Legal Ethics & Malpractice Reporter, Vol. 6, No. 1

Published: 31 January 2025

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: January 31, 2025

READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 6, No. 1


FEATURE ARTICLE: After the Deluge: Law Practice & Legal Ethics in the New Administration

President Trump has been in office for two weeks and has already effectuated immense changes in the structure of the federal government. In the coming weeks and months, there will be many more. Commentary so far, both positive and negative, has focused on the political and administrative aspects of these changes and proposed changes. There has also been much discussion in the media about the changes we will see so far as constitutional law and policies. On the other hand, there has been very little discussion in the press about what impacts these new changes will have on the practice of law. But we can be certain that all the legal changes that are taking place will have both direct and indirect effects on law practice. And, with these changes, there will also come ethical challenges for lawyers. This month, we are going to explore a few of these changes and how we, as a profession, can deal with them.

1. Increased Litigation

Many of the new administration’s actions to modify or eliminate existing law and policies will be controversial. Many will give rise to new legal challenges, which will impact on both national issues and individual concerns. One of the first things that the new administration has done is attempt to eliminate “birthright citizenship,” a right embedded in the Fourteenth Amendment. Many lawyers, experts in constitutional law, will fight these changes, and they may or may not survive. But at the level of the daily life of ordinary individuals, these changes cause anxiety and fear among millions. Lawyers who are not constitutional experts may well find that they have clients who want their advice on what risks they face if birthright citizenship is eliminated. If they are to give such advice, lawyers are required pursuant to Rule of Professional Conduct 1.1 to do so competently. How will the average practicing lawyer achieve competence on complex questions they have not handled before? Comment 2 to Rule 1.1 states:

. . .

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NEW AUTHORITY: Nassau County, New York Bar Opinion 2015-2: The Ethics of Modifying Preprinted Real Estate Contracts

We do not usually feature Nassau County, New York Bar Association ethics opinions. It is not because they are uninteresting, but only because they are a long way from Kansas and Missouri. However, the Nassau County Bar is a large one, and many of the ethics issues that arise there also arise in jurisdictions closer to us.

In this column we want to highlight an older opinion, from 2015, which is still relevant. In Opinion 2015-2, the Nassau County Committee on Professional Ethics considered whether a lawyer could secretly alter a preprinted form. The question presented was:

Whether there is an ethical prohibition to change a preprinted form of a real estate contract and send it to another attorney without drawing one’s attention to it?

The use of preprinted—and, most recently, digitally pre-drafted—forms is common in many law practices. It saves time and expenses. I suspect that many lawyers think it is ethical not only to fill in the blank spaces, but also to make alterations to the preprinted language.

The problem is, if a lawyer makes alterations that are neither obvious from the type and format of the document nor disclosed, then the lawyer doing so risks being accused of misrepresentation or lying. This is especially true if the form carries a heading indicating that it is a standard form. This clearly was a concern to the Committee in Nassau County:

The Inquirer is a real estate practitioner who uses form documents (e.g., contract of sale) along with documents custom to each transaction. Under such circumstances, attorneys have a duty to act diligently on behalf of their clients, and to read all contractual provisions. This affirmative duty on the party receiving “form” documents to be diligent in reviewing documents received does not, however, mean that the transmitting attorney may insert language into “form” documents surreptitiously.

Long gone are the days of type setting and language set in proverbial stone. Rather, the nature and length of such “form” documents, and the technological sophistication of computer software to render changes to “standard documents” nearly indiscernible—often favorable to one party over the other—makes such alterations rather rudimentary. Hence, it would be nigh impossible to discern the change in language unless one were to review the document at issue, word-for-word, and compare it to the “standard” “form” document so often utilized by such practitioners.

Accordingly, any such change (and the absence of notice of such change) in some form would open the door for some unscrupulous practitioners to gain an unfair advantage by burying a material change in prolific boilerplate language. This would, in the Committee’s opinion, open the door to a “war of the forms” wherein each practitioner would race to insert more and more material, yet lesser noticeable alterations into so-called boilerplate “forms.”

The Opinion notes that this kind of guerilla, “gotcha” legal practice runs afoul of attorneys’ fundamental duties, pursuant to Rule of Professional Conduct 8.4(c), which prohibits attorneys from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” The consequences for the profession, as well as for our clients, would be rather severe—rewarding one’s ability to furtively insert language into contracts, eroding the concepts of equity and “meeting of the minds,” and rewarding stealthy boilerplate landmines.

Every lawyer using pre-drafted forms should consider this advice from New York.


ETHICS & MALPRACTICE RESEARCH TIP: New Articles from the Current Index to Legal Periodicals

1. Julius A. Hammond, Note, Attorneys and Their Obligation to Challenge Unethical Laws, 48 J. Legal Prof. 111 (2023).

This is a fascinating article well worth reading.

2. Alex Sandlin, Note, Private Advising, Public Consequences: The Role of Private Attorneys Advising Public Officials, 48 J. Legal Prof. 127 (2023).

In these days of extreme partisanship, this is a most timely discussion.

3. David A. Grenardo, Civility Rules: Debunking the Major Myths Surrounding Mandatory Civility for Lawyers and Five Mandatory Civility Rules That Will Work, 37 Geo. J. Legal Ethics 167 (2024).

Can we as a profession be civil? Should civility rules be mandatory and carry sanctions?


A BLAST FROM THE PAST: The Meaning of Our Constitution

The work of 55 men at Philadelphia in 1787 marked the beginning of the end of the concept of the divine right of kings. In place of the absolutism of monarchy, the freedoms flowing from this document created a land of opportunities. Ever since then discouraged and oppressed people from every part of the world have made a beaten path to our shores. This is the meaning of our Constitution.

—Warren E. Burger, Foreword to The Constitution of the United States (Commission on the Bicentennial of The United States Constitution 1986)

READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 6, No. 1


About Joseph, Hollander & Craft LLC

Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 26 attorneys covers a lot of ground, both geographically and professionally.

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.

When your business, freedom, property, or career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless — Ready for Anything, come what may. At JHC, we pride ourselves on offering outstanding legal counsel and representation with the personal attention and professionalism our clients deserve. Learn more about our attorneys and their areas of practice, and locate a JHC office near you.

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