Ethics Blog

Welcome to the Horton, Shields & Knox Ethics Blog.

As a heads up, this blog will sometimes be scholarly, sometimes be purely practical, and sometimes just be musings by members of the firm on professional responsibility.
When we comment on cases, we do so with care, but you should always read the cases yourself before using them for any reason.

When one of us muses on matters, it may or may not reflect the innermost thoughts of the others. Feel free to ask.

If we talk about a case in which we represented a party, we’ll let you know it was ours.

We welcome suggestions, to a point, on relevant topics of interest and comments on the thoughts and suggestions we include on this blog.

But most of all, we hope that you learn from and enjoy the entries on the Blog.

Client Selection Tips

By Brendon P. Levesque
 
One of the most commonly uttered phrases by lawyers who are going through the grievance process is, “I should have known this client was going to be a problem.” And you know what, I never disagree with them when they say it. The real question is why the lawyer took the client in the first place. That being said, what follows is a non-exhaustive but informative list of red flag behavior that ought to assist you in deciding whether to decline a particular representation.
 
1. You are not the potential client’s first lawyer on the case. Multiple, consecutive lawyers is usually a bad sign. In addition to multiple lawyers, pay attention to a litigant that has represented themselves.
2. The potential client has sued and/or grieved other lawyers or has a significant diverse litigation history. Serial litigants tend to make bad clients. Do not think the client will not grieve or sue you.
3. The potential client does not have enough money to pay your initial retainer or begins quibbling about your rates and/or paying you before the representation has commenced. Disagreements over fees are a common catalysts for grievances.
4. The potential client has unrealistic expectations about the merits of his or her case. A client that is convinced they are sitting on homerun multi-million dollar verdict is a client that is never going to understand how they lost their case. In their mind, that leaves only one reason, your shoddy representation.
5. The client that knows the law better than you. This is especially so where the client is telling you that you are wrong on the law.
6. Finally, when your gut tells you that there is something making you uncomfortable about a client, listen to yourself. There is nothing wrong with following your gut even if you cannot articulate the problem. It may keep you out of trouble.
 
Obviously this list is contains only a few red flags, but if one of these factors is present, you should be on guard. If more than one is present, you should consider talking to another lawyer before agreeing to representation. If three or more are present, you should probably stay clear.

RPC Reminders: Ghost Writing

Last year, we had a series of ethical guidelines generally for practices and also for dealing with individual clients.  This year we will offer a series of pointed “reminders” about the Rules of Professional Conduct.

 

                                                   Ghost writing

 

When drafting documents for a self-represented client under a limited scope of representation, the document must disclose that it was “prepared with assistance of counsel.”  P.B. §4-2 (c).  The name of the attorney need not be disclosed, nor does the notice constitute an appearance.  Failure to comply may lead to sanctions against the self-represented person, and also perhaps against the attorney.

Mistexting: A New Domain for Ethical Violations

By Brendon P. Levesque

Soon after Johnny Manziel was involved in a hit-and-run crash a few weeks ago, his lawyer “accidentally” sent a lengthy text message to the Associated Press suggesting that Manziel might be unable to stay clean while on trial for allegations of domestic violence. Among other comments, his attorney wrote, “Heaven help us if one of the conditions is to pee in a bottle.” In the same text, he expressed concerns that Manziel might have spent $1018 at a drug paraphernalia store not even a day after his crash.

Manziel’s father has since commented that he believes it would be best for his son to go to jail. “I don’t know what to say other than my son is a druggie and he needs help. He just hasn’t [sought] it yet. Hopefully he doesn’t die before he comes to his senses. That’s about all you can say. I don’t know what else to say,” his father told ESPN.

Although Manziel’s case will remain an interesting one to follow, it may be more interesting to see what repercussions, if any, face the lawyer who, as of June 27th, has withdrawn as an associate counsel on the case. Accident or not, the lawyer’s “mistext” potentially implicates Rules 1.1 (Competence), 1.6 (Confidentiality of Information), and 1.3 (Diligence) of the Rules of Professional Misconduct. Is an attorney who fails to confirm the recipient of his text message acting “with zeal in advocacy upon the client’s behalf?”

The commentary to Rule 1.1 now states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…” A duty to keep abreast of these changes includes a knowledge of how to properly use technology and to be aware of any attendant risks. If an attorney decides to communicate by text, they should be prudent enough to ensure that their messages are being sent to the intended recipient. The same goes for email and other forms of electronic communication.

General Rules: Week 8

  1. FINALLY, LISTEN TO YOUR GUT. You don’t have to abide by your gut, but at least listen to what it has to say. Is it warning you not to take a client? Explore your concerns. Is it saying that your intended litigation strategy might not be a good idea? Figure out why you are worried. Are you worried there might be an ethical issue with your conduct? Stop, think and ask if necessary. Your gut may be wrong, but the fact that it’s bothering you is reason to stop and think about what you’re doing.

Click here to read intro post on the Rules of Professional Conduct for Lawyers.

Attorney Free Speech

Does Disciplinary Counsel v. Serafinowicz chill an attorney’s free speech about the integrity of judges or is it limited to its facts? In a decision to be officially released September 22, 2015, the Connecticut Appellate Court affirmed a suspension of a lawyer for violation of the ethics rules 8.2 and 8.4(4) for disparaging the integrity of a judge to the press on the court house steps.

General Rules: Week 7

  1. BEWARE OF THE INTERNET. Not even going to try to cover this topic. Just know that whatever you put out in the world attaches to you and can come back to you. Is it advertising and subject to registration or other rules? Did you accidentally just get a new client? Are you talking about a law in a state you are not admitted to (UPL)? Assume (correctly) that whatever you say on the Internet will be available to the bar, the bench and the grievance committees. Act accordingly.

Click here to read intro post on the Rules of Professional Conduct for Lawyers.

Tune in Next Week for General Rule #8

Who regulates Connecticut lawyers?

Who regulates Connecticut lawyers? Settling a long battle between the attorney and banking regulators, the Supreme Court ruled that the Judicial branch does in a decision released today holding that debt negotiation services by Connecticut lawyers is the practice of law. In an unanimous decision, the Connecticut Supreme Court held that Connecticut’s debt negotiation statutes offend the separation of powers provision of the Connecticut Constitution to the extent the statutes regulate Connecticut attorneys providing such legal services. Persels and Assoc., LLC v. Banking Commissioner (SC 19359) officially to be released 9/15/15.

General Rules: Week 6

  1. READ THE ADVERTISING RULES. No one paragraph can capture the advertising obligations. Read the rules, reread the rules and if in doubt, call someone. If there is a question, register it. Be careful with your language, especially with adjectives and adverbs. Don’t make representations you can’t factually support objectively and don’t make promises you can’t absolutely keep.

Click here to read intro post on the Rules of Professional Conduct for Lawyers.

Tune in Next Week for General Rule #7

General Rules: Week 4

  1. STAY ON TOP OF YOUR HEALTH. This one sounds obnoxious so let’s be clear: no, we don’t mean start a jogging regimen or eat only paleo. This means take care of your mental and physical health in whatever way works best for you. Be honest with yourself about your needs and limitations. Some of us can deal with huge amounts of stress, indeed, some of us thrive on it. Some of us do not. Figure out who you are and work accordingly. A compromised lawyer means compromised representation. Ask for help when needed, whether just to get the work done, or for more significant issues.

Click here to read intro post on the Rules of Professional Conduct for Lawyers.

Tune in Next Week for General Rule #5