The Delaware State Bar Association

Ethically Speaking

Ethically Speaking Digest

by Charles Slanina, Esquire

Ethically Speaking takes a holiday! Each January, readers are treated to a compendium of past columns for easy reference.

Tax Liabilities (December 2002) The Court's current focus on attorney books and records and tax obligations.

Fall Round-Up (November 2002) Like leftover squash in the garden, I am harvesting all of the items accumulated during the summer which, although they did not merit a column on their own, collectively, they are too good to toss.

October 2002 - No article

Final Warning (September 2002) Books and records and tax violations.

July/August 2002 - No article

A Touch Of Class (June 2002) Representative litigation, such as class actions and derivative suits, requires a reexamination of the ethics rules. (By guest columnist, David Finger, Esquire)

Avoiding A Fee For All (May 2002) The ABA Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 02-4-25 regarding Arbitration agreements.

File Retentive (April 2002) A revisiting of file retention.

MDP or UPL?: SOS! (March 2002) The line between Multi-Disciplinary Practice and the Unauthorized Practice of Law can be fine to the point of being invisible. The current patchwork of UPL decisions lags behind the reality of modern practice.

Bar Behaving Badly: More Examples Of What Not To Do (February 2002):Allegations that attorneys and judges have behaved badly, may serve as cautionary tales to illustrate ethics issues. In other words,don't let this happen to you.

Ethically Speaking: Digest (January 2002)

The Ethics Amateur (December 2001): The role of ethics experts in litigation, including challenges to qualifications, was discussed. See also February 1998.

Winter Potpourri (November 2001): A collection of cases involving attorneys and judges behaving badly provided a what-not-to-do list.

On Being Solicitous (October 2001): Guest columnist David L. Finger analyzed the rights of attorneys in advertising and solicitation of clients. The local rules were compared/contrasted to the constitutional right to "commercial" speech. See also November 1997.

In Search of Ethics (September 2001): An update on legal resources and in print available on the internet on the topics of ethics and professional responsibility. See also December 1997.

Summer Potpourri (July/August 2001): Discussions of the Gramm-Leach-Bliley Act, UPL and attorney fee issues.

From Guatemala with Love: Attorney Liability for Client Claims (June 2001): The need to investigate before filing suit was discussed and illustrated by the plight of Plaintiffs’ attorneys as a result of lawsuits filed on behalf of clients with fraudulent claims following an airplane crash.

The Conflicts of Summer (May 2001)With attorneys and staff shuttling from firm to firm faster than the Queen in a game of Three-Card Monty, the dangers of resulting conflict of interests were analyzed.

Another Column Named "Know When to Hold Them, Know When to Fold Them" (February 2001): A redux of the title from September 1998. The first column dealt with the need to discharge troublesome clients. This column with the same name deals with obligations of file retention.

Ethics 2000: And Beyond (January 2001): A preview of the Ethics 2000 Commission Report was provided. The possible disciplinary rules of the future were previewed.

Index of Past Columns (December 2000)

Fresh Hot Opinions II (November 2000): Digest of the five most recent ABA Formal Ethics Opinions.

Fresh Hot Opinions (October 2000): Digest of the five most recent DSBA Ethics Committee Opinions.

Ethics Round-Up (September 2000): Prior columns were updated and a report from the ABA and the Ethics 2000 Committee were provided. The column also reminded readers of the Delaware Supreme Court professional "residency" requirement.

Clinton in the Clinches (July/August 2000): Ethically Speaking turned fearless prognosticator in predicting (incorrectly) the outcome of the disciplinary hearings facing President Clinton as lawyer in his home State of Arkansas.

In Too Deep I (May 2000) and In Too Deep II (June 2000): The perils of assisting pro se litigants were examined including "ghost writing" pleadings and limited scope representation.

Spring Clean Your Fee Agreements (April 2000): Readers were alerted to the requirements of new Rule 1.5(f) among other helpful hints in making and keeping attorney fees.

Breaking Up Is Hard To Do Part II (March 2000): Issues surrounding an associate or partner's departure from a firm were explored. This is the most frequently requested reprint.

Breaking Up Is Hard To Do (February 2000) (See March 2000)

Index of Past Columns (January 2000)

Ethically Speaking: The Official Column of the New Millennium (December 1999 ) Multi- Disciplinary Practice and cyber Unauthorized Practice of Law assault the traditional concept of a law firm.

Building a Better Mousetrap For the Rat Rule: Revisions to Rule 1.6 (November 1999) ABA proposals to expand the duty of attorneys to report misconduct of clients. (See also November 1996).

I'm a Lawyer, I Swear (October 1999) The practice of lawyers testifying without taking an oath is examined.

You've Got (Someone Else's) Mail! (September 1999) The Rule 1.6 duty to maintain client confidences is tripped up by mis-delivered communications.

Meet the ODC: From a Safe Distance (July/August 1999) There were new sheriffs in town! The new personnel are personalized and un-demonized.

Fee Potpourri (June 1999) A perennial favorite. A medley of recent fee cases.

A Law Firm By Any Other Name (May 1999) What is in a name? Sanctions, if you aren't aware of this case law update.

Candor Alert! (April 1999) The Rule 3.3 Duty of Candor to the tribunal is re-examined in light of an enforcement campaign by the Court. Read before filing your next certificate of Compliance!

Showing Good Form (March 1999) Examples of form letters which defend against malpractice and discipline. Read it. Learn it. Live it!

Death, Taxes and Compliance Audits - Part III (February 1999) Cautionary tales of attorneys sanctioned for books and records violations.

Previous Index (January 1999)

Death, Taxes, Compliance Audits: Part II (December 1998) - The new Rule 1.5 and the elimination of Interpretive Guideline No. 2 are explained.

Death, Taxes, Compliance Audits: Part I (November 1998) - A description of the purpose, selection process and the performance of the audit (and how to successfully pass it).

"Of Counsel"- Starting a sentence with a preposition can be a problem too (October 1998) - Liability issues stemming from this nebulous relationship.

Know When To Hold 'Em - Know When To Fold 'Em - When is there a duty of candor to the Court? (September 1998) - The requirements and exceptions to Rule 3.3.

X-Files: The Ethics of Cross-Examination (July/August 1998) - What can or should you do when cross-examining a witness you know (or suspect) to be truthful? Plus a bonus Current Developments Update.

Trial Publicity: Part II (June 1998)

Trial Publicity: Part I (May 1998) - Guest columnist David Curtis Glebe wades in on professional liability for extrajudicial statements.

Ethics: Believe It or Not (April 1998) - A collection of stranger-than-fiction cases from around the country.

Perils of Opining (March 1998) - Ethical Obligations of Attorney Experts and Commentators. A guide to the care and feeding of your lawyer.

The Whole Truth or the Hole in the Truth - The Ethics of Negotiation (February 1998) - The requirements and the exceptions to the attorney's duty of truth - telling.

Previous Index (January 1998).

Ethics on the Ether (December 1997) – Legal ethics and professionalism resources available on the Internet.

Ethics in the Ether (November 1997) – Ethical issues arising from the use of the Internet for advertising and client solicitation.

Dogged by a Bonus, Parts I, II, and III (July/August, September, October) – The dangers of sharing the wealth with non-attorneys, including fee-splitting and employee compensation plans.

The Impertinence of Being Earnest (June, 1997) – An update of the October, 1995, column titled "Dropping the Dime," dealing with the permissibility of threatening criminal and disciplinary charges, in order to gain leverage in a civil case.

Insurance Defense Update (May, 1997) – The September, 1996, "Serving Two Masters: Insurance Defense and Conflicts of Interest," was updated to reflect the subsequent issuance of Formal Opinion 96-403 of the ABA Standing Committee.

Are Former Judges "Judges"? (April, 1997) – Guest columnist, Disciplinary Counsel David Curtis Glebe discusses the propriety of the use of the title "Judge" by retired and former members of the Bench.

Corporate Counsel Conflicts (March, 1997) – In a hypothetical format, the ethical issues confronting in-house counsel were explored.

Attorney Advertising: The New Order (February, 1997) – The new advertising rules (effective January 1, 1997), were explored and explained.

Ethically Speaking (January, 1997) – The previous compendium of past columns.

Top Ten Ways to Become a Disciplinary Statistic (December, 1996) – The ten commandments of how NOT to respond to a complaint.

Is There Really a Duty to Report Misconduct? (November, 1996) – An attorney's duty to report another's misconduct is reviewed and questioned.

Public Access to the Disciplinary System (October, 1996) – Guest Columnist, Deputy Disciplinary Counsel Matthew F. Boyer, discusses the national trend toward open disciplinary systems. The pros and cons are explored and public comment is welcomed.

Serving Two Masters? Insurance Defense and Conflicts of Interest (September, 1996). Problems unique to insurance defense counsel are reviewed. Does the attorney represent the insured or the carrier?

The Ethics of Professionalism: As Lawyers, Who Are We? (Parts I and II) (June, July/August, 1996). Guest Columnist, Disciplinary Counsel David Glebe, waxes philosophic in this discussion of ethics, professionalism, public service, and civility.

Beach Reading (May, 1996) – A review of the second edition to the collection of ethics opinions entitled, Delaware Legal Ethics Digest: A Compendium of Authorities.

April, 1996 – No article.

Attorney Advertising? (March, 1996) – A discussion of how at least one attorney has pushed the boundaries of permissible advertising. The article details the ad campaign of a Long Island, New York attorney whose ads rely heavily on double entendre and cheesecake.

Attorney Sex III: Lawyers in Love (February, 1996) – A special Valentine's Day edition dealing with conflicts of interest resulting from lawyers in love with lawyers and others.

January, 1996 – No article.

Not an Interview with a Vampire – Parts I and II (November and December, 1995) – Two-part interview with Chief Disciplinary Counsel David Curtis Glebe. The column provides a rare look into the inner workings of the office.

Dropping the Dime (October, 1995) – Can an attorney threaten criminal prosecution in order to gain an advantage in civil litigation? DSBA Ethics Opinion 1995-2 was issued two months after the column ran and, as predicted, said, "yes."

Playing Them as They Lie: What to Do When Your Client Lies (September, 1995) – The attorney's dilemma and duty when faced with a client or witness who intends to lie or has already done so.

Summer Reruns (July/August, 1995) – An update on the case law on former topics, including Attorney Advertising, Attorney Sex, Attorney Taping, Letters of Protection, More Stuff to Worry About, and Attorney Attire.

Judging Judges (June, 1995) – An overview of the Delaware system for the investigation and prosecution of judicial misconduct.

May Lawyers Lien on Clients? (May, 1995) – An attorney's right to retain a client file as a lien against unpaid legal fees is explored.

Attorney Speech (April, 1995) – An examination of how the disciplinary rules and judicial contempt power impose significant restraints on a lawyer's exercise of First Amendment rights.

Above the (State) Law? (March, 1995) – Co-authored with Deputy Attorney General Diane Coffey. The gloves come off in a scathing attack on the attempt by the U.S. Justice Department to exempt their attorneys from local disciplinary rules which prohibit a lawyer from communicating with a party who is represented by counsel.

Top Ten Ethics Questions (February, 1995) – The ABA Center for Professional Responsibility maintains a service called "EthicSearch." For a nominal fee, the Center will provide copies of advisory opinions on point. This column presents the top ten most-frequently asked questions with a discussion as to the likely answers to such questions in Delaware. If you have an ethics question, chances are it is asked and answered in this column.

Professional Conduct and the New Delaware District Court Rules (January, 1995) – Effective January 1, 1995, the Delaware District Court adopted the ABA Model Rules with regard to attorney discipline. Prior to that date, attorneys were judged by the Delaware Lawyers' Rules of Professional Conduct. The article contains an analysis of the differences between the standards.

More Stuff to Worry About (December, 1994) – A potpourri of topics. The confidentiality issues surrounding the attorney use of cellular phones, errant faxes, computer usage, file storage, and trash disposal and the disposition of a deceased attorney¥s practice were explored.

Medical Liens (Letters of Protection): What Protection for the Attorney? (November, 1994) – The issues surrounding the written offers of assurance to medical providers that their fees will be paid out of a personal injury recovery are discussed.

Fees (Made) Simple: Absolutely (October, 1994) – Answers to the most-frequently asked questions with regard to attorney¥s fees, including fee splitting, reasonableness, retainer fees, file liens, and alternative billing.

Attorney Advertising – Parts I and II (July/August, September 1994) – A review of the disciplinary rules and case law regulating attorney advertising.

Ethics Helper (June, 1994) – A compendium of legal ethics and professional responsibility resources. The column describes the function of the various agencies that both regulate and assist in the practice of law.

Attorney Sex, Parts I and II (April, 1994) – An exploration as to how misconduct results from the conflict of interest in attorney-client sexual relationships, as well as from criminal convictions for sex crimes.

The Tale of the Tape (March, 1994) – The ethical issues surrounding surreptitious tape recording by attorneys is examined.

Women, Fashion, and the Law (February, 1994) – Female attorneys sanctioned for attire. Women's hats, miniskirts, slacks, and sweaters were given close judicial scrutiny.

Ethics: After a Fashion (January, 1994) – A review of cases involving male attorneys receiving sartorial sanctions. It includes attorneys wearing bandannas, medallions, clerical garb, political buttons, and U.S. flag lapel pins. The worst offender wore pajamas to Court.