Association of Women Attorneys of Lake County Seminar, January 12, 2018-10:30-11:30 a.m. Responsibilities to the Profession and Client Raymond J. McKoski Presentation Materials ABA MODEL RULE OF PROFESSIONAL CONDUCT 8.4(g): It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. Comments [3], [4], and [5] to ABA Rule 8.4(g) [3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g). [4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations. [5] A trial judge s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer s practice or by limiting the lawyer s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer s representation of a client does not constitute an endorsement by the lawyer of the client s views or activities. See Rule 1.2(b). 1
ILLINOIS RULE OF PROFESSIONAL CONDUCT 8.4(j) It is professional misconduct for a lawyer to: (j) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer s fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer s fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer s professional activities. No charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted. ILLINOIS RULE OF PROFESSIONAL CONDUCT 1.4 (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comments [1], [2], [3], [4], and [5] to Illinois Rule 1.4 [1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. [2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a). [3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client s objectives. In some situations depending on both the importance of the action under consideration and the feasibility of consulting with the client this 2
duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client s behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. [4] A lawyer s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer s staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged. A lawyer should promptly respond to or acknowledge client communications. [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client s best interests, and the client s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e). HOW NOT TO COMMUNICATE WITH A CLIENT. Nebraska Counsel for Discipline v. Garrison, 296 Neb. 550 (2017). In re Glover, IARDC No. 2016PR00035, Complaint (April 12, 2016), available at 2016 WL 2353658; dispositional order available at 2016 WL 7233515. SELECTED CASES AND ADVISORY OPINIONS ON A LAWYER S ELECTRONIC SOCIAL MEDIA CONTACTS WITH JUDGES, PARTIES, WITNESSES, AND JURORS New York State Bar Association Committee on Professional Ethics, Op. 843 (2010): A lawyer may view the Facebook or MySpace pages of a party in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not "friend" the party and instead relies on public pages posted by the party that are accessible to all members in the network. 3
The Association of the Bar of the City of New York Committee on Professional Ethics, Formal Op. 2010-2 (2010): A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent: Oregon State Bar, Formal Op. 2013-189 (2013) A lawyer may request access to non-public information on a social networking web site if the person is not represented by counsel in that matter and no actual representation of disinterest is made by Lawyer: New York City County Lawyers Association Committee on Professional Ethics, Formal Op. 743 (2011): It is proper for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror, but must not "friend, email, send tweets to the juror or otherwise communicate in any way with the juror, or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any misrepresentations or engage in deceit, directly or indirectly, in reviewing juror social networking sites. ABA Committee on Ethics and Professional Responsibility, Formal Op. 466 (2014): Unless limited by law or court order, a lawyer may review a juror s or potential juror s Internet presence, which may include postings by the juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror. A lawyer may not send an access request to a juror s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public. The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b). California Judges Association Judicial Ethics Committee, Op. 66 (2010) (a judge may not friend lawyers who have cases pending before the judge): Florida Judicial Ethics Advisory Committee, Op. 2009-20 (2009) (judge may not friend lawyers who may appear before the judge or permit such lawyers to add the judge to their social network circle). Domville v. State, 103 So. 3d 184 (Fla.4th Dist. 2012) (reversing conviction because the judge and prosecutor were Facebook Friends). 4
Herssein v. United Services Automobile Assoc., 2017 WL 361166 ( Fla. 3d Dist, 2017) (disagreeing with Domville, finding that attorney s listing as friend on the trial judge's personal networking page was insufficient to warrant disqualification). Massachusetts Committee on Judicial Ethics Op. 2016-1 (2016) (judge may not be Facebook Friends with a lawyer who is reasonably likely to appear before the judge). ABA Committee on Ethics and Professional Responsibility, Formal Op. 462 (2014): A judge who has a social media connection with a lawyer or party who has a pending or impending matter before the judge must evaluate that social media connection to determine whether the judge should disclose the relationship to the parties. A social media connection does not, in and of itself, indicate the degree or intensity of a judge s relationship with a person. Because of the open and casual nature of social media communication, a judge will seldom have an affirmative duty to disclose a social media connection. Florida State Bar Professional Ethics Committee, Op. 14-1 (2015): A lawyer may advise that a client change privacy settings on the client s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation or spoliation of evidence, the lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved. Pennsylvania Bar Association, Formal Op. 2014-300 (2014): A comprehensive opinion discussing an array of professional responsibility issues facing attorneys who use social media. 5
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