Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Thursday, November 10, 2005

Malpractice Risk: How effectively are you screening counsel?

Malpractice Risk: Professional fiduciary association allegedly fails to self-regulate, increases risk for clients/counter parties.

In re Circuit Judge Diana Lewis, Attorney Brian F. Labovick [Palm Beach, Fla]

American Bar Association: Evidence suggesting American attorneys fail to competently self-regulate peers, as required by oath to professional standards.

This case raises substantial questions whether the malpractice risks to clients is mitigated through self-regulation. Encourage clients to review risks with counsel and increase oversight and internal audits of practice.

* * *

Sometimes, the things you say can come back to haunt you, especially if you believe the information is made confidentially, as this attorney found.

One of the goals of the American Bar Association and State-level regulation is to ensure that attorneys meet a certain level of conduct.

There are also rules which are designed to maintain public confidence in the system. One rule is to prohibit attorneys from making disparaging comments about the court.

* * *

The facts before us suggest that attorneys are knowingly meeting in cyber space, and agreeing among themselves not to discuss attorney conduct that violates the attorney codes of conduct.

The matter remains under investigation.

The issue isn't so much what the court is or isn't doing, but whether the attorneys have allegedly conspired to remain quiet about alleged violations of the standards of conduct.

We make no claim to know any facts.

But the word should go out: Just because the attorneys are required to self-regulate, it doesn't mean that they actually follow the rules.

* * *

Bluntly, the model rules for professional conduct require the attorneys to report conduct that they know of that raises questions about other attorneys.

We make no claim this rule is necessarily followed, although the court could find that a given attorney is aware of something, but has failed to report the misconduct.

These issues are a matter of law.

* * *

The larger issue is whether the contract that requires "non disclosure" of the web contents is enforceable.

Arguably, because the board requires "non disclosure" of information that could amount to a matter of interest to law enforcement or the court, we could find that the initial contract was illegal.

Again, this is a matter for the court to decide.

* * *

Having reviewed the incident in a cursory manner, we are of the opinion that the larger issue is lost: Whether a group of self-regulated attorneys have allegedly jointly agreed or conspired to not enforce the standards of conduct to which they have sworn an oath to uphold.

Whether the original confidentiality rules were or were not enforced is irrelevant.

The issue is once there are factual communications and opinions about the court which, when communicated, were in allegedly in violation of the model rules, what is to be done?

It appears as though the proper approach was for someone to remove themselves from the alleged conspiracy which allegedly encouraged violations of the model rules by fostering a climate which encouraged discussion on topics which disparaged the court.

The larger problem is whether the public has a lower confidence in the court system.

Bluntly, the answer is yes.

In short, the issue isn't whether the attorneys have the right to reasonably expect silence about misconduct; but whether they, if they disparage the court, can reasonably rely on a promise of confidentiality.

This appears to be put the interests of the attorney before both the court and the public.

When one attends a school, their comments are not privileged. More so, when one signs a promise of confidentiality that is not enforceable or recognized by the courts, one cannot then claim that the specifics cannot be introduced into the court.

The duty to one's oath of office and model rules must be higher than to a private contract or agreement to ignore those standards, or agree to inaction when action is required.

The attorneys have shown that they will agree to remain silent when a report is required; and that they will make a personal agreement that puts themselves above the court and public trust.

This is not acceptable.

We would hope that the American Bar Association make a speedy inquiry into the matter and make it clear to all ABA-licensed attorneys that your credibility is on the line: Are you going to put your oath before your private agreements?

Either way, those who know the model rules will be closely watching whether you are serious about following it, much less enforcing it.

This case suggests that the allegiance is to the private gain, and that places the public confidence behind the public's expectation that these rules be enforced.

The public has a reasonable expectation that, after many years of ethical training, and annual professional updates, that the rules are enforced, not simply given lip service.

The rules are there to be enforced and followed so there is some predictability. If attorneys are willing to make private agreements to not follow the rules, but this is not known to the public, then there is a greater harm.

Not only is public confidence in the judicial system undermined, but the larger confidence in the legal profession's concept of self-regulation is destroyed.

It remains to be seen whether there are other private agreements to not enforce the model rules. We fully expect to find other cases, and have appropriately included this risk into our pre-litigation screening.

In short, it may be more prudent to disengage from the US legal system and conduct business in locations where the counter parties and fiduciaries are reliable and responsive to the rule of law, not the rule of broken standards.

If you want to be paid, you must demonstrate you are capable of meeting and enforceing the rules you say command your salary.

Without the rules, you have no salary.

We have the money. Not you.