Ethics Jeopardy

ETHICS JEOPARDY

CLE Credit: 1.0 Ethics Friday, June 15, 2018 12:30 p.m. - 1:30 p.m. Bluegrass Ballroom II Lexington Convention Center Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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Kentucky Bar Association TABLE OF CONTENTS

The Presenters ...... i

Ethics Jeopardy! ...... 1

Introduction – Kentucky Rules of Professional Conduct ...... 1

"Statistics Are No Substitute for Judgment" ...... 1

"What We Have Here Is a Failure to Communicate" ...... 3

"Diligence Overcomes Difficulties; Sloth Makes Them" ...... 5

"Everything Has to Come to an End, Sometime"...... 7

"Tricks and Treachery Are the Practice of Fools, that Have No Wit Enough to Be Honest" ...... 10

"He that Pays for Work before It's Done, Has but a Penny's Worth for Two Pence" ...... 12

Full Text of Lincoln's Notes on the Ethical Practice of Law ...... 16

THE PRESENTERS

Judge Glenn E. Acree Kentucky Court of Appeals 360 Democrat Drive Frankfort, Kentucky 40601

JUDGE GLENN E. ACREE was first elected judge for the Kentucky Court of Appeals in November 2006 to serve Division 2 of the 5th Appellate District. He was appointed to that position in August 2006 to fill a vacancy created by the retirement of Judge Julia K. Tackett. Judge Acree was re-elected for another eight-year term in 2014 and served as chief judge of the Court of Appeals from July 1, 2012 to June 30, 2016. Before his appointment to the Court of Appeals, Judge Acree handled litigation and appeals in the areas of criminal law, administrative law, employment discrimination, contract dispute, civil procedure, insurance law, domestic relations, environmental law and construction law. After taking the bench, Judge Acree founded the KBA Appellate Advocacy Section. He is one of only 214 state and federal judges nationwide designated as a Fellow of the Advanced Science & Technology Adjudication Resource Center. Judge Acree has a bachelor’s degree and Juris Doctor from the University of Kentucky. He also earned a master’s degree from the University of Maryland in American History.

Justice Steven H. David Indiana Supreme Court 315 Indiana State House 200 West Washington Street Indianapolis, Indiana 46204

JUSTICE STEVEN H. DAVID is the 106th justice of the Indiana Supreme Court. He graduated magna cum laude from Murray State University as a Distinguished Military Graduate on an R.O.T.C. scholarship. He earned his law degree from Indiana University’s Robert H. McKinney School of Law. He is also a graduate of the Indiana Judicial College and the Graduate Program for Indiana Judges. Following his graduation from law school in 1982, he served in the United States Army Judge Advocate General's Corps on active duty until 1986 and reserve duty until 2010. His service included two post 9-11 mobilizations in Iraq and Guantanamo Bay, Cuba. He served as trial counsel, defense counsel, Military Judge and Commander. He graduated from the Army's Command and General Staff College, the Military Judges School, and the Judge Advocate General's Basic and Advanced Officer's Course. He's a member of the Boone County, Lake County, Marion County, Indiana and American Bar Associations, Indiana Judges Association, the Indiana Council of Juvenile and Family Court Judges and the American Legion.

William D. Mott 1121 Smiths Grove Road Burkesville, Kentucky 42717-8364

WILLIAM D. MOTT served as The Master of Ceremonies, HM (Her Majesty) The Queen's Ceremonial Warrant Officer. The Garrison Sergeant Major London District was the coordinator and organizer of all state ceremonial events including, HM The Queen Mother's Funeral in 2002; HM's Golden and Diamond Jubilee celebrations in 2002 and 2012, respectively; the Royal Wedding in 2011 and the funeral of Baroness Thatcher in 2013 and all annual state ceremonial parades including The Queen's Birthday Parade (Trooping the Colour), the Garter Service, State Visits (3 annually), Festival of Remembrance and the Cenotaph parade. Mr. Mott enlisted into the 1st Battalion Welsh Guards in April, 1979, and has served at regimental duty in Belize, Canada, Cyprus, France, Germany, Kenya and the USA. He completed operational tours of Northern Ireland and served in the Falklands War in 1982. He has held the post of instructor at both the Guards Depot, as a Sergeant, and also at the Royal Military Academy Sandhurst as a Colour Sergeant, Company Sergeant Major and as a Regimental Sergeant Major. Prior to assuming the appointment of Garrison Sergeant Major London District in 2002, he held the post of Garrison Sergeant Major Headquarters Northern Ireland.

Having shadowed his predecessor "Perry Mason" over a 12-month period GSM Mott's first Trooping of the Colour as the GSM was in June 2003. During his time as GSM he worked in Sri Lanka, Malaysia, Jamaica and Jordan as a ceremonial advisor and chief assessor.

GSM Mott was awarded the OBE (Office of the order of the British Empire) in The Queen's Birthday Honors 2007. He was presented with a new insignia of rank reviving the original one made for a select group of Sergeant Majors appointed to the Court of King William IV in the early 19th Century. He was awarded the MVO (Member of the Victorian order) in the Diamond Jubilee Honors 2012, for his personal service to HM The Queen organizing the Armed Forces parade and Diamond Jubilee. He was granted The Freedom of the City of London in 2013 for his significant service to The City. He was the first individual serviceman to receive this honor.

Mr. Mott now lives with his American wife on their 13 acre farm in Kentucky where he has been learning the skills required in using a sizable tractor on their farm.

ii Scott White Miller Edwards Rambicure 300 East Main Street, Suite 360 Lexington, Kentucky 40507

SCOTT WHITE joined Miller Edwards Rambicure in 2017, bringing over 31 years of experience, including eight as Assistant Deputy Attorney General for Kentucky. His practice runs the gamut of complex civil and criminal litigation, with over 70 jury trials and 50 bench trials in federal and state courts. His extensive experience representing clients in matters of complex lender liability and commercial disputes, contested family law matters, corruption and sexual harassment claims, healthcare fraud, and election crimes is a striking asset in the courtroom. Mr. White received his B.A., magna cum laude, from the University of Kentucky and his J.D. from the University of Kentucky College of Law.

iii

iv ETHICS JEOPARDY! Justice Steven H. David, Judge Glenn E. Acree, William D. Mott, and Scott White

I. INTRODUCTION – KENTUCKY RULES OF PROFESIONAL CONDUCT

"Rules! Rules! Rules are mostly made for the lazy to hide behind. . . . Some little thing goes wrong. Instead of mending the situation on the spot, we make a rule."

General Douglas MacArthur1

Well, that's not exactly how we view the Kentucky Rules of Professional Conduct -- quite the opposite. To quote KBA Chief Bar Counsel Jane Herrick, "These rules were created BECAUSE of the – let's not say lazy – let's say the diligence challenged."2

As we will see, most violations of the Rules can be traced to such unnecessary inattentiveness as a lawyer's failure to make a phone call or write a letter, or a failure to expeditiously perform services, or to promptly or properly terminate the lawyer-client relationship.

Rather than coursing through the Rules sequentially, we will take the Rules on by focusing on the five (5) Rules most frequently violated during the last full fiscal year. But first, some general statistics.

II. "STATISTICS ARE NO SUBSTITUTE FOR JUDGMENT."3

Here are some statistics to ponder.

A. Number of lawyers licensed in the State of Kentucky4 – 18,447.

B. Percentage of lawyers with complaints filed against them – 2.64 percent.

C. Although the rate of complaint-filing turned down for several years, it went up in the last full fiscal year. Take a look at the trend of percentage of lawyers with complaints filed:

1 Arthur Herman, Douglas MacArthur: American Warrior 163 (New York: Random House, 2017) (quoting MacArthur).

2 Telephone interview with Chief Bar Counsel Jane Herrick, May 21, 2018.

3 Henry Clay (1777-1852), quoted in Richard S. Zera, Business Wit & Wisdom 249 (Washington, DC: Beard Books, 2005).

4 Most recent available KBA statistics are from fiscal year 2016-2017.

1 1. FY2011-12: 4.13 percent.

2. FY2012-13: 3.95 percent.

3. FY2013-14: 3.66 percent.

4. FY2014-15: 3.35 percent.

5. FY2015-16: 2.64 percent.

6. FY2016-17: 3.06 percent.

Percentage of Kentucky Lawyers With Complaints Filed Against Them, FY2011-12 to FY2015-16 5 4 3 2 1 0 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17

D. As shown on the following chart, the annual number of complaints received and investigations opened by the KBA Bar Counsel has remained constantly above 1,000.

Number of Complaints Received and Investigations Opened 1400 1200 1000 800 600 400 200 0 FY 2010-11 FY 2011-12 FY 2012-13 FY 2013-14 FY 2014-15 FY 2015-16 FY 2016-17

E. The categories of complaints include virtually all the Rules. That is, it is fair to say virtually all the Rules have been broken. We'll start with the most frequently violated Rule – SCR 3.130 (Rule 1.4) – Communications.

2 III. "WHAT WE HAVE HERE IS A FAILURE TO COMMUNICATE."5

A. The Rule most frequently violated that results in discipline is Rule 1.4 dealing with Communications.

B. ADVICE FROM ABE:

"Never let your correspondence fall behind."6

C. In FY2016-17, there were 278 complaints asserting violations of Rule 1.4 (SCR 3.130(1.4)).

D. SCR 3.130(1.4) Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

E. SUPREME COURT COMMENTARY (2009):

(1) Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

5 Actor Strother Martin as The Captain in the 1967 motion picture, Cool Hand Luke, starring Paul Newman.

6 Abraham Lincoln, "Fragment: Notes For A Law Lecture," The Collected Works of Abraham Lincoln, Roy P. Basler, ed., Vol. II, 82 (New Brunswick, NJ: Rutgers University Press, 1953).

3 Communicating with Client

(2) If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously communicated to the lawyer that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

(3) Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations--depending on both the importance of the action under consideration and the feasibility of consulting with the client--this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

(4) A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged.

Explaining Matters

(5) The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation, a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information

4 consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).

(6) Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

Withholding Information

(7) In some very unusual circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

IV. "DILIGENCE OVERCOMES DIFFICULTIES; SLOTH MAKES THEM."7

A. The second most frequently violated Rule – Rule 1.3 (SCR 3.130(1.3)).

B. ADVICE FROM ABE:

"Leave nothing for tomorrow which can be done today. . . . The leading rule for the lawyer, as for the man of every other calling, is diligence."8

C. In FY2016-17, there were 253 complaints asserting violations of Rule 1.3 (SCR 3.130(1.3)).

7 Benjamin Franklin, Wit & Wisdom From Poor Richard's Almanac 7 (Kathy Casey ed., Dover Thrift Edition 1999).

8 Lincoln, supra, note 6.

5 D. SCR 3.130(1.3) Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

E. SUPREME COURT COMMENTARY 2009:

(1) A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

(2) A lawyer's work load must be controlled so that each matter can be handled competently.

(3) Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.

(4) Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal

6 for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.

V. "EVERYTHING HAS TO COME TO AN END, SOMETIME"9

A. Next, the third most frequently violated Rule has to do with terminating the relationship with your client – Rule 1.16 (SCR 3.130(1.16)).

B. ADVICE FROM ABE:

"[T]hat fatal first of Jany. '41"10 when Lincoln failed to effectively terminate his relationship with Mary Todd precipitated "the deplorable state of my mind at this time"11 until, ultimately, he married Mary anyway on November 4, 1842. Lincoln then wrote a friend, saying, "Nothing new here, except my marrying, which to me, is [a] matter of profound wonder."12 The advice we might draw from his experience here is this: if the relationship is over, be sure to terminate it effectively.

C. In FY2016-17, there were 131 complaints identified as violations of Rule 1.16 (SCR 3.130(1.16)).

D. SCR 3.130(1.16) Declining or terminating representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law; or

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

9 L. Frank Baum, The Complete Oz, Vol. 1 139 (Seven Treasures Publications 2008).

10 Lincoln, supra, note 6, at Vol. I, 282, Lincoln to Joshua Speed, March 27, 1842.

11 Id. at Vol. I, 229, Lincoln to John T. Stuart, January 23, 1841. "[T]he only thing that kept [Lincoln] from happiness was 'the never-absent idea' that he had caused Mary to suffer. [His] abhorrence of hurting another was born of more than simple compassion. He possessed extraordinary empathy . . . . Though Lincoln's empathy was at the root of his melancholy, it would prove an enormous asset in his political career." Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln 104 (New York: Simon & Schuster, 2005).

12 Id. at Vol. I, 305, Lincoln to Samuel D. Marshall, November 11, 1842.

7 (1) withdrawal can be accomplished without material adverse effect on the interests of the client; or

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; or

(3) the client has used the lawyer's services to perpetrate a crime or fraud; or

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; or

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; or

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

E. SUPREME COURT COMMENTARY 2009:

(1) A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(c) and 6.5. See also Rule 1.3, Comment (4).

Mandatory Withdrawal

(2) A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.

8 (3) When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.

Discharge

(4) A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.

(5) Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.

(6) If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.

Optional Withdrawal

(7) A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client's interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client. The lawyer also may withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

(8) A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.

9 Assisting the Client upon Withdrawal

(9) Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. A lawyer must return the client's file, papers, and property after termination if the client requests the file. The lawyer may retain a copy of the file. A lawyer may charge a reasonable copying charge, but may not condition return of a client's files, papers, and property upon payment of the copying charge, unless the lawyer has previously provided a copy, either during the representation or after cessation of the representation. A lawyer must make one copy of the file and materials available to the client even without payment if the client's interests will be substantially prejudiced without the documents.

(10) The lawyer may not condition return of the client's file, papers, and property upon payment of a fee. KRS 376.460 gives a lawyer the right to have payment of fees secured by a judgment the client recovers as a result of the lawyer's efforts. However, a lawyer may withhold uncompensated work product from the client's returned files (e.g., draft of pleadings, agreements and the like), unless the client's interests will be substantially prejudiced without the uncompensated work product. Documents or other relevant evidence, the original or its equivalent that may be required for trial preparation or as evidence for trial or in other legal proceedings, must be surrendered in their original form. See Rule 1.15 for guidance on resolving disputed claims for client funds.

VI. "TRICKS AND TREACHERY ARE THE PRACTICE OF FOOLS, THAT HAVE NO WIT ENOUGH TO BE HONEST."13

A. Rule 8.4(c) dealing with Dishonest Conduct is the fourth most frequently violated rule. (SCR 3.130(8.4(c)).

B. ADVICE FROM ABE:

"[I]f in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer."14

C. In FY2016-17, there were 63 complaints asserting violations of Rule 8.4(c) (SCR 3.130(8.4(c)).

D. SCR 3.130(8.4) Misconduct

It is professional misconduct for a lawyer to:

13 Benjamin Franklin, Poor Richard's Almanac 56 (Waterloo, IA: USC Publishing Co., 1914).

14 Lincoln, supra, note 6, at Vol. II, 82.

10 (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(d) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law.

E. SUPREME COURT COMMENTARY 2009:

(1) Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.

(2) Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

(3) A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.

11 VII. "HE THAT PAYS FOR WORK BEFORE IT'S DONE, HAS BUT A PENNY'S WORTH FOR TWO PENCE."15

A. Rule 1.5 dealing with Fees is the fifth most frequently violated rule. (SCR 3.130(1.5)).

B. ADVICE FROM ABE:

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well.16

C. In FY2016-17, there were 41 complaints asserting violations of Rule 1.5 (SCR 3.130(1.5)).

D. SCR 3.130(1.5) Fees

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

15 Benjamin Franklin, Poor Richard's Almanac 27 (Waterloo, IA: USC Publishing Co., 1914).

16 Lincoln, supra, note 6, at Vol. II, 82.

12 (6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. Such a fee must meet the requirements of Rule 1.5(a). A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony, maintenance, support, or property settlement in lieu thereof, provided this does not apply to liquidated sums in arrearage; or

(2) a contingent fee for representing a defendant in a criminal case.

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer, or, each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

13 (f) A fee may be designated as an advance fee. An advance fee agreement shall be in writing signed by the client evidencing the client's informed consent, and shall state the dollar amount of the retainer, its application to the scope of the representation and the time frame in which the agreement will exist.

E. SUPREME COURT COMMENTARY 2009:

Reasonableness of Fee and Expenses

(1) Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in- house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.

Basis or Rate of Fee

(2) When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client- lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.

(3) Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

Terms of Payment

(4) A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an

14 enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.

(5) An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

Prohibited Contingent Fees

(6) Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.

Division of Fee

(7) A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1.

(8) Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.

15 Disputes over Fees

(9) If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.

Fee Arrangements

(10) If a lawyer collects a deposit on a fee or for expenses, or a flat fee for services to be performed, the lawyer must deposit the funds in the lawyer's trust account until the fee is earned or the expense incurred, at which time the funds shall be promptly distributed. The foregoing shall not apply to advance fees as set out in 1.5(f). In the event the full amount that is held is not ultimately earned, or due to other factors, such as termination of the attorney-client relationship or is not reasonable, the funds must be returned to the client as provided in Rule 1.16(d).

Advance Fee

(11) A lawyer may designate a fee arrangement as an advance fee and upon receipt deposit such funds in the lawyer's operating account. The amount of an advance fee must be reasonable in amount and comply with Rule 1.5. In the event the full amount is not ultimately earned, or due to other factors, such as termination of the attorney-client relationship or is not reasonable, the funds must be returned to the client as provided in Rule 1.16(d).

VIII. FULL TEXT OF LINCOLN'S NOTES ON THE ETHICAL PRACTICE OF LAW. 17

This document fragment was dated July 1, 1850 by Abraham Lincoln's White House secretaries, John Nicolay and John Hay, who collected many of his manuscripts after his death. The note in the Collected Works of Abraham Lincoln indicates that Lincoln could have written these observations several years later than 1850. It is not known, however, if Lincoln ever delivered this lecture.

In these notes Lincoln provides a glimpse of how he worked and the high standards of diligence and honesty he set. He has sharp words for the dishonest and unscrupulous members of the bar, calling them "fiends" and "knaves." He warns prospective lawyers, "if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer."

17 Id.

16 I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind.

Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, -- ordinary collection cases, foreclosures, partitions, and the like, -- make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not. Extemporaneous speaking should be practised and cultivated. It is the lawyer's avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

17 before the consideration service is performed. It leads to negligence and dishonesty -- negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.