legal ethics 2021: hot topics & current threats
TRANSCRIPT
Legal Ethics 2021: Hot Topics & Current Threats
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Legal Ethics 2021: Hot Topics & Current Threats
Author
Molly BrazilDummit Fradin, Attorneys at Law
Winston Salem, NC
E. Clarke DummitDummit Fradin, Attorneys at Law
Winston Salem, NC
Presenters
MOLLY BRAZIL is a family law attorney with Dummit Fradin, Attorneys at Law inGreensboro, North Carolina. She always knew she wanted to work in a field where shecould help people, specifically children and families. As a family law attorney, Ms.Brazil is happy to guide families through issues such as divorce, child custody, childsupport, and more. She was born and raised in Asheville, North Carolina. Unable to partfrom the North Carolina mountains, Ms. Brazil went on to pursue her bachelor's degreein developmental psychology from Appalachian State University. She graduated withLatin Honors and a minor in child development. Her desire to work alongside familiesand children opened Ms. Brazil's eyes to the field of family law. She continued hereducation and obtained her J.D. degree from Elon School of Law. "Family law was thesubject I was most passionate about all through law school," she recalls. And,ultimately, Ms. Brazil received recognition for her hard work and dedication. Atgraduation, she was the recipient of the North Carolina American Academy ofMatrimonial Lawyers ["AAML"] Outstanding Family Law Student Award whichrecognizes one student for leadership and excellence in the advancement of family law.While in law school, Ms. Brazil completed her residency program with Dummit Fradinunder the mentorship of attorney Jessica Culver. She developed a connection to herclients and a deeper understanding and love for family law. Now, as an attorney withDummit Fradin, Ms. Brazil fully intends to make each client feel taken care of.
E. CLARKE DUMMIT is the founder of Dummit Fradin, Attorneys at Law, inWinston Salem, North Carolina, where he concentrates his practice in the areas ofcriminal law, with a focus on driving while impaired and drug cases. His firm alsolitigates personal injury, medical malpractice, and workers' compensation. The firmregularly affiliates with other firms to litigate cases in both criminal and civil trials. Mr.Dummit is the author of The North Carolina DWI Manual and is the founder of the NorthCarolina DWI Round Table. He is a frequent lecturer on various issues relating tocriminal law, including driving while impaired. Mr. Dummit is admitted to practice inNorth Carolina and Georgia, as well as before federal courts. He has been a member ofthe Forsyth County and North Carolina bar associations, Academy of Trial Lawyers,and the National Association of Criminal Defense Lawyers. Mr. Dummit earned hisB.A. degree from Vanderbilt University and his J.D. degree from Wake ForestUniversity.
Table Of Contents
Maintaining Technology Competence
What’s New in 2021?
You have a duty to maintain competence under “Rule 1.1 Competence”
• To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
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Tech is only as powerful as the senior management allows it to be.• Many large firms have excellent tech people who can cover the Firm’s
needs and teach the lawyers what they must know, but most firm do not.
• Even if your Firm has invested heavily in technology, the older founders must lead firms into the new computer age.
• The Founders must make certain that each Firm culture is one which is open to and embraces new processes as well as innovation.
Paper “Fortran Statement”
• Personally, I took a computer class when I was a freshman at Vanderbilt University in 1979.
• I learned to punch holes in a paper “Fortran Statement” and carry it to the computer building and feed it into the wall.
• The trick is to stay curious and stay current.
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The Basics: 2021 tech you should at least have some working understanding:
1. case management software,
2. document management or word processing software,
3. billing software,
4. email,
5. a PDF system with redacting capabilities.
Speech Recognition:
• It is not your grandfather’s (or my) old Dragon Naturally Speaking from the 1980s which required “training.”
• There are multiple free services which can transcribe with amazing accuracy for free.
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You do not want to be that Guy!
Zoom and all its cohorts:
Zoom and all its cohorts:
• Or worse please do not have a Jeffery Toobin moment.
• Before you start any type of technology first test it out and be certain that you know the basics of using it.
• AND the basics of disabling it.
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Test it out before the meeting starts!
• Even if you just say “test, one, two, three, test.”
• Make certain that you know how to do the basics.
• If not… then ask someone!
Test it with someone.
• It is easy enough in this day and age to test out most electronics with your paralegal or some member of you staff.
• If you are using some proprietary software such as Federal Court, then contact the help desk.
• Always test your technology before you depend upon it.
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Big Data Analytics
• You may not believe that it will impact your firm…
• We also did not believe the Palm Pilot would not be the hottest and best tech.
• We could not have conceived 20 years ago that we would be carrying smart phone in our pockets with more power than the computers we were using back then.
• Not all attorneys need to be competent in each of these new technologies, but you owe it to your firm to try to at least be aware of the new technology which could affect you clients and your firm.
• Let's look at some basics in new trends:
Internet of Behaviors (IoB)
You should be aware of is the collection and use of data whichdrive behaviors. The Internet of Behaviors (IoB) can gather,combine, and process data from many sources including:
Social media
Public domain
Citizen data processed by public‐sector
Commercial customer data
Government agencies
Location tracking.
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FAANG
These data are the crumbs that we all leave behind every day which are being scooped up and sold by FAANG. Please tell me that you know what FAANGis: Facebook, Amazon, Apple, Netflix, and Google (now Alphabet).
Artificial Intelligence• Robust Artificial Intelligence implementation is not far out of theeveryday practice of law. It is already commonplace to have largedocuments summarized by AI. In the most current version of Office365 every time you share a document AI will summarize it for theperson with whom you share it.• While most true AI software is currently limited to larger litigationcases, the technology is rapidly evolving. Soon it will be reliable andscalable into smaller practices.(Soon is probably in the next 3 years, so it may come before you takeanother 3-hour ethics block.)
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Everything-as-a-Service (XaaS)“The natural extension of SaaS”
You are familiar with SaaS or Software‐as‐a‐Service.
We have all seen our computer programs go from an item we purchase,to a service we must pay monthly to use. This trend has increased suchthat everything is now a service.
Everything‐as‐a‐Service (XaaS) covers the extensive variety of services and applications emerging for users to access on‐demand over the Internet.
XaaS has expanded to incorporate many services such as:
IT‐as‐a‐Service (which can now be handled remotely;
Database‐as‐a‐Service (for example Amazon Cloud Computing)
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Function-as-a-Service (FaaS)
provides a platform allowing customers to develop, run, and manage application functionalities without the complexity of building and maintaining the infrastructure typically associated with developing and launching an app (again Amazon Cloud Computing)
Infrastructure-as-a-Service (IaaS)
goes beyond just some space you can rent and offers entire serves.
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Security-as-a-Service, the newer (SecaaS). Is just what it says it is. Part of the reason that there are no longer stand-alone-one-time purchases of security software is because they evolve and change so fast that you need a service which can constantly change and push out updates.
Cyber Security
Cyberattacks and hacks continue to grow – not just in number, but in damage. This is not new, butyou should be aware of the two major new trends in security:
Virtual Dispersive Network (VDN)This new technology transmits a signal in ‘quantum packets’ which are short bursts which can’t becovertly read without disrupting their content. Then if anyone intercepts the data the receiver will bedisrupted, and the interceptor will have noise in it.
Blockchain Cybersecurity:Just like Bitcoin, this security approach centralizes a long chain of security distributing enforcementwithin the file. Just as bitcoin each user can be secure that it is authentic.
Hardware Authentication: iOS 14, Apple adds MAC randomization for all Wi-Fi connections; there is new technology which will add hardware randomization to theprocesser level.
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DevSecOps
DevSecOps is short for ‘Development, Security and Operations.’
Since we are constantly changing and developing our processes andprocedures it is often hard for security to keep up and protect thechanges we are making.
This new tech field’s goal is to allow business to be accessed, delivered,and enabled anywhere safely.
Robotic Process Automation
A modern mantra of private enterprise: ‘Anything that can be automated,should be automated.’
The goal is to allow very simple bots to benefit from the abilities ofArtificial Intelligence, Big Data, Machine Learning, so that they can learnand improve over time.
Over time very simple bots evolve from the very basic ‘If-this-then-that’ rule.
With The Internet of things, IoT small devices can rapidly learn andimprove abilities.
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New Opinion on Confidentiality
Formal Opinion 496 January 13, 2021“Responding to Online Criticism”
“Lawyers are regularly targets of online criticism and negative reviews.
Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another.”
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(a)Even if the post were wrong, posting any confidential information would exceed any disclosure permitted under the Rule
(b)A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense.
(c)You may request that the website or search engine host remove the information.
(d)Lawyers may post an invitation to contact the lawyer privately to resolve the matter.
(e)Another permissible online response would be to indicate that professional considerations preclude a response.
Top Website and Advertising Pitfalls
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Ethical Problems
• Failure to follow state ethics requirements for notice of theLaw Office responsible to the website.
• These vary by State but generally include that every site must disclose thelicensed attorney who is advertising.
• Failure to maintain DBA with the State Bar.• Many Firm use names which are not the traditional names of
Partners.
Business Problems
• Advertising that is too broad and thus ineffective or tooexpensive.• Website which is not maintained can actually detract.
• How many of you have clicked on a lawyers Blog site and seen the last posted dated from 2015?
• Social media bits and spurts.• It only works if it is consistent
• Google is going to be dinging web sites which do not stay up todate with new content.
• There are soon going to be Red, Green, and Yellow flags next to websites which do not load fastenough.
• In 2022 it is projected that you will get dinged if you do not havevideo content on each page.
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Social Media Do’s and Don’ts
Each State has its own specific State Ethics rules. You need to befamiliar with yours. But as a general rule be conscious of the followingfour areas when it comes to web marketing:
Solicitation:
There can be a fine line between asking a prospective client to contact you throughyour web site and advising them to hire you based upon specific facts.
Make certain that your web site does not solicit business in violation of your localstate rules.
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Confidentiality:
You may post too many details about a case your won, or it could beresponding to a bad review.
This is the hottest area of the intersection of technology and ethics.
We that horrible client begins to post untruthful horrible things…Becareful how you reply.
Advertising:
While advertising on the internet is more complex than traditionalmedia because of all the possible methods of dissemination, as ageneral rule you should follow the same standards as traditional media.
Statements must be truthful.
Be careful to follow targeted solicitation rules. (if you are doing anytargeted solicitation)
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Discovery:
We all want to be armature detectives and gain as much information as we can byFacebook stalking an opponent.
If the opposing party is going to give you low hanging fruit, you should take it.
But the rules of what is ethically varies greatly: New York allows an attorney to“friend” an opposing party for the purposes of discovery; however, Pennsylvaniadoes not.
Staying Ethical as a Remote Lawyer
Zoom, which grew from a startup in 2011 to going public in 2019, became a household name during thepandemic.
Other existing large corporate tools such as:
Cisco's WebEx,
Microsoft's Teams,
Google Hangouts,
GoToMeeting, and
Verizon's BlueJeans
are also providing state-of-the-art videoconferencing systems, facilitating remote work across the globe.
Make certain you are using appropriate safeguards or security.
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Conflicts of Interest Hot Topics Molly Brazil
Family Law Attorney
Concurrent Conflicts with Current Clients
MRPC 1.7
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MRPC rules 1.7 and 1.8.
Rule 1.7. protects against concurrent conflict of interests.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if therepresentation involves a concurrent conflict of interest. A concurrent conflict of interestexists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will bematerially limited by the lawyer's responsibilities to another client, a former client or athird person or by a personal interest of the lawyer.
1.7 (b)
Rule 1.7. also provides actions a lawyer can take to absolve a concurrent conflict of interest.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
1. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
2. The representation is not prohibited by law3. The representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
4. Each affected client gives informed consent, confirmed in writing
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Comment 2 of Rule 1.7 of the MRPC
MRPC, provides a checklist to help work through a potential conflict of interest problem.
Resolution of a conflict-of-interest problem under this Rule requires the lawyer to:clearly identify the client or clients;
1. clearly identify the client or clients;• Who is the client
2. determine whether a conflict of interest exists
3. decide whether the representation may be undertaken despite the existence of a conflict, i.e.,whether the conflict is consent-able; and
4. if so, consult with the clients affected and obtain their informed consent, confirmed inwriting.
Informed Consent in WritingClients must be aware of the potential way the conflict of interest could impact their own interests.The specific disclosure that is necessary to obtain informed consent differs, and in certain cases, it isimpossible for the lawyer to make the requisite disclosures to the client in order to obtain informedconsent. According to MRPC Rule 1.0 (e) informed consent requires a lawyer to communicateadequate information and explanation about the material risks of and reasonably availablealternatives to the proposed course of conduct.
Informed consent requires that each affected client be aware of the relevant circumstances and of thematerial and reasonably foreseeable ways that the conflict could have adverse effects on the interestsof that client. (Comment 18, MRPC Rule 1.7; See Rule 1.0(e) (informed consent)).
The information required depends on the nature of the conflict and the nature of the risks involved.When representation of multiple clients in a single matter is undertaken, the information must includethe implications of the common representation, including possible effects on loyalty, confidentialityand the attorney-client privilege and the advantages and risks involved. (Comment 18, MRPC Rule1.7; See Comments [30] and [31] (effect of common representation on confidentiality).
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CONSENTABLE CONFLICTS OF INTEREST
Concurrent Conflicts of Interest
• A concurrent conflict of interest exists if:• (1) the representation of one client will be directly adverse to another
client; or
• (2) there is a significant risk that the representation of one or moreclients will be materially limited by the lawyer's responsibilities toanother client, a former client or a third person or by a personal interestof the lawyer.
• A concurrent conflict of interest is waivable if: informed consent in writing
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Types of Conflicts:
Directly adverse conflict of interest with current client
Comment 6 of MRPC rule 1.7 forbids lawyers from undertakingrepresentation of new clients with directly adverse interests to that of thecurrent client. This rule holds true even if the matters are whollyunrelated.
Solution: Obtain informed consent from current client and the potential new client
What is considered "directly adverse"?
• A lawyer may not undertake representation of a potential future client if the representation would be directly adverse to a current client's interests
• A lawyer acts directly adverse to a current client's interests by acting as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.
• Why?• The original client, who was adversely affected is likely to feel betrayed which will
likely damage the client‐lawyer relationship. This damage to the client‐lawyer relationship may impair the lawyer's ability to effectively represent the client.
• Likewise, the new client may feel fearful that the lawyer will pursue their case less effectively out of consideration to the other client.
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What's considered to be a "material limitation?"
• Comment 8 of MRPC rule 1.7 states that there can still be a conflict of interest without adirectly adverse conflict.
• A conflict of interest exists if there is a significant risk that a lawyer's ability to consider,recommend or carry out an appropriate course of action for the client will be materiallylimited as a result of the lawyer's other responsibilities or interests.
• Keep in mind: the mere possibility of subsequent harm doesn't itself requiredisclosure/consent. There are 2 critical questions to ask when determining whether a lawyerwill be materially limited in her representation:
1. What is the likelihood that a difference in interests will eventuate? and2. If difference in interest does come up, will those differences materially interfere with the lawyer's
independent professional judgment in considering alternatives or rule out courses of action thatreasonably should be pursued
NONCONSENTABLE CONFLICTS OF INTEREST
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• The following conflicts are nonconsentable, meaning that a lawyer cannot ask a client to provide consent for representation
1. Lawyer unable to provide competent and diligent representation (rule 1.3)2. Representation prohibited by law3. Client aligned directly against each other in same litigation before a tribunal
#1: Inability to provide competent and diligent representation.
• 1.1: "competent representation requires the legal knowledge, skill, thoroughness, and preparationreasonably necessary for the representation."
• 1.3: "diligent representation requires that a lawyer act with commitment and dedication to theinterests of the client and with zeal and advocacy upon the client's behalf."
• If lawyer is not confident in their ability to represent a client competently and diligently, then theclient may not consent to the representation.
• Consentability is typically determined by considering whether the interests of the clients will beadequately protected if the clients are permitted to give their informed consent to representationburdened by a conflict of interest.
• Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannotreasonably conclude that the lawyer will be able to provide competent and diligent representation.(Comment 15, MRPC Rule 1.7)
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#2: Prohibited by law.
• If representation is prohibited by law, a client may not provide consentfor the representation.
• In some states substantive law provides that the same lawyer may notrepresent more than one defendant in a capital case, even with theconsent of the clients, and under federal criminal statutes certainrepresentations by a former government lawyer are prohibited, despitethe informed consent of the former client. (Comment 16, MRPC 1.7).
#3. Clients with directly adverse interests in same litigation.
Conflicts that are nonconsentable because of the institutional interestin vigorous development of each client's position when the clients arealigned directly against each other in the same litigation or otherproceeding before a tribunal.
Whether clients are aligned directly against each other within themeaning of this paragraph requires examination of the context of theproceeding. (Comment 17, MRPC 1.7).
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Directly Adverse COI's – Additional Points
• Simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation – does not require consent (no COI)
• Transactional matters: a lawyer is asked to represent a seller of a business in negotiations with a buyer represented by the lawyer in a different transaction (unrelated matter) ‐ lawyer cannot undertake w/out informed consent
Practice Time: Let's work through some examples
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Example
• Lonnie Lawyer is asked to represent several individuals seeking to form a joint venture. Lonnie Lawyer knows that she will likely be materially limited in her ability to recommend or advocate all possible positions that each client might take because Lonnie Lawyer does have duty of loyalty to the others.
• Is there a potential conflict of interest?
Yes. A concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
• Is this a consentable conflict of interest?
Yes. This is a consentable conflict and Lonnie Lawyer can represent all individuals so long as each provides written informed consent.
Example
• Lucy Lawyer is retained to represent Paul Plaintiff in a criminal assault case against Dan Defendant. Lucy Lawyer subsequently meets with Dan Defendant and agrees to defend him against Paul Plaintiff's assault charges.
• Is there a conflict?
Yes. Lucy Lawyer already represents Paul Plaintiff in this same action
• Is this a consentable conflict of interest?
No. This representation is prohibited because Paul Plaintiff and Dan Defendant's interests are directly aligned against one another, and Lucy Lawyer would be representing both in the same proceeding before a tribunal. Therefore, Lucy Lawyer cannot represent Dan Defendant, even if both parties consent.
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Example• Larry Lawyer represents Doug Defendant and Diane Defendant in a capital murder case. Both
Doug and Diane have consented to the representation and waived any potential conflict. The parties reside in State A which provides the following: "No lawyer shall represent more than one defendant in a capital case, even with the consent of the clients."
• Is there a conflict?
Yes. Larry Lawyer will likely face a conflict in his ability to separately defend Doug and Diane. If, for example, Diane's trial theory was that Doug was the mastermind and forced her to serve as an accomplice, then Larry Lawyer couldn't present this theory in defense of Diane and then turn around and zealously advocate that Doug was not, in fact, the mastermind who forced Diane to participate.
• Is this a consentable conflict of interest?
No. Even though the client's provided consent, this is a nonconsentable conflict of interest prohibited by applicable law. State A prohibits the same lawyer from representing 2 defendants in a capital case even with consent.
Example• Doug Defendant and Diane Defendant are both charged with armed robbery. Doug and Diane's cases will be
heard separately.
• Larry Lawyer has been retained to represent Doug. Larry Lawyer's trial theory for Doug is that Diane Defendant was the mastermind and forced Doug Defendant to participate as an accomplice.
• Diane Defendant then attempts to retain Larry Lawyer to defend her in her case claiming Doug Defendant forced her to act as an accomplice to the robbery.
• Both Doug and Diane have provided written informed consent to Larry's representation.
• Is there a conflict of interest?
Yes. Larry Lawyer will face a conflict in his ability to separately defend Doug and Diane. For example, Doug's trial theory is that Diane was the mastermind and forced him to serve as an accomplice. Larry Lawyer couldn't present this theory in defense of Doug and then turn around and zealously advocate on behalf of Diane and argue, instead that Doug was, in fact, the mastermind who forced Diane to participate.
• Is this a consentable conflict?
No. Because Larry Lawyer cannot reasonably expect to zealously advocate for Diane Defendant after presenting Doug's trial theory, Larry cannot provide competent and diligent representation to Diane and thus representation is prohibited even with consent.
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Example• Lyle Lawyer represents Wendy Wife against Pricilla Paramour in an alienation of affections
lawsuit.
• Pricilla Paramour and Wendy Wife get into a car accident a few months later. Pricilla Paramour is seeking to retain Lyle Lawyer to represent her against Wendy in the car accident. Both Wendy and Pricilla have provided written consent.
• Is there a conflict of interest?
Yes. This is a directly adverse conflict of interest. A lawyer owes a duty to a current client not to act in a way that is directly adverse to their interests. Absent consent, Lyle Lawyer can't advocate for Pricilla against his client Wendy in the car accident case, even though the 2 matters are wholly unrelated.
• Is this a consentable conflict?
Yes. Larry Lawyer can represent Pricilla in the car accident matter so long as he (1) believes he can provide competent and diligent representation to both Wendy and Pricilla; (2) the representation isn't prohibited by law; (3) Larry is not representing Wendy and Pricilla in the same proceeding before a tribunal; and (4) both Wendy and Pricilla provide informed consent in writing.
Example• Lyle Lawyer represents Wendy Wife against Pricilla Paramour in an alienation of affections lawsuit.• Pricilla Paramour and Wendy Wife get into a car accident a few months later. Pricilla Paramour is
seeking to retain Lyle Lawyer to represent her against Wendy in the car accident. Wendy has provided Lyle Lawyer with her written consent to the representation.
• Is there a conflict of interest?Yes. This is directly adverse conflict of interest. A lawyer owes a duty to a current client not to act in a way that is directly adverse to their interests. Absent consent, Lyle Lawyer can't advocate for Pricilla against his client Wendy in the car accident case, even though the 2 matters are wholly unrelated.
• Is this a consentable conflict?Yes. This is a consentable conflict and Larry Lawyer can represent Pricilla in the car accident matter so long as he (1) believes he can provide competent and diligent representation to both Wendy and Pricilla; (2) the representation isn't prohibited by law; (3) Larry is not representing Wendy and Pricilla in the same proceeding before a tribunal; and (4) both Wendy and Pricilla provide informed consent in writing.
• Can Lyle provide the representation?
Not yet. Lyle Lawyer must obtain written informed consent from BOTH Wendy and Pricilla. Here, Lyle Lawyer has only obtained Wendy's consent. Both the current client (Wendy) and the client whose representation might be materially limited (Pricilla) must provide written informed consent.
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Example• Lenny Lawyer is asked to represent Sam, the seller of a catering business in negotiations with Bill, the
potential buyer of Sam's business. Bill Buyer has retained Lenny Lawyer to represent him in an unrelated breach of contract action.
• Can Lenny Lawyer represent Sam Seller in the business negotiations even though he represents opposing party, Bill Buyer, in another unrelated matter?
• Is there a potential conflict of interest?Yes. This is directly adverse conflict of interest. A lawyer owes a duty to a current client not to act in a way that is directly adverse to their interests. A lawyer acts directly adverse to a current client's interests by acting as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. Absent consent, Lenny Lawyer can't advocate for potenital new client Sam against his current client Bill in the business negotiations, even though the 2 matters are wholly unrelated.
• Is this a consentable conflict?Yes. This is a consentable conflict and Lenny Lawyer can represent Sam Seller in the business negotiations matter so long as he (1) believes he can provide competent and diligent representation to both Bill and Sam; (2) the representation isn't prohibited by law; (3) Lenny Lawyer is not representing Bill and Sam in the same proceeding before a tribunal; and (4) both Bill and Sam provide informed consent in writing.
Example• Leslie Lawyer represents Parker Parent in his custody case. Pam Plaintiff seeks to retain Leslie Lawyer to represent her in
an unrelated wrongful termination suit against Parker Parent.
• Parker is aware of the potential conflict of interest and Leslie Lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Parker has agreed to the representation and has provided his written consent.
• Pam is aware that there could be a potential conflict of interest but is ok with moving forward and has also provided writtenconsent to the representation.
• Is there a potential conflict of interest?Yes. This is directly adverse conflict of interest. A lawyer owes a duty to a current client not to act in a way that is directly adverse to their interests. Absent written informed consent, Leslie Lawyer can't advocate for Pam against her client Parker in the wrongful termination matter, even though the 2 matters are wholly unrelated.
• Is this a consentable conflict?Yes. This is a consentable conflict. Leslie Lawyer can represent Pam Plaintiff in the wrongful termination matter against current client Parker Parent so long as she (1) believes she can provide competent and diligent representation to both Pam and Parker; (2) the representation isn't prohibited by law; (3) Leslie Lawyer is not representing Pam and Parker in the same proceeding before a tribunal; and (4) both Pam and Parker provide informed consent in writing.
• Can Leslie Lawyer provide the representation?Not yet. Even though Leslie Lawyer has obtained written consent from both Pam and Parker, Pam has not yet provided INFORMED consent. Here, Pam Plaintiff is aware only of the fact that there may be a looming conflict of interest on the horizon. To provide informed consent, Pam Plaintiff must not only be aware of a potential conflict, but she must also be provided with adequate information and an explanation about the material risks of said representation and the reasonably available alternatives to the proposed course of conduct. In other words, Pam must understand both the advantages and risks involved with the representation. While, at this time it does appear that Parker Parent has provided informed consent in writing, it does not appear that Pam Plaintiff has provided infomred consent as defined by MRPC Rule 1.0 (e).
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Example of a Conflict Waiver/Consent to RepresentationThis example was taken from the following article: John W. Allen, Conflicts of Interest – The Basics, Michigan Bar Journal, 1999.
EXHIBIT ACONFLICT WAIVER/CONSENT
Re: Waiver of Conflict and Consent to Representation.
Dear [A] and [B]:We represent both [Client A] and [Client B]. [Client A] has asked us to represent it involving [Describe Engagement].We believe that the representation of [A] and our relationship with [B] will not be adversely affected; nevertheless, the Rules of Professional Conduct
prohibit us from representing either [A] or [B] in this matter, without the knowing and voluntary waiver of the conflict by both clients, and that you be informed, and consider, the implications, advantages, and risks of doing so.
Our representation of [A] in this matter could yield advantages to both parties. We routinely handle matters of this nature and the benefit of our experience may assist both parties in resolving these issues in the most efficient way, and successfully concluding this transaction as both [A] and [B] desire. [Add other fact‐specific advantages.]
There are also risks. Because we have represented both parties, the possibility exists that protected information could be transferred during the representation. While the possibility exists, we believe the probability of this occurring to be remote and we do not anticipate theexchange of any such information. We shall admonish all lawyers and staff on this matter to avoid it. In addition, an irreconcilable actual conflict in the future could mean that we could not represent either of you in this matter. [Add other fact‐specific risks.]
Because of our conflict, both of you may wish to seek independent counsel to advise each of you regarding this waiver. If, after full review and consultation, you decide to waive the conflict and allow us to represent [A] (or [A and B]) in this matter, please sign your copy of this letter and return it to us. If you have any questions, or if we can provide any other information, please call us.
Very truly yours,[Lawyer]
After full review and consultation, the undersigned waive the conflict and consent to [Your Firm]’s representation of [Prospective Client A and Client B].
Signed: Signed:[Prospective Client A] [Client B]
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Concurrent Conflicts with Current Clients
MRPC 1.8
Business Transactions Between Lawyer and Client• (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless:• (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client
and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
• (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
• (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
• (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.
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Gifts
• (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted.
If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it
a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragraph (c).
Literary Rights
• (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs (a) and (i).
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Financial Assistance• (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except
that:
• (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;
• (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
• (3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. The lawyer:
• (i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client‐lawyer relationship after retention;
• (ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
• (iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this Rule may be provided even if the representation is eligible for fees under a fee‐shifting statute.
Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.
These dangers do not warrant a prohibition on a lawyer lending a client court costs and litigation expenses, including the expenses of medical examination and the costs of obtaining and presenting evidence, because these advances are virtually indistinguishable from contingent fees and help ensure access to the courts. Similarly, an exception allowing lawyers representing indigent clients to pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted.
Person Paying for Lawyer's Services
• (f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
• (1) the client gives informed consent;• (2) there is no interference with the lawyer's independence of professional judgment or with the client‐
lawyer relationship; and• (3) information relating to representation of a client is protected as required by Rule 1.6.
Because third‐party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client.
Sometimes, it will be sufficient for the lawyer to obtain the client's informed consent regarding the fact of the payment and the identity of the third‐party payer. If, however, the fee arrangement creates a conflict of interest for the lawyer, then the lawyer must comply with Rule 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality.
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Aggregate Settlements
• (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients' informed consent.
The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted.
Limiting Liability & Malpractice Claims
• (h) A lawyer shall not:
• (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or
• (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
• Agreements prospectively limiting a lawyer's liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation.
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Acquiring Proprietary Interest in Litigation
• (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
• (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
• (2) contract with a client for a reasonable contingent fee in a civil case.
the general rule has its basis in common law and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires.
Client‐Lawyer Sexual Relations
• (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client‐lawyer relationship commenced.
The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment.
Sexual relationships that predate the client‐lawyer relationship are not prohibited. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer's ability to represent the client will be materially limited by the relationship.
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Imputation of Prohibitions
• (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.
For example, one lawyer in a firm may not enter into a business transaction with a client of another member of the firm without complying with paragraph (a), even if the first lawyer is not personally involved in the representation of the client. The prohibition set forth in paragraph (j) is personal and is not applied to associated lawyers.
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Avoiding Complaints About Client Communication
The Goal:
It is not just enough to provide quick answers to clients’ issues.
While that may avoid a complaint, it is only the first step to providinggreat proactive and anticipatory representation.
Great Communication comes from exceeding the client’s expectations.
Exceeding expectations is not about playing catchup but beingproactive. Work to design your communication system to anticipatethe client’s needs and wants.
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What is the Client Journey?
Before we discuss the Journey, recognize how much the journey matters.
Client’s opinion of you matters (That’s why our firm does not do courtappointed work).
Most all consumers are influenced by online reviews when making apurchase.
If not online reviews, then word of mouth is still replayed based uponthe client’s journey though the office.
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Determine the life cycle of the client and how to communicate during the life cycle:This will vary greatly depending upon the type of legal matter.
Actually, map out a flow chart of stages and communication.
Make certain the client is advised about the journey and how thecommunication will be on the front end.
Incorrect Expectations are more dangerous than unmet expectations.
I am not selling you out!
In criminal law I routinely hear how last time that “Court Appointed Attorney” sat in court next to the cop and laughed and sold me out.
In fact that was just poor communication skills.
So, I tell a client in the first meeting that he will see me sit next to the cop in court and try to butter him up so I can get inside information for the client’s case.
I prepare the client that part of the journey of his case will be seeing me laughing with the officer to try to gain my client an advantage.
Then the exact same action is viewed as a strength. (This is a classic example of “accurately predicting the obvious”) discussed later.
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Don’t mistake your clients for one-size-fits-all customers.
Your clients are human so while one‐size‐fits‐all may work for thejourney, how it is communicated will need to change.
Sometimes Humor is very important, other times it will upset theclient.
Learn to read “How” the client needs to be communicated with.
‘Frequent Flyers’
I recently greeted a long‐time client in our lobby and the receptionist told me his name in front of him.
I joyfully said, “I know ‘Fred’ he is one of my ‘Frequent Flyers.’” He seemed off during our meeting but did not say anything to me.
But 30 minutes later called our office and said he was hiring a different firm since I made fun of him.
My mistake. I completely misjudged my relationship with him.
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Walk a mile in your client’s shoes
There are many key things to determine in how to approach a client (and don’t call them a‘Frequent Flyer.’ Is one of them).
After interviewing and litigating one thousandth DWIs it is easy to start taking shortcuts inthe initial interview. Possibly try to fast forward to get to the meat of the case.
But that cheats the client out of the journey. Allowing the client to walk through thecathartic emotion of the case is a critical part of the client developing trust.
For some it is the embarrassment, for others it is victimhood, and still others are angry atthe State and others are angry at themselves. Many times, they want very different thingsfrom their attorney.
Listen… Listen…. Listen!
One of the most important tasks in the Client journey is to create realistic expectations, then exceed them.
What are they hoping you can do for them as an attorney?
Is this realistic?
The only way you can walk in the client’s shoes is to Listen, Listen, Listen.
How do you steer it into a realistic realm?
By listening you can determine how to steer. Different clients will need different incentives.
Attorneys do need to sell. The client wants us to inspire confidence. But never oversell.
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Map out your client journey.
I hope that you can begin to see how important the Client’s Journeythrough your firm is. So now take some time to map out the differentjourney that you send your client on:
For every different type of law practice there will be a different clientjourney.
The client’s journey is twofold: the internal journey, and the externaljourney.
While many of the external journeys will be similar, the internal journeyis always very different.
Let's discuss the Internal and external Journeys
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The External Journey (for litigation)
This is the actual physical journey. It can be viewed in any mays andmany stages. For a typical litigation case:1. The client faces a problem;
2. the client searches for you;
3. the client comes to your office/ zoom call with you;
4. the client interacts with you;
5. the client participates in litigation preparation or mediation;
6. the client must go to court (possibly multiple times);
7. the case resolves good or bad, but it resolves.
The Internal Journey
1. The client faces a problem;
2. the problem festers in different ways;
3. the client experience: fear, or pain, or anger;
4. the client seeks help with the problem;
5. it takes time to resolve the problem through legal channels;
6. the client grows accustomed to the fear, or pain, or anger, and the intensity
subsides;
7. the client gets some resolution which is better than it could have been;
8. the client is happy with your services.
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This is a gross oversimplification but develop your client’s internal and external journey and make certain that your legal services address the client’s needs as the journey progresses.
Communicate proactively and you will ease the journey.
Accurately predict the obvious:
Once you begin to map out the patterns which clients must walkthrough in any given legal problem, you can begin to accurately predictwhat is very obvious to you, but which is still unknown andunexperienced by your client.
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By “accurately predicting the obvious” you help prepare your client forwhat is coming, and you inspire confidence in you when the thingswhich you knew were obvious actually happen as you predicted.
The DA is going to say XYZ.
The judge has gray hair, and you need to speak up.
The roll will be called at … You do not need to worry; I will check in withthe DA and have you covered.
Accurately predict the obvious:
The client will “feel” reassured in your knowledge and that will transferto a feel of being more confident in you.
The more you can accurately tell the client what is coming in theirjourney, the more they will be able to relax and trust you and relax andtrust the outcome.
Accurately predict the obvious:
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Part of this is to be very honest and prepare the client for the probableactual outcome even when this is not what the client wants.
The balance is to keep communicating that you are working to get thepreferred outcome but preparing the client ahead of time for theoutcome which is more likely.
Accurately predict the obvious:
Being proactive will save you time.
One of the biggest complaints is that a lawyer does not communicate.
If you ask the attorney, he/she will tell you that they communicated everything which “needed” to be communicated to the client, but so much of the time they do not “waist time communicating the obvious.”
To an experience attorney we know what is obvious and forget that our client is experiencing every step of the journey with fear, pain, or anger; and many times with all three.
The more you can understand the internal and external journey, and then begin to spend time educating the client and preparing them for both, the less the client will call with questions.
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Make your systems proactive!
Now, instead of you having to tell every client all the details over and over… Do it once, but then have your systems designed to trigger updates, so your clients are touched multiple times without you having to stop and focus on a specific case.
Your team can call then, you can send triggered emails, and automatic updates each time something happens on the case.
Maintain Boundaries
Reply to emails… When? At set times? Quickly? On auto at 7:00 am? But Reply!
Some say don’t spoil the client by replying too quickly. We all now get our emails to our smartphone and can reply quickly. But depending upon the client cycle you may need to train your clientsnot to invade your personal space. You still want to provide great and proactive communication butteaching your client that you are at their beckon call may start a bad president.
• Possibly forward the email to your staff to answer the question, even if you could quickly.• “I will ask Janet to check on that for you and get back to you.” This will train the client to email Janet directly.
• Possibly set it to auto send at 7:00 so the client believes you have started the day by emailingthem.
Set the boundaries you need but answer every question timely.
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Answer all posed questions, but to one better answer then preemptively. Oftentimes, clients ask multiple questions when they reach out via email. Ihave found that I often quickly answer one question but not all of them.
I have also found that after doing 1000 DWI cases I know the client journeyand I can avoid hundreds of questions by simply triggering a standardinformation email at different stages with a personalized sentence at thebeginning and another at the end and then advising the client that myparalegal will call them to see if they have any questions.
It cuts down hundreds of calls and gets great reviews. This works becausewe have mapped out the client’s journey, and we proactively feed clientsmore information than they ask.
Part of Steve Job’s brilliance was the way the Apple communicated.
Apple tells us things that are cool before we even know we want them.
Anticipate the client’s next questions as their case follows the predictable path and send them information about how to solve the issue or what to expect at the next stage.
You will have a much happier client when you “accurately predict the obvious” for them.
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Be upfront about failure. Be honest. Be Genuine.I make many mistakes. I have ADHD and I forget things all the time.
I have left a client sitting in a courtroom for 4 hours after theprosecutor and I agreed to a continuance, and I left. The client calledthe office at the lunch break asking when I was coming back to court.
I was completely honest and genuine and apologized. I was trulyembarrassed, and the client understood.Two months later he gave me a 5‐star review. What I have found fromtoo many of these incidents is clients can forgive a huge amount if wesimply are honest, trustworthy, and a bit humble.
Bad doctors don’t get sued…
Doctors with bad bedside manners get sued!
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Pause before reacting negatively.
This is one of those many mistakes I still make.
But less so now that I am quite a bit older and just a little wiser.
Just learn to sleep on any negative email you are planning to send.
Have someone else read it and make certain your message in not lost inthe delivery.
Questions about better communications with Clients?
Clarke Dummit
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Identifying and Overcoming Bias in LawMolly Brazil
Family Law Attorney
Types of Bias:
Any form of bias in the workplace creates a negative experience andneeds to be addressed.
Bias is not always bigotry (a form of intentional prejudice), bias can beunconscious and reflexive.
This is known as implicit bias.
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Implicit Bias (I.e., Unconscious Bias)
Implicit Bias is the natural and unintentional tendency to categorize theworld into social identities/groups.
These social identities can be based on race, religion, sex, sexualorientation, age, ethnicity, and disability.
Implicit bias differs from bigotry in that bigotry is a form of intentionalprejudice, whereas implicit bias is an unconscious and reflexive humantendency to categorize groups of people, but it is a tendency that weare capable of correcting.
How Implicit Bias Affects Decision-Making
To understand how implicit bias affects decision making in the workplace, it’shelpful to break the concept of implicit bias down and walk through four of the mostprevalent forms of implicit bias.
• Confirmation bias • Attribution bias • Availability bias • Affinity bias
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Confirmation bias
Confirmation bias
What is it?
Confirmation bias is a tendency to interpret, rely on, and seek outinformation that confirms our existing beliefs or theories about aparticular topic or person.
Confirmation bias also creates a tendency to overemphasizeevidence/information that reinforces our beliefs.
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• Ex., imagine that a person believes that generation X are better problem‐solvers than millennials.
• Whenever this person comes across a person who is Gen X and who also happens to be a good problem solver, they place greater importance on this evidence because it supports and reinforces what they already believe.
• https://www.verywellmind.com/what‐is‐a‐confirmation‐bias‐2795024
Confirmation bias
Ex., during an election year, people will actively seek out facts that paint their preferred candidate in a favorable light while also seeking information that paints the opponent in a negative light.
Usually, people don’t look for information that challenges their thoughts on their preferred candidate.
It’s also rare that we seek positive information about the other candidate even though doing so, would provide us with a deeper and more complete understanding.
Confirmation bias
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How does Confirmation bias affect decision making? Confirmation bias causes us to pay more attention to information thatsupports something we already believe, which, in turn, creates a blindspot and prevents us from forming opinions or drawing conclusionsbased on merit.
Confirmation bias also causes us to discount or discredit informationthat conflicts with those preexisting beliefs.
Oftentimes that contradictory information is more important because itchallenges our brains to think differently and helps us to create a moreholistic and comprehensive opinion.
Bottom line: It keeps us from making fully informed decisions in the law firm setting.
Confirmation bias
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Solution – pay extra attention to opposing views, make an active effort to listen and understand what others believe and why.
Seek out information that conflicts with your beliefs and challenge yourself to play devil’s advocate, especially when you feel strongly about a particular issue or person.
Confirmation bias
Availability Bias
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Attribution bias
What is it?
A cognitive bias where people evaluate their own and or other people’sbehaviors.
We subconsciously have different explanations for our own successesand failures versus the successes and failures of others.
Attribution bias
Basis of attribution bias –The Fundamental Attribution Error is a commonly studied topic in psychology which explains thenatural human tendency to credit our personal successes to internal characteristics (our hard work,strong work ethic, intelligence) and to blame our personal failures on external factors (bad luck,unfair conditions, etc...).
What’s interesting about the fundamental attribution error is that we tend to apply the oppositereasoning for others, i.e., we credit others’ success to external factors (good luck) and their failuresto internal forces (laziness, lack of effort). This type of thinking is known amongst psychologists as“self‐serving bias” and is believed to be a defense mechanism that allows human to protect our self‐esteem and egos.
(The Attribution theory in the workplace (rodmatthews.com.au))
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Attribution bias
Ex.;
a partner at a law firm has promoted an attorney to a supervisingattorney position, associate attorneys who were not promoted maynaturally believe their colleague's promotion was due to good luck orthe result of an unfair decision rather than hard work or professionalaccomplishments.
Attribution bias
How does attribution bias affect decision making?
Attribution bias causes us to apply incorrect explanations for successesand failures in an unconscious effort to protect our own egos. In thelaw firm setting, attribution bias can create an environment wherecolleagues feel blamed or overlooked.
It can also create an environment where your colleagues perceive youas self‐serving or egocentric and lose respect for you.
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Attribution bias
Solution.
Leaders in a law office can lead by example in creating a workenvironment where it is safe to make mistakes; acknowledge theaccomplishments of employees; avoid using language that can beperceived as blaming others; be open about discussing ownprofessional mistakes.
Availability Bias
What is it?
Availability bias is the human tendency to believe that examples ofthings that readily come to mind are more representative than theyactually are.
(https://whatis.techtarget.com/definition/availabilitybias#:~:text=The%20availability%20bias%20is%20the,the%20validity%20of%20our%20decisions).
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Availability Bias
Ex.; Availability bias may cause a family law attorney to tell her client that the chances of winning a termination of parental rights action are much lower than they actually are, because the attorney is basing that statement off of her experience of having TPR’s systematically denied, these frequent TPR denials readily come to the attorney’s mind but can distort the reality of the client’s chances of being successful in their action.
Rand, J. W., Understanding why good lawyers go bad: Using case studies in teaching cognitive bias in legal decision‐making, 9(2) Clinical L. Rev. 731 (2003).
Availability Bias
Ex.; A criminal defense attorney strongly encourages his client to enter a plea deal based off the attorney's recent experience when another client was given an unusually long sentence for the same offense.
Because this recent experience was unusual, it is readily available in the attorney's mind and could distort the reality that this client would receive an unusually long sentence.
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Availability Bias
How does availability bias affect decision making? In a legal setting, availability bias can lead to generalizations which caninevitably damage the attorney‐client relationship. Id.
Take the above example, the attorney’s emphasis on her recent experienceswith unsuccessful TPR actions might result in the client losing trust orconfidence in the attorney.
It could also impact the way the attorney choses to handle the case (mightbe resistant to go to trial and encourage client to drop the action when, inreality, the client had a strong case that likely could have been successful.)
Availability Bias
Solution.
If you feel yourself experiencing a little bit of “tunnel vision” take a stepback and evaluate the basis for your thinking, ask how this client’ssituation is different form the client who received a different result.
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Affinity Bias
Affinity Bias
What is it?
Affinity bias is an unconscious tendency to gravitate towards others who share similar beliefs, backgrounds, and physical characteristics as us.
Affinity bias tricks the brain into thinking that the fact that we share a similarity with another person makes that person more trustworthy or capable.
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Affinity Bias
Ex.; This type of implicit bias can help provide context to social issues such as gender discrepancies in the workplace. It’s widely known that women have historically had a harder time moving up in their professions when compared to their male counterparts.
Affinity bias can provide some context for this discrepancy. If most bosses and CEOs are men, then those men will likely continue to promote men to higher positions as they subconsciously gravitate towards promoting a male over a female because they share that same characteristic and thus feel men are more capable of fulfilling that position.
Affinity Bias
Ex.; When it comes to the hiring process, affinity bias can lead employers to select one candidate over another because they “see themself” in that person and therefore, naturally, want to root for that candidate.
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Affinity Bias
How does it affect decision making?
Affinity bias can lead us to make decisions based off irrelevant factors orcharacteristics.
For example, instead of selecting the qualified candidate with the moreimpressive, well written resume, an employer might select a candidate thatattends their same church or who cheers for the same sports team.
While these commonalities are certainly useful in developing friendships,they are irrelevant and shouldn’t be considered when it comes to makingprofessional decisions in the workplace.
Affinity Bias
Solution.Make a conscious effort to recognize similarities you share with a person anddifferentiate qualities that pertain to job performance from those that arenot relevant.
Don’t instinctively trust your gut when it comes to making professionaldecisions in the workplace, instead, challenge and question that gut feelingto make sure you are doing everything you can to diversify your law firm.
Don’t aim to hire people that will fit in to current culture of the firm, butinstead actively search for candidates that would add to the office culture.https://builtin.com/diversity‐inclusion/unconscious‐bias‐examples
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The Impact on Individuals and Organizations
1. It keeps us from making fully informed decisions or decisions based off irrelevant factors or characteristics.
2. Causes us to stop paying attention to opposing views.
3. Creates a blind spot and prevents us from forming opinions or drawing conclusions based on merit.
4. Creates an environment where colleagues feel blamed or overlooked; where your colleagues perceive you as self‐serving or egocentric.
5. Lose respect for you.
6. Damages the attorney‐client relationship.
7. Impact the way the attorney choses to handle the case.
8. Tunnel vision can lead us to make decisions based off irrelevant factors or characteristics.
Understanding Bias – Real‐World Examples
In his article titled "The Real Effects of Unconscious Bias in theWorkplace” Horace McCormick, the program director of UNC ExecutiveDevelopment at the UNC Kenan‐Flagler Business School, providesseveral real‐world examples/studies of unconscious bias in theworkplace.
The following examples are direct quotations taken from his article.(McCormick, H. The Real Effect of Unconscious Bias in the Workplace(2015),http://execdev.kenanflagler.unc.edu/hubfs/White%20Papers/Unconscious‐Bias‐in‐the‐Workplace.pdf).
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Age
“A Duke University study found that “mature faced” people had acareer advantage over “baby‐faced” people” (McCormick, 2015).
Gender
“A Yale University study found that male and female scientists– trained to reject the subjective – were more likely to hiremen, rank them higher in competency than women, and paythem $4,000 more per year than women.”
(McCormick, 2015; citing Wilkie, D. (01 December 2014). Rooting out hidden bias. SHRM. Retrieved fromWilkie, D. (01 December 2014). Rooting out hidden bias. SHRM. Retrieved fromhttp://www.shrm.org/publications/hrmagazine/editorialcontent/2014/1214/pages/1214‐ hidden‐bias.aspx.).
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Height
“Tall men in business may find an unconscious bias to work in theirfavor. Fifty‐eight percent of Fortune 500 CEOs are just shy of six feet,while only 14.5 percent of the male population are that same size. Tallmen, then, tend to move into leadership positions far more frequentlythan their more diminutive counterparts.”
• (McCormick, 2015; citing Price, S. (n.d.). Think slow. BCCJacumen.com.
• Retrieved from http://www.priceglobal.com/media/documents/603778102_BCCJ%20UCB-SP.pdf.).
Race
“Unconscious bias can also be based on a person’s name according to a studyconducted by researchers at MIT University of Chicago. For this study, 5,000resumes were sent to 1,250 employers advertising for jobs. Some resumes hadnames considered to be “typically white,” while others had names considered to be“typically black.”
Each employer was mailed four resumes, two “typically white” and two “typicallyblack.” For each group, one applicant was average, and one was above average. Thestudy found that applicants with “typically white” names received fifty percentmore callbacks than applicants with “typically black” names. White candidates alsoreceived more callbacks than highly skilled black candidates.”
(McCormick, 2015; citing Ross, H. (2008). Exploring unconscious bias. Diversity Best Practices. Retrieved fromhttp://www.cookross.com/docs/UnconsciousBias.pdf.).
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“In one study, law firms were given a fictitious legal memo that included grammatical, factual, and technical analysis errors.
Half of the memos were from an African American author and the other half were from a Caucasian author.
When the memo was perceived to be by the African American author, law firm partners found more of the errors and rated the memo as lower in quality than when the author was perceived to be Caucasian.”
(McCormick, 2015; citing Stephens, A. (08 July 2015). How unconscious bias can control where we live and work. Next City. Retrieved from https://nextcity.org/daily/entry/unconscious‐bias‐trainingemployment.).
Race
Sexual Orientation
Overcoming bias is possible.
“One study found that hard‐wired, unconscious brain bias can bereversed. A study found that between 2006 and 2013, the implicitpreference (or unconscious bias) for straight people over gays andlesbians declined 13.4 percent. . .. showed that change can happen,albeit slowly, on an unconscious level.”
(McCormick, 2015; citing Jacobs, T. (23 July 2015). Anti-gay bias is even diminishing on an unconscious level.Pacific Standard. Retrieved from http://www.psmag.com/health-and-behavior/anti-gay-bias-is-evendiminishing-on-an-unconscious-level.).
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Overcoming Bias: Top Tips for Every Attorney
The American Bar Association website provides a list of resources that address implicit bias and how we can work to overcome them.
Some of the most recommended and effective strategies for unlearning implicit bias include:
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Education
Educate yourself on bias in the workplace.
It’s not just about understanding how your implicit biases impact others but it’s also about understanding how other people’s implicit biases affect you.
There is a multitude of resources out there that teach about implicit bias.
Checklists
Create checklists to follow when making important decisions in the workplace, that way you can be sure that you are making informed decisions grounded in objectivity and merit.
These checklists might include, for example, the most important qualities/qualifications you are looking for in a potential new hire (___years of experience; requisite education; people skills).
Going through each relevant trait will help to ensure you are focused on the right attributes and leaves less room for subjectivity, which can cloud our thinking.
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Debiasing
Implement external checks and balances.
Take a hard look at the culture of your law firm. Does everyone look the same? Is every one of the same political or religious belief?
If the answer is yes, it’s time to take affirmative action to diversify the culture of your law firm. Implement an executive committee to address ongoing implicit bias issues. Implement mandatory implicit bias training and classes firm wide.
By taking this kind of action, you are sending the message to your colleagues, clients, and community that you are a firm that is committed to improving, learning, and unlearning our implicit biases. We all need help unlearning something that is so reflexive in nature and engrained in who we are, don’t resist the help that is out there.
Testing
The thing about implicit bias is that we aren’t aware of our own biases and therefore we don’t always realize when we draw conclusions and make decisions based on perceived stereotypes rather than merit. Testing is a great way to identify some our own implicit biases.
The “implicit association test” helps us to gain better understanding of ourselves and provides a resource that helps us to discover some of our hidden biases and tools to begin to address them. (Link to implicit bias test below) https://www.americanbar.org/groups/litigation/initiatives/task‐force‐implicit‐bias/implicit‐bias‐test/
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Exposure
Go ahead and address that affinity bias (tendency to socialize with people who share our backgrounds and beliefs) by mixing it up.
Broaden your social and professional environments and make it a goal to create relationships with people who are different than you.
The more experiences we all have with people who are different than us, the more likely those experiences will be positive, and we can start to challenge and deconstruct our preconceived and misapplied perceptions of others.
https://www.ncjfcj.org/wp‐content/uploads/2012/09/The‐Lens‐of‐Implicit‐Bias_0.pdf
Recognize that implicit bias exists
Recognizing that implicit bias exists at your law firm and within you does not make you a bad person, it just makes you human.
So long as we are willing to take the steps necessary to address and unlearn our own implicit bias, we can start to create healthier and more inclusive work culture that reflects a welcomed commitment to evolving, together.
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Additional Sources:
http://www.rodmatthews.com.au/blog/the‐attribution‐theory‐in‐the‐workplace
Rand, J. W., Understanding why good lawyers go bad: Using case studies in teaching cognitive bias in legal decision‐
making, 9(2) Clinical L. Rev. 731 (2003).
https://www.ncjfcj.org/wp-content/uploads/2012/09/The-Lens-of-Implicit-Bias_0.pdfhttps://builtin.com/diversity‐inclusion/unconscious‐bias‐examples
https://www.americanbar.org/groups/litigation/initiatives/task‐force‐implicit‐bias/implicit‐bias‐resources/
https://www.aafp.org/fpm/2019/0700/p29.html
https://heinonline.org/HOL/Page?collection=aba&handle=hein.aba/wmnad0020&id=72&men_tab=srchresults
https://heinonline.org/HOL/LuceneSearch?specialcollection=&terms=%28availability%20bias%29%20AND%20volnam
e:clinic9&collection=journals&searchtype=advanced&submit=Search§ions=any
http://execdev.kenan‐flagler.unc.edu/hubfs/White%20Papers/Unconscious‐Bias‐in‐the‐Workplace.pdf
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct
/model_rules_of_professional_conduct_table_of_contents/
https://www.americanbar.org/groups/litigation/initiatives/task‐force‐implicit‐bias/implicit‐bias‐test/
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I . CURRENT ISSUES IN ETHICS AND TECHNOLOGY – 1 HOUR
A. Maintaining Technology Competence: What’s New in 2021? You have a duty to maintain competence under “Rule 1.1 Competence”
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Many large firms have excellent tech people who can cover the Firm’s needs and teach the lawyers what they must know, but most firm do not. Our Firm has invested heavily in technology, but even so the older foundersmust lead firms into the new computer age. The Founders must make certain that each Firm culture is one which is open to and embraces new processes as well as innovation.
Personally, I took a computer class when I was a freshman at Vanderbilt University in 1979. I learned to punch holes in a paper “Fortran Statement” and carry it to the computer building and feed it into the wall.
Yet somehow, today I need to stay relevant in technology in the current practice of law. The trick is to stay curious and stay current.
1. The Basics: So, before we launch into some new modern tech issues you may need to learn, let’s look at the very basics which you truly need to know to even be competent today:
“Technology competence” is very broad. However, these are very basic tools that lawyers use to practice law:
(a) case management software, (b) document management or word processing software, (c) billing software, (d) email, (e) a PDF system with redacting capabilities.
Obviously, there are still some older attorneys who do not do any typing or editing, but arguably you owe a duty to your client not to waste their billable time. At some point a refusal to learn the basics harming your clients.
2. Speech Recognition: It is not your grandfather’s (or my) old Dragon Naturally Speaking from the 1980s which required “training.” There are multiple free services which can transcribe with amazing accuracy for free.
3. Zoom and all of its cohorts
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You do not want to be that Guy! Please do not be that lawyer that must tell a judge: “I am not a kitten, and I am ready to proceed.” Or worse please do not have a Jeffery Toobin moment. Before you start any type of technology first test it out and be certain that you know the basics of using it. AND the basics of disabling it.
(a) Test it out before the meeting starts! Even if you just say “test, one, two, three, test” please make certain that you know how to do the basics. If not… then ask someone!
(b) Test it with someone. It is easy enough in this day and age to test out most electronics with your paralegal or some member of you staff. If you are using some proprietary software such as Federal Court, then contact the help desk.
4. Big Data Analytics While Big Data Analytics have been in the market for years, Artificial Intelligence “AI” is finally allowing smaller chunks to be used by smaller firms. Not only will you be letting your own Firm down if you do not stay on top of your data, more and more you will be letting the client down if you do not stay abreast of the technology which WILL affect their business and personal litigation. Not all attorneys need to be competent in each of these new technologies, but you owe it to your firm to try to at least be aware of the new technology which could affect you clients and your firm.
(a) Internet of Behaviors (IoB) One smaller subset you should be aware of is the collection and use of data which drive behaviors. The Internet of Behaviors (IoB) can gather, combine, and process data from many sources including:
Social media
Public domain
Citizen data processed by public-sector
Commercial customer data
Government agencies
Location tracking.
These data are the crumbs that we all leave behind every day which are being scooped up and sold by FAANG. Please tell me that you know what FAANG is: Facebook, Amazon, Apple, Netflix, and Google (now Alphabet).
5. Artificial Intelligence Robust Artificial Intelligence implementation is not far out of the everyday practice of law. It is already commonplace to have large documents summarized by AI. In the most current version of Office 365 every time you share a document AI will summarize it for the person with whom you share it.
While most true AI software is currently limited to larger litigation cases, the technology is rapidly evolving. Soon it will be reliable and scalable into smaller practices. Soon is probably in the next 3 years, so it may come before you take another 3-hour ethics block.
6. Everything-as-a-Service (XaaS) You are familiar with SaaS or Software-as-a-Service. We have all seen our computer programs go from an item we purchase, to a service we must pay monthly to use. This trend has increased such that everything is now a service.
Everything-as-a-Service (XaaS) covers the extensive variety of services and applications emerging for users to access on-demand over the Internet. XaaS has expanded to incorporate many services such as:
(a) IT-as-a-Service (which can now be handled remotely; Database-as-a-Service (for example Amazon Cloud Computing)
(b) Function-as-a-Service (FaaS) provides a platform allowing customers to develop, run, and manage application functionalities without the complexity of building and maintaining
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the infrastructure typically associated with developing and launching an app (again Amazon Cloud Computing);
(c) Infrastructure-as-a-Service (IaaS); goes beyond just some space you can rent and offers entire serves:
(d) Security-as-a-Service, the newer (SecaaS). Is just what it says it is. Part of the reason that there are no longer stand-alone-one-time purchases is because they evolve and change so fast that you need a service which can constantly change and push out updates.
7. Cyber Security Cyberattacks and hacks continue to grow – not just in number, but in damage. This is not new, but you should be aware of the two major new trends in security:
(a) Virtual Dispersive Network (VDN) This new technology transmits a signal in ‘quantum packets’ which are short bursts which can’t be covertly read without disrupting their content. Then if anyone intercepts the data the receiver will be disrupted, and the interceptor will have noise in it.
(b) Blockchain Cybersecurity: Just like Bitcoin, this security approach centralizes a long chain of security distributing enforcement within the file. Just as bitcoin each user can be secure that it is authentic.
8. DevSecOps DevSecOps is short for ‘Development, Security and Operations.’ Since we are constantly changing and developing our processes and procedures it is often hard for security to keep up and protect the changes we are making. This new dripline’s goal is to allow business to be accessed, delivered, and enabled anywhere safely. Intelligent Process Automation
9. Robotic Process Automation A modern mantra of private enterprise: ‘Anything that can be automated, should be automated.’ The goal is to allow very simple bots to benefit from the abilities of Artificial Intelligence, Big Data, Machine Learning, so that they can learn and improve over time.
Over time very simple bots evolve from the very basic ‘If-this-then-that’ rule. In The Internet of things, IoT small devices can rapidly learn and improve abilities.
B. New Opinions on Confidentiality:
1. Formal Opinion 496 January 13, 2021 “Responding to Online Criticism” “Lawyers are regularly targets of online criticism and negative reviews. Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another.”
(a) Even if the post were wrong, posting any confidential information would exceed any disclosure permitted under the Rule
(b) A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense.
(c) You may request that the website or search engine host remove the information. (d) Lawyers may post an invitation to contact the lawyer privately to resolve the matter. (e) Another permissible online response would be to indicate that professional considerations
preclude a response.
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C. Top Website and Advertising Pitfalls
1. Ethical Problems Failure to follow state ethics requirements for notice of the Law Office responsible to the website.
Failure to maintain DBA with the State Bar.
2. Business Problems Advertising that is too broad and thus ineffective or too expensive.
Website which is not maintained can actually detract.
Social media bits and spurts.
Google is going to be dinging web sites which do not stay up to date with new content, and in 2022 it is projected that you will get dinged if you do not have video content on each page.
D. Social Media Do’s and Don’ts Each has its own specific State Ethics rules. You need to be familiar with yours. But as a general rule be conscious of the following four areas when it comes to web marketing:
1. Solicitation: There can be a fine line tween asking a prospective client to contact you through your web site and advising them to hire you based upon specific facts. Make certain that your web site does not solicit business in violation of your local state rules.
2. Confidentiality: You may post too many details about a case your won, or it could be responding to a bad review. This is the hottest area of the intersection of technology and ethics.
3. Advertising: While advertising on the internet is more complex than traditional media because of all the possible methods of dissemination, as a general rule you should follow the same standards as traditional media.
4. Discovery: We all want to be armature detectives and gain as much information as we can by Facebook stalking an opponent. If the opposing party is going to give you low hanging fruit, you should take it. But the rules of what is ethically varies greatly: New York allows an attorney to “friend” an opposing party for the purposes of discovery; however, Pennsylvania does not.
E. Staying Ethical as a Remote Lawyer Zoom, which grew from a startup in 2011 to going public in 2019, became a household name during the pandemic. Other existing large corporate tools such as Cisco's WebEx, Microsoft's Teams, Google Hangouts, GoToMeeting, and Verizon's BlueJeans are also providing state-of-the-art videoconferencing systems, facilitating remote work across the globe.
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I I . CONFLICTS OF INTEREST HOT TOPICS – 30 MIN A. MRPC rules 1.7 and 1.8.
1. Rule 1.7. protects against concurrent conflict of interests. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
2. Comment 2 of Rule 1.7 of the MRPC MRPC, provides a checklist to help work through a potential conflict of interest problem.
Resolution of a conflict-of-interest problem under this Rule requires the lawyer to: clearly identify the client or clients;
determine whether a conflict of interest exists;
decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict
is consent-able; and
if so, consult with the clients affected and obtain their informed consent, confirmed in writing.
3. Informed Consent in Writing. Clients must be aware of the potential way the conflict of interest could impact their own interests. The specific disclosure that is necessary to obtain informed consent differs, and in certain cases, it is impossible for the lawyer to make the requisite disclosures to the client in order to obtain informed consent.
Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. (Comment 18, MRPC Rule 1.7; See Rule 1.0(e) (informed consent)).
The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. (Comment 18, MRPC Rule 1.7; See Comments [30] and [31] (effect of common representation on confidentiality).
B. Types of Conflicts:
1. Directly adverse conflict of interest with current client Comment 6 of MRPC rule 1.7 forbids lawyers from undertaking representation of new clients with directly adverse interests to that of the current client. This rule holds true even if the matters are wholly unrelated.
Solution: Obtain informed consent from current client and the potential new client
2. Material Limitation Comment 8 of MRPC rule 1.7 states that there can still be a conflict of interest without a directly adverse conflict.
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A conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests.
C. Nonconsentable Conflicts of Interest.
1. Inability to provide competent and diligent representation. If lawyer is not confident in their ability to provide represent a client competently and diligently, then the client may not consent to the representation.
Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. (Comment 15, MRPC Rule 1.7)
2. Prohibited by law. If representation is prohibited by law, a client may not provide consent for the representation.
In some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. (Comment 16, MRPC 1.7).
3. Clients with directly adverse interests in same litigation. Conflicts that are nonconsentable because of the institutional interest in vigorous development of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. (Comment 17, MRPC 1.7).
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I I I . AVOIDING COMPLAINTS ABOUT CLIENT COMMUNICATION – 30 MIN
It is not just enough to provide quick answers to clients issues, while that may avoid a complaint, it is only the first step to providing great proactive and anticipatory representation.
Great Communication comes from exceeding the client’s expectations. Exceeding expectations is not about playing catchup but being proactive. Work to design your communication system to anticipate the client’s needs and wants.
A. What is the Client Journey?
1. Before we discuss the Journey, recognize how much the journey matters. Client’s opinion of you matters (That’s why our firm does not do court appointed work). Most all consumers are influenced by online reviews when making a purchase. If not online reviews, then word of mouth is still replayed based upon the client’s journey though the office.
2. Determine the life cycle of the client and how to communicate during the life cycle. This will vary greatly depending upon the type of legal matter. Actually, map out a flow chart of stages and communication. Make certain the client is advised about the journey and how the communication will be on the front end. Incorrect Expectations are just as harmful as unmet expectations.
In criminal law I routinely hear how last time that “Court Appointed Attorney” sat in court next to the cop and laughed and sold me out. If fact that was just poor communication skills. So, I tell a client in the first meeting that he will see me sit next to the cop in court and try to butter him up so I can get inside information for the client’s case. I prepare the client that part of the journey of his case will be seeing me laughing with the officer to try to gain him an advantage. Then the exact same action is viewed as a strength.
3. Don’t mistake your clients for one-size-fits-all customers. Your clients are human so while one-size-fits-all may work for the journey, how it communicated will need to change. Sometimes Humor is very important, other times it will upset the client. Learn to read “How” the client needs to be communicated with.
I recently greeted a long-time client in our lobby and the receptionist told me his name in front of him. I joyfully said, “I know ‘Fred’ he is one of my ‘Frequent Flyers.’” He seemed off during our meeting but did not say anything to me. But 30 minutes later called our office and said he was hiring a different firm since I made fun of him. My mistake. I completely misjudged my relationship with him.
4. Walk a mile in your client’s shoes. There are many key things to determine in how to approach a client (and don’t call them a ‘Frequent Flyer.’ Is one of them). After interviewing and litigating one thousandth DWIs it is easy to start taking shortcuts in the initial interview. Possibly try to fast forward to get to the meat of the case. But that cheats the client out of the journey. Allowing the client to walk through the cathartic emotion of the case is a critical part of the client developing trust. For some it is the embarrassment, for others it is victimhood, and still others are angry at the State and others are angry at themselves. Many times, they want very different things from their attorney.
(a) What are they hoping you can do for them as an attorney? (b) Is this realistic?
The only way you can walk in the client’s shoes is to Listen, Listen, Listen.
(c) How do you steer it into a realistic realm? By listening you can determine how to steer. Different clients will need different incentives.
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Attorneys do need to sell. The client wants us to inspire confidence. But never oversell. One of the most important tasks in the Client journey is to create realistic expectations, then exceed them.
B. Map out your client journey. For every different type of law practice there will be a different client journey. The client’s journey is twofold: the internal journey, and the external journey. While many of the external journeys will be similar, the internal journey is always very different.
(a) The External Journey This is the actual physical journey. It can be viewed in any mays and many stages. For a typical litigation case: 1) The client faces a problem;
2) the client searches for you;
3) the client comes to your office/ zoom call with you;
4) the client interacts with you;
5) the client participates in litigation preparation or mediation;
6) the client must go to court (possibly multiple times);
(b) The Internal Journey 1. The client faces a problem;
2. the problem festers in different ways;
3. the client experience: fear, or pain, or anger;
4. the client seeks help with the problem;
5. it takes time to resolve the problem through legal channels;
6. the client grows accustomed to the fear, or pain, or anger, and the intensity subsides;
7. the client gets some resolution which is better than it could have been;
8. the client is happy with your services.
This is a gross oversimplification but develop your client’s internal and external journey and make certain that your legal services address the client’s needs as the journey progresses. Communicate proactively and you will ease the journey.
C. Accurately predict the obvious Once you begin to map out the patterns which clients must walk through in any given legal problem, you can begin to accurately predict what is very obvious to you, but which is still unknown and unexperienced by your client. By “accurately predicting the obvious” you help prepare your client for what is coming, and you inspire confidence in you when the things which you knew were obvious actually happen as you predicted.
The client will “feel” reassured in your knowledge and that will transfer to a feel of being more confident in you.
The more you can accurately tell the client what is coming in their journey, the more they will be able to relax and trust you and relax and trust the outcome.
Part of this is to be very honest and prepare the client for the probable actual outcome even when this is not what the client wants. The balance is to keep communicating that you are working to get the outcome the client desires but preparing the client ahead of time for the outcome which is more likely.
1. Being proactive will save you time. One of the biggest complaints is that a lawyer does not communicate. If you ask the attorney, he/she will tell you that they communicated everything which “needed” to be communicated to the client, but so much of the time they do not “waist time communicating the obvious.” To an experience attorney we know what is obvious and forget that our client is experiencing every step of the journey with fear, pain, or anger; and nay times with all
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three. The more you can understand the internal and external journey, and then begin to spend time educating the client and preparing them for both, the less the client will call with questions.
D. Maintain Boundaries.
1. Reply to emails… When? At set times? Quickly? On auto at 7:00 am? But Reply!
Some say don’t spoil the client by replying too quickly. We all now get our emails to our smart phone and can reply quickly. But depending upon the client cycle you may need to train your clients not to invade your personal space. You still want to provide great and proactive communication but teaching your client that you are at their beckon call may start a bad president.
Possibly forward the email to your staff to answer the question, even if you could quickly.
Possibly set it to auto send at 7:00 so the client believes you have started the day by emailing them.
Set the boundaries you need but answer every question timely.
(a) Answer all posed questions, but to one better answer then preemptively. Oftentimes, clients ask multiple questions when they reach out via email. I have found that I often quickly answer one question but not all of them. I have also found that after doing 1000 DWI cases I know the client journey and I can avoid hundreds of questions by simply triggering a standard information email at different stages with a personalized sentence at the beginning and another at the end and then advising the client that my paralegal will call them to see if they have any questions. It cuts down hundreds of calls and gets great reviews. This works because we have mapped out the client’s journey, and we proactively feed clients more information than they ask.
Part of Steve Job’s brilliance was the way the Apple communicated. Apple tells us things that are cool before we even know we want them. Anticipate the client’s next problem and send them information about how to solve the issue or what to expect at the next stage. You will have a much happier client when you “accurately predict the obvious” for them.
E. Be upfront about failure. Be honest. Be Genuine.
I make many mistakes. I have ADHD and I forget things all the time. I have left a client sitting in a courtroom for 4 hours after the prosecutor and I agreed to a continuance and I left. The client called the office at the lunch break asking when I was coming back to court.
I was completely honest and genuine and apologized. I was truly embarrassed, and the client understood. Two months later he gave me a 5-star review. What I have found from too many of these incidents is clients can forgive a huge amount if we simply are honest, trustworthy, and a bit humble.
F. Pause before reacting negatively.
This is one of those many mistakes I still make. But less so now that I am quite a bit older and just a little wiser. Just learn to sleep on any negative email you are planning to send. Have someone else read it and make certain your message in not lost in the delivery.
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IV. IDENTIFYING AND OVERCOMING BIAS IN LAW - 1 HOUR
A. Types of Bias Any form of bias in the workplace creates a negative experience and needs to be addressed. Bias is not always bigotry (a form of intentional prejudice), bias can be unconscious and reflexive. This is known as implicit bias.
1. Implicit Bias (I.e., Unconscious Bias) Implicit Bias is the natural and unintentional tendency to categorize the world into social identities/groups. These social identities can be based on race, religion, sex, sexual orientation, age, ethnicity, and disability. Implicit bias differs from bigotry in that bigotry is a form of intentional prejudice, whereas implicit bias is an unconscious and reflexive human tendency to categorize groups of people, but it is a tendency that we are capable of correcting.
(a) How Implicit Bias Affects Decision-Making
To understand how implicit bias affects decision making in the workplace, it’s helpful to break the concept of implicit bias down and walk through four of the most prevalent forms of implicit bias.
Confirmation bias Attribution bias Availability bias Affinity bias
2. Confirmation bias
What is it? Confirmation bias is a tendency to interpret, rely on, and seek out information that confirms our existing beliefs or theories about a particular topic or person. Confirmation bias also creates a tendency to overemphasize evidence/information that reinforces our beliefs.
i. Ex., imagine that a person believes that generation X are better problem-solvers than millennials. Whenever this person comes across a person who is Gen X and who also happens to be a good problem solver, they place greater importance on this evidence because it supports and reinforces what they already believe. https://www.verywellmind.com/what-is-a-confirmation-bias-2795024
ii. Ex., during an election year, people will actively seek out facts that paint their preferred candidate in a favorable light while also seeking information that paints the opponent in a negative light. Usually, people don’t look for information that challenges their thoughts on their preferred candidate. It’s also rare that we seek positive information about the other candidate even though doing so, would provide us with a deeper and more complete understanding.
(b) How does Confirmation bias affect decision making? Confirmation bias causes us to pay more attention to information that supports something we already believe, which, in turn, creates a blind spot and prevents us from forming opinions or drawing conclusions based on merit. Confirmation bias also causes us to discount or discredit information that conflicts with those preexisting beliefs. Oftentimes that contradictory information is more important because it challenges our brains to think differently and helps us to create a more holistic and comprehensive opinion.
(c) Bottom line: It keeps us from making fully informed decisions in the law firm setting. (d) Solution – pay extra attention to opposing views, make an active effort to listen and
understand what others believe and why. Seek out information that conflicts with your beliefs and challenge yourself to play devil’s advocate, especially when you feel strongly about a particular issue or person.
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3. Attribution bias
What is it? A cognitive bias where people evaluate their own and or other people’s behaviors. We subconsciously have different explanations for our own successes and failures versus the successes and failures of others.
(a) Basis of attribution bias – The Fundamental Attribution Error is a commonly studied topic in psychology which explains the natural human tendency to credit our personal successes to internal characteristics (our hard work, strong work ethic, intelligence) and to blame our personal failures on external factors (bad luck, unfair conditions, etc...). What’s interesting about the fundamental attribution error is that we tend to apply the opposite reasoning for others, i.e., we credit others’ success to external factors (good luck) and their failures to internal forces (laziness, lack of effort). This type of thinking is known amongst psychologists as “self-serving bias” and is believed to be a defense mechanism that allows human to protect our self-esteem and egos. (The Attribution theory in the workplace (rodmatthews.com.au))
i. Ex.; a partner at a law firm has promoted an attorney to a supervising attorney position, associate attorneys who were not promoted may naturally believe their colleague's promotion was due to good luck or the result of an unfair decision rather than hard work or professional accomplishments.
(b) How does attribution bias affect decision making? Attribution bias causes us to apply incorrect explanations for successes and failures in an unconscious effort to protect our own egos. In the law firm setting, attribution bias can create an environment where colleagues feel blamed or overlooked. It can also create an environment where your colleagues perceive you as self-serving or egocentric and lose respect for you.
(c) Solution. Leaders in a law office can lead by example in creating a work environment where it is safe to make mistakes; acknowledge the accomplishments of employees; avoid using language that can be perceived as blaming others; be open about discussing own professional mistakes.
4. Availability Bias What is it? Availability bias is the human tendency to believe that examples of things that readily come to mind are more representative than they actually are.
(https://whatis.techtarget.com/definition/availabilitybias#:~:text=The%20availability%20bias%20is%20the,the%20validity%20of%20our%20decisions).
Ex.; Availability bias may cause a family law attorney to tell her client that the chances of winning a termination of parental rights action are much lower than they actually are, because the attorney is basing that statement off of her experience of having TPR’s systematically denied, these frequent TPR denials readily come to the attorney’s mind but can distort the reality of the client’s chances of being successful in their action. Rand, J. W., Understanding why good lawyers go bad: Using case studies in teaching cognitive bias in legal decision-making, 9(2) Clinical L. Rev. 731 (2003).
Ex.; A criminal defense attorney strongly encourages his client to enter a plea deal based off the attorney's recent experience when another client was given an unusually long sentence for the same offense. Because this recent experience was unusual, it is readily available in the attorney's mind and could distort the reality that this client would receive an unusually long sentence.
(a) How does availability bias affect decision making? In a legal setting, availability bias can lead to generalizations which can inevitably damage the attorney-client relationship. Id. Take the above example, the attorney’s emphasis on her recent experiences with unsuccessful
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TPR actions might result in the client losing trust or confidence in the attorney. It could also impact the way the attorney choses to handle the case (might be resistant to go to trial and encourage client to drop the action when, in reality, the client had a strong case that likely could have been successful.)
(b) Solution. If you feel yourself experiencing a little bit of “tunnel vision” take a step back and evaluate the basis for your thinking, ask how this client’s situation is different form the client who received a different result.
5. Affinity Bias What is it? Affinity bias is an unconscious tendency to gravitate towards others who share similar beliefs, backgrounds, and physical characteristics as us. Affinity bias tricks the brain into thinking that the fact that we share a similarity with another person makes that person more trustworthy or capable.
(a) Ex.; This type of implicit bias can help provide context to social issues such as gender discrepancies in the workplace. It’s widely known that women have historically had a harder time moving up in their professions when compared to their male counterparts. Affinity bias can provide some context for this discrepancy. If most bosses and CEOs are men, then those men will likely continue to promote men to higher positions as they subconsciously gravitate towards promoting a male over a female because they share that same characteristic and thus feel men are more capable of fulfilling that position.
(b) Ex.; When it comes to the hiring process, affinity bias can lead employers to select one candidate over another because they “see themself” in that person and therefore, naturally, want to root for that candidate.
(c) How does it affect decision making? Affinity bias can lead us to make decisions based off irrelevant factors or characteristics. For example, instead of selecting the qualified candidate with the more impressive, well written resume, an employer might select a candidate that attends their same church or who cheers for the same sports team. While these commonalities are certainly useful in developing friendships, they are irrelevant and shouldn’t be considered when it comes to making professional decisions in the workplace.
(d) Solution. Make a conscious effort to recognize similarities you share with a person and differentiate qualities that pertain to job performance from those that are not relevant. Don’t instinctively trust your gut when it comes to making professional decisions in the workplace, instead, challenge and question that gut feeling to make sure you are doing everything you can to diversify your law firm. Don’t aim to hire people that will fit in to current culture of the firm, but instead actively search for candidates that would add to the office culture. https://builtin.com/diversity-inclusion/unconscious-bias-examples
B. The Impact on Individuals and Organizations
1. It keeps us from making fully informed decisions or decisions based off irrelevant factors or characteristics.
2. Causes us to stop paying attention to opposing views.
3. Creates a blind spot and prevents us from forming opinions or drawing conclusions based on merit.
4. Creates an environment where colleagues feel blamed or overlooked; where your colleagues perceive you as self-serving or egocentric.
5. Lose respect for you.
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6. Damages the attorney-client relationship. 7. Impact the way the attorney choses to handle the case.
8. Tunnel vision can lead us to make decisions based off irrelevant factors or characteristics.
C. Understanding Bias – Real-World Examples In his article titled "The Real Effects of Unconscious Bias in the Workplace” Horace McCormick, the program director of UNC Executive Development at the UNC Kenan-Flagler Business School, provides several real-world examples/studies of unconscious bias in the workplace. The following examples are direct quotations taken from his article. (McCormick, H. The Real Effect of Unconscious Bias in the Workplace (2015), http://execdev.kenanflagler.unc.edu/hubfs/White%20Papers/Unconscious-Bias-in-the-Workplace.pdf).
1. Age “A Duke University study found that “mature faced” people had a career advantage over “baby-faced” people” (McCormick, 2015).
2. Gender “A Yale University study found that male and female scientists – trained to reject the subjective – were more likely to hire men, rank them higher in competency than women, and pay them $4,000 more per year than women.” (McCormick, 2015; citing Wilkie, D. (01 December 2014). Rooting out hidden bias. SHRM. Retrieved from Wilkie, D. (01 December 2014). Rooting out hidden bias. SHRM. Retrieved from http://www.shrm.org/publications/hrmagazine/editorialcontent/2014/1214/pages/1214- hidden-bias.aspx.).
3. Height “Tall men in business may find an unconscious bias to work in their favor. Fifty-eight percent of Fortune 500 CEOs are just shy of six feet, while only 14.5 percent of the male population are that same size. Tall men, then, tend to move into leadership positions far more frequently than their more diminutive counterparts.” (McCormick, 2015; citing Price, S. (n.d.). Think slow. BCCJacumen.com. Retrieved from http://www.priceglobal.com/media/documents/603778102_BCCJ%20UCB-SP.pdf.).
4. Race “Unconscious bias can also be based on a person’s name according to a study conducted by researchers at MIT University of Chicago. For this study, 5,000 resumes were sent to 1,250 employers advertising for jobs. Some resumes had names considered to be “typically white,” while others had names considered to be ““typically black.” Each employer was mailed four resumes, two “typically white” and two “typically black.” For each group, one applicant was average, and one was above average. The study found that applicants with “typically white” names received fifty percent more callbacks than applicants with “typically black” names. White candidates also received more callbacks than highly skilled black candidates.” (McCormick, 2015; citing Ross, H. (2008). Exploring unconscious bias. Diversity Best Practices. Retrieved from http://www.cookross.com/docs/UnconsciousBias.pdf.).
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“In one study, law firms were given a fictitious legal memo that included grammatical, factual, and technical analysis errors. Half of the memos were from an African American author and the other half were from a Caucasian author. When the memo was perceived to be by the African American author, law firm partners found more of the errors and rated the memo as lower in quality than when the author was perceived to be Caucasian.” (McCormick, 2015; citing Stephens, A. (08 July 2015). How unconscious bias can control where we live and work. Next City. Retrieved from https://nextcity.org/daily/entry/unconscious-bias-trainingemployment.).
5. Sexual Orientation “Overcoming bias is possible. “One study found that hard-wired, unconscious brain bias can be reversed. A study found that between 2006 and 2013, the implicit preference (or unconscious bias) for straight people over gays and lesbians declined 13.4 percent. . .. showed that change can happen, albeit slowly, on an unconscious level.” (McCormick, 2015; citing Jacobs, T. (23 July 2015). Anti-gay bias is even diminishing on an unconscious level. Pacific Standard. Retrieved from http://www.psmag.com/health-and-behavior/anti-gay-bias-is-evendiminishing-on-an-unconscious-level.).
D. Overcoming Bias: Top Tips for Every Attorney
1. The American Bar Association website provides a list of resources that address implicit bias and how we can work to overcome them. Some of the most recommended and effective strategies for unlearning implicit bias include:
(a) Education - educate yourself on bias in the workplace. It’s not just about understanding how your implicit biases impact others but it’s also about understanding how other people’s implicit biases affect you. There is a multitude of resources out there that teach about implicit bias.
(b) Checklists – create checklists to follow when making important decisions in the workplace, that way you can be sure that you are making informed decisions grounded in objectivity and merit. These checklists might include, for example, the most important qualities/qualifications you are looking for in a potential new hire (___years of experience; requisite education; people skills). Going through each relevant trait will help to ensure you are focused on the right attributes and leaves less room for subjectivity, which can cloud our thinking.
(c) Debiasing – implement external checks and balances. Take a hard look at the culture of your law firm. Does everyone look the same? Is every one of the same political or religious belief? If the answer is yes, it’s time to take affirmative action to diversify the culture of your law firm. Implement an executive committee to address ongoing implicit bias issues. Implement mandatory implicit bias training and classes firm wide. By taking this kind of action, you are sending the message to your colleagues, clients, and community that you are a firm that is committed to improving, learning, and unlearning our implicit biases. We all need help unlearning something that is so reflexive in nature and engrained in who we are, don’t resist the help that is out there.
(d) Testing - The thing about implicit bias is that we aren’t aware of our own biases and therefore we don’t always realize when we draw conclusions and make decisions based on perceived stereotypes rather than merit. Testing is a great way to identify some our own implicit biases. The “implicit association test” helps us to gain better understanding
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of ourselves and provides a resource that helps us to discover some of our hidden biases and tools to begin to address them. (Link to implicit bias test below) https://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-bias-test/
(e) Exposure - go ahead and address that affinity bias (tendency to socialize with people who share our backgrounds and beliefs) by mixing it up. Broaden your social and professional environments and make it a goal to create relationships with people who are different than you. The more experiences we all have with people who are different than us, the more likely those experiences will be positive, and we can start to challenge and deconstruct our preconceived and misapplied perceptions of others. https://www.ncjfcj.org/wp-content/uploads/2012/09/The-Lens-of-Implicit-Bias_0.pdf
(f) Recognize that implicit bias exists – Recognizing that implicit bias exists at your law firm and within you does not make you a bad person, it just makes you human. So long as we are willing to take the steps necessary to address and unlearn our own implicit bias, we can start to create healthier and more inclusive work culture that reflects a welcomed commitment to evolving, together.
Additional Sources: http://www.rodmatthews.com.au/blog/the-attribution-theory-in-the-workplace Rand, J. W., Understanding why good lawyers go bad: Using case studies in teaching cognitive bias in legal decision-making,
9(2) Clinical L. Rev. 731 (2003).
https://www.ncjfcj.org/wp-content/uploads/2012/09/The-Lens-of-Implicit-Bias_0.pdf
https://builtin.com/diversity-inclusion/unconscious-bias-examples
https://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-bias-resources/
https://www.aafp.org/fpm/2019/0700/p29.html
https://heinonline.org/HOL/Page?collection=aba&handle=hein.aba/wmnad0020&id=72&men_tab=srchresults
https://heinonline.org/HOL/LuceneSearch?specialcollection=&terms=%28availability%20bias%29%20AND%20v
olname:clinic9&collection=journals&searchtype=advanced&submit=Search§ions=any
http://execdev.kenan-flagler.unc.edu/hubfs/White%20Papers/Unconscious-Bias-in-the-Workplace.pdf
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_co
nduct/model_rules_of_professional_conduct_table_of_contents/
https://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-bias-test/
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