CBA Record - Legal Ethics Column by John Levin

The CBA Record is the magazine of The Chicago Bar Association

Article by John Levin :: The bicentennial of Abraham Lincoln’s birth is a fitting time to reflect on his views of legal ethics.  In his “Notes for a Law Lecture” (available in print or on line), Lincoln sets out some basic principles of diligence and honesty which are as applicable today as when they were written over 150 years ago - and some of them have much to say about contemporary issues.

Article by John Levin :: I would like to focus on four quotations.

Article by John Levin :: Over the years, this column has discussed the status of rules that encourage lawyers in Illinois to engage in activities to provide legal services to the less fortunate.  As has been pointed out, the Illinois Supreme Court has taken a moderate position on encouraging members of the Illinois bar to engage in pro bono activities.

Article by John Levin :: Over the years, this column has emphasized the importance of lawyers entering into formal retainer agreements with their clients.  These agreements, while not required under the Illinois Rules of Professional Conduct except in certain circumstances (e.g. contingent fee arrangements), are nevertheless an important part of the business of being a lawyer and must be carefully drafted. 

Article by John Levin :: How many times have you sat in a conference room discussing a matter and said – “Let’s try the following argument . . . .”?  Or how often has a client asked for an opinion on the questionable legality of a matter and you have responded – “Maybe we could argue . . .  .”?  This is what lawyers do.  We try and come up with ideas and theories that guide and support our client’s wishes.

Article by John Levin :: As often pointed out in this column, the world of electronic communication in which we live often does not make the lawyer’s life simpler.  Consider the following situation.

Article by John Levin :: When we think about “legal ethics” or “professional responsibility” we usually focus on the Rules of Professional Responsibility or enforcement actions by the ARDC.  However, this is only one consequence a lawyer may face from unprofessional conduct.  Another, and often more serious result is the risk of a malpractice suit.

Article by John Levin :: The title of the September 2008 issue of the Scientific American is “The Future of Privacy – Can we safeguard our information in a high-tech, insecure world?”  The answer to the question appears to be – not very well.  Advancements in hardware and software make are making it harder and harder to preserve privacy.

Article by John Levin :: When we think about “legal ethics” or “professional responsibility” we usually focus on the Rules of Professional Responsibility or enforcement actions by the ARDC.  However, this is only one consequence a lawyer may face from unprofessional conduct.  Another, and often more serious result is the risk of a malpractice suit.

Article by John Levin :: I spent most of my career working in-house for a corporation.  Most of that work was not appreciably different from the work I did in private practice.  Similar to private practice, that work was protected by the attorney-client privilege.  There were many litigated matters in which my letters and memoranda were redacted from discovery materials.  Also, during my career more and more of my employer’s business involved foreign operations.  Many lawyers working for U.S. businesses have had the same experience.

Article by John Levin :: For a long time, Illinois lawyers have been pondering the problem of the lack of civility among lawyers and the abuse of the legal system by lawyers to gain a perceived immediate advantage or to impress their clients. The Illinois Supreme Court, the Northern District of Illinois and the various bar associations have all dealt with this matter.

Article by John Levin :: Last June, Lt. Colonel V. Stuart Couch spoke before a symposium at the Chicago Bar Association.  Lt. Col. Couch, a military lawyer, refused to bring charges against a prisoner held at Guantanamo Bay “because he thought evidence was tainted by torture” and “inadmissible under U.S. and international law.”  In discussing the reasons for making his decision, Couch analogized having a “moral compass” to the principles of navigation he learned in becoming a Marine officer.

Article by John Levin :: As the world becomes more digital and communication becomes more immediate, it is easier and easier to disclose information inappropriately.  One matter of current interest is the inadvertent production of metadata during discovery (or even the ordinary course of negotiating a contract.)  For the uninitiated, metadata is data that is hidden within an electronic document generated during the creation of that document, e.g.

Article by John Levin :: While recently surfing through the Internet doing some research on current events, I was introduced to the world of legal blogs. Besides being surprised that anyone had the time to read (much less write) a legal blog, I was struck by how bloggers could become entwined with issues of legal ethics and the Rules of Professional Conduct.

Article by John Levin :: Usually, mentoring of a junior lawyer by a senior is a voluntary relationship. There are times, however, when mentoring may be necessary – and advice on complying with the Rules of Professional Conduct is one of them. Illinois Rule of Professional Conduct 5.2, Responsibilities of a Subordinate Lawyer, states:

Article by John Levin :: (a) A lawyer is bound by these Rules notwithstanding that the lawyer acted at the direction of another person.

Article by John Levin :: By now most of us (especially if our lasts names begin with A through M) are paying at least some attention to accruing continuing legal education hours toward the minimum requirement needed to keep our licenses. (See this column in the January 2006 edition of the CBA Record.)   The MCLE Board is the agency charged under Supreme Court Rule 792 with administering the MCLE program.  The Board is now up and running with offices, a director and a staff.

Article by John Levin :: In my last column, I discussed one impact of modern technology on a lawyer’s ethical obligations – lost or stolen hard drives containing confidential data.  In this column I would like to discuss another technological impact – the practice of law over the Internet.

Article by John Levin :: We live in a world of fast developing technology.   One recent development is the ability to store and transmit vast amounts of data in electronic form.   This technology significantly improves the ability of a lawyer to represent the client.  However, there are negative aspects to this technology.   News stories about criminals hacking into databases or the theft of laptops containing personal data on millions of people are some examples.

Article by John Levin :: As the law gets more complicated and the cost of legal services rises, not only the poor but also the middle class is being priced out of the market for lawyers – leaving a significant number of people underserved.  One method of ameliorating this problem, at least part, is for lawyers to provide “unbundled services” to clients.  “Unbundled services” has been defined as a lawyer providing discrete services to a client rather than giving general representation on a matter.  For example, if someone requires a zoning variation, a lawyer may give advice on the technicalities of the zoning ordin

Article by John Levin :: Sometimes those of  us who spend time looking at the more sophisticated aspects of professional responsibility forget that there are some very basic issues that need to be impressed on lawyers, especially lawyers early in their career.  This was brought home at the session entitled “The Business of Law: Avoiding Trouble” at the Breaking Barriers, Building Bridges conference held at the CBA on May 12, 2006.  

Article by John Levin :: Since the Middle Ages the law has been considered one of the “learned professions.”  Being a lawyer has carried with it certain privileges, yet also carried certain expectations.  However, with the expansion of the number of lawyers to a significant multiple of that of only 50 years ago, some of the expectations we have of a lawyer’s professionalism are not being met.

Article by John Levin :: I am currently sitting at my desk preparing my tax return using an over the counter tax preparation program.  The program asks a long series of questions and – by some hidden process – prints out a completed tax return for 2005, including some schedules I never knew existed.  We lawyers do not have much of a problem with this, even though it may cost accountants some business.

Article by John Levin :: Practicing lawyers rarely have the opportunity to discuss or debate legal philosophy.   On a day to day basis we are so wrapped up with the details of practice that there is little cause to look at the bigger picture of law and society.  Even when we speak of “legal ethics” we usually mean the analysis and interpretation of the Code of Professional Responsibility and how it practically relates to our activities.

Article by John Levin :: Unless you have been living out of state for the last several months, you should be aware that on September 29, 2005 the Illinois Supreme Court adopted a series of Rules establishing Minimum Continuing Legal Education (“MCLE”) requirements for lawyers practicing in Illinois.  Though there are a number of new Rules and amendments to existing Rules, the key provision is new Supreme Court Rule 794(a), which states:

Article by John Levin :: The Professional Responsibility Committee of the Chicago Bar Association prepares both formal and informal opinions to advise members of the bar on questions of professional responsibility.  The Informal Opinions are prepared by the Opinions Subcommittee of the Professional Responsibility Committee but are not reviewed or adopted by the CBA’s Board of Managers.  Last year I summarized some of the more interesting questions that had recently been brought to the Committee’s attention and resulted in Informal Opinions.  The following are some Informal Opinions that have been issued since then.

Article by John Levin :: Illinois does not have a Rule of Professional Conduct that encourages lawyers to engage in pro bono activities.  ABA Model Rule 6.1 – the Model Rule that establishes pro bono activity as an aspirational goal – was not adopted in Illinois.  As stated in the Preamble to the Illinois Rules:  “[T]he rationale for the absence of ABA Model Rule 6.1 is that this concept is not appropriate for a disciplinary code, because an appropriate disciplinary standard regarding pro bono and public service is difficult, if not impossible, to articulate.”  However, the Preamble also

Article by John Levin :: After much discussion, the Supreme Court of Illinois has adopted a new Rule of Professional Conduct 1.17 allowing the sale of a private law practice.  While  partnership agreements have been allowed to provide that a partner may transfer his or her existing practice to other partners for a share of the fees upon retirement or separation from the firm [see Illinois Rule 1.5(j)], until now it has not been possible for a sole practitioner to do the same. 

Article by John Levin :: “In an advertising campaign to begin Monday, McGuire-Woods LLP will market its ability to tailor fees for its legal services that go beyond the traditional hourly rate.” [April 18, 2005 edition of the Chicago Tribune]

Article by John Levin :: As someone who spent much of his career negotiating with law firms over hours and fees, a little economic competition among law firms sounds like a really good idea.  However, since this is a column on legal ethics, perhaps I ought to focus on those provisions of the Illinois Code of Professional Responsibility that impact fees and advertising.

Article by John Levin :: One of the major issues facing the legal profession is how to protect the public from the unauthorized practice of law.  I am not talking about turf fights such as real estate brokers working on sales contracts.  I am talking about black and white situations – individuals who are not lawyers holding themselves out as lawyers.   How is the public protected from such people?

Article by John Levin :: The answer is not simple.

Article by John Levin :: Sooner or later even lawyers have to think about retiring.  Of course, everyone is aware of the threshold questions:  “Do I have enough money?”  and “Will I have enough to do?”   But have you thought about how you will disentangle yourself from the law practice you have spent so many years building?

Article by John Levin :: You may recall that in last month’s edition of the CBA Record this column discussed the tension between free expression and protecting the trial process.  (If you do not recall, you can read the column now.)  Little did I imagine at the time that we would have a real-world example of that issue thrust upon us so soon.