X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
This is the time of year for fresh starts. While you are resolving to improve your physical, mental, and/or spiritual well-being, why not consider our 10 New Year’s resolutions to improve your professional health? Here they are: Log onto the Disciplinary Board Web site at www.padb.us or www.padisciplinaryboard.org. There, you’ll find downloadable versions of the Professional Rules of Responsibility, the Rules of the Disciplinary Board, the Rules of Disciplinary Enforcement, Continuing Legal Education Rules, IOLTA Board Rules, and the Code of Civility. The recently redesigned site reflects the board’s commitment to help attorneys better understand the disciplinary system and avoid trouble through preventative medicine. While you’re online, why not sign up for Attorney E-news? Each month you will receive a newsletter from the board on recent developments and a helpful tip of the month. Clean up your IOLTA accounts. These accounts tend to create the most problems for solo practitioners and small firms. Big trouble arrives when an IOLTA account is “out of trust” because it’s been “borrowed” from to bridge a gap in finances. That’s not a loan – it’s a theft – and the Office of Disciplinary Counsel treats it as such. Troubles also arise in the context of poor record keeping and maintenance. Rule 1.15 (Safekeeping Property) governs these accounts and you should read it carefully. Then, do some housekeeping. Check your IOLTAs and recordkeeping procedures; Rule 1.15(a) requires that complete records be preserved for a period of five years after termination of the client-lawyer relationship or after disposition of the property, whichever comes last. While you’re at it, make sure that you have no funds that should have been disbursed (unused retainers?) or that are not “qualified funds” as defined by subsection (d) (2). Last but not least, establish procedures for forwarding interest to the IOLTA board on a quarterly basis, in accordance with subsection (g), and your IOLTA will be on its way to a healthy New Year. Get the most out of your CLE experience by planning ahead and taking advantage of a wide range of courses offered in new, more accessible formats including “webinars” and podcast seminars. If the cost of CLE programs is a concern, several local public interest legal organizations offer free or reduced-price CLEs to attorneys willing to take on pro bono representations. The Philadelphia Volunteers for the Indigent Program, the Homeless Advocacy Project and the Support Center for Child Advocates are a few of the local organizations offering free or low-cost CLE programs to volunteer attorneys. This year, use your CLE to learn, grow and network, instead of simply struggling to get in your 12 hours of credit before the clock strikes midnight and you’re declared inactive. New rule alert! Rule 1.4(c) became effective on July 1, and it requires all lawyers in private practice to “inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance.” The rule also requires that existing clients be informed in writing any time the lawyer’s insurance drops below the above amounts or is terminated. Records of all required disclosures must be maintained for six years after termination of the representation. The explanatory comment to the rule includes suggested disclosure language and provides a definition of “commercially reasonable coverage.” As a note of interest, this rule exceeds standards set by the ABA’s Model Rule on Financial Disclosure by requiring disclosure directly to the client. If you are a “self-insured” attorney, this month you must develop and execute a professional liability insurance disclosure policy. Can I delete this e-mail? Can I shred this file? The answers to these questions have become increasingly complex. No matter how small your firm, you must establish an e-mail retention and document destruction policy. These policies will vary from practice to practice and case to case. Any policy must contemplate the possibility that the lawyer or law firm is a party to a suit and all e-mail and document destruction relating to the suit must stop. To help deal with the complexity, consider purchasing The Lawyer’s Guide to Records Management and Retention, published by the Law Practice Management Section of the ABA. This book is a worthwhile investment to help you sort out the myriad issues created by our new digital age. Rule 1.6′s requirement of client confidentiality seemed clear enough when we learned about it in law school. As usual, the devil is in the details and this simple rule is followed by 26 interpretive comments. We’ll just focus on two: numbers 23 and 24. Comment 23 imposes a duty to act “competently” to safeguard confidential information. This duty takes many forms and also varies according to practice. For instance, in some practice areas, the very fact that a client has consulted with an attorney may be confidential (think criminal defense, family law and also representation of an attorney before the Disciplinary Board). Competent safeguarding of client confidences requires a comprehensive approach; take a few minutes this month to examine the safeguards you use to protect your clients’ trust. Are computers kept locked and password-secured when your staff leaves the office? Are your personnel instructed not to discuss any case outside the office or in common areas where they can be overheard? Are sensitive documents properly filed at the end of the day? As for e-mail and faxes, Comment 24 states that the “lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” Although the rule does not require the use of encryption software, you should establish guidelines on how you use email to communicate with clients and other lawyers. Make sure everyone understands and agrees to the guidelines, especially your clients. Remember, e-mails travel fast and sometimes follow unintended paths. For more information, check out the December 2006 newsletter on the Disciplinary Board Web site, which has a timely note on this topic. Audit your procedures for calendaring appointments and appearances. Do you keep your calendar on your BlackBerry, on your laptop or in an old-fashioned date book? Are they coordinated daily? At the same time, review your client files to ensure completeness, and update your policies and procedures on file maintenance. Do you know what the next step is on each file and when you need to take it? Resolve to promptly address the projects that, by virtue of their tiresome, time-consuming or otherwise difficult nature, have a tendency to work their way to the end of your list of things to do. Take some easy steps this year to improve client communication. Poor communication is a recurrent refrain in disciplinary complaints. Rule 1.4 requires that we keep our clients “reasonably informed” and “promptly comply with reasonable requests for information.” But communication gets difficult when you’re swamped with pressing matters. This happens to all lawyers and it need not lead to a disciplinary complaint. This year, focus on better managing your clients’ expectations. From the very first meeting, explain that either you or a staff member will respond to phone calls within 24 hours. Then, when you do talk to your client, be honest: “I haven’t filed the complaint yet because I was dealing with another client’s emergency but I intend to file it next week.” Be proactive: Write to the client before you’ve missed a promised date. If you have no news to report, have your secretary call the client to give a status report and let her know when you will next be calling. Are your conflict check procedures in compliance with the Rules of Professional Conduct? Whether you are a solo practitioner, a small, mid-sized or large law firm, or in-house counsel for a corporate or other business entity, you need to ensure compliance with the rules concerning conflicts of interest and the imputation of those conflicts. Rule 5.1 provides that “[a] partner in a law firm, and a lawyer who individually or together possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” The rule also provides that “[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” The Rules of Professional Conduct addressing conflicts of interest require serious attention on an ongoing basis. Principal among the rules concerning conflicts of interest are Rules 1.7 and 1.8 (Conflict of Interest: Current Clients), 1.9 (Duties to Former Clients), 1.10 (Imputation of Conflicts of Interest), 1.13 (Organization as Client), and 1.18 (Duties to Prospective Clients). Take a minute to review the rules this month and check your procedures. Rekindle your commitment to pro bono. Rule 6.1 provides that all lawyers “should render public interest legal service.” There are dozens of terrific public interest legal organizations throughout the city that could use your help – in the form of pro bono representations and charitable donations – and these opportunities are growing all the time. Finally, for those of you who heeded the call for pro bono in 2006, you have until Jan. 12 to download, complete and return the registration form at http://fjd.phila.gov/pdf/notices/2006/notice-2006-pro-bono.pdf to be included in the First Judicial District’s “Roll of Honor for Pro Bono Service.” Here’s to a happy and healthy new year in your professional and personal lives! ELLEN C. BROTMAN recently joined the litigationdepartment of Montgomery McCrackenWalker & Rhoads as of counsel. She concentratesher practice on criminal defense, attorney disciplinaryand complex litigation matters. MICHAEL HAYES is a senior litigation associateat the firm. His practice focuses on commerciallitigation, appellate advocacy and attorney disciplinarymatters.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.