By: Chris McDonough Esq.
Recently, on two separate occasions, I was contacted by experienced, well-respected attorneys with file and record retention questions. It seems there still is confusion regarding exactly which records must be kept for seven years and in what format those records may be maintained. This brief article will hit the high points. There are many excellent resources available to attorneys who require additional information, and anyone who wants more information should feel free to contact me.
Last year I posted a blog article about alcohol abuse in the legal profession, in response to a study that appeared in the Journal of Addiction Medicine. The lead author was Patrick Krill, who is an attorney and Board Certified Alcohol and Drug Counselor and is the Director of the Legal Professionals Program at the Hazelden Betty Ford Foundation. That study revealed that between 21% and 36% of U.S. lawyers drink at levels consistent with an alcohol abuse disorder. Those figures are roughly 3 to 5 times higher than the forecast for the general population in the United States.
While recently participating in a lecture, I had the opportunity to review some material on metadata. While most of the information was irrelevant to my practice, I did take away something important regarding preservation of client confidences and protection of privileged information when sending documents electronically.
First, understand that under RPC 4.4, unintentional misdelivery of information or documentation to an opponent requires only that the recipient advises you of its receipt. There is no prohibition against the subsequent use of such received information under the Rule. Thus, misdelivery of information to an opponent can provide them with an unintended advantage, and may result in a charge of malpractice.
By: Chris McDonough & Omid Zareh
Recently, we gave a lecture regarding dealing with the adversarial client. At the conclusion of the lecture, a number of participants came up to share some rather amusing client experiences. Difficulties with clients seemed to be a common theme. However, while these instances seemed funny in retrospect, at the time they were sources of much aggravation, costing quite a bit of the lawyer’s time—which as we all know is precious. Equally costly is the energy and emotion required to deal with these clients.
Joel Brandes was disbarred by the Appellate Division, Second Department on April 28, 2002. After waiting the required seven years, he first applied for reinstatement in 2009. That application was denied in an order which merely stated that he did not possess the character and fitness to practice law. Important to this tale is the fact that on this initial application he revealed that he was doing paralegal work for New York attorneys over the Internet from his home in Florida.1
In my lectures, I am often asked about how to properly divide a settlement check made payable to both the client and an attorney where there will be a division of that check. The inquiring attorneys are often surprised that the procedure they have used for decades is not technically correct.
Most attorneys are well aware that any such check must be deposited into a properly captioned attorney trust account.1
Differing interests between a lawyer and a client are defined as “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.” (RPC 1.0 (f))
Clearly, differing interests—which include conflicts of interest, and the restrictions upon a lawyer’s actions relating to them—is an extremely expansive and highly nuanced topic and will not be discussed in detail in this article.
I recently gave a lecture where I was discussing retainers, legal fees, and escrow. It became clear that there’s some confusion over advanced legal fees paid to a lawyer.
A general retainer is a retainer paid to a lawyer for unspecified future services and for the lawyer to be available to the client in the future. For example, this might be used to engage a lawyer on a monthly or yearly retainer to be available for representation or to give the client legal advice as issues arise.
Recently, CNN published an article focusing on alcohol usage in the legal profession, authored by Patrick Krill Esq., the lead author of an important study that appeared in the Journal of Addiction Medicine. Mr. Krill is an attorney, board certified alcohol and drug counselor who is the director of the Legal Professionals Program at the Hazelden Betty Ford Foundation.
This study revealed that between 21% and 36% of attorneys “drink at levels consistent with an alcohol abuse disorder,” which is roughly “3-5 times higher than the government estimates for … the general population.”
To every client I counsel and in every lecture I give, I try to emphasize the importance of using a written retainer agreement or retainer letter in connection with every representation undertaken. The reason: it is the simplest and most effective means by which attorneys can support their legal fees, avoid misunderstandings with clients, and defend themselves from certain grievances and malpractice actions.
The Board of Law Examiners (Board) has the authority to bring charges against a test taker (applicant) for any violation of their rules (22 NYCRR 6000). The violation can be based upon observation by a proctor, a report from exam security, a report by another test taker, or by computer detection software. They do not bring charges lightly, but when they do, it is usually a serious situation.
As all lawyers should be aware, if you hold escrow, you do so at your own peril. A simple mistake that results in a returned escrow check automatically results in a notice to the Lawyers’ Fund for Client Protection and a referral to the appropriate Grievance Committee. The Grievance Committee will open a complaint, audit your account, and examine your office banking records for the six months prior to the issuance of the check. This is extremely time-consuming and can reveal small errors that could become big problems.