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OBA Ethics Counsel

Ethics Counsel Articles

Lawyer Websites
By Travis Pickens

Lawyer websites are increasingly used by all lawyers, of all ages, as their “public” face. They are used to create a public profile of the lawyer or firm, to provide information to clients and potential clients — and as simple advertising. Any of this information constitutes “a communication about the lawyer or the lawyer’s services” and is subject to the requirements in Rule 7.1 that all communications regarding a lawyer and the lawyer’s services must be true, and not misleading, as well as the prohibitions in Rule 8.4 (c) regarding fraud and dishonesty generally, and the 4.1 (a) requirements regarding statements to third parties when representing clients. Everything in the lawyer’s website will be deemed part of the communication so it must be entirely accurate and clear.

Emergency Checklist in the Event of Death, Incapacity or Disappearance
By Travis Pickens
Firms, associations of lawyers, legal departments and solo practitioners should have a documented procedure in place anticipating the potential for a sudden death,incapacity or disappearance of a lawyer.

A True Avocation - Q&A with Clif Gooding
By Travis Pickens
Helping lawyers, and in some cases, saving lawyers, has become a true avocation for Clif Gooding.

A Checklist of Policies and Procedures for an Ethical Law Practice
By Travis Pickens
Whether you’re a sole practitioner, a partner in a firm or anywhere else managing other lawyers, you must take reasonable steps to ensure your practice conforms to the Oklahoma Rules of Professional Conduct. You are also responsible for the conduct of the nonlawyers in your employ. Below is a checklist of best practices to follow that hopefully will protect you, your practice and your clients.

Q & A with OCU Law Dean Couch
By Travis Pickens
An arc brings to mind the shape and movement of a natural form. I look at my life and see that my work as a lawyer has followed a natural uninterrupted arc — beginning with my preparation as a law student, moving into work as a young and maturing trial lawyer, transitioning to the work of a judge for 13 years — and now a move into what could be the last section of the arc, my work as a law school dean and professor.

Trust Accounting 101
By Travis Pickens
The following are some of the questions my office frequently answers for lawyers regarding trust accounts and related accounting.

Mere Professional Conduct
By Travis Pickens
OBA Ethics Counsel Travis Pickens shares 12 suggestions that are essential to the Oklahoma Rules of Professional Conduct.  He says, “these mere essentials are the core of an ethical practice. Follow them, and you will avoid many of the snares and troubles that we face every day.”

New Additions Enhance Ethics Web Pages
By Travis Pickens
After three years in my office, I have learned there are certain ethics issues and questions that frequently arise. It makes sense to enhance our website with this needed information. More importantly, the information should be clear, easy to find and quick to read. For most of you, there is often not enough time to wade through a lengthy article or set of seminar materials to find the information you need at the time.

Educating Your Assistants
By Travis Pickens
Lawyers who hire, manage or supervise non-lawyer assistants must make reasonable efforts to ensure their non-attorney assistants’ actions are compatible with the Oklahoma Rules of Professional Conduct. Supervising lawyers must put specific measures in place to do this. Initially, it would be helpful to educate assistants as to what the disciplinary system is, and for the sake of the lawyers with whom they work, the consequences for violations. The following is an example of an educational tool you may wish to provide: a general overview of the rules and disciplinary system written without legalese.

The Three I’d Monster
By Travis Pickens
Lawyers do not go to law school to become criminals. To do so, the thinking would likely have to go something like this: “Here’s the plan: I’ll spend three years studying harder than I ever have, with classes full of students as driven as I am, and spend an enormous amount of money, and likely go into debt, so that I can then study for a couple of months, take the hardest test of my life, and then scramble to get a job working under the most stress I’ve ever known, so that I can then build up a practice and take retainers, so that I can then begin to siphon off profits from the trust account, which by the way is subject to all kinds of restrictions and for which the bank must report any overdraft automatically to the General Counsel’s Office.”

Q & A with TU Law Dean Levit
By Travis Pickens
Oklahoma law schools are fortunate to have lawyers of impeccable professional backgrounds lead them.  Dean Janet Levit was appointed dean of the University of Tulsa College of Law on July 10, 2008, and recently sat down with OBA Ethics Counsel Travis Pickens to talk about her background and perspective.

Committee Revitalizes Lawyers Helping Lawyers Foundation
By Travis Pickens
The Lawyers Helping Lawyers Foundation Inc. was formed as an Oklahoma nonprofit corporation in 2003, but since then, the work has largely been done by the OBA Lawyers Helping Lawyers Committee through its contract with CABA Inc., a private company that coordinates and provides mental health services to OBA members.

An Ethics Checklist: Withdrawal From A Case
By Travis Pickens
One of the most important skills a lawyer can master is how to withdraw from a case and close the file. Several bar complaints are filed each year simply because the attorney handled the termination of their representation badly. Withdrawing from a case, under any circumstances, is a pivotal emotional point for many clients. Beyond this personal component, there is also a simple matter of withdrawing and closing the file properly, in compliance with the Oklahoma Rules of Professional Conduct.

Six New Year Resolutions for 2012
By Travis Pickens
1. Reread the Oklahoma Rules of Professional Conduct and Comments (There are 57 rules. Covering one set a week is about right.) The rules are short, the comments longer, but neither too long to delay this important task. And, you need to read the book, because there will not be a movie.

Dealing with Difficult Lawyers
By Travis Pickens
From a very small group of lawyers, there remains discourteous and annoying behavior in our profession, particularly litigation. The general coarsening of society does not help, but this sort of behavior has been around as long as there have been lawyers. Most of this behavior does not rise to the level of a disciplinary offense; it is simply unattractive, or burdensome to deal with.

New ABA Ethics Opinions
Advising Clients Regarding Direct Contacts with Represented Persons, Email and Renegotiating Fees

By Travis Pickens
The Supreme Court of Oklahoma has the sole, nondelegable, constitutional responsibility to regulate the practice, ethics, licensure and discipline of lawyers. Their opinions regarding application of the Oklahoma Rules of Professional Conduct are the ultimate answer on any question. In the meantime, practitioners rely upon guidance from my office, or ethics opinions from the Oklahoma Legal Ethics Advisory Panel, treatises, ABA articles and the like, or simply their own research. All such guidance is advisory and non-binding.  Another such source of guidance that appears to be little known is the ABA’s Standing Committee on Ethics and Professional Responsibility, and the formal ethics opinions they issue. The committee produces ethics opinions pertaining to the ABA’s Model Rules of Professional Conduct, most of which are valuable to Oklahoma lawyers as the Oklahoma Rules of Professional Conduct were adapted directly from the Model Rules.

Ethics ‘Desiderata’
By Travis Pickens
In 1927, American writer Max Ehrmann wrote a prose poem titled “Desiderata.” It was thought that Ehrmann had written it for his children, and the poem was extremely popular in the ‘60s and ‘70s, especially among young adults. “Desiderata” is Latin for “desired things.” The following is an adaptation of the poem.

The Attorney’s Speech
By Travis Pickens
This kind of dialogue between attorney and client can be avoided with a few easy steps. Ethics Counsel Travis Pickens provides a few helpful communications techniques that will help you avoid awkward moments like this.

The Power of Procrastination
By Travis Pickens
Rule 1.3 of the Oklahoma Rules of Professional Conduct states: “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Why Manners Matter
By Travis Pickens
The Oklahoma Rules of Professional Conduct are a set of minimum standards of conduct for all Oklahoma lawyers. Reading them will allow you to draw several conclusions, one of which is that these codify the respect that we should have for each other, clients, opposing parties, the court and the public. And isn’t that really what good manners are? Respect. It’s therefore important to understand the correlation between good manners, civility and compliance with the Rules. They all go together.

Yogi Berra’s Five Apocryphal Tips on Ethical and Effective Attorney Marketing
By Travis Pickens
1. “Career planning ain’t over till it’s over.” Why do we stop working on our careers after law school, and merely continue to work in them? Largely, because after completing our formal education we stop setting goals. Yogi would elaborate on this by saying, “You gotta have a plan to have a marketing plan.” I had a friend once tell me he did not believe in marketing. “Oh really?” I said. “Do you take your clients to lunch?,” “Well, yes,” “Have you ever sent referring lawyers or clients ‘thank you’ notes of appreciation?” “Yep.” “Do you send out office cards at the holidays?” “Uh huh.” Friends, this is a marketing plan — a simple one, but a marketing plan nonetheless. My friend thought marketing meant buying television ads and billboard space.

Ethics up in the Clouds
By Travis Pickens
Cloud computing is a quickly developing area.  The analysis of the ethics of cloud computing has not moved as fast.  A few jurisdictions have addressed the ethical pitfalls, but not all, and not Oklahoma, as yet. This article will provide an overview of the issues, but look for ethics opinions that are beginning to emerge throughout the country.

Five Rules to Avoid Bar Complaints in Private Practice
By Travis Pickens
1) Dabbling can be a disaster. Do not “dabble” in high-conflict, high-emotion litigation. Full-time family lawyers and criminal defense attorneys are born for their work and would never do anything else. There is also a fairly sizable group of gifted lawyers that can competently, successfully and profitably do family or criminal law and one or two other areas. If you are not in one of these two groups, then find some other areas in which to dabble. These two areas typically comprise almost 50 percent of the grievances filed each year. Responding to a grievance of any arguable merit (or simply which appears creditable, even though untrue), with the assistance of seasoned independent counsel, will likely be at least a $2,000 experience and some lost sleep.

A Short History of Legal Ethics
By Travis Pickens
The Oklahoma Rules of Professional Conduct, with some revisions, are based upon the ABA’s Model Rules of Professional Conduct. The present ABA Model Rules of Professional Conduct, and therefore our own rules, have a history that goes back to 1836, when David Hoffman, an author and law professor at the University of Maryland, published for his students “Resolutions in Regard to Professional Deportment.”1 Professor Hoffman advised his students to let their conscience be their “sole guide” (Resolution 33) and further instructed them to “espouse no man’s cause out of envy, hatred or malice, toward his antagonist” (Resolution 2).

‘No, I Can’t…’
By Travis Pickens
We lawyers often think we can do almost any kind of legal work. And most of us probably can, given the time, money and motivation to prepare. Problem is, if you have a relatively busy practice, it is difficult to take the time and make the effort to learn what you need to know in a new area.

The Rules of Professional Conduct: Read Them Again, for the First Time
By Travis Pickens
If you were to pass on one statute book or e-file from your library that a new lawyer should read in order to become a fine, successful lawyer, which would it be? Civil procedure? The evidence code? The discovery code? The U.S. Constitution? Perhaps, but the Rules of Professional Conduct are a better choice. To understand why, one must see the rules in a different way, as different from a long list of restrictions. You should read them again, for the first time.

Social Ethics
By Travis Pickens
You are at the party and you see him coming, the guy across the room you barely know, but he knows you are a lawyer. He fixes his stare on you like a laser-guided missile on a Taliban safe house. If you break for the buffet table, he breaks with you. If you turn for the bar, he swivels like a point guard and is still with you. He’s walking faster and closing fast.

Lawyerly Blessings
By Travis Pickens
Activist and writer Anne Lamott says there are two prayers: “Help me! Help me! Help me!” and “Thank you! Thank you! Thank you!” We lawyers (religious or not) know that prayer, don’t we, when looking for a missing trial exhibit or trying to get that extension of time?

Frequently Asked Ethics Questions
By Gina Hendryx and Travis Pickens
It is probably a good sign that ethics issues count for many of the questions posed to members of the OBA staff. Lawyers are people who like to follow the rules, and it is one of our goals to make it easier for lawyers to follow them, especially when the rules involve the Rules of Professional Conduct and the supervision of the Oklahoma Supreme Court. We have selected some of the questions most often asked (or the most interesting) and provided an advisory response. Practitioners should keep in mind that the ultimate authority in ethics issues is the Oklahoma Supreme Court; everyone else is simply providing the best guidance they can. Any ethics question can be addressed to Ethics Counsel by telephone at (405) 416-7055 or by e-mail at travisp@okbar.org.

The Office of Ethics Counsel is for You
By Travis Pickens
The Office of Ethics Counsel was created in recognition of the increasingly complex law of professional responsibility and the related awareness that providing independent guidance as to ethics issues would be a valuable service to the members of the bar. The frequent connections between the emotional and psychological stresses attorneys disproportionately experience, which often result in depression or alcohol and drug abuse, and violations of the Rules of Professional Conduct, are also widely recognized.

Payments of Fees by a Third Party
By Gina Hendryx
Lawyers face conflicts of interest in all facets of legal representation. Litigation or transaction, civil or criminal, no practitioner is immune from these ethical mine fields. Commonly employed but fraught with potential for conflict, the payment of legal fees by a third party is largely accepted as a proper means of securing legal representation for the client who might otherwise not have the financial means to hire an attorney.

Changes to Trust Account Reporting
By Gina Hendryx
Historically when you received your dues statement, you also were required to report whether or not you maintained a client trust account with information pertaining to the location, type and number of the account. Effective Jan. 1, 2009, the method and timing of reporting trust accounts has changed. If you noticed, your dues statement this year does not include a section for reporting of trust accounts. Instead, your statement includes a separate sheet of paper detailing the manner in which you should now report additions, changes or deletions to trust accounts.

FDIC Announces IOLTA Changes
By Gina Hendryx
The recent economic woes coupled with the instability of some banking institutions have caused much concern about the security of client funds held by lawyers in their pooled interest-bearing trust accounts commonly referred to as IOLTA (Interest On Lawyer's Trust Account) accounts. Effective Nov. 21, 2008, the FDIC extended the Temporary Liquidity Guarantee Program (TLGP) to client funds deposited in IOLTA accounts. All funds in an IOLTA account, regardless of size, will now be insured in full by the FDIC and backed by the full faith and credit of the U.S. government as part of the TLGP program through Dec. 31, 2009, provided the banking institution has opted to participate.

Taking on Matters Adverse to Former Clients (Part 3)
By Gina Hendryx
This is the third installment of a three-part series on conflicts with former clients. The following will address the remedies available to the aggrieved client who believes his former attorney is acting improperly by representing a current client against the former client’s interests.

Taking on Matters Adverse to Former Clients (Part 2)
By Gina Hendryx
Part one of this series delved into the ethical considerations faced when a lawyer takes on a matter that is adverse to a former client. A lawyer may not represent a present client against a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing. This article will consider the ethical implications when it is the lawyer’s former firm, rather that the lawyer personally, that represented someone with interests adverse to the lawyer’s client. For example, Lawyer Smith was an associate at Alpha and Beta Law Firm during the time the firm represented Client A in a nasty divorce. The case is over and A has remarried. Lawyer Smith has moved to a new firm, Omega Law Offices. Omega’s prospective client B is currently married to A and is seeking a divorce.

Taking on Matters Adverse to Former Clients (Part 1)
By Gina Hendryx
Over the next three issues, this column will delve into the ethical considerations faced when the lawyer takes on a matter that is adverse to a former client. The lawyer’s duty to protect information relating to the representation of a client does not end with the termination of the attorney/client relationship. However, former clients are not automatically “off limits” just by the mere fact that they once were represented by the lawyer. Oklahoma Rule of Professional Conduct (ORPC) 1.9 sets out the duty owed to a former client and when an adverse representation will constitute a conflict of interest: “(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

Duties to Prospective Clients
By Gina Hendryx
When the revisions to the Oklahoma Rules of Professional Conduct (ORPC) became effective earlier this year, they included the adoption of an entirely new rule that details the ethical obligations owed to a person who consulted with a lawyer but did not subsequently engage the lawyer for representation. Rule 1.18, Duties to Prospective Client, is based upon the Model Rule of Professional Conduct that was approved by the ABA in 2002. It sets forth when a lawyer’s duties of confidentiality, loyalty and confidence attach to the “prospective client.”

Representing Disabled Clients
By Gina Hendryx
The adopted changes to the Oklahoma Rules of Professional Conduct include expanded options for the lawyer representing a client with diminished capacity or under a disability. Rule 1.14 now includes lesser restrictive alternatives to seeking a guardianship when the client lacks the capacity to assist in the lawyer-client relationship.

Dim the Lights: Issues in Winding Down a Law Practice
By Gina Hendryx
The decision to close your law practice may be the result of varying factors. Judicial appointment, change of employment, retirement and relocation constitute life events which may precipitate the need to shutter your solo or small firm. Regardless of motivation, ending a law practice requires preparation and planning. Due consideration must be given to clients, rules of professional conduct, courts and compensation.

ORPC Changes at a Glance (Part 3)
By Gina Hendryx
This is the third and final installment highlighting changes coming to the Oklahoma Rules of Professional Conduct. On Jan.1, 2008, amendments to the Oklahoma Rules of Professional Conduct as approved by the Oklahoma Supreme Court will become effective.

Changes at a Glance (Part 2)
By Gina Hendryx
In the August edition of the Oklahoma Bar Journal, several of the modifications to the Oklahoma Rules of Professional Conduct were highlighted. Beginning Jan.1, 2008, amendments to the Oklahoma Rules of Professional Conduct as approved by the Oklahoma Supreme Court will become effective. These changes were prompted by extensive updates to the American Bar Association’s Model Rules of Professional Conduct.

ORPC Changes at a Glance (Part 1)
By Gina Hendryx
Amendments to the Oklahoma Rules of Professional Conduct as approved by the Oklahoma Supreme Court will become effective Jan. 1, 2008. These changes were prompted by extensive updates to the ABA’s Model Rules of Professional Conduct. The current Oklahoma rules are based substantially on the ABA Model Rules and the adopted amendments reflect these updates as well as current Oklahoma modifications.

Interest on Unpaid Legal Fees
By Gina Hendryx
My client owes me a lot of money for legal services and advanced expenses. May I charge the client interest on the unpaid balance?

The Basics of Fee Agreements
By Gina Hendryx
The written fee agreement is the first and most practical opportunity to define not only what the cost of the legal representation will be but also to discern what services the lawyer will provide and what is expected from the client. Oklahoma Rule of Professional Conduct (ORPC) 1.5 governs fees and fee agreements.

Instilling Professionalism from the Start
By Gina Hendryx
Over the past few years, “professionalism” has been a topic of much discussion and debate among attorneys. Many have attempted to define and diffuse the causes for the steady decline in the esteem in which lawyers are held by the public. Common perceptions of legal ethics are equally contemptuous.

New OBA Panel Issues First Ethics Opinion
By Gina Hendryx
The OBA Board of Governors is nearing completion of its review of recommended changes to the Oklahoma Rules of Professional Conduct. This project was prompted by extensive updates to the ABA’s Model Rules of Professional Conduct.

ORPC Review Nears Completion
By Gina Hendryx
The OBA Board of Governors is nearing completion of its review of recommended changes to the Oklahoma Rules of Professional Conduct. This project was prompted by extensive updates to the ABA’s Model Rules of Professional Conduct.

Internet Advertising: Does Your Website Comply with the Rules?
By Gina Hendryx
In the constant endeavor to get and keep clients, lawyers are continuously exploring novel means of advertising and revisiting proven methods of the past. Television has always been one of the most powerful media for getting information to the public. However, the costs are prohibitive for most practitioners.

Ethics Rules Undergoing Changes
By Gina Hendryx
The Rules of Professional Conduct Committee began review of the Oklahoma Rules of Professional Conduct in February 2003. Oklahoma’s present rules were adopted in 1988 replacing the previously controlling disciplinary rules.

Money and Ethics: Trust Accounts, Expenses, Loans, Gifts, Fee Divisions and Liens
By Gina Hendryx
A lawyer who receives money or other property from a client or third party has a fiduciary duty to protect, account for and notify upon receipt of the property. Funds should be placed in a trust account separate and apart from the lawyer’s operating account or private account.

Fee Agreements with Clients
By Gina Hendryx
My client owes me a lot of money for legal services and advanced expenses. May I charge the client interest on the unpaid balance?

Communication Obligations to Clients
By Gina Hendryx
Communicate with your clients! It is an adage that is stressed at every legal practice seminar and risk management conference.

Fee Splits Between Lawyers
By Gina Hendryx
Fee division among lawyers most commonly occurs when one lawyer refers a case to another lawyer. Other scenarios may include when a client’s original attorney withdraws and is replaced by a successor, or a lawyer withdraws or retires from a firm.

Legislative Enactment Requires Out-of-State Attorneys to Register with OBA
By Gina Hendryx
Beginning Nov. 1, out of state attorneys must first register with the Oklahoma Bar Association before filing a motion for admission with an Oklahoma tribunal.