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Legal Ethics Enforcement: Strategies and Best Practices

Understand the enforcement mechanisms and guidelines for legal ethics violations, from outsourcing to state attorneys general. Stay compliant with ABA best practices and avoid sanctions.

elizabeth-cochran
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Legal Ethics Enforcement: Strategies and Best Practices

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Presentation Transcript

  1. Options Outsource Enforcement To Attorney Discipline for Ethics Violations To State AGs for Consumer Fraud To Prosecuting Attorneys for UPL prosecution Adopt and Advance the ABA Best Practice Guidelines

  2. Outsourcing • Lawyers and only lawyers are subject to disciplinary enforcement • Lawyers may or may not be subject to consumer fraud, but all other individuals and entities are • Both lawyers and all entities are subject to UPL

  3. Ethics Rules Impute Acts of Agents to Lawyers • Sometimes by Specific State Rules • FL Rule 4-7.10(b) lawyer who accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements used by the service comply with the requirements of the Rules. • TX Rule 7.4(p) lawyer who advertises in the public media as part of an advertising cooperative or venture shall be individually responsible for: (1) ensuring that each advertisement does not violate this Rule.

  4. Usually through a Catch-All Rule • ABA Model Rule 8.4(a) it is a professional misconduct to violate the rules through the acts of another.

  5. The Ethics Rules Apply to the Internet – whether or not they say so

  6. Potential Breaches • Rule 7.5(a) A trade name may be used by a lawyer in private practice if it does not imply a connection with a public or charitable legal services organization... • Rule 7.1 A Lawyer shall not bake a false or misleading communication about the lawyer or the lawyer’s services... Most states prohibit the creation of “unjustified expectations” and “unsubstantiated comparisons”

  7. Rule 7.2(b) A lawyer shall not give anything of value for the recommendation of the lawyer’s services, except for the reasonable costs of advertising or the usual changes of a state-qualified or non-profit lawyer referral service or legal service plan. • Disclaimers • Limits on dramatizations • Limits on stock photos • Retention/Filing/Screening requirements • Rule 8.4(c) and (d) prohibit deception or misrepresentation and conduct detrimental to the legal profession.

  8. Possible Outcomes • Cease and desist letter • “Ask Gary” Sanctions

  9. It may be hard to tell who is involved...

  10. Sometimes lawyers are listed without participating or even knowing it...

  11. Avoid Pretexting – Leave the investigation to the Pros

  12. A Second Option – ABA Best Practice Guidelines At www.abanet.org/legalservices/delivery

  13. Questions

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