It the fast-paced world of health care, it is easy to forget the simple things – like notifying your state licensing board about address changes. It seems trivial, but there may be consequences for a physician who fails to update her physician profile.

State medical boards have the responsibility and obligation to protect consumers of health care by ensuring that all licensed physicians comply with the laws and regulations related to the practice of medicine. These boards have a process for the public to submit formal complaints, and, once a complaint is made, the board conducts an investigation that includes contacting the physician for a response. But what happens when the physician does not respond?

In my practice of representing physicians before state boards, I have seen instances where the board has requested a response from a physician, and then was unable to locate her for months or a year or more. This is often due to the physician making a move and failing to update her address or physician profile. While this may seem like an innocuous oversight, it can result in significant consequences. In fact, many states have statutes and regulations in place mandating that physicians update their addresses with the relevant medical board within 30 days of relocating. Many physicians, however, do not realize the importance of updating their addresses.

A frivolous complaint made by a disgruntled patient can be easily disposed of with a conscientious response. However, if the physician fails to update her address, the board might not be able to contact her, resulting in a failure by the physician to respond in the requisite amount of time. Such a failure often leaves the board no choice but to take action against the physician, even where the complaint is obviously specious. The failure of the physician to update her status in and of itself could have a significant adverse effect, including public reprimand, monetary fines, impact on reputation, and loss of the ability to attract new patients, acquire affiliations or even obtain insurance coverage.

Another and more critical example is when a physician has an old address on file at the time of license renewal. If a physician does not get a renewal application and fails to renew her license, continuing to practice medicine is in fact practicing medicine without a license. Such an oversight is significant and could be career-ending.

With the prevalence of email communication, licensing boards are often able to notify a physician of a complaint or other issue through alternative methods. While the requirement for maintaining a current physical address is customary, the failure to update a change in electronic addresses is also problematic if an important email is not delivered and/or ignored. Being at the mercy of a state medical board for leniency after failing to respond in a timely manner to an inquiry due to a failure to update any address can be difficult.

A word to any wise professional – make sure the address on file with your state licensing board is up to date.

I will be attending the 2015 DRI Medical and Health Care Liability Seminar, March 12–13, 2015, in San Francisco, where Michael V. Favia, Esq. will present “Defense of Health Care Providers in Administrative Actions.” If you will be there, let me know.

This blog was originally posted to the Professional Liability Advocate blog. Click here to read the original entry. 

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The U.S. Supreme Court has granted review of Integrity Staffing Solutions v. Busk to determine whether time spent by employees in a security check line constitutes work and is therefore compensable. The case was brought by employees of Integrity Staffing Solutions, a temporary employee provider, who provided employees to Amazon.

In Integrity, temporary workers were assigned to work for Amazon at two of its Nevada warehouses. According to the class action plaintiffs, they regularly spent approximately 20-25 minutes at the end of each day in security checks when leaving work, waiting to be searched, empty their pockets, and pass through metal detectors. They claimed they were not compensated for this time and were due overtime pay. The workers argue that Amazon required them to clear security checks each day, as necessary to reduce employee theft from the warehouses. The plaintiffs went on to note that the Title 29 of the Code of Federal Regulations Part 785 provides, “[t]he workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.” A workday is further defined as, “[t]he period between the time on any particular day when such employee commences his/her principal activity and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employees scheduled shift hours, tour of duty, or production line time.”

On appeal, the Ninth Circuit noted that the FLSA, as amended by the Portal-to-Portal Act of 1947, “generally precludes compensation for activities that are ‘preliminary’ or ‘postliminary’ to the ‘principal activity or activities’ that the employee ‘is employed to perform.’” However, it also noted that “preliminary and postliminary activities are still compensable” if they are “integral and indispensable” to an employee’s principal activities. For example, in Steiner v. Mitchell, (1956)350 U.S. 247, 332, changing clothes and showering were “integral and indispensable” to the production of batteries. It has been held that to be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.” (Alvarez v. IBP, Inc. (2003) 339 Fed.3d 894, 902–03.)

In finding the employees entitled to compensation, the Ninth Circuit held that the security clearances were necessary to the “employee’s primary work as warehouse employees and done for Integrity’s benefit.

The Supreme Court, in issuing a decision on this issue, will clear up much confusion, as the Ninth Circuit’s decision is in direct conflict with other circuit rulings. In Gorman v. Consolidated Edison Corp. (2007) 488 Fed.3d 586, the Second Circuit ruled that time spent in a security screening by employees was not compensable. Furthermore, the Eleventh Circuit issued a similar ruling in Bonilla v. Baker Concrete Construction (2007) 487 Fed.3d 1340.

The outcome of this case has the potential to reach thousands of workers who have worked for Amazon and have been subject to the security checks. Amazon employs approximately 38,000 temporary employees at its warehouses. It is estimated that if the Supreme Court affirms the Ninth Circuit ruling, damages will be in the millions.

Employers should be aware of the standards applied by the courts to determine whether their employees are entitled to compensation for activities required by the employer. Employers requiring their employees to spend time in security checks, change clothes, or otherwise take time to prepare for work should seek advice of counsel to determine whether such time is compensable. If you are an employer unsure about whether your employees must be compensed for time spent in security checks or preparing for work, please contact our attorneys at Jampol Zimet, LLP located at 800 Wilshire Boulevard, Los Angeles, CA 90017, or at (213) 689-8500, for a consultation to ensure your interests are protected before it is too late.

This blog was first posted to Jampol Zimet’s Insurance Defense Blog. Click here to read the original entry. 

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Lawyers Get Old Also

Posted on September 2, 2014 02:49 by Steve Crislip

I had a very talented law partner who retired at age 64 to take an appointment by the Governor for a six-year term on the Public Service Commission.  He works just as hard as always, but for less money in government service.  When I discussed it with him, he said he wanted to do something different and to go out on top — and that he did.

The days of the magic retirement age of “X” and a gold watch are over.  (See August 2013 Post.)  For each it is a personal decision and for the poor planners, a necessary delayed requirement.  As the very large group of post-World War II children age up, it becomes a legal issue worth revisiting.  I officially “retired” at 65, but daily actively practice law and intend to do so.  It is just a bit more fun doing it on your own terms, as opposed to that strong fiduciary duty to your other partners to provide full hours, manage a business, feed work to others, and be part of your professional and local communities.  As I said before, no lawyer ever went to the Pearly Gates and said:  “Damn, I wish I had billed some more hours.” 

We are talking valuable experienced legal resources here.  Firms should have every interest in using their talents productively as long as their lawyers wish to do so.  However, on the other side, you do not want to be the older person the younger partners always complain being gone or not engaged.  They do not take kindly to the “I earned it” approach.  It is more like “what have you been doing lately” approach.  So, do like my friend did — go out on top is my thought.  Work out your own deal with your firm and be happy.  The Earl of Elkview, a local colorful lawyer, advocates “Festive Living” with livable rather than billable hours.  There are many variables to be considered.  See, Jim Cotterman (Cotterman on Compensation) May 14, 2014.

There is a legal point where the retirement and aging issue transcends what is right, or what you want to do with your legal career.  Do not get to the point where your train of thought leaves the station without you.

Having served on a statewide Alzheimer’s Board, I feel somewhat better attuned to the aging process issues which will statistically hit the Boomers in a big way.  Absent a cure, aging issues will most definitely affect boomer lawyers and their law firms.  So as your law partners’ keeper, you must watch for all the many things induced by the stressful life of a lawyer, and now add cognitive degeneration to that watch list.  Before 401K plans, lawyers never retired and others did pay attention to this, but not so much in the last thirty (30) years.  Now I see an early ethics opinion on this very subject.

Kansas Bar Association Legal Ethics Opinion No. 14-01 “Duty to report attorney memory lapses” tells its lawyers to refer memory lapses, cognitive deteriorations, or other potentially disabling conditions to the Kansas Lawyers Assistance Program, or other suitable service.  If this problem resulted in acts or omissions constituting actual violations, then another lawyer would have the duty to report it.  I see this as an early recognition that this coming impairment is a larger issue to be regarded in the legal community due to its potential volume.  Well, there you have it.  Have we discussed this before?

As a good friend of mine always closes:  “Remember, life is too short for boring briefs.”

This blog was originally posted on Lawyering for Lawyers. Click here to read the original entry. 

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The Seventh Circuit has issued an opinion in City of Greenville, Illinois, v. Syngenta Crop Protection LLC, which limits the presumption of public access to non-privileged documents filed with a court to only those documents that influenced or underpinned a judicial decision. 

In City of Greenville, environmental groups intervened to seek access to the defendant's internal emails and business deliberations that plaintiffs had filed in opposition to a motion to dismiss. A protective order entered by the district court did not apply to materials filed in connection with a dispositive motion. The Seventh Circuit refused to permit access to uncited documents that were not considered by the district court in ruling on the motion to dismiss explaining "the presumption of public access turns on what the judge did, not on what the parties filed."  Because the documents did not affect the district court's decision, the Seventh Circuit held they need not be disclosed to the public. 

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The V-8 Moment with Regard to Insurance

Posted on August 5, 2014 04:36 by Steve Crislip

Wow, I should have had professional liability coverage.  I remain amazed at how many lawyers forego such coverage. I do not understand that rationale since they would never risk their assets with an uninsured car or house.  Yet, they think this cost of doing business is too high or it somehow is not needed.

Even a totally bogus claim costs real money to defend.  It takes time and work to get these dismissed, with no return of the costs. Lawyers always seem surprised at the legal costs for such work when they send out similar bills each day.  Then if there is a meritorious claim or even a colorable claim, coverage is very much needed.

When I last looked only one state required legal malpractice coverage as a condition of licensing.  Many states annually require you to disclose whether or not you have such coverage for consumer knowledge. I wonder how many clients ever really check that, or if they even care.  If you err in their case, they will sue you regardless. Do not think they will not, just because you have no insurance.  You certainly do not want to explain to family members that they now need to take the bus, since your cars were attached to pay a malpractice judgment.  Just treat this like a business expense and get coverage, and get the right coverage.

You should shop for coverage with brokers and agents as well as Bar groups.  Be totally forthcoming in any applications so there is no reason for any carrier to later deny coverage. Price varies with the amount of risk you are willing to take by way of the deductible.  Sometimes that is just cost pricing with lower annual premiums for higher retention levels by you. Sometimes in order to get big policy limits for some specialty work, you are required to have a big deductible.  Bigger firms are used to that, but smaller firms must always be mindful of the amount of risk they can absorb and how much they can promptly pay for a defense.  Usually the deductibles are for both losses and for the defense of the claim.

At one time, professional liability policies were like your auto policy — occurrence based.  Were you insured when you had the wreck or act of malpractice, or not?  By the 1970’s, that type of coverage disappeared and all are usually claims-made, eliminating the open-ended coverage concerns.  So, now a lawyer needs to be covered when a claim is made and must therefore avoid any gaps in coverage.

Since claims can arise well after the act or occurrence, prior acts coverage was needed to cover such matters forward when changing carriers or policies.  A tail (extended reporting endorsement) or an endorsement for prior acts must be considered carefully when charging firms.  Someone either closing a firm or making a lateral move needs to consider this carefully.  See, “A Primer on Prior Acts Coverage,” Mark Bassingthwrighte, ALPS 411, May 27, 2014.

For example, working in a mid-size regional firm, it made no sense to take in a lateral lawyer and provide them with prior acts coverage under the firm’s policy.  There had been no quality control by the firm and there were totally unknown risks involved with the lateral’s prior work.  With a large deductible, it was just bad business to assume that liability.  Accordingly, all laterals were told to look to their prior carriers or firms for coverage up to the day that they just started at our new firm.  Going forward they were covered, even when they left, as long as our firm was viable and still covered.  A tail may be needed by them from their prior work, but if they were likewise leaving a viable ongoing firm with good coverage, maybe nothing was needed.

Complicated to some degree, but it is just a part of doing business as a lawyer.  You need certain things to practice and this certainly is one of them.  Just like paying the rent on the office, paying for the coverage in a timely manner, and getting the right coverage is kind of important.  Don’t be the person who thinks they will not be sued by their clients. 

Be advised that most are loss and claim deductibles for any expended fees and costs, as well as claims payouts.  Also, it is customary for you to have to pay your full deductible before any carrier pays anything.  So pick a deductible you can afford and then escrow the funds for it as soon as a claim surfaces.  By the way, give notice of claims promptly, again to avoid coverage issues.  See ALPS 411, Claims-Made Reporting Requirement, February 15, 2012.

This blog was originally posted on the Lawyering for Lawyers blog on August 5. Click here to read the original entry. 

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Two Nations Separated By a Common Language

Posted on November 18, 2013 03:21 by Ashley Parrish

A famous Englishman once said, “America and Britain are two nations separated by a common language.” Was it George Bernard Shaw? Or was it Oscar Wilde? English literature enthusiasts have not settled the issue of the identity of the person to whom the quote is attributable. However, truer words have not been spoken, especially when it comes to dealing with insurance terminology.

Perhaps you think a “prop” is something you would find on the set of the movie studio.  Maybe a "slip" is where you have your boat parked at the Marina.  The fact of the matter is the way we use insurance terms in the United States differs greatly from the way they are used in the United Kingdom. Anyone whose job involves procuring insurance from the London market (especially from underwriters at Lloyd’s), or defending those who do the same, must be familiar with various insurance terms as they are used in the United Kingdom.  Even skilled insurance professionals and attorneys may be confused by the wordings used in the London market. 

Much of this confusion may stem from the developmental history of London insurance policies. Lloyd’s of London is known for its marine insurance policies, and the Lloyd's market can trace its origins back to Lloyd's Coffee House in the late 17th century. Many marine insurance policies still use terms that seem appropriate for covering the voyage of a schooner sailing from Portsmouth to Rotterdam. In other cases, it may just be that we use different terms to describe the same thing. For example, a backpack in the States becomes a rucksack in the UK. Additionally, the structure of Lloyd’s of London is different from any other insurance market in the world and the way insurance is regulated is also quite different.  

Lloyd's of London is the leading market for specialist insurance in the world. Insurance professionals who need to place complex and specialized risks must be familiar with London market practice and terminology. Further, those of us involved in defending these same insurance producers must be familiar with the vernacular and intricacies of the British insurance market.   On December 12th Kevin Ottley of 5Star Professional Programs and I will be presenting “Interaction Between United States and London Brokers” at the DRI Professional Liability Seminar, December 12–13 in New York.  We will address the differences one may encounter in the UK insurance market and provide practice pointers in the event you are confronted with providing a defense for an insurance professional involved in procuring a policy placed in London.  I hope you can join us. Click here to register. 

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Limiting the Use of the Business Judgment Rule

Posted on September 23, 2013 04:00 by Ashley Parrish

On September 6, 2013, a Federal Court in Texas held that the business judgment rule did not apply to a corporate decision to hire a law firm.  You might be thinking, “I thought Texas was business friendly and conservative.” Are directors and officers in Texas facing newfound liability risks in the state?  Probably not.  In re: 320, LLC, 213 WL 480642 (Bkrtcy. S.D. Tex., September 6, 2013), the court held that the business judgment rule does not apply when a Chapter 7 Trustee in bankruptcy seeks to employ his own law firm to represent the estate.  Obviously, the business judgment rule was never intended to protect all corporate decisions and decision makers.  Where a conflict of interest is present, i.e., a bankruptcy trustee hiring his own law firm, the business judgment rule has no applicability.  To the contrary, self-dealing fiduciaries are held to the highest standard, with the burden falling on the fiduciary to demonstrate the fundamental fairness of any self-dealing transaction.  Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 577 (Tex. 1963).  Accordingly, the decision in In re: 320, LLC is consistent with the fundamental principal that the business judgment rule generally applies to decisions made by disinterested and reasonably informed directors and officers who honestly believe their decisions are in the best interest of the company.  Courts outside of Texas, however, appear to be taking a more restrictive approach to the application of the business judgment rule.

In NECA-IBEW Pension Fund Ex Rel. Cincinnati Bell, Inc. v. Cox, 2011 WL 4383368 (S.D. Ohio Sept. 20, 2011), the Plaintiff brought a shareholder’s derivative suit against directors of Cincinnati Bell after the CEO was granted a significant bonus following a year in which net income, earnings per share, share price and shareholder return declined significantly.  The shareholders voted against the approval of the executive compensation decision and then brought a derivative suit against the board of directors.  The directors filed a motion to dismiss under Rule 12(b)(6).  The court denied the motion to dismiss, stating that the business judgment rule “imposes a burden of proof, not a burden of pleading”.  Id. at *2.  The court further stated that “these factual allegations raise a plausible claim that the multimillion dollar bonuses approved by the directors at a time of the company’s declining financial performance violated Cincinnati Bell’s “pay for performance” compensation policy and were not in the best interest of Cincinnati Bell shareholders and therefore constituted an abuse of discretion and/or bad faith”.  Id. at *3.  It must be noted that the court reached this conclusion without any facts having been pled by the Plaintiff suggesting an abuse of discretion or bad faith on the part of the directors.  The decision also seems to violate a fundamental tenet of the business judgment rule that courts should not substitute their inexperienced business decisions for the good faith decisions of independent and diligent business executives.  

The Cincinnati Bell decision has been roundly criticized and many courts have declined to follow its holding.  See, e.g., Plumbers Local No. 137 Pension Fund v. Davis, 2012 WL 104776 (D. Or. Jan. 11, 2012); Laborers’ Local v. Intersil, 868 F. Supp. 2d 838 (N.D. Cal. 2012).  In fact, the court in Plumbers Local, indicated that “it is unlikely that the case remains viable legal authority.” Plumbers Local, 2012 WL 104776 at *8. It should be further pointed out that plaintiff’s counsel in the Cincinnati Bell case was sanctioned by the court for failing to disclose negative authority related to the “say on pay” issue. Questions were also raised as to whether the court had appropriately conferred jurisdiction over the case.  Id.

While the Cincinnati Bell holding has not gained traction with other courts, the business judgment rule is coming under assault with some success in various jurisdictions.  In California, for example, the business judgment rule is codified in California Corporation Code at § 3.09.  While the California statute specifically references corporate directors, it wholly fails to mention corporate officers. Courts in other jurisdictions have generally held that business judgment rule protection extends to corporate officers.  See e.g. Kelly v. Bell, 266 A.2d 878, 879 (D. Eo. 1970); Detwiler v. Offenbecher, 728 F.2d 103, 149 (S.D.N.Y. 1989); Amerifirst Bank v. Bomar, 757 F. Supp. 1365, 1376 (S.D. Fla. 1991).  However, in FDIC v. Perry, 2012 WL 589569 (C.D. Cal. Feb. 21, 2012), a U. S. District Court held that the business judgment rule does not provide protection for decisions made by officers of California corporations.  The court based its decision on both California common law and the state statute.  With respect to California common law, the Court found no prior decisions which applied the business judgment rule to officers.  Without elaboration, the court rejected the assertion that the general principal of deference to business decisions should apply to officers.

Plaintiff’s attorneys are also finding innovative ways around the business judgment rule.  A prime example of this has arisen in the litigation against British Petroleum (“BP”) as a result of the deep water horizon oil spill.  Directors and officers of BP were confronted with a securities class action suit, alleging that they had misrepresented and failed to disclose information regarding BP’s safety programs and concomitant risk exposure.  The directors and officers at BP attempted to argue to the court that the securities claims should be dismissed because the allegedly wrongful conduct was merely mismanagement. However, the court rejected this argument, referencing the fact that the plaintiff’s had alleged that BP launched an ongoing public relations campaign prior to the oil spill in an effort to improve BP’s safety image with investors.  See In re: BP, PLC Sec. Litig., 758 F.2d Supp. 428 (S.D. Tex., 2012).

Are other inroads being made to limit the application of the business judgment rule?  Are plaintiff’s attorneys using other arguments to circumvent the rule’s applicability?  On Friday, December 13, 2013, Dan A. Bailey, a nationally recognized author and expert regarding D&O responsibilities and insurance, will address this as he presents an update on the business judgment rule at the DRI Professional Liability Seminar.  Please join us at the seminar for informative presentation.

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The Zhang case is a dispute following a fire at the plaintiff’s commercial property wherein the uninsured Zhang accuses the defendant-insurer of misconduct. The first two actions in the plaintiff’s complaint consist of 88 paragraphs arguing common law allegations of misconduct by the insurance company. Then, in her third cause of action, the plaintiff incorporates these paragraphs and alleges that the defendant engaged in false advertising. That last allegation starts the case down its controversial path.

The Zhang trial court sustained the insurer’s demurrer on the grounds that an earlier Court of Appeal case, Trexton Financial Corp. v. National Union Fire Insurance Company of Pittsburgh, precluded suit under Insurance Code section 790.03 (a.k.a. Fair Claims Handling Act, FCHA). On review, the appellate court disapproved of the Textron holding and held that the allegations of false advertising permitted suit under the Business and Professions Code section 17200 et seq (a.k.a. Unfair Competition Law, UCL).

To address the appellate court’s ruling in Zhang and the difference between it and Textron, we need to understand the current law. The UCL is a set of statutory codes that allow private persons to sue businesses for five types of conduct: (1) an unlawful business practice; (2) an unfair business practice; (3) a fraudulent business act (4) unfair, deceptive, untrue or misleading advertising; or (5) other acts prohibited by later sections of the code. Insurance companies are businesses within this law. A UCL cause of action requires some “predicate” violation, meaning that the plaintiff must complain of some conduct by a business-defendant in order to bring the claim.

As for the FCHA, it too is a set of statutory codes and it too sets out to stop unfair business practices; acts such as disseminating false insurance statements, making false entries into insurance reports, improperly disclosing private financial information. Unlike the UCL, the Legislature wrote the FCHA to apply specifically to insurance companies—almost exhaustively. The  California Supreme Court previously ruled in Moradi-Shalal v. Fireman’s Fund Insurance Companies that private plaintiffs cannot bring actions under FCHA. The Supreme Court has not held the same when it comes to the UCL. And that is the issue at the heart of Zhang when it comes before the supreme court this year.

Like in Zhang, in Textron, the plaintiff also alleged that the insurer engaged in misconduct that violated the FCHA and brought a UCL claim. The Textron appellate court upheld the defendant’s demurrer dismissing the case and pointed out that the conduct the plaintiff complained of was similar to the conduct covered by the FCHA and therefore the plaintiff could not bring a private cause of action. The appellate court in Textron held that, because in Moradi-Shalal the Supreme Court held that FCHA does not allow a private cause of action, FCHA violations cannot be the predicate violation for a UCL claim.

The differences between Textron and the appellate decision in Zhang is FCHA violations can serve as the predicate for a UCL cause of action. Textron unequivocally disfavored such a practice, holding that a plaintiff cannot use the UCL to avoid the Moradi holding. Zhang is holding otherwise. In Zhang, the UCL claim remained even though it was an FCHA violation. Now that we have two courts of equal standing handing down opposite rulings, the California Supreme Court must make a ruling to determine which way the law goes.

There is no evidence to suggest that the California Supreme Court will alter Moradi as to the holding denying a private right of action for violations of the FCHA. However, good public policy indicates that the Zhang approach—allowing UCL claims for FCHA violations—is the right approach. As a general matter, the UCL acts to empower private citizens to enforce fair business practices when the attorney general cannot or chooses not to do so. By extending the right to cover citizens aggrieved by insurance companies, the system can better protect those that are wronged. Moreover, because a successful plaintiff recovers restitution and not damages, the results will be equitable. Essentially, private citizens will be able to file claims to force an insurer to comply with the FCHA and then recover any money or property wrongfully taken.

Posted on January 21, 2013 by jampolzimetlaw
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As reported by InsideCounsel, the American Bar Association House of Delegates (“ABAHD”) recently approved an amended model rule stating that it is ethical for lawyers to disclose client information when trying to move from one firm to another.

Specifically, the rule states that it is ethical for an attorney in negotiations for a different job, as well as attorneys in merging firms, to disclose the identities of clients and the amount of business they generate because the information can help point out any conflicts of interest that might exist.  However, the model rule states that lawyers still should not reveal clients' financial information.

Although the model rule has been approved by the ABAHD, the rule is simply an advisory rule.  In addition, the rule provides little guidance for attorneys faced with the question of how much client information can be ethically revealed in states whose bar associations do not have rules covering this topic.  Thus, prior to revealing any information, lawyers should carefully consider and weigh this model rule against Model Rules of Professional Conduct 1.6 and 1.9.

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It is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we've already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name "Madoff") are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.

A lawyer's individual reputation for honesty is as important, if not more important, than his or her intelligence or skill set.  Why? Most of us quickly learn that if we're out of our comfort zone skill-wise, we have choices.  We can involve another, more experienced practitioner.  Or we can double up on our research until we completely understand an issue or area.  Skills can be improved.  The same is not true for reputation.  Once our reputation for honesty is placed at risk, it is nearly impossible to fix.

The easiest way to lose credibility is almost too obvious to mention: to be untruthful, even about the most trivial detail. It's not necessary to falsify documents or manufacture evidence; a lawyer's reputation for honesty can be ruined simply by stretching the truth when "memorializing" a telephone conversation. We hang up, I read your letter, realize you've mischaracterized our discussion and from that point forward I don't trust a word you say. Worse, when my law partner mentions ten years from now that he's got a case against you, the first thought that comes to mind, which I surely share, is that you're not to be trusted. And just like that, you're no longer trusted.

Being untruthful with the court is even more dangerous.  Setting aside the risks of sanctions, contempt, complaints to the state bar, etc., judges have institutional memory which can follow you your entire career. Just as I'll tell my law partner that you can't be trusted, judges do talk, and have lunch together and, I am informed, discuss their cases and the lawyers appearing before them.  Let just one judge conclude that you are a lawyer capable of lying to the bench and that alone could devalue any statement you ever make in the same courthouse or even jurisdiction.

Many lawyers believe we only have our time and intelligence to sell on the open market.  I would add that neither time nor intelligence have any value at all without a reputation for honesty. Once we lose the trust of our colleagues and judges, everything about the practice of law becomes more difficult, especially winning cases and getting referrals.  Don't risk it.

as originally published at
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