Tag Archives: ethics

What Drives A Great Olympian (Or Lawyer) To Win

All eyes are on London this summer during the 30th Olympic Games. It’s hard not to be impressed with the diversity and talent exposed in HD each night on NBC.

Currently at 37 total, Team USA is just trailing China for the most medals won in this year’s Olympics. Nevertheless, these games, as always, are geared toward international cooperation and friendly competition among countries, which makes the story of each citizen—regardless of nationality—that much more inspiring.

The question on everybody’s mind: how did these talented individuals make it so far? Who is responsible for the great success of each one?

Across the world, men and women are cheering for their favorite athletes. And, young minds are imagining that, next time, it will be them on the podium.

It may or may not surprise you to find, among the most successful Olympians in London, there are at least five reasons why they’re bred—not born—trailblazers.

Within law or life, here are a few lessons that professionals can learn from Olympians about becoming one of the world’s greatest leaders:

1. No excuses.

South African runner Oscar Pistorius, nicknamed “Blade Runner” because he races on carbon fiber prosthetic blades, qualified for the Olympic Track and Field Championships last year with a time of 45.07 seconds.

He talked about growing up playing sports with brother Carl, “My mother used to tell us in the mornings, ‘Carl put on you shoes, Oscar you put on your prosthetic legs’ …So I grew up not really thinking I had a disability. I grew up thinking I had different shoes.”

Pistorius is considered a long-shot to win the 400-meter dash final on Monday. But, as the first-ever double-amputee athlete to compete in the Olympics, Pistorius is not making any excuses.

Like all great leaders, Pistorius is aiming to work hard and win high despite low odds. A handicap? Hardly. Quite the opposite—Pistorius would tell lawyers to walk in whatever shoes (or situation) they’re given and consider it a blessing.

By contrast, in a sport where shoes are unimportant, another Olympian provides fodder for inspiration.

“There are many people who want to start rowing because I have come to the Olympic Games. We will start when I get back. We just have to wait for the boats to arrive,” says wildcard rower Hamadou Djibo Issaka. Issaka knows his story has inspired others to row in places where the idea seems impossible

Why? Issaka is from Niger, a landlocked and mostly desert nation in Africa. He trained for just three months for the men’s single sculls—clearly, almost none of them, were in his home country.

Great leaders would never let a little sand (and no water) sink their boat.

2. Discipline.

With McDonalds as the official Olympic sponsor, it’s difficult to believe that Olympic athletes obtain success through regular physical training, diet, and discipline. But, the overwhelming commonality among successful athletes is self-control.

“I trained, a lot, a lot, a lot. No drink and no girls,” said Richard Bognar from Hungary, who finished sixth in the men’s double-trap shooting final.

Similarly, professionals who work in high-stress environments often forget that healthy eating and adequate sleep improve productivity. When your caseload seems too heavy to bear, it may be time to increase your calorie-count—learn from athletes and prepare for client meetings and court cases with proper meals, consistency in preparation, hard work, and rest.

“…the Chinese always win, and maybe some people think this not good for table tennis. I don’t think so. We always win because we work much harder than the others,” responds Chinese women’s table tennis coach Shi Zhihao to new Olympic rules that would restrict each country to two players (aimed to reduce China’s domination of the sport).

In the end, like the Chinese in table tennis, success is the result of time and effort spent to gain an expertise.

3. Fair Play.

The Olympics, like law, depends highly on fair play and ethics. Which is why, eight players from China were disqualified from Badminton for deliberately trying to lose matches to ensure a better draw.

“This is my last time competing. Goodbye Badminton World Federation, goodbye my beloved badminton. You have heartlessly shattered our dreams,” said China’s Yu Yang, bidding farewell to the sport.

It’s also why governing bodies in law, like the ABA, constantly produce ethics opinions to warn lawyers of potential pitfalls, like this one. Although technological advances (and performance-enhancing drugs) are improving, don’t be a dope. Forget the quick fix—such as juror contact during online research of social media sites—and go for fairly earned gold.

4. Good Attitudes.

Nobody’s smile is as infectious as recent Olympic gymnast all-around winner Gabby Douglas. Her coach, Liang Chow, also beamed after Douglas’ performance, saying, “Before, people weren’t sure about her mental toughness.”

“She demonstrated she can handle the toughest job. It was a wonderful performance under huge pressure.”

Undeniably, young girl gymnasts face a huge amount of pressure. Nonetheless, an optimistic attitude is contagious.

“I made a lot of sacrifices, but they all paid off,” Douglas said. “My mom was always telling me, ‘You can inspire a nation.’ I always thought of that as my motivation. I want to inspire people. If you’re having a hard time, never give up and always keep fighting.”

Positive reinforcement is the most productive type of support in professional sports or professional work environments. A good attitude is (literally) worth its weight in gold.

5. Team Support.

Finally, peer support is crucial to winning Olympic gold. Not just for the team events, but for the individual ones, too.

Swimming is frequently considered a solitary endeavor. But, as Olympic medalist Allison Schmitt points out, she never would have reached the podium without the encouragement of her teammate—ultimate Olympic Champion—Michael Phelps.

“(Phelps) has definitely helped me out a lot,” said Schmitt, who set an Olympic record to win the 200-meter freestyle.

“He has shown me the ropes in many ways in international swimming and Olympic trials—keeping me calm before my swim, saving my energy. At the same time, he’ll always be there at practice, if he sees me doing something wrong, if I just want to be like, ‘Michael, watch this finish.’ He’s always willing to watch it and help me out if he sees something wrong.”

Feedback and communication are equally important among teams. Support doesn’t simply imply blind encouragement, but it also bears the responsibility of righting wrongs as they occur.

So even if your average workday isn’t filmed in high-definition for public broadcast like the London Olympics, leave the office every day with the professional pride that it could have been.

-WB

 

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The Risks of Social Media Use For Lawyers

Although many legal consulting companies advise law firms to make good use of free and accessible social media, such as Twitter, blogging, or social network sites. Some consider the practice to be more of a trap than trail to success.

Thomas J. Watson, senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., recently wrote an article for the Wisconsin Lawyer titled, “Lawyers and Social Media: What could possibly go wrong?

According to Watson, “Potential hazards include losing control over your message, blurring professional and personal use, expending too much time and money on managing social media use, creating unrealistic client expectations, and making false or misleading communications about a lawyer’s services, not to mention the possibility of violating the rules of professional conduct.”

His article is full of sound professional advice, including, don’t talk about or to clients over social media, beware of the marketing-related Rules of Professional Conduct when writing online, and don’t give legal advice over the Internet.

In some sense, it’s common sense.

Of course, it’s natural to keep aware of conflicts of interest and to not engage in the unauthorized practice of law. Still, something about the anonymity of digital makes people forget about these daily professional conduct rules.

Also, the more software and technology used by your firm, the more necessary tools for confidentiality and protection, like an excellent IT Department, becomes.

Employees at your firm should properly secure its wireless network; update its antivirus software and build a firewall; and remember to remove metadata or password protect-sensitive email attachments.

But, are these risks—inherent in any online activity—so severe that they outweigh the benefits of using social media?

“Is fashion attorney Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?” questions Kevin O’Keefe in his article “Is all use of social media subject to legal ethics rules?” on his blog.

The question seems rhetorical. And O’Keefe, author of Real Lawyers Have Blogs, believes social media is not about advertising, rather, it’s about building a conversation of trust between lawyers and their clients.

“Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers,” he writes.

Ultimately—like any great rivalry—O’Keefe and Watson want the same thing.

Both men want to watch the industry of law regain some of the reputation of honor and integrity it has lost over the years. And, both are eager to influence and advance their struggling profession.

As lawyer jokes become commonplace and the information highway makes pro se (and in-house) representation all that more accessible to Americans, law firms are seeking new outlets and tools for survival.

Using social media to keep up with the times has its risks. But, so does not using it. Embrace innovation.

If your firm still has concerns, consider hiring a consultant to guide you into the 21st century instead of driving you astray.

 

-WB

 

C4CM offers an audio recording that explains: Social Media at Work: Bulletproof Policies that Minimize Legal and Financial Risks

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Highly-Regulated U.S. Law Industry Reminds U.K. Firms To Keep Out: New York State Bar Rules On Ethics

Formal publications and informal publications, like this law blog, spend a predominant amount of time advocating for legal service innovation.

Clifford Winston, Robert W. Crandall, and Vikram Maheshri of the Brookings Institute suggest in their publication, First Thing We Do, Let’s Deregulate All the Lawyers. The authors claim entry barriers and restrictions combined with government-induced demand for lawyers drives up the prices for legal services, which then draws significant social costs, hampers innovation, misallocates the nation’s labor resources, and creates socially perverse incentives.

Winston and Crandall also contributed an op-ed to the Wall Street Journal calling for the immediate deregulation of the legal industry. They wrote:

“The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.”

Amid countless lawsuits accusing law schools of misrepresenting employment statistics and a boom in online legal services, law school graduates are desperately seeking jobs, and clients seeking affordable counsel.

Both the Cato Institute and OpenMarket.org agree with the WSJ that deregulation is necessary.

“People can represent themselves in small-claims courts, which have simplified procedures, but in many states, such courts can hear only the tiniest legal claims, like those seeking less than $5,000,” states OpenMarket.org (via ATL).

“Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality,” continue Winston and Crandall.

Foreign countries have also deregulated the law industry. Consider, for example, the U.K.

Law firms there can receive external investment—even through an IPO—and non-law firms can offer legal services without special legal accreditation.

The Legal Services Act, which passed in October, provides for new ownership structures in the U.S., but to date, no major U.K. law firm has taken advantage of it (via WSJ).

And, according to the Wall Street Journal and a recent ethics opinion by the New York State Bar, perhaps U.K. firms should continue to stay off U.S.-regulated soil. Here’s why.

The New York State Bar, which is the largest in the country with 77,000 members, recently ruled that New York lawyers can’t practice law in the state if they are part of U.K. law firm with non-lawyer owners.

“The committee considered this scenario: Lawyers licensed to practice in New York enter a business relationship with a U.K. firm that has non-lawyer owners and managers. The New York lawyers establish a New York office for the firm and represent New York clients. They don’t share confidential information with the non-lawyers and they abide by U.K. rules,” writes the WSJ Law Blog.

The New York State Bar ruled that the above scenario violates ethics rule that forbids a lawyer from practicing law for profit with an entity that includes a non-lawyer owner.

Although The American Bar Association is considering a tweak to its ethics rules, there is no end in sight. Despite the dire economic climate for lawyers, the U.S. is hesitant to propose any innovation that would deregulate the law industry.

FT has more on the ethics opinion here.

What’s the solution? To garner more business overseas and to exit this financial crisis, will U.S. states be forced to deregulate their law industry?

In today’s globalized world, a combination U.S.-U.K. law firm shows signs of potential success. But, for the moment, it looks like U.S. law firms will have to go it alone.

-WB

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Does The Trial Of Stephen Glass Pose A Danger To The Ethical Standards Of Law?

In terms of professional requirements—long hours, teamwork, ethics—lawyers are frequently compared to physicians, pilots, or journalists.

But do the similarities transcend all?

Stephen Glass, for one, hopes the comparison between journalists and attorneys stops short. Glass would like to forget his transgressions in journalism in favor of a clean-slate career in law.

From 1996 to 1998, Glass faked all or parts of 42 articles for national magazines. His frauds were the basis for the 2003 film “Shattered Glass,” in which he acknowledged that his violation of journalistic standards for ethics was so severe that he would “never be welcomed within journalism, and rightly so,” quotes the San Francisco Chronicle.

Today, the 39-year-old is a law clerk for a firm in Beverly Hills. Glass passed the bar exam and applied for an attorney’s license in 2007, but the State Bar’s Committee of Bar Examiners rejected his application.

Can Glass be trusted again? The State Bar Committee seems to believe he can not.

Glass has since appealed to the independent State Bar Court, which ruled 2-1 in his favor this July. The majority found “overwhelming evidence of Glass’ reform and rehabilitation,” after 22 witnesses stepped up on his behalf to the stand.

Former editor of The New Republic for which Glass’ fabricated articles were published, Martin Peretz, told the court that Glass  “has learned, painfully, from his mistakes,” quotes the SF Chronicle.

In this case, other attorneys and potential clients are forced to ask, is there a point where rehabilitation and justice can truly meet?

After the bar examiners appealed and California’s high court voted last month to review the case, Glass awaits a hearing scheduled for November, according to Reuters.

Reuters’ journalist Jack Shafer weighed in heavily on the trial of Stephen Glass. Shafer wrote in detail about the discovery documents used in the trial, analyzing them with a contemptuous eye:

“If it weren’t for the paper trail, this decade-long struggle to become an attorney, with all of its emotional striptease and maudlin confessions, might be mistaken for one more Stephen Glass fabrication. Maybe, when it’s all over, he’ll write about that,” writes Shafer for Reuters.

How much should past legal transgressions count against a candidate in the field of law? How much should firms value the trait of reform in their lawyers over those attorneys who show an unviolated code of ethics?

Would your law firm hire Glass?

As the New Year approaches, not only is it a perfect time for resolutions, but it is also a time to take a good look at what greater goods your law firm can perpetuate in 2012. Ethics, regardless of your take on Glass, should remain a lawyer’s first priority in any court case.

Glass did not respond to any requests for comment by journalists. A move that seems to shows Glass learned well—in the least—from his current legal counsel.

-WB

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Puppies and PR Strategies: Five Pitfalls Law Firms Should Avoid

Oscar Wilde once said, “Experience is simply the name we give our mistakes.”

While it’s a wonderful experience to learn from your mistakes, clients hire those law firms that avoid making them in the first place.

Of course, it’s safe to say nobody is perfect. That’s why firms often trust in a third party dedicated to mistake-prevention and mistake-correction: the public- relations (PR) agency.

Television is rife with PR disasters: Tom Cruise and the couch-jumping incident, John McCain and bailing on Letterman, Ellen’s puppy fiasco… Law firms, however, are hardly immune.

Consider, for example, the firm King & Spalding.

In May, the firm received a fair bit of bad press after it agreed to represent House Republicans in defending the Defense of Marriage Act (DOMA). After gay-rights groups protested, King & Spalding withdrew from the case—but without any definitive explanation. Amid much controversy, King & Spalding experienced a snowball effect in terms of averse consequences and bad PR.

First, former solicitor general and firm Partner, Paul Clement (the attorney who brought King & Spalding the case) resigned. Next, the NRA and Virginia attorney general Ken Cuccinelli—both clients of the firm—changed counsel.

Eventually, the dust settled on King & Spalding’s office politics. But, how much damage was done?

The following is a list of PR pitfalls—like King & Spalding’s—that your law firm can learn from to avoid succumbing to its own. Hopefully these errors in judgment will prevent your firm from being next in the negative, legal limelight.

1. Employing Hands-off PR Strategies. Though experts in their field, PR agencies should not shoulder all the responsibility and work involved in creating a positive image for your firm. Partners and associates must all chip in when it comes to managing the PR poker game.

After the New York Post broke the story regarding Worby Groner Edelman‘s marketing poster (and ploy) that used 9/11 imagery to advertise for plaintiffs harmed at Ground Zero, the firm referred reporters calling about the controversy to Barker/DZP—the agency in charge of the ad. The firm should have responded to critics directly. Although conceived in an office somewhere else in New York City, the image and reputation of the law firm and its attorneys is the one at stake, not the art directors.

Richard Levick, President of Levick Strategy Communications, writes of law firm PR strategy:

“Reporters are like stray cats –if you don’t feed them, they go to someone else’s door. Call them back first, even if it is to say that you can’t say anything. Reporters remember who calls them and who doesn’t. Not returning the journalist’s call  today, no matter what the reason, guarantees that you won’t get the call when you do want to be in the paper.”

Employing third-party consultants does not exempt an attorney from speaking to the press or being a model representative of their firm. A PR person does not substitute for a well-spoken (and sometimes apologetic) law partner.

2. Participating In Impromptu Interviews. Senior attorneys would never show up to a courtroom unprepared, so why would you do the same for interviews with the press?

Continuing on the 9/11 example, the band Blue never recovered from backlash resulting from comments made by band member Lee Ryan during an interview. He was reported saying,  “What about whales? They are ignoring animals that are more important,” among other insensitive statements, when asked about the events of September 11.

Lawyers are more poised than popstars. But, the point remains. Impromptu interviews to the press about a case can have disastrous consequences.

Implement a firm-wide policy that controls what lawyers are allowed to say to the press. This simultaneously controls what the press prints about your firm and its clients. Also, ask your PR agency to prep key law firm partners for difficult, public scenarios involving the media. Don’t forget, even an ill-prepared press statement can grossly misrepresent the voice of your firm.

3. Going On The Defensive. Managing your public image—like social media—is not fad. Both trends are here to stay. That’s why a PR strategy should become a permanent addition to your firm.

It’s tempting to outsource PR work only when there’s trouble. The key, however, is to prevent trouble in the first place.

Take, for example, Miley Cyrus’s PR people. After the underage singer posed in some racy photos by Annie Leibovitz for Vanity Fair, her PR company correctly issued a public apology to the many disgruntled fans (and parents of fans).

Nevertheless, Miley Cyrus’s family was present for the shoot and should have involved their PR reps far before the magazine was ever published. Printed material sets words and images in stone.

Richard Levick, advises:

“Law firms conducting press relations project-by-project are wasting their money. If Coca-Cola only engaged in publicity when they had a new formula, you would be drinking Pepsi. Publicity requires reach and repetition. That means lots of placements, lots of times. Getting press ‘every once in a while’’, has little value beyond soothing the ego. Publicity for law firms is about business development, not ego.”

Law firms should keep PR-agency opinion handy for both defensive and pre-emptive decisions.

4. Believing More Publicity Is Good Publicity. The fact is, more publicity does not equal good publicity.

The company Mutts & Moms can serve as a testimonial to that fact.

When Ellen DeGeneres adopted a puppy, Iggy, from Mutts & Moms, she had no idea the dog wouldn’t agree with her cats. So she gave Iggy to her hairdresser’s family. However, Mutts & Moms’ policy required Ellen to return the dog to it, and took aggressive measures to repossess Iggy.

Despite appearing in tears on her show, Ellen could not get Mutts & Moms to return Iggy to her hairdresser’s family. And, in turn, Mutts and Moms received thousands of scathing reviews and threats from furious Ellen fans. Now, opposed to “good service” and “cuddly puppies,” a Google search of Mutts & Moms leads to, “Mutts and Moms: Ellen Ruined Our Reputation.”

Lesson learned? Even when it’s non-standard practice, do what it takes to avoid negative publicity—within reason (see last pitfall).

5. Trusting In Total Denial. Finally, the strategy to “deny, deny, deny” is the same as “lie, lie, lie.”

Whatever ethical standards lawyers abide by in the courtroom, they should require in the press room.

-WB

Read more about the above celebrity PR incidents in “10 of the Biggest PR Blunders in Recent History,” here.

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Governor General Chides Legal Profession: Tells Lawyers, Choose Side Of Justice

It is often said that we are our own worst critics.

And so Governor General David Johnston, former dean of law at the University of Western Ontario, said of lawyers—like himself—that they have failed in their duty to improve justice and serve the public good.

In a dynamic speech at the opening of the Canadian Bar Association’s annual meeting in Halifax on August 14, Johnston criticized the direction that the legal profession has taken and beseeched attorneys to make a change.

“We need a new model for professionalism in law,” Johnston supplicated the audience. “To borrow a saying from a sister profession: physician, heal thyself.”

Practitioners of law must abide by certain ethical and other standards of quality, but have, in recent times, neglected to do so, according to Johnston.

In particular, Johnston spoke out about the intense lag time of court cases. Court processing times are lengthy and case backlogs plentiful. Of efforts to reverse the trend in Ontario, Johnston said “the pace (of change) is woefully slow.”

In his speech, the sense of urgency is clear.

It’s easy to think, discuss, and even identify innovative ideas for the workplace. However, it’s hard to find the courage to implement them. Sometimes maintaining the status quo—especially for more conservative law firms—is an acceptable norm.

This lack of action, criminologists call a “court culture” of complacency—a culture that Johnston blames for aspects of the 2008 financial collapse.

Failure on Wall Street is just one example that Johnston singles out as a contributing factor to the collapse of trust between citizens and public institutions in Canada and democratic nations as a whole.

“How many lawyers ‘papered’ the deals that involved fraudulent statements of assets, liabilities, income and valuations?” he laments.

“How many lawyers ‘sounded the alarm’ about conflict of interest in the web of financial transactions and creative financial instruments?

“How many lawyers were silent in the face of a pattern of deregulation which has left the economy naked to excessive leverage, and which any thoughtful observer knew was bound to have its inevitable pendulum swing?”

These questions are an apt reminder to lawyers everywhere of their ethical and professional oath.

Johnston also chastised law firms for not accommodating young mothers, claiming firms had a propensity to “penalize those with a family,” a topical issue that drew applause from the audience.

Learning to manage work and home life is no longer an issue to be addressed by the professional, but by the profession. The legal industry must learn how to accommodate the modern family. And, to retain the best lawyers, that means firms must adjust in terms of competitive benefits for their employees.

“If we wish to avoid having change forced upon us, we must embrace new ideas.”

Embrace new ideas while reinforcing the old, such as, let justice be done.

-WB

 

Read more reactions on the Ottawa Citizen, Forceful governor general tells lawyers, ‘Heal thyself’: In stinging rebuke, Johnston says it’s time legal profession regains sight of justice, public good.” By Richard Foot.

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Cultural Misunderstanding? Native American Law Students Ethnicity Questioned By The ABA

St. Lawrence Day Massacre or Pueblo Revolt? Both occured on August 10, 1680. In fact, these titles represent two different perspectives on the same historical event.

On the one hand, “el Día de San Lorenzo,” or the St. Lawrence Day Massacre, commemorates the deaths of 400 Hispano settlers, including 300 women and children, and 21 friars who enhabited colonial Santa Fe and were killed during a massive American Indian attack.

On the other hand, the Pueblo Revolt is often touted as the First American Revolution against the invading Spanish–a fight in favor of freedom of religion and the preservation of the Pueblo Indian and other Native American culture.

“I personally would want to see our tragic history, or the tragic elements of our history, acknowledged,” President Obama told conventioneers at the Unity Convention in 2008.

“I consistently believe that when it comes to whether it’s Native Americans or African-American issues or reparations, the most important thing for the U.S. government to do is not just offer words, but offer deeds.”

Not only controversial holidays, but controversial legislation surrounds the special rights and benefits provided by the federal government to the 5 million American Indians and Alaska Natives residing in the U.S., or 1.6 percent of the total population, as of July 2009, according to the U.S. Census.

And now, the controversy has spread to Native American lawyers.

Between 1990 and 2000, the number of Native Americans who graduated from American Bar Association-accredited law schools was approximately 2,600, according to the ABA. During that same period, the number of Native American attorneys who practiced law in the U.S. increased by approximately 200, according to the U.S. Census. Wait a minute…

Either a large proportion of Native American lawyers are unpracticing, living outside the U.S., cleverly orchestrating a ruse to avoid the U.S. Census, or there are a few too many law students checking the Native American ethnicity box. At least, this is what the ABA believes explains this discrepancy.

Concerned these numbers represent a disturbing trend in law school admissions, the ABA’s House of Delegates approved on Monday a resolution that urges the Law School Admissions Council and ABA-approved law schools to require additional information from people who register for the Law School Admission Test and apply to law school as a Native American.

According to The National Law Journal, this type of of additional information could include information about tribal citizenship, tribal affiliation, or enrollment number. In the event applicants do not belong to a tribe recognized by the U.S. government, they can provide a “heritage statement” instead.

“While few people would indicate they were Asian-American or African-American on a law school application unless it is part of their identity, for some reason there is a wide level of comfort about self-identifying as Native American even though they are not in fact Native American,” wrote the ABA, as reported by The National Law Journal.

“This is particularly disconcerting given that being Native American is not just an ethnic identity, but is an actual citizenship in an Indian tribe or Nation which carries with it a formal tribal enrollment number, not unlike a social security number.”

If you or your clients have questions about government qualifications as a Native American, see http://www.benefits.gov. The Native American Rights Fund also provides useful information about legal assistant resources for Native Americans. Finally, law students who do decide to indicate their ethnicity as Native American should consider joining groups like the National Native American Law Student Association.

Each time you fill out an application, sign a membership, or apply for benefits, you’re partipating in a contract that is not only binding under the laws of this country, but also an essential part of its founding principals. So, with or without the requirement of additional information and evidence of your Native American status, a lawyer should always be aware of the ethical obligations of this profession and act accordingly.

Don’t add to the controversy, add, instead, to true American diversity.

-WB

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Should Self-Regulating (Reactive) Ethics Move Over for A Proactive Process?

In a voluminous report, academician Ted Schneyer, Professor of Law at the University of Arizona James E. Rogers College of Law, puts forth a credible argument as to why the current culture of ethics is “reactive”, only becoming effective once someone complains.  

The self-regulating code has evolved from the earliest days of law in our land, when solo practitioners were BigLaw.  This, he says, is not conducive to real unbiased disciplinary action.   Law firm management should have broader ethics parameters.  The rules, such as they are, he says, are too scattered.  

Rarely are the ABA’s Model Rules of Professional Conduct enforced in the disciplinary process.

Professor Schneyer leans towards more proactive, management-based regulations.  This sort of reform would incorporate or bypass what attorneys refer to as Professional Self-Regulation (or PSR). (Since 1908, the state supreme courts and the bar have monitored these regulations.) Basically, these rules operate as follows:  the courts allow lawyers to operate in their states and “promulgate a code of professional conduct to regulate them”.  These codes are general enough to apply to all lawyers across-the-board.

They also promote a sense of solidarity. 

The bar puts forth the code rules and the advisory board—or the advisory ethics opinions—throw(s) light on or elucidates them.   However, there are other systems which today have shoved PSR’s authority aside.

Since 1985, courts and juries are able to impose civil or criminal penalties on attorneys.  Additionally, courts are able to call the shots regarding the lawyers who come before them and, too, there are specific federal agencies that have a say in how attorneys who represent clients within their jurisdiction do their job.  

That means that the bar no longer has as much regulatory power as it once did.   

Further usurpation of authority occurs as as more and more lawyers change jobs; law firms operate in more than one jurisdiction and lawyers strive to set up a practice in more than one state.

How, asks the professor, are lawyers to know whose ethics rules govern you directly?   

Professor Schneyer contends that PSR is still viable.  Much, very much, depends on how well and publicly the system is seen to promote “competent and ethical lawyering”. 

Law firm management can and should jump in to breathe some life into the traditional code of ethics.  For example, instances involving treating the client fairly should be addressed at the front lines.  Management, if it’s sound, can prevent these first-order of misconduct scenarios by enacting effective discipline.  (Examples would be addressing the misappropriation of clients’ funds or neglecting your client’s needs.) 

That raises a few questions, ‘though, one of which is whether a system so reactive—one that is triggered after-the-fact—can be enforced in the traditional process. Second, can a proactive regulatory process “complementing the regular disciplinary process” do the job by enabling PSR to use firm management as a dipping well to draw regulatory water from?  

The author is of the opinion that, if the state supreme courts adapt a “management-based regulation” that is indeed proactive, the answer is a resounding “yes”.   To read more, go here: http://www.arizonalawreview.org/pdf/53-2/53arizlrev577.pdf

-EM

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Consequences To Unprofessional Conduct In The Courtroom

The scenario is as follows: You are an attorney for the plaintiff. The key attorney for the defendant has asked the court for a continuance to move the trial date in order to accommodate the birth of his first child. Given the length and location of the trial, the current scheduled date will likely overlap with his first-born’s birthday. Meanwhile, the defense has five equally qualified attorneys also working the case. So, is this a ploy by opposing counsel for more pre-trial preparation? Do you oppose the Motion?  

The above describes actual events from the case Jayhawk Capital Management, LLC (Plaintiffs) v. LSB Industries, Inc. (Defendants). In this matter, the plaintiffs refused to agree to continue the trial setting, opposing the motion for a continuance. In their opinion, Bryan Erman, esquire, could find a flight after his son’s birth from Dallas to Kansas City to attend the trial as initially scheduled.

Attorneys swear by certain ethics before practicing law, and while emotions should be checked at the courtroom door, there is still room for common sense and common decency. As a firm, it is important to provide younger associates with an example of exactly what kind of attorney—no, professional—you expect them to be.  

Moral grounds aside, there are plenty of pragmatic reasons to be an accommodating lawyer. Hell hath no fury like a judge’s scorn. This judge in this case began his ruling with the following derision:   

“He who is his own lawyer has a fool for a client” is one of every lawyer’s favorite proverbs. Among the several reasons why this is undoubtedly true, is that lawyers are trained to handle disputes skillfully but without the emotional rancor that will mask the actual parties’ reason and good sense. [1] Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat. This is unfortunate, and unprofessional, but sadly not uncommon. Before the Court, however, is an uncommon example of this unhappy trend.”  

After this embarrassing introduction, Judge Eric F. Melgren’s ruling then addressed and lampooned each of the plaintiff’s objections to the motion, making statements such as, “For reasons of good taste which should be (though, apparently, are not) too obvious to explain, the Court declines to accept Plaintiffs’ invitation to speculate on the time of conception of the Ermans’ child.” 

And, “Further, Plaintiffs assert that there are currently five attorneys from two different firms on Defendants’ signature block. While the Court might be inclined to agree with Plaintiffs that this seems like a plethora of attorneys, it can’t help but note that, entered and active on behalf of Plaintiffs in this case, are also five attorneys, from three different firms; so perhaps Plaintiffs are illequipped to argue that Defendants have too many attorneys.”   

There are many moments at trial or during settlement negotiations when a lawyer must play games, stay tough. But, this behavior should never be to the detriment of a person’s moral compass. Lawyers go to office dressed in pinstriped suits and power ties, so it’s only fitting they wear a personality to match. Therefore, this month, organize a CLE addressing the Model Rules of Professional Conduct as a refresher to both experienced and first-year associates alike.

It’s important to note that while stalling tactics are not uncommon in the practice of law, partners at your firm should take a few extra minutes to decide which legal strategies are worth the risk of public on-the-record ridicule, and which motions are best left unopposed. 

“Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role. Counsel are encouraged to order their priorities similarly. Defendants’ Motion is GRANTED. The Ermans are CONGRATULATED.”   

-WB

To read the full ruling, see:

http://graphics8.nytimes.com/packages/pdf/national/14judge/14judge-order.pdf

[1] “ . . . do as adversaries do in law, strive mightily, but eat and drink as friends.” Shakespeare, The Taming of the Shrew, Act 1, Scene 2.

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Consequences to Misunderstanding The Rules Governing Misconduct

March madness is in the air. But instead of reviewing college basketball brackets, your associates should make a fastbreak for their copy of ABA’s Model Rules Of Professional Conduct. Today, client-attorney communication and client-vendor transactions leave behind a digital footprint, making unlawful paper trails harder and harder to hide. However, everyday, men and women of all professions are still trying their hand at underhanded dealings. This month, bribery—on the part of individuals and corporations—has been a popular vice and constant source of news. Meanwhile, careless violations (and their monetary consequences) keep sending the U.S. government right back to the free-throw line. Let’s see on whose side the points stack up.

Last Friday, British lawyer, Jeffrey Tesler, plead guilty to charges of conspiracy and violating the Foreign Corrupt Practices Act. He admitted to abetting a former Halliburton Co. subsidiary in wining more than $6 billion in contracts for liquefied natural gas facilities from Nigerian government officials. Tesler, a dual citizen of Britain and Israel, was accused of helping route bribe money from Houston-based Kellogg, Brown & Root LLC to Nigerian government officials.

Though arrested in London, Tesler was extradited to and will face sentencing in the U.S. Looking over this 62-year old lawyer, in chains and jail jumpsuit instead of tie and power suit, U.S. District Judge Keith Ellison said to Tesler, “You seem an unlikely person to be here.” To which Tesler replied, “I agree with that assessment.” Tesler admitted that he participated in the bribery in a classic case of  “everybody was doing it.” Unlike schoolyard antics, however, Tesler’s mistake led to a $150 million fine and, eventually, prison time.

Exactly a week later, another unlikely candidate for bribery accusations, IBM, faced charges by the SEC. On Friday, IBM announced it has taken “appropriate remedial action” in addressing SEC charges of foreign bribery as outlined by the Foreign Corrupt Practices Act. IBM settled at a mere $10 million. The company has yet to publicly address the complaint, and neither admits nor denies regularly giving hundreds of thousands of dollars in cash, commodity, and all-expenses-paid gifts to government officials to garner business.

Guilty or not, it seems like an appropriate time for firms and their associates to reread federal and local rules addressing professional ethics. According to the American Bar Association, it is professional misconduct [Rule 8.4] for a lawyer to:

  1. violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
  2. commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
  3. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
  4. engage in conduct that is prejudicial to the administration of justice;
  5. state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
  6. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

While IBM’s fine fell well below the SEC’s average settlement amount for 2010—$18.3 million, up from $10.9 million in 2009—it still serves as a fair warning to practice fair dealings.[1] And If this month’s trend of getting caught isn’t enough of a reminder to play clean, below is a list of the top ten largest SEC settlements and the allegations that led to them.

 

Company                                               Year           ($ mln)             Allegations  

 

1. American Int’l Group (AIG.N)             2006              800      Accounting, misstatements  

2. WorldCom                                          2003              750      Accounting, misstatements  

3. Goldman Sachs (GS.N)                     2010              550      Investor misrepresentations  

4. Citigroup (C.N)                                   2003              400      Inflated analyst research  

4. Fannie Mae (FNMA.OB)                    2006              400      Accounting, misstatements  

6. Siemens (SIEGn.DE)                         2008              350      Foreign Corrupt Practices Act  

7. Invesco                                               2004              325      Market timing, late trading  

8. State Street (STT.N)                           2010              314      Investor misrepresentations  

9. Time Warner (TWX.N)                        2005              300      Revenue misstatements

10. Prudential (PRU.N)                           2006              270      Market timing, late trading  

 

See Nera Economic Consulting at http://www.nera.com for more detail.

[1] NERA Economic Consulting Releases 2010 SEC Settlement Trends Report, December 7, 2010.

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