastly, NYCLA Opinion 743 stated that lawyers may ‘passively’ monitor jurors, but may NOT have no direct or indirect contact with jurors during trial.[5] Further, Opinion 743 emphasized that lawyers “may not act in any way by which the juror becomes aware of the monitoring.” Please read Ethical Bounds of Using Evidence From Social Networks for further information on the subject, the article recently appeared on the Legal Technology News website.[6]

Other ethical issues to be aware of:

  • Breaches of Confidentiality
  • Duty of competence
  • Giving legal advice and forming an A/C relationship
  • Conflicts of interest and disqualification
  • LinkedIn and client testimonials

One main issue I would be greatly concerned with is the cost of discovery from Web 2.0 — especially for solos and attorneys at small firms in the wake of Qualcomm v. Broadcom.

Further resources:

Dr. Seuss, Cheese and Social Media: Ethical Pitfalls Impacting Attorneys and Their Clients

Ethical Implications of Social Media Mining

PRE-TRIAL SOCIAL MEDIA ISSUES

United States: Ethical Implications of Social Media Mining

California Ethics Committee on Social Media Mining


[1] Even District Attorneys have begun using social media in voir dire, offering potential jurors free Wi-Fi in exchange for friending the prosecutor’s office.

http://darklythroughtheglass.wordpress.com/2011/03/01/heard-about-facebook-being-used-to-select-jurors-you-aint-seen-nothing-yet-singularity-hub/

[2] The post summarized SDCBA Legal Ethics Opinion 2011-2. The ethics opinion from the San Diego Bar said it’s the first to confront ex parte communication through social media. See: https://www.sdcba.org/.

[3] See Opinion 843, Formal Opinion 2010-2 & Opinion 743. Ethical Bounds of Using Evidence From Social Networks

[4] In Formal Opinion 2009-2, the Philadelphia Bar’s Professional Guidance Committee also stated that it is misleading for an attorney to cause his paralegal to “friend” the opposing party to gain access to private social media postings or photographs.

[5] According to the Formal Opinion 743, “passive monitoring of jurors, such as viewing a publicly available blog or Facebook page” is permissible. NYCLA Committee on Professional Ethics Formal Opinion 743.

[6] See Ethical Bounds of Using Evidence From Social Networks @ http://bit.ly/prKyzF.

Calling All Bloggers

I wanted to personally introduce a new feature that is now available to our presenters. The ability to add blog posts on our Attorney Credits Blog. While we have spent a good part of our efforts making the best website on the Internet for attorneys to get CLEs, we have recently been re-branding our Content Partner pages. With the launch of our newly redesigned site (with all it’s cool new features) in two months, our speakers will now be featured on our Featured Faculty pages. This section of the website has received a total makeover and will be a vast improvement over our current pages.

We try to make speaking on attorneycredits.com easy. We give speakers free CLEs for life and great SEO juice with our new Featured Faculty pages. On top of that we blog, twitter, facebook and all the other social media voodoo we can.