How Does Resiliency Relate to Ethics? Anne McDonald, Executive Director Kansas Lawyers Assistance Program

Return to Green 2016 Friday, April 22, 2016 | 9:30 am - 4:00 pm Stinson Leonard Street LLP Lecture Hall | 104 Green Hall

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RETURN TO GREEN HALL

RESILIENCY AND ETHICS

A CLE PRESENTATION BY ANNE MCDONALDEXECUTIVE DIRECTORKANSAS LAWYERS ASSISTANCE

PROGRAMAPRIL 22, 2016

How does Resiliency Relate to Ethics?

Resiliency is a skill that helps a person bend and bounce back rather than break when difficulties are encountered. And difficulties will be encountered in the practice of law. Failure to deal with them can result in ethical violations.

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LIFE STORIES

Some celebrities with life challenges who demonstrated resiliency:◦ Liam Neeson◦ Charlize Theron◦ George McGovern◦ Can you think of someone else?

DEFINITION

Resilience: the ability to become strong, healthy, or

successful again after something bad happens the ability of something to return to its

original shape after it has been pulled, stretched, pressed, bent, etc.

an ability to recover from or adjust easily to misfortune or change

-Merriam Webster on line

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LET’S LOOK AT SOME RULES Rule 202

Rules Relating to Discipline of Attorneys

Grounds for Discipline

The license to practice law in this state is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of that privilege to conduct himself or herself at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege of practicing law. . . .

Rule 207

The members of the bar or any state or local bar association shall assist the Disciplinary Administrator in investigations and such other matters as may be requested of them.

It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.

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Rule 206

LAWYERS ASSISTANCE PROGRAM Purpose . . .

(1) To protect citizens from potential harm that may be caused by lawyers in need of assistance;

(2) To provide assistance to lawyers in need; and

(3) To educate the bench and bar about the causes of and services available for lawyers needing assistance.

AND YET MORE RULES

1.1Competence: A lawyer shall provide competent representation to a client.

1.3Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.

1.4 (a) A lawyer shall keep a client reasonable informed about the status of a matter and promptly comply with reasonable requests for information.

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FINALLY, 8.4 Maintaining the Integrity of the Profession: Misconduct

It is professional misconduct for a lawyer to:

(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;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

More 8.4 (d) engage in conduct that is prejudicial to the

administration of justice;

(e) state or imply an ability to influence improperly a government agency or official;

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or

(g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.

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CASE STUDIES

No. 110111Original proceeding in discipline. Opinion filed February 7, 2014. Indefinite suspension.

We . . . conclude Mintz violated two rules— KRPC 8.4(c) (2013 Kan. Ct. R. Annot. 655) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and KRPC 8.4(d) (conduct that is prejudicial to the administration of justice). Having found violations of the KRPC, we next consider the discipline warranted by the violations. In doing so, we reject the recommendation of the Disciplinary Administrator that Mintz should be disbarred and conclude that indefinite suspension is appropriate.

Pertinent facts

He drank extensively with girlfriend over a two day period, just one week after she had been released from treatment for alcoholism.

He found girlfriend dead but did not call authorities right away.

He deleted text messages and moved her car.

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MORE

He then did call the police but gave them false information initially.

He did correct that the following day but girlfriend’s family filed ethical complaint.

Court also refers to two other recent Kansas cases: In re Harrington and In re Frahm, which involved alcohol and law enforcement but were distinguishable

WHAT THE COURT SAID

“Finally, Harrington and Frahm illustrate that discipline can be appropriate even if the unethical acts are unrelated to the representation of a client”.

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“Mintz argues he was suffering from an "emotional tragedy" which affected his state of mind. While we do not question that Mintz was very distressed, it cannot be ignored that he reacted in a way that required calculation. Over a period of several hours, he took several deliberate, deceptive steps, all of which were aimed at an attempt to hide his associations with J.A.'s drinking in the hours before her death”.

What happened later Former Overland Park lawyer must pay family after

friend’s death A former Overland Park lawyer who failed to tell police

about his role in a friend’s unexpected death must pay the woman’s mother nearly $300,000, a Clay County judge has ordered.

Robert A. Mintz allegedly left a heavily intoxicated Jennifer L. Arnett alone in her Kansas City apartment before she fell down a flight of stairs and died from a broken neck, according to a wrongful death lawsuit and other court documents.

Read more here: http://www.kansascity.com/news/local/crime/article3923486.html#storylink=cpy

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Another case: No. 109512

Original proceeding in discipline. Opinion filed October 18, 2013. Twelve-month suspension, stayed after 6 months, with 24 months' probation.

Furthermore, the evidence before the hearing panel establishes the charged misconduct in violation of KRPC 1.3 (2012 Kan. Ct. R. Annot. 454) (diligence); 1.16 (2012 Kan. Ct. R. Annot. 558) (termination of representation);

109512

3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward tribunal); 8.1(b) (2012 Kan. Ct. R. Annot. 634) (failure to respond to lawful demand for information from disciplinary authority);

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Continued…

8.4(c) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 207(b) (2012 Kan. Ct. R. Annot. 329) (failure to cooperate in disciplinary investigation)

Pertinent facts First, the Respondent failed to diligently do what was

necessary to complete her assignments as administrator of Tyson Langdon's estate and guardian ad litem for Noralee Langdon. Second, the Respondent was reckless in her statement to the court that she had paid Mr. Langdon. She either knew she had not paid Mr. Langdon and said that she did or she did not know whether she paid Mr. Langdon and said that she did.

Either way, the Respondent did not properly provide truthful, accurate, and relevant information to the court. And third, the Respondent failed to comply with court orders.

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What the court said

Mitigating Circumstances: Personal or Emotional Problems if Such

Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from depression. The Respondent stated that her depression contributed to the misconduct.

CHANGING THE OUTCOME

What might have made a difference?

Some form of intervention? By whom?◦ - Partner, judge, colleague, family, other

Self realization and reaching out for help?◦ - from family, clergy, therapist, KALAP, other

If it were you, what would you want to see happen?

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REAL LIFE SKILLS

You too can become resilient –

1. Redirect your thoughts2. Practice self care3. Identify and stay true to your core values

REAL LIFE APPLICATION

Twelve things you can do to improve your resilience skills:

EXPRESS GRATITUDE CULTIVATE OPTIMISM AVOID OVERTHINKING OR SOCIAL

COMPARISONS PRACTICE ACTS OF KINDNESS NURTURE SOCIAL RELATIONSHIPS

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REAL LIFE APPLICATION

DEVELOP COPING STRATEGIES LEARN TO FORGIVE INCREASE “FLOW” EXPERIENCES SAVOR LIFE’S JOYS COMMIT TO YOUR GOALS PRACTICE RELIGION OR

SPIRITUALITY TAKE CARE OF YOUR BODY

SCIENCE SUPPORTS THESE PRACTICAL APPROACHES:

•Improving your attitude (optimists have a 50% less chance of heart disease or stroke)•Work, but do less – find the right balance•Reduce your collection of material things and increase your experiences•Make friends

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•Help other people•Laugh more•Enjoy ordinary experiences, put less focus on extraordinary•Choose to do it (Change only happens when we want it real bad)

What works for YOU?

Which application above are you already doing?

Which one are you not doing that would be pretty easy to implement?

How would you begin adding that skill to your repertoire?

Which application seems the most daunting to implement?

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KANSAS LAWYERS ASSISTANCE PROGRAM

515 So. Kansas AvenueSuite 202Topeka, Kansas 66603785-368-8275www.kalap.comkalap@kscourts.comToll free: 888-342-9080

LIFE IS A DANCE TO THE MUSIC WITHIN US

KANSAS RULES

1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

1.3 Client-Lawyer Relationship: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 202 Rules Relating to Discipline of Attorneys

Grounds for Discipline The license to practice law in this state is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of that privilege to conduct himself or herself at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege of practicing law. Acts or omissions by an attorney, individually or in concert with any other person or persons, which violate the attorney's oath of office or the disciplinary rules of the Supreme Court shall constitute misconduct and shall be grounds for discipline, whether or not the acts or omissions occurred in the course of an attorney-client relationship. A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment. A diversion agreement, for the purposes of any disciplinary proceeding, shall be deemed a conviction of the crimes originally charged.

All other civil judgments shall be prima facie evidence of the findings made therein and shall raise a presumption as to their validity. The burden shall be on the respondent to disprove the findings made in the civil judgment. A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.

Rule 206 Rules Relating to Discipline of Attorneys Lawyers Assistance Program (a) KALAP Purpose. The Kansas Lawyers Assistance Program (KALAP) is established to provide immediate and continuing assistance to any lawyer needing help with issues, including physical or mental disabilities that result from disease, addiction, disorder, trauma, or age and who may be experiencing difficulties performing the lawyer’s professional duties. KALAP will have the following purposes: (1) to protect citizens from potential harm that may be caused by lawyers in need of assistance; (2) to provide assistance to lawyers in need; and (3) to educate the bench and bar about the causes of and services available for lawyers needing assistance. . . .

(k) Confidentiality. (1) All records and information maintained by KALAP, its Board, employees, agents, designees, volunteers, or reporting parties is confidential, privileged, and not subject to discovery or subpoena. All communication between a participant and the aforementioned individuals is privileged against disclosure to the same extent and subject to the same conditions as confidential communications between attorney and client. The Executive Director may compile and disclose statistical information, devoid of all identifying data. (2) The Executive Director, Board, employees, agents, designees, volunteers, or reporting parties are relieved from the provisions of Rule 8.3 of the Kansas Rules of Professional Conduct and Supreme Court Rule 207 as to work done and information

obtained in carrying out their duties and responsibilities under this rule. (3) Any person violating subsection (k)(1) may be subject to punishment for contempt of the Supreme Court. (4) The KALAP office will be in a location where privacy and confidentiality requirements of this rule can be maintained. (l) Immunity. The duties and responsibilities of the Executive Director, members of the Board, employees, agents, designees, volunteers, or reporting parties are owed to the Supreme Court and the public in general, not to any individual lawyer or another person. Nothing in this rule is to be construed as creating a civil cause of action against the aforementioned individuals, and they are immune from liability for any omission or conduct in the course of carrying out their official duties and responsibilities or failing to fulfill their duties and responsibilities under this rule.

Rule 202 Rules Relating to Discipline of Attorneys Grounds for Discipline The license to practice law in this state is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of that privilege to conduct himself or herself at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege of practicing law. Acts or omissions by an attorney, individually or in concert with any other person or persons, which violate the attorney's oath of office or the disciplinary rules of the Supreme Court shall constitute misconduct and shall be grounds for discipline, whether or not the acts or omissions occurred in the course of an attorney-client relationship. A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment. A diversion agreement, for the purposes of any disciplinary proceeding, shall be deemed a conviction of the crimes originally charged. All other civil judgments shall be prima facie evidence of the findings made therein and shall raise a presumption as to their validity. The burden shall be on the respondent to disprove the findings made in the civil judgment. A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state. [History: Am. effective January 8, 1979; Am. effective March 1, 1988.]

Rule 207 Rules Relating to Discipline of Attorneys Duties of the Bar and Judiciary (a) The members of the bar or any state or local bar association shall assist the Disciplinary Administrator in investigations and such other matters as may be requested of them. (b) It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.

(c) It shall be the further duty of each member of the bar of this state to report to the Disciplinary Administrator any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules. (d) It shall be the duty of each judge of this state to report to the Disciplinary Administrator any act or omission on the part of an attorney appearing before the court, which, in the opinion of the judge, may constitute misconduct under these rules. Upon receipt of such report, it shall be processed as hereinafter provided for complaints. Nothing herein shall be construed in any manner as limiting the powers of such judge in contempt or other proceedings. [History: Effective January 8, 1979, prior Rules 207 and 208 became Rules 206 and 207, respectively; effective March 1, 1988, Rules 206 and 207 were amended and combined as current Rule 207.]

Rule 226 Kansas Rules of Professional Conduct 8.4 Maintaining the Integrity of the Profession: Misconduct It is professional misconduct for a lawyer to: (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; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or (g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.