CBA Record - Legal Ethics Column by John Levin

The CBA Record is the magazine of The Chicago Bar Association

Article by John Levin :: Technology continues to add complexity to how lawyers must manage their practice. You would have to have been living on another planet for the past year not to have heard about the problem of using the wrong server to manage your email. By now you have hopefully reviewed your email usage and kept your client communications secure.

Article by John Levin :: Times change. Advances in technology (as well as what behavior is considered to be professional and dignified) are prompting revisions to the ABA Model Rules concerning advertising and solicitation. When I first began practicing law (now approaching 50 years ago), attorneys could not and did not advertise. Since then, a series of Supreme Court decisions mandated granting attorneys limited rights to advertise.

Article by John Levin :: Currently, Illinois Rule of Professional Conduct 8.4 (Misconduct) states that it “is professional misconduct for a lawyer to:

Article by John Levin :: This year, after a two-year study, the ABA’s Commission on the Future of Legal Services published its Report on the Future of Legal Services in the United States. The Report summarizes the Commission’s findings and recommendations on how legal services are and will be “delivered and accessed”. It also contains references to the voluminous work done by the Commission in its study.

Article by John Levin :: Over the years, this column has discussed how high fees were pricing low and moderate individuals out of the market for legal services and how technology might help ameliorate this situation. In January 2016, this column discussed the 2015 U.S. Supreme Court case of North Carolina Board of Dental Examiners v. FTC, which holds that a state regulatory board is subject to the antitrust provisions of the Sherman Act if the board members are active participants in the industry regulated by the board.

Article by John Levin :: In October 2003, this column discussed the brewing battle over attorney-client privilege under the then newly adopted Sarbanes-Oxley Act. Under the provisions of the Act, the SEC adopted regulations obliging a lawyer to report and disclose certain client actions, primarily to prevent the client from committing fraud and criminal violations.

Article by John Levin :: The last edition of the CBA Record (April/May 2016) contained an article by Chicago Bar Foundation Executive Director Bob Glaves entitled “The Billable Hour Needs to Go.” The article was written in the context of providing access to justice to the low and moderate income individual or business who has been priced out of the market for legal services. The article also contains a reference to a “Pricing Toolkit” to educate attorneys on how to provide services to low and moderate income clients and to develop methods of billing alternative to the traditional hourly rate.

Article by John Levin :: The last column discussed the issue of the lack of affordable legal services to the middle class even though there appears to be a surplus of lawyers available to provide those services. One reason for this situation is that the cost of obtaining a law degree (in both time and money) is so high that the fees necessary to recover and earn a return on the investment require a fee structure that prices legal services out of the reach of many.

Article by John Levin :: A few months ago The New York Times reviewed the The Complete Works of Primo Levi (Nov. 29, 2015). Levi was a professional chemist. He was also holocaust survivor, author of Survival at Auschwitz. The review stated that the “core of Levi’s science . . . was its refusal of generalizations and theories that transcend the realities of particular things.” Levi believed: “You must not trust the almost-the-same. . . . The differences may be small but can lead to radically diverse results.” Levi stated: “What we commonly mean by the verb ‘to understand’ coincides with ‘to simplify.’ . . .

Article by John Levin :: I recently received a notice from an organization to which I belong that a lawyer would be making a presentation to the group on an issue that was of personal interest to members of the organization. This type of presentation is a common way for people to get legal information and for lawyers to make contact with potential clients.

Article by John Levin :: By now you have probably heard of the U.S. Supreme Court case North Carolina State Board of Dental Examiners v. Federal Trade Commission (135 S. Ct. 1101). This case broadly held that a state regulatory board is subject to the anti-trust provisions of the Sherman Act if a controlling number of its “decisionmakers are active market participants in the occupation the Board regulates”. The exception is if the board acted in accordance with a clearly articulated state policy and was subject to active supervision by the state.

Article by John Levin :: A recent column reviewed actions by the U.S. Department of Justice and the DC Circuit Court of Appeals that reaffirmed the attorney-client privilege in the context of corporate investigations performed by counsel. This is a welcome development.

Article by John Levin :: Recent editions of this column have focused on the shortage of legal services to the poor and the middle class. One cause of this shortage is that we seek remedies for our societal problems through legislation, and as a consequence, minor personal matters affecting ordinary middle class people become enmeshed in seemingly Byzantine regulations that should realistically apply to complex institutions. This creates a need for legal services, which are often not available because of the shortage of lawyers willing and able to provide them. This column offers some examples.

Article by John Levin :: In the course of day to day business, lawyers may be asked to do things, which - though completely legal and permitted by the Rules of Professional Conduct – conflict with the lawyer’s personal ethical standards or beliefs. It does not take too much imagination to think of several examples. In most cases, the lawyer can simply refuse to handle such matters. But sometimes the pressure of business may require that the lawyer, or members of the lawyers firm, deal with these issues.

Article by John Levin :: This is part three of a two-part series. The previous two columns discussed the lack of affordable legal services for the middle class. One possible way to ameliorate this problem is to license non-lawyer legal practitioners to provide some of these services. (This solution is under consideration in a number of venues creating the predictable furor.) Another is for the surplus lawyers currently graduating from law schools to provide these services either as lower paid employees of firms or as sole practitioners. It is the latter alternative that prompted this column.

Article by John Levin :: The American legal community is facing a dilemma. There is a surplus of law school graduates looking for work and unable to find employment as lawyers, while, at the same time, a large percentage of the middle and working class are unable to obtain legal services at a price they can afford. Basic supply and demand theory posits that there should be an adjustment in price so that the excess lawyers will find work providing services to those people who can only afford to pay less.

Article by John Levin :: Social Media – Advising your Client

Article by John Levin :: The last column, on ghostwriting, (October 2014 CBA Record) concluded that recent Illinois Supreme Court Rule amendments “have clarified that ‘ghostwriting’ for a pro se party is a permissible unbundling of services in Illinois.” The rules also provide that lawyers preparing court filings as an unbundled service do not generally have to file a court appearance. However, the column also indicated that there is continuing debate on the issue of what disclosure lawyers providing unbundled services to pro se parties must provide to courts regarding those services.

Article by John Levin :: Recently the Orange County Bar Association issued a lengthy opinion (Formal Opinion 2014-1) discussing the ethical issues raised when “(1) a lawyer licensed to practice law only outside of California and who resides outside of California, or (2) a contract lawyer licensed to practice law in California, ghostwrites documents submitted to the court by another California lawyer”. In both cases in involvement of the ghostwriter is not disclosed to the court.

Article by John Levin :: Earlier this year, the New York State Bar Association issued Social Media Ethics Guidelines. The Guidelines are intended to apply to lawyers practicing in New York. They recognize that there is no single set of rules or practices that can apply across the country, since not only do different jurisdictions have different rules of conduct and ethics opinions, but different jurisdictions also have different social mores. What makes the Guidelines interesting to an Illinois lawyer is their overall approach to the relation of social media to ethical conduct.

Article by John Levin :: This column is prompted by a letter from a reader of the CBA Record who raised the question of whether Illinois judges could objectively decide the issue of the constitutionality of Illinois’ recent pension reform legislation within the context of the Illinois Code of Judicial Conduct.

Article by John Levin :: In November 2013, the Committee on Small Law Firms of the New York City Bar issued a comprehensive report titled “The Cloud and the Small Law Firm: Business, Ethics and Privilege Considerations.” This report is an excellent summary of the current status of the thinking on this subject. Over the years, several of these columns have discussed the evolving ethical issues involved in lawyers storing and using information in the cloud, so there is no reason to repeat them now.

Article by John Levin :: In the most recent Legal Ethics column (contained in the January 2014 edition of the CBA Record), I proposed dividing the general concept of “legal ethics” into three subgroups: professional responsibility – focused on the Rules of Professional Conduct, occupational ethics – focused on the situational ethics of one’s business and professional context, and personal morality. I also stated that I hoped to apply this analysis in future columns. The Illinois Supreme Court has recently handed down an opinion that provides an excellent case study.

Article by John Levin :: Perhaps you have had the occasion to use the phrase “legal ethics” in public. If so, you may have noticed the look of bewilderment on the faces of your listeners – as if you had come out with an outrageous oxymoron. You may try and explain that “legal ethics” is a body of rules and laws that govern the behavior of lawyers, and does not mean “ethics” in the everyday sense.

Article by John Levin :: This column of January 2011 discussed the then new 2010 Illinois Rule 1.6(a) on client confidences.

Article by John Levin :: The last column discussed two possible reasons why the legal profession has been slow to adapt its ethics rules to recent changes in technology. One is that the speed of change has been so rapid that it is simply hard to react in a timely fashion. The other is the concept of “creative destruction”, i.e. the concept that every significant change in technology and business practices results in winners and losers, and the losers resist changes.

Article by John Levin :: At a recent gathering I attended, the question was asked why the rules of professional conduct were so slow to adapt to changes in practice and technology. The first and most obvious conclusion was that the world was changing at an ever increasing rate, making it harder and harder to craft a response to those changes.

Article by John Levin :: llinois requires self-reporting by a lawyer of disciplinary action taken against that lawyers by other regulatory bodies, and permits (or in some instances requires) the ARDC to take reciprocal disciplinary action against the sanctioned lawyer. As examples,

Article by John Levin :: Illinois Supreme Court Rule 761(a) states:

Article by John Levin :: It is the duty of an attorney admitted in this State who is convicted in any court of a felony or misdemeanor to notify the Administrator of the conviction in writing within 30 days of the entry of the judgment of conviction.

Article by John Levin :: Let’s imagine that you post to Facebook or Twitter. The posts are visible to your “friends” or “followers”, but not to the general public. Let’s also imagine that you recently won a case and want to brag about it via social media. Here are some possible postings:

Article by John Levin :: “Case finally over. Unanimous verdict. Celebrating tonight.”

Article by John Levin :: “Another great victory in court today. My client is delighted. Who wants to be next?”

Article by John Levin :: “Won a million dollar verdict. Tell your friends to check out my website.”

Article by John Levin :: The ABA’s Commission on Ethics 20/20 has been charged to review and suggest changes to the Model Rules of Professional Conduct in the context of the rapidly changing practice of law. In August 2012, the ABA approved several proposals by the Commission to amend the Model Rules. Several of these changes have been previously discussed in this column.