May 2008 - Volume 8, Number 5

Corporate | Admissions | Advertising and Solicitation | Impairment
 

• CORPORATE - corporate counsel's lapsed license results in a one-year suspension and payment of past bar dues
  
  A lawyer served as corporate counsel in Ohio for decades after his Oklahoma law license lapsed. The Oklahoma Supreme Court ruled that he will be reinstated to the Oklahoma bar, but that he must first serve a one-year suspension and pay his past bar dues (In re DeBacker, Okla., No. SCBD-5287, 2/26/08). Michael L. DeBacker was admitted to the Kansas bar in the early 1970s. He then moved to Oklahoma in 1976 but failed to notify the Kansas bar. In time his Kansas license was suspended but since he hadn't provided a forwarding address, he did not receive notice of the suspension. In 1976 he was admitted to the Oklahoma bar, but when he moved to Ohio in 1979 to work in the legal department of Dana Corp., he did not notify the Oklahoma bar of his move or his new address. His name was stricken from the roll of Oklahoma attorneys in 1981. Since he was serving as in-house corporate counsel in Ohio he was not required to hold an Ohio license so long as he paid a registration fee, complied with continuing education requirements, and was licensed in another state. DeBacker relied on his Kansas and Oklahoma law licenses for the Ohio corporate registration, the court observed, serving as vice president and assistant general counsel of Dana Corporation. When a reporter called with plans to write a story about corporate lawyers for large companies who were not licensed - Corporate Counsel had reported in April 2007 that it had identified eight general counsels at Fortune 250 companies who were not licensed in the jurisdiction in which they were working - DeBacker investigated and found that he was not licensed anywhere. He immediately ceased acting in a legal capacity and made a self-report to the Ohio Supreme Court. DeBacker then filed a petition for reinstatement to the Oklahoma bar. After a hearing, that court's tribunal found that DeBacker had not engaged in UPL in Oklahoma, that no harm resulted from his technical oversights, that he had acted professionally and self-reported his violations when he discovered them, that he possessed the highest level of legal competence, and that he would be an asset to the integrity of the legal profession. Oklahoma distinguished DeBacker's reinstatement petition, noting that "Unlike a typical reinstatement case, this cause presents an attorney who has held himself out as licensed in Oklahoma for over 30 years and relied upon that license to practice law in another state, when in fact he had been suspended for all but three of those years." The court further observed, "[T]his cause presents an attorney who has held himself out as licensed in Oklahoma for over 30 years and relied upon that license to practice law in another state, when in fact he had been suspended for all but three of those years." However, the court determined that his oversight had not been intentional; that he had immediately suspended his legal duties and reported himself upon verifying his dilemma. Nonetheless, it was decided that his reinstatement would be deferred to April 10, 2008, "which results in a one-year suspension from the practice of law." He was further required to pay back dues to 1982.               [back to top]

• ADMISSIONS - proposed rule changes in NJ would expand work that lawyers licensed in other states may perform in New Jersey 

  The New Jersey Supreme Court's Professional Responsibility Rules Committee proposed rules on January 15 that would relax some of the restrictions that presently limit what lawyers licensed in other jurisdictions may do in New Jersey. The report proposes creating a general "safe harbor" rule for out-of-state lawyers who "associate" with a New Jersey lawyer on a particular matter. Changes would also extend the state's special in-house counsel rule to permit in-house lawyers to represent employees as well as the company itself in certain regulatory and administrative settings. In addition, a rule change would make it easier for out-of-state attorneys to provide pro bono legal services to residents of disaster-affected areas and another would exempt foreign lawyers from engaging in alternate dispute resolution from the current requirement that out-of-state lawyers coming into the state on a temporary basis must register and pay a special fee. The new safe harbor provision would create an additional exception allowing an out-of-state attorney to "associate" in matters with a New Jersey lawyer so long as the New Jersey lawyer would be accountable for the conduct of the cross-border attorney. The proposed text of the amendment does not explicitly require the New Jersey lawyer to "actively participate" in the matter but makes it clear that the New Jersey lawyer is responsible. Further liberalization of Rule 5.5 is justified, observed the committee, based on a finding that out-of-state lawyers have not been causing problems. According to the committee, the Office of Attorney Ethics reported that it was not aware of any disciplinary incidents relating to cross-border attorneys since New Jersey first began permitting limited interstate practice in 2004. A letter from the New Jersey Bar Association was attached to the committee's report stating that it now backs cross-border practice reform, a position it opposed in the past. Exempting out-of-state lawyers who perform alternative dispute resolution services from the annual registration and assessment requirements makes sense, the committee also determined. For one thing, it observed, these lawyers don't add much money to the New Jersey Lawyers' Fund for Client Protection anyway, and they don't pose much of a hazard to their clients either since lawyers acting in this capacity rarely have fiduciary responsibilities. The committee went on to observe that nonlawyers are allowed to assist a party in a private alternative dispute setting without having to jump through any of these hoops. "The Committee agrees that out-of-State attorneys seeking to represent existing clients should not face greater obstacles than do laypersons," the report states. The committee fell one vote short of endorsing a recommendation that the registration and assessment obligation be dropped for all out-of-state practitioners. A proposed amendment to New Jersey Court Rule 1:27-2 would permit in-house lawyers to represent not only their employer but also its employees, officers, directors, partners, and shareholders when such representation is "in respect of the same proceeding or claim." This change is sensible, the committee said, because when officers and employees face inquiries and claims bearing a direct nexus to the employer, they would be better off if lawyers who are versed in the relevant law and factual context in which the matters arose assisted them. The committee also recommended unanimously that NJ adopt essentially the ABA Model Court Rule on Provision of Legal Services Following a Determination of Major Disaster aka The Katrina Rule.           [back to top]

• ADVERTISING AND SOLICITATION - federal judge rejects FL bar's arguments against a lawsuit challenging FL lawyer advertising rules

  The U.S. District Court for the Middle District of Florida Feb. 29 rejected The Florida Bar's procedural arguments against a lawsuit challenging some of the state's lawyer advertising rules has been rejected (Harrell v. Florida Bar, M.D. Fla., No. 3:08-cv-00015-VCM-TEM, 2/29/08). William Harrell Jr. and his personal injury firm Harrell & Harrell PA, plus Public Citizen, a Washington, D.C., public interest group, complained that restrictions in Florida's lawyer advertising rules are unconstitutionally restrictive and vague. They also alleged that Florida's rule requiring television and broadcast advertisements to be submitted for prior clearance before airing represents an unconstitutional prior restraint. The Florida Bar urged the court to abstain from exercising jurisdiction, arguing that the plaintiffs lack standing to press their claims. The court found no basis for declining to hear the case. Under the Pullman abstention doctrine, named for R.R. Comm'n v. Pullman Co., 312 U.S. 496 (1941), federal courts should not adjudicate the constitutionality of state enactments that are "fairly open to interpretation" until the state courts have been afforded a reasonable opportunity to pass on them. Here the court declined to withhold consideration of any issues in this case under the Pullman abstention doctrine. Both the Supreme Court and Eleventh Circuit have held that Pullman abstention is not appropriate when First Amendment rights are at stake. The Florida Bar argued that the court should refrain from hearing the plaintiffs' challenge to Rule 4-7.5(b)(1)(C), which currently forbids any background sound other than instrumental music in lawyers' television and radio advertisements. A Florida Bar committee has recommended substantial amendments to that rule, and the proposed amendments are currently before the bar's Board of Governors for consideration, argued the bar in moving for the court's abstention. However, the court observed that any possibility that the bar may amend the rule does not relieve the court of its duty to address properly raised constitutional issues. The court also found that "applying the abstention doctrine to some parts of Plaintiffs' complaint and not others, as requested by Defendants, would lead to 'piecemeal' litigation, a harm recognized and discouraged by the Supreme Court…." The bar further contended that the court should abstain from hearing claims pertaining to aspects of Harrell's advertisements that have not been reviewed or interpreted by the bar. The court denied this motion, observing that the Florida Supreme Court has heard other challenges to the lawyer advertising rules. It also found support in U.S. Supreme Court cases for the plaintiffs' argument that "the presumption against abstaining in the First Amendment context is amplified here because abstention would have the perverse effect of forcing Harrell to submit his ads for review in the very system of prior restraint that he is challenging." At issue is the phrase "Don't settle for less than you deserve" - which the bar had previously approved for the firm to use, but had most recently challenged. The court pointed out that Harrell has been running advertisements that included the disputed phrase on television and radio, and that he allegedly has been deterred from running the advertisements on billboards and other media because he is uncertain of his rights and whether he will be disciplined for doing so. The court concluded that Harrell and his law firm have alleged an injury that is sufficiently concrete and particularized to meet the requirements of standing. The court also found that Public Citizen met the requirements to assert associational standing in this action by alleging that the advertising rules prevent Florida consumers, including members of Public Citizen, from receiving truthful information that is not misleading about legal services and legal rights.      [back to top]

• IMPAIRMENT - re. duties owed colleagues and clients when lawyer is impaired or when lawyer knows of another practitioner who is impaired
  
  "Every one of you either is impaired, has been impaired, will become impaired, or knows a lawyer who is impaired," stated Thomas L. Browne of Hinshaw & Culbertson of Chicago, speaking at a program on "The Impaired Lawyer" on February 28 at the 2008 Legal Malpractice & Risk Management conference in Chicago. Explaining that impairment cuts across every specialty, every practice setting, and every part of the country, Browne observed that at any given time, some 15 to 20 percent of lawyers are in some way impaired. Panelist Joan Piper Foss, executive director of the Illinois Lawyers' Assistance Program (LAP), used a video to illustrate that these numbers are twice the national average of impairment. According to Foss's video, one-third of the Illinois LAP's cases deal with chemical dependency; another third present mental health issues, and the remainder involve some combination of the two. A lawyer's recovery from one kind of problem will not necessarily proceed in tandem with recovery from another type of problem, she pointed out. Illinois has one of the oldest LAP programs, which has been expanded to include lawyers' substance abuse and prescription drug abuse, as well as depression, anxiety, Attention Deficit Disorder, and other problems that Foss said "don't fit the addiction model." She did note that alcoholism is "one of the most difficult impairments to treat, but one of the easiest to discern" because its symptoms are difficult to camouflage, unlike, for example, the symptoms of prescription drug abuse or a gambling addiction. Gamblers are particularly difficult to identify, she said, noting that her very first LAP assignment involved a suicide attempt by a lawyer who was a compulsive gambler. He never "decided" to steal others' funds, Foss explained; he "borrowed." Another panelist agreed that gamblers are "the best hiders." By the time regulators hear about a gambling problem, he said, the lawyer will already have lost entire estates at the baccarat table. But gaming establishments are "great record-keepers," observed panelist James J. Grogan of the Illinois Attorney Registration and Disciplinary Commission, recalling how, in the face of a respondent's denial of having been gambling, he was able to introduce a videotape of the lawyer in action at the table. Grogan told the audience that regulators are already starting to see cases of dementia and Alzheimer's disease in Baby Boom lawyers, and are "ill-prepared to deal with the dignity issues" associated with these conditions. He urged attendees to study the final report of the Joint Committee on Aging Lawyers, issued by the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers. The question of whether a lawyer has an impairment covered by the Americans with Disabilities Act is not relevant to the disciplinary process, Grogan asserted. In fact many states specifically reject compulsive gambling and other impairments as mitigating factors in lawyer discipline, he noted, adding that "[w]hat we care about is the conduct." Of course, he added, if a respondent can demonstrate that he has moved himself onto a better behavioral path that will be relevant to the disciplinary response. One audience member asked, "If I think a colleague is impaired, can I discharge my reporting obligation by telling the LAP?" "We're always happy when a lawyer gets help from the LAP," responded Grogan, saying that disciplinary bodies are by definition "reactive rather than proactive." But if there's been misconduct, Grogan emphasized, the answer is no: Reporting to the LAP does not discharge a lawyer's Rule 8.3 (Reporting Professional Misconduct) obligation. Another query focused on whether when an impaired lawyer departs from the firm a requirement attaches to the firm to warn clients whose business the lawyer might seek to take with him. Citing ABA Formal Ethics Opinion 03-429 (2003), Browne said that it's a question of degree. "If you know the lawyer is not capable of handling the client's matter, err on the side of helping the client," he advised.    [back to top]

TRT Home
about us | course calendar | online campus | faq | feedback | ethics updates | email list | faculty | privacy notice
© Copyright 2005. All rights reserved. TRT, Inc.
Site design by Bishopsgate Communications