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Legal Ethics and Malpractice Reporter

Contents

  • FEATURE ARTICLE: The Dangers of Arrogance (and Benefits of Humility) in Law Practice
  • NEW AUTHORITY: ABA Formal Opinion 503: The Ethics of “Reply-all” Emails
  • ETHICS & MALPRACTICE RESEARCH TIP: New, Must-Read Release: The Lawyer’s Conscience: A History of American Lawyer Ethics
  • BLAST FROM THE PAST: David Hoffman on Maintaining a Just Cause for Law Practice

EDITED BY: Professor Mike Hoeflich

PUBLISHED BY: Joseph, Hollander & Craft LLC

November 30, 2022

FEATURE ARTICLE

The Dangers of Arrogance (and Benefits of Humility) in Law Practice

The Rules of Professional Conduct do not discuss the dangers of lawyer arrogance or the benefits of lawyer humility. Something, or someone, must—because arrogance and humility have an immense impact on how lawyers behave and how they comply with disciplinary rules.

Susan Liautaud on the Ethics Incubator blog writes:

Arrogance is one of the most dangerous drivers of unethical behavior. It is almost always present in one form or another when scandal erupts. Think of Sepp Blatter continuing to draw his president’s salary during an eight-year ban from soccer (and declaring himself the “godfather” of women’s soccer). Think of investment banks justifying conflicts of interest as a business model. Think of allegedly fraudulent anti-human-trafficking advocate Somaly Mam’s high-fashion ego duping even the meticulous and compassionate Pulitzer prize-winning journalist Nicholas Kristof and other high-profile leaders. (I cite Nicholas Kristof precisely because he is not arrogant as far as I can tell and because his wisdom on how easy it is to fall prey to arrogance deployed for charity taught us all a good lesson.)

Every lawyer has had the unpleasant experience of trying to work with another lawyer whose arrogance was a disservice to his client. A number of years ago, I was involved with a lawyer who was so convinced that he was right on point of law that he refused to actually research the issue. Insisting that he “knew” he was right, he would not change the wording of the document at issue. Unfortunately, the point of law he was so certain about was dependent upon a statute that had been recently amended. For over a month, he refused to agree to a change in the document to conform to the new law. His refusal, based on nothing but arrogance, delayed consummation of the deal and cost both parties unnecessary time and expense.

In looking at this example of arrogant behavior, we can all agree that the lawyer was, to put it bluntly, a “jerk.” Moreover, his arrogance caused him to violate several of the Rules of Professional Conduct.

NEW AUTHORITY

ABA Formal Opinion 503: The Ethics of “Reply-all” Emails


Advisory opinions relating to technology continue to be issued at a furious pace. As law office technology continues to develop, ethical problems also arise. Yet even fairly well established technologies continue to generate new advisory opinions.

On November 2, 2022, the American Bar Association Committee on Ethics and Professional Responsibility published Formal Opinion 503, which explains the ethical dangers in using the “reply all” button in common email programs. The problem arises from Rule 4.2 and its prohibition against lawyers directly contacting represented persons without the consent of the represented persons’ counsel:

Under Rule 4.2 of the ABA Model Rules of Professional Conduct, in representing a client, a lawyer may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication.

ETHICS & MALPRACTICE RESEARCH TIP

New, Must-Read Release: The Lawyer’s Conscience: A History of American Lawyer Ethics

 A number of months ago, we announced that the University Press of Kansas would be publishing what promised to be one of the most important new books on the development of legal ethics in the United States. That new book was published on November 9, 2022:

Michel S. Ariens, The Lawyer’s Conscience: A History of American Lawyer Ethics (University Press of Kansas 2022).

The table of contents revels the breathtaking scope of its coverage:

Preface and Acknowledgments

Introduction

    1. Origins, 1760–1830
    2. Honor and Conscience, 1830–1860
    3. Clients, Zeal, and Conscience, 1868–1905
    4. Legal Ethics, Legal Elites, and the Business of Law, 1905–1945
    5. Prosperity, Professionalism, and Prejudice, 1945–1969
    6. Beginning and Ending, 1970–1983
    7. The Professionalism Crisis and Legal Ethics in a Time of Rapid Change, 1983–2015

Conclusion

Notes

Index

Every lawyer should read this book to understand the background and development of the regulation of lawyers and judges in the United States yesterday and today.

BLAST FROM THE PAST

David Hoffman on Maintaining a Just Cause for Law Practice

The following quote is from a favorite text on legal ethics, David Hoffman’s Resolutions in Regard to Professional Deportment:

I will espouse no man’s cause out of envy, hatred, or malice toward his antagonist.

—David Hoffman, A Course of Legal Study (Joseph Neal 1836) (1817).

In our present era in which the courts are being used not simply to litigate normal disputes, but also to promote political and social ideas that are better decided in the political forum, Hoffman’s words are well worth considering.

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About LEMR

The Legal Ethics & Malpractice Reporter (LEMR) is a monthly publication covering current developments in ethics and malpractice law. This popular, free publication, with close to 8,000 current subscribers, was envisioned by KU Law professor Mike Hoeflich, who serves as the publication’s editor in chief. In partnership with Professor Hoeflich, JHC’s legal ethics and malpractice group is pleased to publish this monthly online periodical to help attorneys better understand the evolving landscape of legal ethics, professional responsibility, and malpractice.

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About Joseph, Hollander & Craft LLC

Joseph, Hollander & Craft is a premier law firm representing criminal, civil and family law clients throughout Kansas and Missouri. When your business, your freedom, your property, or your career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 20+ attorneys has you covered. We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for victims of trucking collisions and those who have suffered traumatic brain injuries due to the negligence of others. We fight allegations of professional misconduct against doctors, nurses, judges, attorneys, accountants, real estate agents and others. And we represent healthcare professionals and hospitals in civil litigation.