EDITED BY:
Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Carrie E. Parker, Legal Editor
Matthew T. Stephens, Design & Publishing Editor
PUBLISHED BY: Joseph, Hollander & Craft LLC
PUBLICATION DATE: November 30, 2024
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FEATURE ARTICLE: If Santa Were a Lawyer
The month of December is a bit different from other months for most of us. As winter closes in upon us, the days get shorter, and the glorious colors of fall become a memory, many of us embrace the warmth and brightness of the holidays. We put up lights on our houses, we cook warming dishes, and we treat our children and grandchildren to holiday treats. Central to millions of families are the various stories we tell, and one such major story is that of Saint Nickolas or, as he is popularly known in this country, Santa Claus.
Santa has a long history. The original seems to date to the third century and a Syrian saint beloved for his charity and good works. By the Middle Ages, veneration of St. Nickolas spread across Europe. Santa apparently came to the United States with the Dutch colonization of New York and was named by Washington Irving as the patron saint of New York City. His popularity has grown ever since in art and children’s tales. But Santa is not a mere human being. He brings toys to good children but lumps of coal to those who have misbehaved. He keeps a tally throughout the year and judges whether each of us has been naughty or nice. He has come to expect a treat when he comes down the chimney (a cookie or sweetmeat will never be disdained).
When we speak of Santa, we know what he does one day a year, the day when he delivers presents in his magical sleigh. But what of the other 364 days? We assume that he supervises his workshop at the North Pole, but the work is done by elves. It may well be that Santa has another job when not occupied in his toy making business. Perhaps, Santa is a member of the bar. And, if he is, then he must be subject to the Rules of Professional Responsibility. Let us imagine, as a holiday thought experiment, that Santa’s Kingdom has adopted the Kansas Rules of Professional Conduct and that Santa is subject to those rules as a member in good standing of the North Pole Bar. What would that be like?
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NEW AUTHORITY: North Carolina Formal Opinion 2023-3
On July 14, 2024, the North Carolina Bar Association issued Formal 2023-3, which, while rather narrow in focus, does open up interesting possibilities for law office management. The question presented dealt with a lawyer’s interest in installing a self-service vending machine in his office for the use of clients. The lawyer specialized in DUI cases, and the vending machine offered ignition locks for sale. This proposed arrangement raised four ethical questions:
- May Lawyer permit Company to rent space in Lawyer’s law office and install the ignition lock self-service kiosk for Lawyer’s clients to use?
- May Lawyer recommend Company to his clients for ignition lock services via the kiosk if Lawyer does not receive a rental fee from Company for the kiosk?
- May Lawyer receive a referral fee from Company for each client that signs up for Company’s services via the kiosk in Lawyer’s office?
- May Lawyer participate in Company’s efforts to market their product, which includes listing Lawyer’s name and contact information in the Company’s list of providers or affiliates?
To the first question, as to whether the lawyer could be paid a rental fee by the vending machine company, North Carolina replied that a lawyer could not because such a fee would provide a financial “windfall” to the lawyer—thereby giving the lawyer an incentive to recommend the machine’s product to his clients. That would create a non-consentable conflict of interest pursuant to Rules 1.7(a)(2) and 1.7(b). The Opinion later quotes an earlier North Carolina opinion about whether a lawyer may refer clients to an investment advisor:
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ETHICS & MALPRACTICE RESEARCH TIP: New Articles from the Current Index to Legal Periodicals
Beth Parker, Legal Technology in the Real World: Why the ABA Section on Legal Education Should Create Minimum Standards for Legal Technology Competency, 20 U. St. Thomas L.J. 230 (2024).
As technical competence becomes more and more important to lawyers, the profession needs to consider the extent to which law schools must assure that every graduating student meets minimum standards of knowledge. This will necessitate both an overhaul in the law school curriculum as well as action by the ABA in its accreditation standards.
The symposium in which this article appears is full of fascinating and important readings.
A BLAST FROM THE PAST: The Nature of Greatness
Not all great lawyers work in expensive offices, wear tailor-made clothing, and carry leather briefcases. Greatness in a lawyer is something far different and not to be judged by external appearances. Henry Whitney, a colleague of Abraham Lincoln who rode the circuit with him in Central Illinois in the 1830s, described him thus:
He was astride a small pony, borrowed that morning from Bowling Green; his long legs nearly touched the ground, the saddle was substantially worn-out, and all that he possessed on earth was about seven dollars in cash in his pocket; in his saddle bags a copy of Blackstone, a copy of the compiled laws of Illinois for 1833, three volumes of session laws, two small volumes of miscellaneous books and a few articles of underwear, in harmony with his ungainly suit which protected and absorbed his ungainly person.
Henry Whitney, Life on the Circuit with Lincoln 15 (Boston 1892)
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About Joseph, Hollander & Craft LLC
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We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
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