N EW T RENDS IN P ROFESSIONAL R ESPONSIBILITY & L AWYER R EGULATION J ERRY L ARKIN , ARDC C HAMPAIGN C OUNTY M AY 19, 2015 B AR

A Lawyer Disciplinary Case

The Events

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Lawyer represents Ill. employee in W.C. claim; Client gets $1,554.11 monthly lifetime award; CMS sends Client’s checks c/o Lawyer; Client dies unexpectedly, terminating benefits; CMS does not learn of client’s death; keeps sending checks to Lawyer; Checks sent for 6 months = $9,324.66; Lawyer forges signature of Client on each check; Uses proceeds for personal and purposes, without authority.

business

More Events

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AG’s Office represents CMS in suit against Lawyer; Lawyer tells AAG that Client’s Estate Rep authorized him to negotiate checks and that he gave funds to Rep.

Rep. had no knowledge of situation; Lawsuit dismissed on jurisdictional grounds-AG appeals; Before Appellate Court, Lawyer falsely tells Justices that he notified AG’s Office of Client’s death, that Rep.

endorsed dead Client’s name to checks, that Rep. took money; Case remanded. In answers to discovery, Lawyer repeats lies; ARDC notified of scenario;

Still More Events

• • • • •

In response to ARDC, Lawyer creates six documents purporting to be ‘receipts’ from Rep., each one for $1,243.29; Lawyer used software to copy Rep.’s signature from documents signed in Client’s probate case and affixed to the receipts, placing a different signature on each receipt; Lawyer sends false receipts to ARDC and says that they are copies of actual receipts that Rep. had signed. Lawyer further tells ARDC that Rep.

endorsed Client’s signatures on the overpayment checks and received 80% of the proceeds of each check as reflected in the purported receipts; When lawyer appears before ARDC Inquiry Board, he was informed that forensic document examiner determined that purported receipts were fabricated.

Lawyer testifies in response that he had obtained receipts from his secretary and blamed her for creating phony documents.

TOPICS

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Illinois Facts and Figures

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Rule Changes Karavidas & Edmonds

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Odds & Sods

Attorney Population •

>95,000 licensed Illinois lawyers;

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600 new attorneys this month;

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2014 1st year law student enrollment drop to 1973 levels, when there were 53 fewer US law schools (ABA);

Attorney Mobility • •

In 2013, lawyers reporting an address outside Illinois increased 9.5%. In 2014, lawyers reporting an address outside Illinois increased an additional 7.4% from 2013.

• • •

During 2014, investigations, ARDC docketed 5,921 Grievances against real estate lawyers placed 3 rd (10% of all filings) and tied for 1 st in formal filings (17% of all filings).

In 2013, grievances against real estate practitioners had skyrocketed.

2014 ARDC Grievances

2014 Formal Charges

Areas of Law

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Rule Changes

One

Two

Three

Four

…… (i) A lawyer who learns of unidentified funds in an IOLTA account must make periodic efforts to identify and return the funds to the rightful owner. If after 12 months of the discovery of the unidentified funds the lawyer determines that ascertaining the ownership or securing the return of the funds will not succeed, the lawyer must remit the funds to the Lawyers Trust Fund of Illinois. No charge of ethical impropriety or other breach of professional conduct shall attend to a lawyer’s exercise of reasonable judgment under this paragraph…A lawyer who either remits funds in error or later ascertains the ownership of remitted funds may make a claim to the Lawyers Trust Fund, which after verification of the claim will return the funds to the lawyer…

7 Contemplated Rule Changes

Rule 1.0 Terminology No. 1

Rule 1.1 Comment 8 No. 2

Which Technologies Create Lawyer Ethics Concerns?

Technologies Creating Lawyer Ethics Concerns

• • • • • • • • •

Cloud Computing Smartphones & Tablets WiFi or wireless connections Internet accessible storage Removable storage devices Email Social media Video conference cameras QR Codes

No. 3 Rule 1.6(b)(7) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: * * *

Amended Comment [13] to Rule 1.6

[13] . . . Any such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. . . . Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client. . . Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent.

Rule 1.6(e) No. 4

Reasonable Care Factors:

Comment [16] ABA Model Rule 1.6 • • • • • Sensitivity of information; Likelihood of disclosure without safeguards; Cost of additional safeguards; Difficulty of implementing safeguards; Extent to which the safeguards adversely affect lawyer’s ability to represent clients

No. 5 Rule 4.4 Respect for Rights of Third Persons

No. 6 Rule 7.2 Advertising Comment [5]

No. 7 Rule 7.3 Solicitation of Clients Comment [1]

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Supreme Court of Illinois

Decisions of Import

The Karavidas Holding…

…professional discipline may be imposed only upon a showing respondent Rules of by clear attorney the Rules is insufficient… and convincing evidence that the has violated one or more of the Professional Conduct. Mere bad behavior that does not violate one of

3 Nat’l Trends

Trend 1

Houston 2015 S TATES TO A RE MORE D ISBAR N ON -L W ILLING ICENSED L AWYERS FOR M ISCONDUCT WITHIN O CCURRING S TATE B ORDERS

Matter of Nathan N. Jardine 764 S.E.2d 924 (S.C. 2014) .

An Illinois Decision

In re Robert S. Sanderson, M.R. 27108, 2014PR00040 (Ill. Jan. 16, 2015)

Trend 2

Boston

2014 G REATER N UMBERS OF SANCTIONS ARE B EING IMPOSED FOR D EVIANT P ERSONAL B EHAVIOR

An Illinois Example

In the Matter of Robert David Little

Case No. 12-C-12448-RAH (California 2013) Illinois Rule 763 order entered on Sept. 12, 2014 In re Little, M.R. 26738, 2014PR00043

Disciplinary Proceedings against Kenneth Kratz , 2014 WI 31 (Wisconsin June 6, 2014) .

"Are you the kind of girl that likes secret contact with an older married elected DA ... the riskier the better?" "I'm serious! I'm the atty. I have the $350,000 house. I have the 6-figure career. You may be the tall, young, hot nymph, but I am the prize!"

Trend 3

Boston

2014 M ISCONDUCT THE I NVOLVING M ISUSE OF S OCIAL A M EDIA IS B URGEONING P ROBLEM

A Killing in CLEVELAND

The Red Zone

Former Cuyahoga Co. Asst. Prosecutor Aaron J. Brockler

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Damon Dunn charged in shooting death of Kenneth "Blue" Adams;

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Prior to trial, defense reveals two women alibi witnesses;

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Brockler learns women have pages; Posing as girlfriend of Defendant, he chats with them on ;

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Informs women that he is ‘Baby Defendant…causes women to “go crazy”; Mother’ of Brockler speaks with women following day, does not divulge was chat partner;

Ruse Con’t.

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Brockler says one woman told him, “This is bogus, I’m not going to lie for him.” Claims other woman changed story: “She said she wasn’t at the beach with him and she wasn’t going to lie for him.

They both wanted the truth to be known.” Brockler has eye surgery. Another CCAP learns of ruse; Defense alerted. Brockler fired. Ohio AG takes over case.

“This office does not condone and will not tolerate such unethical behavior…He disgraced this office and everyone who works here…By creating false evidence, lying to witnesses as well as another prosecutor, [he] has damaged the prosecution’s chances in a murder case where a totally innocent man was killed at his work.”

The Prosecutor’s Defense

“Law enforcement, including prosecutors, truth.” have long engaged in the practice of using a ruse to obtain the

ODDS & SODS

A Non-Comprehensive Look at Lawyer Regulatory Cases

2014-2015

Advertising & Marketing

In re Anonymous, No. 45S00-1301-DI-33 (Ind. April 11, 2014)

In the Matter of Svitlana E. Sangary 13-O-13838-DFM (Cal. September 11, 2014)

In re Edward R. Reines, 14-MA004(14-4) (Fed. Cir. Nov. 5, 2014)

M.R. 26823, 2013PR00121 (Ill. Sept. 12, 2014)

Confidentiality

In re Cohen, 49S00-1304-DI-282 (Ind. Oct. 20, 2014)

Criminal Conduct In re Gladders, M.R. 27194, 2014PR00131 (Ill. March 12, 2015)

In re Anthony Bergamino, Jr. M.R. 26686, 2014PR00030 (Ill. June 10, 2014)

Judicial Conduct

In re Judicial Campaign Complaint v. O’Toole

Slip Opinion No. 2014-Ohio-4046 (Ohio Sept. 24, 2014)

Prosecutor Misconduct-Forensic Abuses M.R. 26733, 2013PR00124 (Ill. Sept. 12, 2014). .

‘intimidation’

In the Matter of Eric Michael Gamble, No. 112,037 (Kansas Dec. 5, 2014)

Coping with a Negative Review

N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 1032

In the Matter of Ira Dennis Hawver, No. 111,425 (Kansas Nov. 14, 2014) .