Thanks for clarifying Beth

I agree to a certain extent with Richard and Stephen. I agree with Richard that this behavior harms lawyers who engage in it. But I agree with Stephen that the lawyers who act this way generally don't perceive the harm it does to their reputations, so they are not deterred. In addition, those lawyers are encouraged by clients who aren't always behaving rationally. There are some clients who enjoy seeing their lawyers behaving badly even though that behavior may ultimately undermine the client's interests.

In case you've ever wondered how to cite a tweet: http://www.mla.org/style/handbook_faq/cite_a_tweet

Fascinating story. Talk about Rashomon. I suppose it's possible that both lawyers independently discovered the existence of the tape and thought they were the one who told the other about it. But I can certainly see why one would think the prosecutor was covering up. Having said that, I wish the decision had offered a bit more support for the idea that discovering a certain type of evidence in once case imposes an obligation to look for the same type of evidence in all of your other cases. It doesn't seem that Benson was accused of actually knowing about the videotape in the Uribe case - but that, because he learned of the videotape in the other case, he had a duty to investigate whether there was a tape in Uribe. I guess I'm having trouble understanding how that violates the Brady rule. How can you suppress evidence you don't know exists? Besides, the defense counsel could have subpoenaed the hospital for evidence, couldn't he? I kind of feel the defense counsel is getting off the hook a bit for not digging up the evidence himself.

William - thanks! That's Emma. I agree that she's very cute. Judith - I think it can be possible to maintain some separation between your professional and personal social media use. But there is no foolproof method, just as there is no foolproof method of maintaining anonymity on the Internet. There was a recent incident where two different assistant US attorneys in New Orleans were caught making derogatory "anonymous" comments about a public figure on a website. The person they were commenting about was able to prove that it was them based on their syntax, if you can believe it. One of them resigned and the other was demoted. Ultimately the US attorney who oversaw them, Jim Letten, resigned. My point is, there is always a risk that someone will expose your private persona and you have to plan for that possibility. Also, there is something liberating about not having to constantly work at keeping that separation. So, everyone knows I'm an ethics lawyer who loves my cats and is left of Obama politically. I'm okay with that. Jaime - There is a thread on this forum about LinkedIn endorsements, which has some helpful commentary. As for me, I don't accept LinkedIn endorsements for skills I don't believe I possess or from people who have no basis to judge a particular skill.

I found this Hofstra law review article by Lisa Lerman about the Romansky case, which provides some fascinating background information. http://law.hofstra.edu/pdf/lrv_issues_v34n03_a09.pdf I'm only about half-way through the article but so far it's a great read (once you get past all the accolades for Professor Freedman at the beginning - just kidding Professor). By the way, I'm putting together a retainer agreement and billing ethics cle - hence my current obsession with this issue. If anyone knows of any other interesting materials I can look at, I'm open to suggestions.

I think the disciplinary authorities do focus primarily on lawyers who steal from clients. My understanding is that the vast majority of disciplinary cases relate to misuse of escrow accounts and client funds. I don't think it's inappropriate to devote resources to a case that presents a slight twist on that scenario - arguably, an attorney who is willing to use deception to steal from his firm is only a few steps away from doing the same to a client. Mike - I googled your Romansky case and came across the 2007 Court of Appeals decision after remand. http://caselaw.findlaw.com/dc-court-of-appeals/1253071.html Really interesting reading. Can't say I agree with the court's conclusion on the recklessness vs. negligence issue, and a 30-day suspension seems pretty light for fabricating a letter from a client and billing another client for personal work. wow. One thing that's not addressed in the opinion is the legality firm's retainer agreement provision for adding a "premium" to matters that are otherwise billed hourly? Is this a common practice? I haven't come across it before. Even if the premium is disclosed on the bill, is that an enforceable provision? Doesn't it arguably violate Rule 1.5(b) requiring a lawyer to "communicate to a client . . . the basis or rate of the fee and expenses for which the client will be responsible." Being able to arbitrarily add a "premium" to any bill after the work is done seems questionable.

I can see the point that you shouldn't have to comply with ethics rules that are unconstitutional (as long as you're willing to live the consequences if the court decides you were wrong). I admit that I do tend to view the ethics rules from the standpoint of "how would I advise my lawyer-client so that it minimizes his risk of getting sanctioned or disciplined?" This tends to result in a more risk-averse approach to the rules. I can't imagine telling my client "sure, go ahead and violate that rule because it's unconstitutional." But the point in my first comment was more general. Assuming the rule isn't unconstitutional or otherwise offensive, is "I will get as close to the ethics line as possible" a reasonable philosophy of legal ethics? I guess another way to put it is: Should lawyers view the ethics rules as a floor or a ceiling (or something in between)?

I see your point, Milan, but I think another thing disciplinary authorities look for is easy provability. It's hard to catch a lawyer who intentionally overbills his clients. Here, the fraud was much more clear, because the lawyer billed substantial hours to a client in the last few months of the year and then secretly went into the billing system to delete those hours after he qualified for the bonus. The firm may not have had a policy about write downs, but it had a procedure, which was to get a pre-bill, mark it up, and send it back to the billing department. This lawyer circumvented that procedure in order to hide what he was doing. Also, he did it two years in a row. I think this is what killed him: "The total of all time entered by Attorney Siderits into the billing system in the last three months of 2008 was 239.6 hours; the total amount of time deleted in the first three months of 2009 was 231.9 hours. Thus, only 7.7 hours of all hours that Attorney Siderits recorded in the last three months of 2008 were actually charged to a client."

From the article: "He says that in representing clients, he is always careful about where 'the absolute line' is. 'I’m worried about it all the time when I’m near it,' Mr. Fisher said. 'I don’t want to cross it. But on the other hand, I want to be as near to it' as required, he added." I'm fascinated by this statement. Is this an appropriate legal ethics philosophy? In the article, our Steve Giller's challenges the premise of there even being a "line": "'Very often there is no line,' he said. 'The image that lawyers promote is that the line is as clear as the line down the center of the interstate: that you know when you’re over it. But it’s not. It’s wobbly. It’s vague. It moves. It changes as the courts keep refining the borders. And you often don’t know where the limits are.'" That seems to be the right answer. If it's a black and white issue, then perhaps it's appropriate to go right up to the "line." But few ethics issues are black and white, and if your strategy is always to get as close to the ethical "line" as possible, at some point you're going to get in trouble.

Clarification: I should have said Rule 3.3(b) requires that the lawyer have knowledge of fraud or criminality to trigger the exception to Rule 1.6, not that Rule 1.6 requires knowledge of fraud or criminality.

Another point. The New York Opinion also carves out a pretty large exception - namely that the lawyer is prohibited from disclosing the information only if the client did not use fraudulent or criminal means to obtain the documents. In my experience, this would immediately raise the question: how deep does the attorney have to dig to determine whether the client's conduct is fraudulent or criminal? Some would argue that you have a duty NOT to dig deeper, because Rule 1.6 requires only that the lawyer have actual knowledge of fraud or criminality. Also, some would argue that any investigation into the client's conduct risks triggering the Rule 1.6 exception, and lawyers have a higher duty to their clients not to take steps that might compromise client confidentiality. Others would argue that you can't just turn a blind eye to your client's misconduct and you need to do some inquiry to ensure no fraud or criminality took place. Ultimately, it will be a judge or grievance committee that decides, in retrospect, whether the lawyer dug deep enough or dug too deep. Given the lack of clear guidance, these dilemmas are often resolved through a pragmatic approach (i.e. weighing you client's tolerance for disclosure against the judge's tolerance for shenanigans). In light of all this confusion, is it time for specific ethics rule to address wrongfully obtained documents?

(Disclaimer - my comments below are based on my recollection of the Opinion, but I have not gone back to reread it since I wrote my blog post a few weeks ago.) I am seeing these issues come up more frequently in my practice and they create a treacherous path for attorneys who are simply trying to comply with their ethical duties. If you disclose the conduct of your client, you may violate 1.6. But if you don't disclose, and it comes out later, you may be sanctioned, disqualified, or disciplined. Since there are few clear answers, one can only hope that courts and grievance committees are sensitive to the uncertainty that permeates this ethical area. Even NY Op. 945 (although it gives some cover to lawyers who stay silent) is vulnerable to criticism. First, it only addresses the narrow situation where the lawyer learns the client has snooped but the lawyer does not actually receive or intend to use the wrongfully obtained documents. Second, the Opinion assumes that, if the courts intended for the rules to govern wrongfully obtained documents, they would have included a specific rule. Given that a lot of lawyers out there believe that other rules, such as 8.4(d) or 4.4(a), implicitly address wrongfully obtained documents, it may not be wise to draw any inference from the lack of a specific rule. Although the Opinion does address 8.4(d), its reasoning would only apply to situations where the client's conduct is involved, but not the lawyer's conduct. In other words, it does not hold the lawyer responsible for any prejudice to the administration of justice caused solely by the client's conduct (but it does not address whether the lawyer's receipt or contemplated use of the documents would be prejudicial to the administration of justice). I don't think the NY opinion addresses 4.4(a) at all (although I could be remembering it wrong). Isn't there an argument that allowing your client to snoop on another person's email account to obtain evidence violates that person's legal rights?

Great list! Thanks.

Thank you Monroe - I will look up the article. John - I agree that employment situations involve their own special considerations, because it's not always clear whether email communications on work computers are privileged to begin with. The case law seems to be all over the place. For example, I bet most people wold think that if they check their gmail account on their work computer, those emails are still private. Yet, the answer seems to depend on what the employer's policy is and whether the employee has received notice of the policy. So, if the policy says you can't use the work computer for personal use, and you use it anyway to check your gmail (which, frankly, most people do), you could be waiving your privilege. That seems like a pretty extreme position to me.

No question. If an angel of the Lord ever visited me and said "choose one RPC that you think should be abolished in every state throughout the land and it shall be so," I would pick the bona fide office rule.

One of my favorite movies!

This proposed solution of greater lawyer entrepreneurialism touches on a deeper issue, in my opinion. It is my totally unscientific observation that law school and the legal profession attracts people who are inherently non-entrepreneurial. Many people who enter law school (and I generalize here) are looking for a "safe" career option. By the same token, practicing lawyers are inherently risk-averse. It is an old joke that the only correct answer to any legal question is "it depends." As lawyers we hate being forced to give definitive answers to questions and no wise lawyer ever tries to predict the outcome of a lawsuit. For those of us who practice in the legal ethics area - well, that tendency is even more apparent. Part of our job is to counsel lawyers on how to comply with their ethical obligations and avoid getting into trouble with disciplinary authorities. So, while I think that training lawyers who are inherently risk-averse to think and act like entrepreneurs may have only marginal success, one thing it might do is send a message to aspiring lawyers that the profession has changed and is no longer the "safe" option it was once believed to be. In other words, it might disincentivize those non-entrepreneurial types and may even incentivize more entrepreneurial thinkers to join the profession.

Well, I immediately knew something was awry when I read the first sentence of your post.

Doug - I'm sure your comment is intended for the blog post above. You may want to repost it there so it receives the attention it deserves! Thanks!

Thanks so much for the warm welcome