Articles Posted in Legal Ethics

The Lawyer’s Duty of Candor to the Client – Should It Be Formally Defined?

Is it ever appropriate to lie to your client? Judge Raymond J. McKoski, an adjunct professor of law at John Marshall Law School, has posted a thoughtful article on the lawyer’s duty of candor to the client. The article is titlted: “The Truth Be told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client.” A link to the paper can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419494.

McKoski notes that Model Rule of Professional Conduct 4.1 “bars a lawyer from making a false statement of material fact to a third person in connection with the representation of a client.” He notes, however, “there is no Model Rule establishing and defining a lawyer’s duty of candor to a client.” McKoski believes that there should be such a rule. Indeed, he proposes the addition of a new subsection (c) of Model Rule 1.4 which would provide as follows:

BEFORE THE HEARING BOARD.

Each year the ARDC files many cases against lawyer who convert funds from client trust accounts. This case is slightly different. The ARDC has charged one member of a two-member firm with failing to (a) maintain accurate and complete client trust account records and (b) failing to make “reasonable efforts” that the other lawyers in the firm were in compliance with the Rules of Professional Conduct.

This is a case alleging inadvertent conversions of client funds due to a lack of record-keeping by the lawyers and the firm. There were several bounced checks and some clients apparently had to wait longer than they should have to receive their settlement checks.

This is an unpublished case, captioned, In re Marriage of Marie Brinkley v. Leonard Przysucha, 2014 Ill App (1st) 131397-U. The case is a dispute over child support obligations. The respondent allegedly had a large balance of unpaid child support. The petitioner, however, had obtained a bankruptcy discharge and did not disclose the child support claim in her bankruptcy petition.

The leading case on the issue is Berge v. Mader, 2011 IL App (1st) 103778. In that case, the court held that the petitioner was judicially estopped from pursuing the child support claim because she failed to disclose it in her bankruptcy papers.

In the Brinkley case, which is arguably identical, the lawyers for petitioner did not disclose the contrary authority and were sanctioned. The Court explained: ”

In re Balivet – 2014 VT 41 :: 2014 :: Vermont Supreme Court Decisions :: Vermont Case Law :: US Case Law :: US Law :: Justia.

Vermont has reprimanded a judge for failing to rule promptly in a family court matter involving the guardianship of a minor child. This is the first time I have ever seen a member of the judiciary disciplined for a lengthy delay in a ruling.

In November 2001, the respondent judge granted the child’s grandfather to be his guardian.

MATTER OF NOVINS, 2014 NY Slip Op 3465 – NY: Appellate Div., 1st Dept. 2014 – Google Scholar.

Some of the facts set forth in ethics cases are almost impossible to believe. This is one such case where an associate of a law firm agreed to assist a former client with a legal malpractice case against his employer.

After a personal injury case was lost, and the client threatened to sue the firm for legal malpractice, an associate of the law firm contacted the aggrieved client and negotiated a written contingency fee agreement with the aggrieved client.

Filed April 10.

This is a case involving a lawyer who successfully obtained employment with DCFS. The ARDC charged that he falsified his Illinois Employment Application by listing employment at a company. By falsifying employment (and salary) the lawyers was able to obtain a higher salary than he otherwise would have obtained.

“On July 1, 2003, Respondent received a four-year term position as an attorney with DCFS at a salary of $85,000. (Tr. 51, 55). That position required him to be a lawyer. (Tr. 270). At that time, Respondent was aware of the Governor’s Office’s policy that new employees to State government could not receive 10% more than their most recent salary. (Tr. 52-53). However, he also was aware that exceptions could be made to this policy. (Tr. 53-54).

Filed March 31.

This is one of several recent cases where a lawyer has made statements questioning the integrity or honesty of judges and has been disciplined. Here the Review Board upheld a recommendation of a six-month suspension for Brian Sides. Here, the lawyer was attempting to vacate a small claims judgment against him and he accused the judge, who ruled against him, of a lack of integrity and honesty. Later, he accused other judges of misconduct.

Statements such as the ones made in this case almost always result in discipline. To defeat the professional claim, the lawyer would have to prove all the statements were factually true, which, of course, he cannot do. It is always permissible to question the reasoning of an opinion. It is improper to question the integrity of the judge or other lawyer.

Filed March 6.

This is an unusual proceeding. A lawyer, John Argoudelis, was retained to represent a client. The client, Paul Volgar, informed him that he was the sole heir of James Volgar. Later, the lawyer filed an Affidavit of Heirship which listed one heir. The attorney was disciplined because, soon after filing the affidavit, he became aware that James Volgar had several other heirs, but he failed to correct the affidavit.

The opinion explains:

KENTUCKY BAR ASSOCIATION v. UNNAMED ATTORNEY, No. 2012–SC–000388–KB., December 19, 2013 – KY Supreme Court | FindLaw.

The Supreme Court of Kentucky has issued a private reprimand to an “Unnamed Attorney” as a result of that attorney’s conduct in settling a case. Specifically, the Kentucky Supreme Court found that Unnamed Attorney was retained to represent another attorney in a disciplinary matter. Unnamed Attorney negotiated a settlement of the dispute between his attorney client and the complaining witness, referred to as Jane Doe. The terms of the settlement included a payment of $30,000 to Jane Doe. Additonally, Unnamed Attorney inserted the following provision in the settlement agreement:

Specifically, paragraph 4 of the settlement agreement stated: