Solos beware: Social media can boost your profile, but trouble lurks
Roughly two-thirds of sole practitioners who responded to a recent ABA survey are using social media for professional purposes. Although platforms such as Facebook or LinkedIn can be useful for business development, counsel should be mindful of ethical considerations that apply.
Two years ago, I described various pitfalls to avoid when posting online. Social Media has benefits, but take care, opinions can get you in trouble, Chi. Daily Law Bulletin, Dec. 6, 2017, Vol. 163, No. 238.
Recent disciplinary cases continue to emphasize that attorneys must be prudent when using social media.
Do not disclose private client information, even if the client's name is withheld
For lawyers who share their cases through social media, care must be taken to withhold any information that could be deemed confidential, even when the client is not identified.
In Bar Counsel v. Smith III, No. 2019-16, a Massachusetts attorney was reprimanded for posting about his client's case, even though he withheld the client's identity.
After presenting a petition for custody of the client's grandson, the lawyer discussed the case on Facebook, observing that the state opposed his client's petition, and noting his client had lost custody of the grandson on several prior occasions.
The client eventually filed a disciplinary complaint, following a dispute over a different matter. The state bar concluded the Facebook posts violated the confidentiality provisions of Rule 1.6, because the references to the client's alleged lack-of-suitability as a parental custodian "would likely be embarrassing or detrimental to the client . . . ."
The board further ruled the lawyer was not protected by withholding the client's identity, because "[the client] and her daughter both recognized that the Facebook post concerned [the client]" and "it was clear to [the client's] daughter that the post referred to her mother." Thus, there was "sufficient evidence to prove a violation . . . ."
Avoid public feuds with opposing counsel
Resist the urge to publicize your disputes with opposing counsel.
Earlier this year, a well-known Detroit attorney was charged with professional misconduct in part for posting derogatory comments about an opponent in a court case. Prominent attorney faces new grievance complaint after Facebook rant, Detroit Free Press, Feb. 20, 2019.
According to the newspaper article, the attorney had a dispute with a prosecutor while representing a client for a traffic offense. Following the hearing, the lawyer described the encounter on Facebook, stating the prosecutor "lost all maturity and professionalism . . [and] went straight into rat mode, stepped into my personal space and derisively started waving papers directly in my face."
In a more drastic example, a Florida lawyer was accused of conducting a "9-month social media unprovoked attack" against two attorneys. Florida Bar v. Krapacs, No. SC19-277. The lawyer's posts accused one attorney and a judge of improper collaborations and judicial bias, while intimidating another counsel with on online image that showed a shotgun aimed at a person's face.
Given the severity of the social media activity along with other alleged conduct, the Florida Supreme Court initially suspended the lawyer from practicing law on an emergency basis, and a referee has recommended a two-year suspension.
Do not use fake online profiles
Although the proliferation of social media presents new discovery opportunities, practitioners must avoid conduct that is deceptive or misleading.
In Office of Disciplinary Counsel v. Miller, No. 32 DB 2017, a Pennsylvania district attorney created a fake social media persona and Facebook page to interact with certain businesses that were suspected of selling illegal products. Through those false accounts, the attorney was able to "like" those business and obtain free product samples for testing.
The state disciplinary authority concluded the conduct was "dishonest" and "crossed the boundaries of professional ethics." For those and other transgressions, the attorney received a suspension.
"Friending" a judge on Facebook could lead to disqualification
Whether you can appear before a judge that is a Facebook "friend" may depend on where you practice.
Recently the Florida Supreme Court ruled a lawyer's Facebook "friendship" with a judge before whom the lawyer appears was not grounds for a per se disqualification. Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, 271 So. 3d 889 (2018). The decision cites judicial ethics opinions from eight other states that reached a similar conclusion.
Other states have more restrictive guidelines. In California, for example, "it is impermissible for judges to interact [on an online social networking site] with attorneys who have cases pending before the judge, and judges who choose to participate in online social networks should be very cautious." Calif. Judges Ass'n Judicial Ethics Committee Opinion 66.
Similarly, in Massachusetts, "[t]o uphold public confidence in the judicial system, a judge must not be Facebook friends with a lawyer who is reasonably likely to appear before the judge." Mass. Sup. Ct. CJE Opinion No. 2016-1.
Further, a Wisconsin appellate court recently reversed a custody order because an undisclosed Facebook "friendship" between judge and litigant created a "risk of actual bias" and the "appearance of partiality." In re B.J.M, 925 N.W.2d 580 (2019). The Wisconsin Supreme Court has granted a petition for review at 933 N.W.2d 489.
Although Illinois has not yet weighed in, the prudent course is to avoid "friending" a judge before whom you may appear, to eliminate the risk of disqualification or later reversal.
No lotteries for "liking" your page
Finally, bolstering your online profile through paid incentives or drawings is not a wise choice.
The North Carolina State Bar recently issued an advisory opinion rejecting the use of "giveaway" drawings for connecting with a lawyer's social media through "likes" or similar interactions, for the purpose of increasing the lawyer's "social media exposure." N.C. State Bar 2019 Formal Ethics Opinion 6, 10/25/19.
The opinion notes that although "[n]on-incentivized social media interactions" are allowed, paying for a recommendation is prohibited. Because "liking" a lawfirm could be viewed as "personal endorsement and recommendation of that law practice," the opinion concludes, rewarding that interaction could create the misleading impression that the "like" is based on "prior experience with the firm."
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In sum, although productive use of a sole practitioner's social media can boost his or her profile, counsel must be careful to avoid ethical hazards along the way.
© 2019 Law Bulletin Media. All rights reserved.
Monday, December 16, 2019 • Volume 165, No. 244
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
You've been sued and have insurance coverage. Do you have to use the insurance company's lawyer? Check your policy.
If you have been sued, and you make a claim with your insurance company, make sure to read your policy. Your insurer may not tell you, but you could have the right to choose your own defense attorney -- paid by the insurer -- if the policy creates a potential conflict of interest.
Has your insurer disclaimed responsibility for punitive damages?
One such conflict of interest may exist if the lawsuit claims a substantial amount of punitive damages as compared to compensatory damages. Punitive damages are likely not covered by insurance, which means the insurer has no interest in avoiding or minimizing any potential punitive damages award. A lawyer retained by the insurance company to defend your interests in the case may have incentive to focus on the claims covered by the policy, at the expense of non-covered claims such as punitive damages.
Consider whether you have the right to choose your own attorney at the insurer's expense
I recently obtained a judgment against an insurance company, affirmed on appeal, where the insurance company tried to insist on using its own attorney even though the case involved a substantial claim for non-covered punitive damages. The lawsuit is captioned Xtreme Protection Services, LLC v. Steadfast Insurance Company and can be viewed here. In its opinion, the appellate court provides an updated analysis of decades-old case law addressing potential conflicts of interest arising from punitive damages claims, and an insured's right to be defended by its own attorney at the insurer's expense.
Another example of a potential conflict of interest that could allow you to choose your own lawyer is where the lawsuit alleges both negligent and intentional conduct, and your policy only covers negligent conduct. Due to the insurer's potential incentive to shift liability from the negligence claim to the claim involving intentional conduct, the insurer can be required to let you decide on your own representation, with the insurer to reimburse your attorney's fees. See Maryland v. Peppers, 64 Ill. 2d 187, 197-99 (1976).
Your case is important, and much is at stake. Make sure to check your policy before simply agreeing to be represented by a lawyer that someone else has chosen for you.
Meeting CLE requirement a click away
With the June 30 Continuing Legal Education deadline fast approaching for Illinois lawyers whose last names begin with A to M, it is time to fill your 30-hour quota.
When it comes to accumulating CLE credits, on-demand programming affords flexibility and convenience for busy sole practitioners on the go.
Whether you are just getting started on coursework, or have only a few credits left to complete, check out the following CLE providers.
Their useful and free on-demand programs will take you across the finish line.
Ethics credits from the Attorney Registration & Disciplinary Commission and 2Civility
The ARDC is a fertile source for ethics credits. Its web-based library includes on-demand programs that easily meet the six-hour professional responsibility prerequisite, including new mandatory topics on diversity/inclusion and mental health/substance abuse.
Other ARDC courses cover current developments in fees and billing, maintaining client trust accounts and assessing potential conflicts of interest.
Further offerings include the new online self-assessment program, known as Proactive Management Based Regulation, or PMBR, which will be mandatory for 2019 registration by attorneys without malpractice insurance.
The ARDC provides 14.5 credits for ethics classes, plus four additional credits for the PMBR course. See the website at iardc.org/CLE_Opening_Page.pdf.
Three additional hours of ethics credits are available through the 2Civility organization, formed by the Illinois Supreme Court to promote professionalism. Take interactive courses on bias awareness, bridging generational divides and ethical issues confronted by in-house counsel. Navigate to 2civility.org/programs/cle/free-online-cle/ and get started.
K&L Gates offers 100 top courses for free CLE credit
If you are looking for quality online courses covering a broad array of current topics, taught by skilled and experienced practitioners, check out K&L Gates’ HUB, an innovative, on-demand CLE web center.
Register for free and peruse the megafirm’s abundant legal library, consisting of 100 programs approved for Illinois CLE credit and counting. The curriculum includes cutting-edge subjects such as cybersecurity, electronic discovery, social media risks and how to represent victims of sexual cyberharassment, along with current trends in the insurance and financial services industries, patent law and countless others.
Why does K&L Gates make this valuable asset available to lawyers for free? “It just makes good sense to contribute in this way,” said Jeff Berardi, the firm’s chief marketing officer.
While the HUB program was initially designed to foster and promote relationships with existing clients and their in-house counsel, Berardi said, those same resources can benefit the legal community at large. In the firm’s view, Berardi remarked, “sharing our resources is a win-win, for our clients and our fellow practitioners.”
The K&L Gates online CLE center is located klgateshub.com/. Filter for Illinois-approved CLE using the “advanced search” function. Don’t miss this rare opportunity to access a vast supply of top-notch courses at no cost.
Credits for education on veterans issues
For counsel who currently represent veterans or wish to expand their practice, two course providers offer free, on-demand programs that address veterans’ issues.
The Practicing Law Institute offers a three-credit class addressing veterans benefits and the interaction with Social Security and Medicaid, along with a six-credit course that discusses the VA claims system and how to apply for discharge upgrades. Proceed to pli.edu/ and search for “free CLE” to find these courses.
The Illinois Institute for Continuing Legal Education also offers a three-credit video addressing services for veterans, including benefits programs, family law and bankruptcy. It can be found at iicle.com/veterans-day-cle-conference-presented-by-the-dupage-county-bar-association.
One last credit for ethical witness preparation
Lastly, if you find yourself in need of a single ethics credit to complete your quota, take a look at Lexvid. The online CLE provider primarily offers paid packages, but includes a no-obligation course on ethical and privilege issues when preparing witnesses to testify.
Obtain a refresher on this important topic, and a free credit, by going to lexvid.com/ and clicking “get started for free.”
In sum, there are abundant, no-cost CLE classes available at your desk with the click of a mouse. Get started on these beneficial programs today and meet your June 30 deadline with time to spare.
© 2018 Law Bulletin Media. All rights reserved.
Monday, April 9, 2018 • Volume 164, No. 69
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Solos are not alone when it comes to ethics resources; how to be trouble-free
Attorney regulation is shaped by evolving technologies. Changes in how we communicate, litigate, transact business and even conduct our banking can impact a lawyer’s professional obligations.
Adapting to current ethical requirements can be a challenge for some sole practitioners, who may lack access to networking and support systems found in larger law firm environments.
Here are some no-cost resources that solos can access to obtain guidance on ethical issues or seek assistance if disciplinary charges are brought.
Free advice from the Attorney Registration & Disciplinary Commission ethics hotline
The ARDC’s Ethics Inquiry Program has been in place for decades and continues to serve as a vital resource for lawyers to anticipate and avoid ethical problems.
The free service is telephonic — no e-mails or texts — and can be accessed by calling (312) 565-2600 or (800) 826-8625.
Callers can discuss their ethical questions or concerns in confidence, and anonymously, with an experienced ethics attorney. ARDC rules prohibit the use of any inquiry for purposes of attorney discipline.
Whether your question relates to the content of your letterhead, marketing restrictions, potential conflicts of interest or client trust account issues, expect a productive discussion with a knowledgeable and attentive staff member.
The program’s popularity speaks for itself, as the ARDC logged more than 4,000 calls in 2016. Sole practitioners should make liberal use of the hotline as needed.
Online ethics opinions from the Illinois State Bar Association
The Illinois State Bar Association also offers assistance on regulatory issues, through its voluminous database of ethics opinions. The database can be accessed at isba.org/ethics/.
Often inspired by real-life inquiries from its members, ISBA ethics opinions cover a broad spectrum of disciplinary issues confronting practitioners.
The typical opinion poses a particular fact pattern, followed by a review of the ethical questions involved and a thorough analysis and conclusion based on existing rules and decisions.
The database can be searched by year, subject matter, keyword or by reference to specific disciplinary rules. At 428 opinions and counting, virtually every area of attorney regulation is addressed in some fashion, from advertising to zealous representation.
The opinions are advisory only, but are often considered by disciplinary authorities in determining whether an ethical violation has occurred.
Bookmark this valuable online compilation and consult the database as your needs arise.
Assistance from your malpractice insurer
Malpractice insurers generally offer free assistance to policyholders in addressing ethical questions regarding their practice. Insurers typically maintain databases of articles that address common questions regarding professional standards of behavior.
Most companies also maintain “risk management hotlines,” where advice can be obtained by phone.
Moreover, polices often include costs of defense for defending disciplinary complaints, up to a specified limit. Check your policy for coverage of regulatory defense costs and know where you stand if the need arises.
Pro bono defense to discipline charges in qualified cases
For sole practitioners of limited means and without insurance coverage, who are being investigated by the ARDC, defense assistance may be available.
Attorney Trisha M. Rich at Holland & Knight LLP has organized a pro bono defense team for lawyers who have received ARDC inquiries. Called the Attorney Defense Initiative, the pioneering program has helped approximately 30 Illinois lawyers since its inception in 2015.
Rich started the program after she saw that a number of lawyers, particularly sole practitioners, were unable to secure needed representation in disciplinary cases.
Rich noted the program was initially greeted with skepticism in certain quarters. “The public perception of lawyers is that they don’t need help because they are all well-off and can afford their own counsel,” she recalled.
In reality, Rich went on, the practice of law is a high-stress business, regardless of where you fall on the financial spectrum. Economic pressures, followed by disciplinary charges, can lead to feelings of desperation, particularly for sole practitioners who lack external support systems.
Rich believes the program thus serves a vital role for those in need and is committed to its ongoing success.
Although Attorney Defense Initiative does not have unlimited resources, Rich encourages any attorney who receives an ARDC complaint and cannot afford counsel to call the program at (312) 578-6514.
Lawyers often wait too long to call, such as after a default occurs, when it may be too late to help, Rich cautioned. The best approach is to be proactive, discuss your options with experienced defense counsel and determine an appropriate course of action.
In sum, when it comes to anticipating and avoiding ethical difficulties, or defending charges that have been brought, don’t speculate, or worse yet, don’t ignore the matter.
Take advantage of available services to protect the practice you worked so hard to build.
© 2018 Law Bulletin Media. All rights reserved.
Monday, February 5, 2018 • Volume 164, No. 25
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Social media has benefits, but take care, opinions can get you in trouble
Although Facebook and other social media sites are useful tools to boost the sole practitioner’s legal profile, casual and unfiltered use of those platforms can lead to disciplinary issues.
Many self-employed attorneys merge their personal and professional postings by maintaining, for example, a single Facebook account. Because a lawyer’s professional duties may be impacted by spontaneous posts and exchanges, solos must conform their online behavior to applicable ethical standards.
Here are some basic tips to remember when sharing your next post or message.
Keep your comments on others to yourself
Following that tough day with an unyielding judge, a difficult opponent or an argumentative client, resist the impulse to publicize your dissatisfaction. Such online comments could easily violate a number of disciplinary rules regarding attorney communications and comportment.
Trying to avoid exposure by withholding the name of your nemesis is not a successful approach. As long as the involved parties can reasonably be determined, and the communications are problematic, the attorney may be subject to discipline. See In re Johns, 793 S.E.2d 296 (S.C. 2016) (probate judge disciplined for Facebook comments about pending case; although case was not referenced by name, “it was inappropriate for him to make the statements as it would be clear in the community to what he was referring”).
Further, such posts could lead to trouble if the content is considered subjectively inaccurate.
For example, opining that a judge had no grounds for a ruling can be deemed a false statement, if the disciplinary panel concludes the judge’s decision was supported. See In re Discipline of Hafter, 2017 Nev. Unpub. LEXIS 1036 (Nev., Nov. 17, 2017) (attorney suspended in part for posting on Facebook that judge’s refusal to change trial date lacked any proper basis; statements not subject to First Amendment protection because they “were not truthful.”)
Responding to clients with instant messages may not be enough
Keep in mind that brief exchanges with clients through social media may not satisfy the ethical duty to keep them fully informed of the matter at hand. See State v. Garrison, 894 N.W.2d 339 (Neb. 2017) (cryptic Facebook messages to client violated disciplinary rule on client communications where counsel “failed to adequately answer the client’s questions and adequately explain what was happening regarding the status of the client’s lawsuit.”).
Obtain client’s permission before promoting past work online
Make sure to obtain the client’s permission before identifying his or her matters for promotional purposes. See In re Emery, 799 S.E.2d 295 (S.C. 2017) (attorney reprimanded in part for violating client confidentiality for “congratulating” clients after each real estate closing on Facebook without permission.)
Don’t respond to an unfair client review by divulging private facts
While attorney directories such as Avvo or Lawyers.com are useful marketing methods, an unfairly negative review on those sites may cry out for a response. Counsel who choose to rebut a poor review must understand that maintaining client confidentiality — including facts that could circumstantially identify the client — is paramount.
In People v. Isaac, 2016 Colo. Discipl. LEXIS 109 (Colo. 2016), an attorney fought back against two negative reviews by revealing facts about the clients in rebuttal. The Colorado Supreme Court, using similar cases from four other states as a “yardstick,” imposed a suspension and admonished counsel that “[l]awyers’ disclosure of client confidences erodes the trust that undergirds the lawyer-client relationship.”
Similarly, in In re Skinner, 758 S.E.2d 788 (GA. 2014), after a client posted negative reviews on three sites, the attorney answered with a defense that referred to the client by name, identified her employer and a boyfriend and divulged the fee that was paid. The attorney was reprimanded for disclosing confidential client information.
Even responding with accurate information and withholding the client’s name can lead to discipline, if the client’s identity can be deduced and the information is nonpublic. See In re Mahoney, No. 2015-0141 (D.C. Bar June 9, 2016) (informal admonition for disclosing accurate but confidential client information in response to critical review; although attorney withheld client identity, he divulged information “that could lead back to [the] client.”)
When using Facebook, do not “friend” a foe
Because lawyers are trained to investigate their matters thoroughly and gather all available facts, attention naturally flows to an adversary’s Facebook account, where relevant information may be easily accessible. Resist any urge to probe for nonpublic material by “friending” another party.
For instance, an overly creative attorney who set up a fake Facebook page, to elicit information from a witness, was disciplined for his conduct. Disciplinary Counsel v. Brockler, 48 N.E.3d 557 (Ohio 2015) (prosecutor suspended for setting up fictitious Facebook account to interact with third-party witness and elicit incriminating statements against defendant).
Moreover, using your real name on Facebook, to “friend” an opponent for the purpose of obtaining posted information, also may result in sanctions. See Robertelli v. New Jersey Office of Attorney Ethics, 134 A.3d 963 (N.J. 2016) (charges pending against two attorneys accused of having paralegal become Facebook friend of opposing party to access posts).
When in doubt, reflect and consult
In sum, sole practitioners should be circumspect when using valuable social media tools. While these platforms are designed for lively, real-time discourse, counsel must always take a measured approach that accounts for ethical requirements. Reflect before you post, and seek a second opinion from a colleague before taking a step you may regret.
For a thoughtful and comprehensive review of social media ethics guidelines by the New York Bar Association, see their website, at nysba.org/socialmediaguidelines17.
© 2017 Law Bulletin Media. All rights reserved.
Wednesday, December 6, 2017 • Volume 163, No. 238
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Protecting your website and online visitors important shield for solos
If you are a sole practitioner with a self-maintained website, make sure to secure your site with an SSL, or secure sockets layer, certificate. This column explains the basics of SSL protection and why you should install a certificate today.
Securing data on your website
When a website is visited through any browser, the resulting connection can be monitored and intercepted by hackers. Thus, if your site accepts credit card payments, uses passwords or exchanges other sensitive information with clients and others, the data can be stolen without detection.
Secure sockets layer is a protocol that encrypts data transmitted between a visitor’s browser and your site’s web server. When the visitor accesses your site, a secure “handshake” connection is established and exchanged data is encrypted. Any cybercriminal that intercepts the transmission cannot decode the information without the encryption key.
Some web hosting packages automatically provide SSL encryption. To check your status, examine the website’s URL address bar. SSL-encrypted sites will use the “https” designation and display a closed padlock icon, while unprotected sites reflect the standard http protocol.
Even basic websites need SSL
Even if your website does not accept credit card payments or have password-protected pages, SSL encryption still is a must.
First, websites can be compromised in unexpected ways. Consider a basic online contact form, where prospective clients inquire about retaining your services.
A data thief who intercepts the contact information could impersonate your firm and manipulate the prospective client — or conversely impersonate the client and victimize your firm — with unfortunate results.
Second, using SSL certificates should boost your online rankings. According to the search engine giant Google, the use of SSL on a website is a positive ranking factor in prioritizing search results.
Third, an installed certificate gives your firm’s website a professional look. Clients and prospective clients will feel confident in visiting an SSL-protected site and freely perusing its contents.
Lastly, some web-browsing companies are ramping up their warnings for non-SSL sites. Since January, the highly popular Chrome browser has displayed a “not secure” warning in the URL address bar for sites that contain password or credit card fields. Starting this month, Chrome began to flag all unprotected sites where any data is entered and to warn visitors who browse non-SSL sites in private “incognito” mode.
How to install an SSL certificate
Most web-hosting companies will install a basic SSL certificate for $50 to $100 per year. To use this option, simply contact your web-hosting provider and subscribe to the service.
Alternatively, if you want to self-install your own free certificate, check out “Let’s Encrypt” at letsencrypt.org. That organization is funded by the nonprofit Internet Security Research Group and promotes security and privacy on the web. Certificates from Let’s Encrypt are completely free, but need to be updated every 90 days.
Some web-hosting companies offer built-in support for installing a free certificate from Let’s Encrypt. Consult your provider for this option.
Otherwise, the installation can readily be accomplished through your website’s “cPanel” interface. Review this helpful tutorial at www.youtube.com/watch?v=GPcznB74GPs. Installation is straightforward and takes less than 10 minutes.
Check your website for insecure items
As a final step, once you have installed your SSL certificate, confirm your site’s integrity by navigating to the “Why No Padlock?” website at whynopadlock.com.
After you enter your firm’s domain name in the search bar, the free service will perform a thorough check and report any “insecure elements” that remain on your site.
Typically, these involve links to other websites or photos that are not secured with SSL encryption. Resolve those items on an individual basis, and your site will be fully protected.
In sum, SSL encryption is a core requirement for any sole practitioner’s website.
According to a February report from the Electronic Frontier Foundation, just under half of all internet traffic remains unprotected. Install a certificate without delay and create a safe browsing environment for your visitors.
© 2017 Law Bulletin Media. All rights reserved.
Thursday, October 12, 2017 • Volume 163, No. 199
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Clients with diminished capacity require attention and respect
In the critically acclaimed television series “Better Call Saul,” the main character is Jimmy McGill, a lawyer with mixed motives and a shaky ethical compass.
In a recent episode, McGill boards a busload of senior citizens — after paying the driver to fake a mechanical breakdown — then skillfully manipulates the vulnerable pensioners into joining his class action against their nursing home.
Beyond McGill’s plainly improper solicitation methods, his tactics could more subtly violate Rule 1.14 of the Rules of Professional Conduct, which protects clients with diminished mental capacity.
Rule 1.14 applies when “a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason.”
Under Subsection (a), lawyers must try to maintain a “normal client-lawyer relationship.” As the comments explain, this includes full and open communication, advice and other assistance, so that client can understand options and make meaningful decisions to the greatest possible extent.
In more severe instances involving a risk of physical or financial harm, Subsection (b) authorizes “reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”
Sole practitioners should become familiar with Rule 1.14, and be prepared if they suspect a client may have diminished capacity.
Assessment of the client
Though lawyers are not qualified to make psychiatric diagnoses, the comments to Rule 1.14 require best efforts in determining whether a client may lack capacity. To assist with this process, the American Bar Association and American Psychological Association have issued a useful handbook.
The handbook advises practitioners to watch for certain “red flag” behaviors, such as difficulty remembering recent events, repetition of questions, complete deference to a spouse or child, disorientation and inappropriate or excessive emotions. Ragged physical appearance, sloppy or unsuitable clothing and poor hygiene also could signal an impairment.
If a client’s behavior raises a concern, the comments to Rule 1.14 advise counsel to reflect on whether the individual’s decisions appear rational, and to consider further assessment, including “guidance from an appropriate diagnostician.”
Maintaining a “normal” attorney-client relationship
Lawyers must take seriously the obligation under Rule 1.14(a) to maintain a “normal client relationship,” if permitted by the circumstances. The comments make clear that impaired individuals may be able to “understand, deliberate upon and reach conclusions about matters affecting [their] own well-being” and any disability “does not diminish the lawyer’s obligation to treat the client with attention and respect.”
Accordingly, counsel must communicate and consult with an impaired client to the fullest degree possible, even where the client has a legal representative. See In re Szymkowicz, 124 A.3d 1078 (D.C. 2015) (attorney violated Rule 1.14 when she failed to communicate with client regarding decisions by person holding client’s power of attorney).
Further, if the assistance of family members or other individuals could foster the attorney-client relationship, per the comments to Rule 1.14, their presence “generally does not affect the applicability of the attorney-client evidentiary privilege.”
Taking steps to protect the client
When circumstances indicate potential physical or financial harm could occur, the comments to Rule 1.14 suggest various options, including family consultations, involvement of support groups, other professional services, a durable power of attorney or referral to adult-protective agencies. If warranted, a guardian ad litem, conservator or guardian may be appointed.
However, taking protective action may not be considered mandatory in Illinois.
According to a recent Attorney Registration & Disciplinary Commission Hearing Board panel, “[W]e do not read Rule 1.14(b) to impose an affirmative duty on attorneys. Rather, the [r]ule guides attorneys as to when they may take protective steps when they believe a client has diminished capacity. … The [r]ule and [c]omments do not state that a lawyer shall, or is required to, take such measures, nor has our research revealed another Illinois disciplinary case in which Rule 1.14(b) was the basis of a finding of misconduct.” In re Bascos, Commission No. 2013PR00052 (Dec. 9, 2016).
Beware of conflicts
Representing an impaired client requires extra vigilance to avoid potential conflicts of interest.
For example, an attorney should not simultaneously represent the client and the petitioning guardian, or act for other third parties, due to potential conflicts. See Attorney Grievance Commission v. Framm, 144 A.3d 827 (Md. 2016) and Wyatt’s Case, 982 A.2d 396 (N.H. 2009).
Additionally, counsel should not obey the wishes of family or close friends, if they conflict with the client’s reasoned instructions. See Runge v. Disciplinary Board, 858 N.W.2d 901 (N.D. 2015) (rejecting disciplinary complaint by daughter of elderly client where attorney assisted client in revoking daughter’s power of attorney and obtaining discharge from nursing home against medical advice; there was no guardianship and the attorney’s communications with the client “demonstrated [the client’s] ability to articulate the reasons for his desire to leave the nursing home and to appreciate the consequences of his decision”).
Even when a lawyer represents a guardian, not the impaired client, the comments to Rule 1.14 impose an obligation to “prevent or rectify” misconduct by the guardian that is adverse to the client.
Lastly, billing an impaired client for legal services could be subject to later challenge. See Dayton Bar Association v. Parisi, 965 N.E.2d 268 (Ohio 2012) (attorney “engaged in conduct prejudicial to the administration of justice” by paying her own fees during guardianship proceeding and charging fees considered excessive by the court).
In sum, clients with diminished capacity require special attention and respect. If impairment is suspected, counsel should document his or her observations, conclusions and actions taken, together with all client communications and decisions.
Appropriate measures will protect the client in the short term and could prevent future lack-of-capacity challenges to a transaction, estate plan or court settlement.
© 2017 Law Bulletin Media. All rights reserved.
Thursday, August 3, 2017 • Volume 163, No. 150
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
High-tech security devices abound; make sure your clients are protected
With e-mail hacks and data thefts on the rise, sole practitioners must be extra vigilant in safeguarding client information.
Beyond financial and reputational risks, a breach of client confidentiality could violate the Rules of Professional Conduct, including Rule 1.1 (duty of competence requires knowledge of “benefits and risks associated with relevant technology”), Rule 1.4 (client’s right to make “informed decisions regarding the representation”) and Rule 1.6(e) (requiring “reasonable efforts” to protect “information relating to the representation of a client”).
Informed security choices with client consent
The ethics rules do not prescribe specific methods to protect e-mails or data. Instead, lawyers are advised to make their own informed choices, with client consent, based on the sensitivity of the information, the likelihood of disclosure and the costs and difficulties of using safety measures.
Last May, the American Bar Association issued Formal Opinion 477, which proposes a sliding scale of protections, based on the need for confidentiality arising from the representation.
For “routine” client e-mails, the ABA says, unencrypted e-mail “generally remains an acceptable method of lawyer-client communication.” However, e-mail encryption or other safety measures may be needed for “higher risk scenarios,” such as matters involving “trade secrets, mergers and acquisitions or industries with “a higher risk of data theft.”
Further, all client e-mails, encrypted or not, should be labeled as “privileged and confidential” and include a standard “confidential-e-mail-for-recipient-only” disclaimer.
To protect other client data, the ABA suggests several baseline measures, such as secure Wi-Fi; virtual private networks; firewalls; anti-virus, anti-malware and anti-spyware programs; and maintaining updated operating systems.
More sensitive information, the ABA goes on, may require additional protections such as data encryption, secure cloud-based storage systems, remote disabling of devices that are lost or stolen and even hand-delivery if warranted by the circumstances.
Lastly, lawyers are advised to discuss the risks with each client, reach a consensus on the best course of action and make sure all safety procedures are followed by the firm’s employees and outside vendors.
If you haven’t thought about cybersecurity in a while, here are some simple and inexpensive ways to help protect client information. (These suggestions do not supplant each lawyer’s obligation to evaluate the risks and determine appropriate methods of protection based on his or her circumstances, following consultation with the client.)
Secure your phone and tablet
Smartphones and tablets can be invaluable tools for solo attorneys on the go, but they require some basic precautions in the event of theft or loss.
First, keep intruders at bay by requiring a password when the unit is turned on or when the screen times out. More modern devices allow fingerprint scanning and even facial recognition, to make the activation process safer and faster.
Next, install a program that allows you to locate a lost phone or tablet, lock the screen, leave a contact message for anyone who finds the device and even remotely wipe the contents if necessary. Between Google’s Android Device Manager and Apple’s Find my iPhone app, every practitioner should use this free safety feature.
Encrypt your desktop and laptop
While many solos enjoy the flexibility of using laptops, or have desktops in shared office spaces, these conveniences carry an increased risk of theft. Encryption can be used to deny computer thieves physical access to your hard drive.
Encryption protects the drive by requiring a password, tied to a lengthy recovery key, when the unit is powered up. Many computers now include a “trusted platform module,” which is activated on encrypted devices and provides additional protection if the drive is removed and examined through a separate docking station.
Microsoft’s Bitlocker encryption program is free with Windows 10 Pro and with certain earlier Windows versions. Mac computers use a similar program called FileVault, available on OS X Lion and later editions.
Encryption is relatively simple and well worth the effort. Back up your data first and save your password and recovery key in a safe place.
Encrypt e-mails when needed
Although Formal Opinion 477 accepts unencrypted e-mail for “routine” client communications, practitioners should discuss encryption with clients and be prepared for this option if warranted.
For users of Outlook or Gmail, Virtru offers a simple and free solution. Open an account at virtru.com, and receive an easy-to-use plug-in, which allows encryption of e-mail and attachments with a simple mouse click. Recipients can read, download attachments and reply through Virtru’s secure reader portal.
For $5 per month, you can also revoke sent e-mails, make them expire when desired and prohibit forwarding to third parties.
Password confidential documents
When sending a confidential document for the client’s eyes only, consider using a secure password that you provide the client by phone. Programs like Adobe Acrobat Pro and Microsoft Word include simple password features. Passwords later can be removed for more general use if desired.
Web-based attorney-client portals
If you prefer a more global security approach and are willing to spend roughly $500 or more per year, check out an all-in-one solution with an online service such as MyCase. Secure client communications and document exchanges are included among numerous other practice management features. With a free 30-day trial, followed by a monthly charge of $39 per user, MyCase is an attractive alternative for sole practitioners.
Address security issues in retainer letter
Make sure to discuss security risks and communication alternatives with the client and include a section in your retainer letter that reflects your understanding. Per the comments to Rule 1.6(e), clients may “require the lawyer to implement special security measures not required by this rule” or alternatively “forgo security measures that would otherwise be required by this rule.”
Make sure you and the client agree on applicable security measures for your case and document your agreement.
In sum, sole practitioners must take steps protect client information from evolving threats. According to Formal Opinion 477, we live in a “world where law enforcement discusses hacking and data loss in terms of “when” — not “if.” Address the risks now, and you may avoid significant problems down the road.
© 2017 Law Bulletin Publishing Company. All rights reserved.
Thursday, July 6, 2017 • Volume 163, No. 130
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Cannabis companies need financial services; D.C. says don’t bank on it
The legal marijuana trade is a reality. Medicinal sales are permitted in 29 states, including Illinois, and several jurisdictions allow limited recreational use. A study cited in a recent Forbes article estimates the industry’s market value at more than $7 billion in 2016 and projects a 17 percent annual growth rate that could generate 250,000 jobs in three years.
Like all businesses, cannabis companies require basic banking services — operating accounts for deposits, expenses and payroll, merchant services for credit card processing and loans for working capital.
The financial sector is poised to fill the needs of this high-potential industry.
Not so fast, say federal authorities. Marijuana is a Schedule 1 drug under the Controlled Substances Act, and banks that serve state-licensed cannabis businesses could be violating federal law.
Money laundering and the Bank Secrecy Act
The federal government’s power to invalidate state marijuana laws is subject to debate, but few dispute its authority to decide whether financial institutions can serve state cannabis providers.
Under the Bank Secrecy Act, for example, banks must have procedures to detect and report suspected money laundering. Because marijuana is illegal under federal law, failing to report marijuana-related transactions can violate the act.
Further, electronic fund transfer rights are federally controlled and have been denied to state-chartered institutions seeking to serve marijuana merchants. In Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City, 154 F. Supp. 3d 1185 (D. Colo. 2016), a state credit union serving state-authorized cannabis entities sought a master account with electronic transfer privileges. The U.S. District Court dismissed the case because permitting the master account would “facilitate criminal activity.”
The judge insisted “[a] federal court cannot look the other way,” but hoped the issue would “soon be addressed and resolved by Congress.” An appeal to the 10th U.S. Circuit Court of Appeals is pending.
Even Chapter 11 bankruptcy plans that include state-authorized marijuana income are rejected, due to federal law. See In re Arm Ventures, LLC, 564 B.R. 77 (Bankr. S.D. Fla. 2017).
Banks deterred by mixed messages from executive branch
The Department of Justice could exercise discretion and provide common-sense, bright-line enforcement standards that permit financial services for authorized marijuana businesses. Instead the DOJ’s equivocal statements have led to uncertainty and fear of prosecution.
As a case in point, an Obama era DOJ memorandum purports to offer “guidance” to banks that serve state-licensed cannabis companies, but the advice is murky and conflicted at best.
Issued by deputy attorney general James Cole in 2014, the memorandum instructs federal prosecutors to focus on specific “priority” factors regarding marijuana that endanger children or the public or otherwise encourage illegal trafficking and gang activity.
Citing concurrent “guidance” from the Department of the Treasury, Cole directs banks to screen their cannabis-related customers’ accounts for the “priority” factors. Suspected “priority” transactions must be reported in a detailed marijuana priority report to the Treasury Department.
However, if a bank determines the accounts comply with state marijuana laws and do not implicate any “priority” factors, a streamlined marijuana limited report should be filed instead.
Although the memorandum implies banks will not be sanctioned for serving customers named in marijuana limited reports, the message is mixed. While it “may not be appropriate” to bring charges based on a marijuana limited report, Cole writes, “[t]his memorandum does not alter in any way the department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.”
The court in Fourth Corner Credit Union recognized the Cole memorandum was pointless, because “it does not change the law” and merely says “prosecutors and bank regulators might ‘look the other way’ if financial institutions don’t mind violating the law.”
The Trump administration has doubled down on the uncertainty for banks with loose and inconsistent proclamations. On the one hand, press secretary Sean Spicer suggests the president understands medical marijuana can alleviate pain and suffering. On the other hand, Attorney General Jeff Sessions says medical use “has been hyped, maybe too much.”
With unclear federal policies and inconsistent political discourse, most banks and credit unions refuse to work with legitimate marijuana providers. The few that are willing to assume the risks face substantial compliance costs.
Cannabis companies feel the squeeze
The lack of a consistent federal message on banking has put state-approved cannabis licensees in a difficult spot. “The situation is beyond frustrating,” confirmed Jeremy Unruh, general counsel for PharmaCannis.
As legal counsel for a growing medical marijuana provider with 11 cultivation centers and dispensaries in Illinois and New York, 150 employees and expansion planned for other states, Unruh described some of the difficulties in obtaining basic financial services.
First, finding one of the handful of institutions willing to open accounts is a “needle-in-the-haystack” proposition, according to Unruh. Keeping the accounts is another challenge, because banks will drop marijuana-related customers if the costs are too high or the political climate changes.
Next, the financial reporting burdens for a basic checking account are overwhelming. To assist the bank with periodic marijuana limited reports detailing all account activity, Unruh’s company must substantiate its most routine expenses. “It’s like being under audit, 24/7,” Unruh noted.
And this intensive regulation is not cheap. Due to federal reporting requirements and the resulting risks, basic banking service costs are astronomical.
Lastly, the IRS penalizes authorized cannabis companies by deeming them traffickers in a controlled substance under Internal Revenue Code Section 208(e), which eliminates all deductible expenses aside from costs of goods sold.
Although PharmaCannis is moving ahead despite those obstacles, Unruh confessed the “two-steps-forward-one-step-back” process has been a challenge. “This industry needs clear federal guidance to the banks,” he concluded.
Illinois state treasurer seeks answers from president
If Illinois State Treasurer Michael Frerichs gets his way, medicinal marijuana providers will have their clear federal guidance, sooner than later.
As collector of taxes and fees from licensed cultivation centers and dispensaries, Frerichs experiences first-hand the difficulties with an industry that lacks basic banking services.
Frerichs recently discussed his concerns, and his efforts to solve the federal/state impasse.
Frerichs first emphasized that Illinois legalized marijuana to treat people’s serious physical ailments. “We are talking about citizens with debilitating symptoms,” he explained, and “the process of supplying needed medications must be as smooth as possible.”
Forcing authorized cannabis businesses to operate without bank accounts obstructs that important purpose, Frerichs went on. Cash-only enterprises are inherently risky. “Just imagine paying all your bills in cash. The practice encourages spotty record keeping, and companies without conventional lending can fall prey to unprincipled investors or criminal elements.”
Not to mention that regulating, auditing and collecting taxes from cash-heavy organizations has become extraordinarily difficult. “Deterring banks from serving licensed and regulated facilities lacks plain common sense,” Frerichs said.
Frerichs finds the need for banking services so imperative that he written twice to President Donald Trump already this year, requesting assurances that banks with state-approved medical marijuana companies as customers will not be prosecuted.
So far, no response from the president. Frerichs is frustrated but will not relent. “The stakes are too important,” he emphasized. “The president has been in office for 100 days. He needs to step up and address the problem. Avoidance is not an option.”
In sum, as Frerichs points out, the time for federal silence or ambiguous warnings is over. The nation’s call for marijuana as a legitimate medical treatment is now a crescendo, and banking services are key to the production and delivery platforms. It’s time for the federal government to get out of the way.
© 2017 Law Bulletin Publishing Company. All rights reserved.
Monday, May 15, 2017 • Volume 163, No. 94
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Bank Beat” Column
glenn@heilizer.com
A solo who learned from his mistakes, becomes go-to sports attorney
Most fans of college or professional athletics have caught Chicago lawyer Eldon Ham on television or radio, discussing the legal implications of some cutting-edge sports story.
Aside from running his own sports marketing, publishing, trademark and entertainment practice, teaching at IIT Chicago-Kent College of Law, serving as an expert witness in various athlete cases and valuation matters and writing numerous books and articles along the way, Ham is a longtime guest legal analyst for media outlets across the country.
As counsel for prominent players and a thoughtful essayist on the impact of sports in society, Ham is often asked to discuss how key events at universities or in the major leagues intersect with the law, such as the Sandusky scandal at Penn State, unionization efforts at Northwestern, baseball’s steroid era or the potential criminalization of flagrant cheap shots in the NFL.
Working his way through law school as a second-shift copy clerk at the Chicago Tribune, Ham expected a more traditional path. As it turned out, his legal career has been anything but traditional.
Know what you don’t know
In his early years as a lawyer, Ham discovered hardships can produce life’s best lessons.
Deciding after graduation to open a solo firm, he secured office space and stationary and waited for clients to stream through his door with lucrative cases. That did not happen very often.
Instead, Ham had to learn how to compete for business to survive. He joined a bar association referral program and took whatever modest cases came his way, one of which grew into a lucrative California technology client. While he gained some experience, there were lean times and a lot of stress.
Candid self-assessment can be tough, but in Ham’s case, it took some honest soul-searching to turn his career around. “As an attorney, you need to know what you don’t know, which is easier said than done,” he remembered. Ham made the hard choice to close his practice and join a firm.
As an associate attorney, Ham gained significant commercial experience that allowed him to return to a robust solo practice in later years. He also made valuable contacts, including an emerging sports agent named Steven Zucker.
Representing a Super Bowl MVP
Hall of fame baseball executive Branch Rickey famously said “luck is the residue of design.” Ham believes those are words to live by. By joining a firm to gain experience, Ham had the chance to meet Zucker, and in turn, represented NFL star Richard Dent.
In 1988, the NFL gave Dent a 30-day suspension for refusing a drug test. Dent had tested positive for traces of marijuana more than a year earlier and demurred when the NFL demanded a re-test based on “reasonable cause.”
When Ham discovered a discrepancy between the NFL’s drug policy and its bylaws that clouded the NFL’s right to demand a re-test, he and Zucker immediately filed a motion for a temporary restraining order.
The sports world was captivated by this “unprecedented challenge of the NFL’s drug policy,” as one columnist described the case. Ham recalled the courtroom and hallway were packed with media members, bystanders and lawyers hoping for a glimpse of the proceedings.
In the judge’s chambers just before the hearing, the NFL in dramatic fashion agreed to remove the suspension, which settled the case. Because Ham and Zucker had acted so quickly, Dent never missed a game.
The Dent case made Ham a recognized sports lawyer virtually overnight. He never looked back.
Medical paternalism and the athlete’s right to choose
One of today’s well-publicized debates concerns the right to compete despite serious health risks, including brain and spinal injuries. Some insist there is a moral imperative to prevent potential injury at all costs, while others argue for the athlete’s right to assess the risk and make an informed choice to take the field.
Ham was an early advocate for the player’s right to choose, when he filed suit in 1994 for a Northwestern University basketball player, Nick Knapp, who was permanently sidelined due to a heart condition.
Knapp, an all-star high school basketball player, collapsed on the court and was revived by paramedics. After doctors implanted a defibrillator, Knapp announced he was ready to honor his commitment to play at Northwestern. Although he received the promised scholarship, Knapp was benched due to his medical history.
Ham’s efforts led to a mandatory injunction in federal court by arguing creatively under the Rehabilitation Act that Knapp was “otherwise qualified” to play and his banishment “substantially limited” a major life activity. But the 7th U.S. Circuit Court of Appeals reversed, citing a reasonable probability of future harm and deferring to Northwestern’s assessment of the risk, then finding Knapp was therefore not “otherwise qualified” to play. After the Supreme Court denied review, Knapp was off the team for good.
Though Ham appreciates the inherent desire to protect athletes at all costs, he believes players should have the right to make their own choices within reasonable limits. The concept behind forced medical exclusion — “we are going against your wishes for your own good” — can be exploited, Ham pointed out, and has been used to bar women from men’s athletics and even to justify segregation in years past.
Nor has Knapp’s view changed after all these years. In 2010, he told an interviewer that “institutions shouldn’t make decisions that aren’t theirs to make the way Northwestern did for [me].”
Entrepreneur and author
The keepsakes and mementos that fill Ham’s office point to achievements in the sports world well beyond the practice of law.
For example, there are specialty-themed trivial pursuit games, co-designed by Ham and licensed by the NFL, MLB, CNN and even Caesars Palace.
Next, there are greeting cards with Chicago Bears and other NFL logos that led to allegations of misappropriation against a card company and an arbitration award to Ham’s group.
Stacked in the corner are a select collection of Major League Baseball bats from the Hoosier Bat Co., a business in which Ham was once a part owner and still represents as a client.
Also lining the shelves are a sizable group of well-acclaimed books by Ham on sports and broadcasting, including his latest work — “All the Babe’s Men: Baseball’s Greatest Home Run Seasons and How They Changed America” — which received an Independent Publisher Book Award in 2014. And one of his prior books, “Broadcasting Baseball,” was a finalist in the Foreword Magazine Book of the Year awards.
Ham’s favorite item, too valuable to keep in the office, is a pair of signed boxing gloves from Muhammad Ali. While at Zucker Sports, Ham represented Ali in an endorsement deal and recalled that Ali was kind and attentive, despite his in-the-ring persona and worldwide fame.
Be proactive and learn from your mistakes
Ham’s parting advice to young sole practitioners is to be proactive. Decide what you want to accomplish and be honest with yourself if you need help to get there. Mistakes happen — learn from them and move forward. Success will come when you put yourself in a place to succeed, though perhaps not how or when you expect.
Even now, Ham takes his own advice as he continues to self-assess and seeks new challenges. Joined last year by his daughter, Carla, a lawyer and former entertainer, their boutique firm serves the needs of prominent performers, bands and venue owners. As always, Ham is excited about new opportunities around the corner.
© 2017 Law Bulletin Publishing Company. All rights reserved.
Monday, May 1, 2017 • Volume 163, No. 84
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com