Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Morals from the Professional Responsibility Commission’s Annual Report

By Travis Pickens

The Office of General Counsel recently compiled and filed the Professional Responsibility Commission Annual Report.  The best news in the Report is that, overall, the number of grievances filed is down from the last year.  From 2011 to 2012, number of complaints went from 1,214 against 999 lawyers to 1,149 complaints against 891 lawyers.  This is especially heartening since the number of lawyers increases significantly twice a year when the law school graduates are sworn in - from a total of 16,955 attorneys in 2011 to 17,232 in 2012.  

Several factors are hopefully working to improve ethics performance among Oklahoma lawyers.  Beyond timely and consistent enforcement of the rules, there are other positive morals that can be gleaned from the report.

The first moral is that efforts to present more and better education and heighten ethics awareness may be working.   General Counsel Gina Hendryx, members of the Professional Responsibility Commission and I make over 90 presentations each year - specifically on ethics and the Rules of Professional Conduct - to county bar associations, practice groups, groups of legal assistants, OBA continuing education seminars, law school classes, inns of court and other law-related gatherings.  That does not include the presentations made each year by the OBA’s Management Assistance Program Director Jim Calloway, who averages over 30 presentations a year. These presentations relating to law office management and client service directly address many issues that enhance ethics compliance by lawyers. Jim Calloway also conducts on-site law office evaluations and makes specific recommendations to law firms.

The Diversion Classes presented by my office and the Management Assistance Program as originated by our Professional Responsibility Commission are also part of the efforts to increase ethics education.  There are currently five classes offered as part of the OBA’s Diversion program:

  • Professional Responsibility/Ethics
  • Trust Accounting
  • Communication and Client Relationship Skills
  • Law Office Management
  • Professionalism in the Practice of Law

One unsung factor in the Report that I believe contributes mightily to fewer ethics issues is the increased utilization of resources offered through Lawyers Helping Lawyers.   It is well established that alcohol and substance abuse, mental and emotional issues are often contributing factors to ethical violations committed by lawyers.  The Lawyers Helping Lawyers Foundation garnered its initial funding last year due to the generosity of several lawyers and firms.  Impacted lawyers are beginning to ask for and get help for intensive therapy or rehabilitation, beyond the six counseling sessions every OBA member is entitled to.   Increasing the money available through the LHL Foundation to help lawyers must be a permanent priority.  Often, the lawyers in trouble have put themselves in financial positions that delay indefinitely or preclude the appropriate help and support they need.

Finally, Oklahoma law schools are increasingly responding to the reality that many graduates will be practicing as solos or within a loose association upon graduation and may not have institutional supervisors and mentors. Practical skills classes and workshops are in place or are being developed that will educate students and help equip them to meet these demands.  Jim Calloway’s annual “Opening Your Law Practice” seminar offered free to new lawyers is also helping to start lawyers off right.

ETHICS 20/20 UPDATE

Every state but California bases its Rules of Professional Conduct upon the ABA Model Rules of Professional Conduct.  There are state-specific differences of course, but essentially, the model rules provide the template from which 49 states work in fashioning their own rules.  Therefore, when there is a change or addition to the model rules, it is likely that change, or something similar, will bubble up for consideration by each state and ultimately adoption.

Ethics 20/20 was a three-year study of how globalization and technology are transforming the practice of law and how the regulation of lawyers should be updated in light of these developments. The Commission on Ethics 20/20 made several resolutions and reports to the ABA House of Delegates meetings in August 2012 and February 2013.  

At the ABA meeting in Chicago in August 2012, the commission proposed – and the house adopted – several resolutions.  The resolutions addressed a wide range of topics, including confidentiality in a digital age, ethics issues arising from new forms of advertising, outsourcing, and issues relating to lawyer mobility.

Since August, the commission has focused on several discrete ethics-related issues arising out of globalization. At the February 2013 ABA meeting in Dallas, the commission submitted, and the house adopted resolutions that pertained to limited practice authority for foreign in-house counsel, and choice of Rule provisions relating to the disciplinary rules of a particular jurisdiction to be applied. There were also recommendations pertaining to rules outside the Rules of Professional Conduct, but that relate in some way to these areas.

These changes are not in place in Oklahoma, but be watching.  They will undoubtedly be considered sometime soon. For details of the model rule changes passed in Chicago and Dallas, go to www.americanbar.org.

Originally published in the Oklahoma Bar Journal -- March 16, 2013 -- Volume 84, No. 8.