Want to see us live? Bill & Natalie at State Bar’s Midyear Meeting CLE

Come join us on February 5th, at the State Bar’s Midyear Meeting.  Here are the CLE details and you can register on site!

TECHNOLOGY IN PRACTICE: AVOIDING ETHICAL LANDMINES AND MAXIMIZING TODAY’S TECHNOLOGY SKILLS AND TOOLS

9 A.M. – 12 P.M. | 3 CLE hours

Lawyers have realized they have to understand how to use technology, but knowing what they need to be wary of for ethical compliance and then learning how to best use systems can create concerns. The presenters will discuss hot ethical landmines to steer clear of when using technology; review cutting-edge technologies including an assessment tool geared toward helping lawyers understand their proficiency with commonly used software; and show attendees the new face of Fastcase. Each of the panelists will walk through some of their favorite technology solutions, showing you exactly how they work and explaining the benefits of using them. With the new skills and tools learned in this session, lawyers will be armed to use their current technology better as soon as they leave.

TOPICS:

Ethical Considerations for Today’s Technology:  William J. Cobb, Assistant General Counsel, State Bar of Georgia Office of the General Counsel, Atlanta

The New Face of Fastcase: Presenting Fastcase 7:  mSheila Baldwin, Member Benefits Coordinator, Law Practice Management Program, State Bar of Georgia, Atlanta

Legal Tech Tools and Know-How in 7-Minutes:   Sheila Baldwin; William J. Cobb; Natalie R. Kelly, Director, Law Practice Management Program, State Bar of Georgia, Atlanta Co-Sponsors: Law Practice Management Program, Office of the General Counsel, Young Lawyers Division, State Bar of Georgia

Unfavorable Online Reviews – What to Do (or Not)

That client said what about me! Being a lawyer representing people and organizations who could be on a winning or losing side means there will likely be someone who’s unhappy with a result, and if you the practitioner are not careful, they could also be unhappy with you personally.  Regardless of the reason for a client’s unhappiness, today a disgruntled individual can take to the airwaves online to express their displeasure.  Online sites like complaint.com and other negative feedback sites have long existed for consumers to make complaints, but with online lawyer directories with open comment areas and feedback ratings, the possibility of a negative client rating is now a reality for most lawyers.

So how should one deal with a bad rating or negative comments – true or not – when they have been placed online by your client or former client?

First, change the scenery.  Instead of responding online, simply pick up the phone and reach out to the client.  Conversation is usually better than email in these situations, and perhaps you can work out a retraction by clearing things up over a chat.  (A confrontational or defensive approach, of course, will just make things worse, whether oral or written.)  If the client or former client won’t speak to you, then move on to sending a handwritten note or letter – again, not an email unless there is no other way – discussing your position, sympathizing with their dismay about the results, and/or expressing any other sentiments which could lead to a reconciliation of the relationship.

Second, be acutely aware of your ethical duty to the client or former client.   GRPC Rule 1.6 severely limits a lawyer’s ability to respond to online criticism, because it makes presumptively confidential “all information gained in the professional relationship with a client,” regardless of the source, and with certain exceptions prohibits disclosure without the client’s “informed consent” (defined at Rule 1.0(h)). That obligation continues after the representation ends.  One exception is “to establish a . . . defense on behalf of the lawyer in a controversy between the lawyer and the client,” but don’t rely on that.  A typical legal definition of “controversy” is “a litigated question; adversary proceeding in a court of law; a civil action or suit.”  Comments [16] and [17] to Rule 1.6 refer to legal claims or disciplinary charges.  And in In Re Skinner, 295 Ga. 217 (2014), without even mentioning the defense exception, the court disciplined a lawyer who had posted information about a client in response to the client’s online criticism.

So if you can’t disclose any information you learned during the representation, what can you say?  You might say something like, “I respectfully disagree” and/or “ethics rules prevent me from responding.”  But consider whether even that is worth it, since from an already angry client it may well trigger an additional acidic post.  The impact of an isolated criticism or two will generally fade over time (and if clients are moved to attack you more often, serious self-examination is in order).  If the criticism is false and genuinely harmful, there are civil remedies.  Pampattiwar v. Hinson, 326 Ga. App. 163 (2014)(affirming verdict against former client based on fraud, libel per se, and false light invasion of privacy).

Getting over negative reviews will take patience and restraint, and should cause you to work hard to avoid them by doing your best to ensure your clients remain happy, or at least satisfied that you did your best for them, regardless of any results they receive.  If you were to rate yourself and your service personally, what would you give yourself?  Focus on improving your client education process with more attention on client relations and satisfaction to get the highest marks before, during and after the representation!

Disclaimer:  Interpretations of the Georgia Rules of Professional Conduct (ethics rules) and their applicability in this blog post are informal opinions issued pursuant to Bar Rule 4-401.  They are the personal opinions of the Assistant General Counsel co-author, and are neither a defense to any complaint nor binding on the State Disciplinary Board, the Supreme Court of Georgia or the State Bar of Georgia.

– Natalie & Bill

AVVO-type Services and the Georgia Lawyer

Have you claimed your profile? Was it correctly displayed in AVVO? Did you get the rating you think you deserved? What can you really do about that nasty review? We will attempt to work through this quandary for Georgia lawyers. As other jurisdictions have opined in various ways about the proper use and peril of services like AVVO, we felt the need to address it head on. So here goes.

Can a Georgia lawyer sign on and accept their rating? Well, of course, and many have done just that and leveraged higher ratings to boot. There are rumors that higher ratings are attained when lawyers accept and fill in their profiles, and not doing so may be at the heart of some of the concerns we hear about AVVO. Where did they get my information, and what if it’s totally wrong? We’ve heard more than once that a lawyer has never worked in a practice area their AVVO listing proclaims. Likewise, claiming to specialize in certain practice areas is not something to be taken lightly, but again there are some profiles that make these claims without the lawyer even knowing about it in some cases. So, does this now mean the lawyer can be in trouble with the State Bar?

We will talk more about “false and misleading” information later, but for starters, let’s address the use of online directory services like AVVO. As already mentioned, lawyers can use the service, and in most cases, claiming the profile may well be the way to go. Not doing so could indicate the lawyer is not in step with the times. Everyone’s online and most folks check out lawyers they’ve heard about online. Why not make sure your online presence is at its very best by making sure any information out there is correct? Once a profile has been accepted, then the lawyer must decide whether to enhance the profile through add-on services or by linking in additional content. Both tend to increase the ranking of the lawyer’s profile in searches performed using the directory. Again, there are no guarantees, but generally speaking the proactive approach to the profile listing seems to get noticed in the search algorithms used by the online services. So our advice to most lawyers is to get online and check your profile and claim it and add additional content if you are inclined to use the directory as a part of your online marketing campaign. You will just want to be sure you keep up with any content provided by the listing.

Lawyers who for whatever reason do not want to claim their profiles are likely to not be entirely pleased with their options. AVVO will not take down your listing, and we have mixed reports about being able to correct your practice areas without claiming your profile. However, if you have not been disciplined by a licensing bar, AVVO will accept a request that your “ratings not be displayed.” That strips down the profile, but practice areas, years of licensure, and evidently the ability of others to post reviews of you, remain displayed.

But what about unfavorable and inaccurate information? How’s that to be dealt with without skirting or crossing any ethical lines? There are no Georgia Supreme Court decisions or Formal Advisory Opinions addressing inaccurate information on websites like AVVO, but like a lawyer’s own website, you should consider it to be advertising and therefore subject to Georgia Rules of Professional Conduct (GRPC) Rules 7.1 (Communications concerning a Lawyer’s Services), 7.2 (Advertising) and 7.4 (Communication of Fields of Practice). There are a number of specific obligations and prohibitions in those rules, but the overarching requirement is that your communications not be false, fraudulent, deceptive or misleading. It seems unlikely that inaccurate information in an unclaimed AVVO profile would be prosecuted as an ethics violation, since the lawyer played no role in creating or publicizing it. Once you claim a profile, however, it seems obvious that you will be responsible for assuring that its content complies with the above GRPC rules. What to do about unfavorable reviews is a topic unto itself, which we will address next time.

Disclaimer:  Interpretations of the Georgia Rules of Professional Conduct (ethics rules) and their applicability in this blog post are informal opinions issued pursuant to Bar Rule 4-401.  They are the personal opinions of the Assistant General Counsel co-author, and are neither a defense to any complaint nor binding on the State Disciplinary Board, the Supreme Court of Georgia or the State Bar of Georgia.

-Natalie & Bill

Meet Bill Cobb, Georgia Practice Advisor’s New Co-Author

Bill is an Assistant General Counsel at the State Bar.  He graduated from Duke University in 1970 with a B.A. in Zoology, and earned his law degree from Emory University in 1973.  At the Office of the General Counsel, he screens and prosecutes ethics complaints, is part of the Ethics Hot-Line service rotation (404-527-8741), and is a frequent CLE speaker, with a focus on the intersection of technology and ethics.

Before joining the Office of the General Counsel, Bill’s practice was principally civil litigation, with an emphasis on complex cases but no subject matter specialty.  He represented both sides, but more plaintiffs than defendants.  For his first 11 years as a lawyer, Bill worked for Georgia Legal Service Program in various capacities, the last 4 years as its Director of Litigation.  In addition to law practice, supervision and management, in the early 1980s he implemented GLSP’s first computer network.

After GLSP, Bill practiced exclusively in small firms with no more than 4 or 5 lawyers. In 2000, he and his wife, Ayres Gardner, formed Cobb & Gardner LLP in Decatur, and Bill took the firm “virtual” in 2010.  He joined the Office of the General Counsel in 2012.

Welcome, Bill!

Managing Data in Your Client Files

Psst.!  We have a new co-Author – Bill Cobb, Assistant General Counsel in the State Bar’s Office of the General Counsel.  You will learn more about him later.  

Data is big right now!  How do you secure all of the information that comes into your possession or knowledge, especially the digital data that just doesn’t seem to stop?  For lawyers, it can be a tricky proposition.  One of the most frequent questions we get is, “how long do I have to keep client files,” and while this question has some clear parameters, what about all the other information that is kept on a daily basis by law firms?  What happens to all that data?  Well, perhaps we’ll get to that in some of our next posts, but for now let’s focus just on client file data.

The first thing lawyers can do to better manage data from client files is to create a plan specifically identifying what is to be saved and what is to be destroyed and when.  This plan, of course, will need to ensure proper steps are being taken to comply with the State Bar’s ethics rules, but also any other rules or regulations pertaining to your client’s data.  Because they are so important, let’s spend some time with these rules.

The only State Bar ethics rule (Georgia Rules of Professional Conduct) specifically requiring data retention is one of the trust account rules, 1.15(I)(a): “Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation.”  The Rule 1.6 obligation of non-disclosure, which continues after the representation ends, means that all retained records pertaining to a client matter, whether required by Rule 1.15(I)(a) or not, should be reasonably secured against inadvertent disclosure.  Beyond that, record retention policies and practices are often determined in consultation with the lawyer’s professional malpractice carrier.

Rule 1.16(d) requires “surrendering papers and property to which the client is entitled” when the representation ends, i.e., returning the client’s file, and you should assume that it includes “papers” in electronic form.  Of course, not all clients want their files, but to protect against allegations of violating Rule 1.16(d), good practice is to give clients a written opportunity to obtain their files before an identified possible destruction date.  The client is entitled to the original file, the lawyer can keep a copy at his/her own expense (unless the client agreed in advance to bear that cost), and the file cannot be withheld due to unpaid fees or copying costs.  Formal Advisory Opinion No. 87-5.  Copies sent to the client during the course of the case may not satisfy this obligation.  Adams v. Putnam County, 290 Ga. App. 20, 21, 658 S.E.2d 805, 807 (2008).  Limited types of documents need not be given to clients. Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571, 573 and n.3 (2003).

As for other rules and regulations, make sure you identify the firm’s role in keeping personal confidential information, health information and personal financial records.   Each of these types of data may require special steps.  Check with current regulatory agencies and related entities’ websites and portals for current requirements.

When creating file retention and destruction policies make sure they comply strictly with these rules  and regulations.  Law firms are going to need to be proactive in protecting data obtained for and in the course of representation.  Information gathered for client files before, during and after the representation should be reviewed to ascertain proper management.   To get additional help with your retention and destruction policies, give either the Bar’s Law Practice Management Program or  Ethics Hotline a call to discuss concerns and best practices!

  • Natalie & Bill

Disclaimer:  Interpretations of the Georgia Rules of Professional Conduct (ethics rules) and their applicability in this blog post are informal opinions issued pursuant to Bar Rule 4-401.  They are the personal opinions of the Assistant General Counsel co-author, and are neither a defense to any complaint nor binding on the State Disciplinary Board, the Supreme Court of Georgia or the State Bar of Georgia.

Name Changes!

When a lawyer changes her or his name, most commonly due to marriage or divorce, which name should she or he use for professional purposes?  Can the lawyer use both names?  Name changes often generate questions for lawyers, particularly solo practitioners who have much invested in the name under which they have been practicing.  So we thought it would be helpful to offer some guidance on this topic.

The Bar’s concern is that clients and members of the public should be able to correctly identify a lawyer by checking the Bar’s membership directory, and that the public is not confused or misled by the lawyer’s use of different names.  See Rule 7.5(a).

The name that a lawyer uses for professional purposes should be the same name that is associated with the lawyer in the membership records of the State Bar of Georgia.  Professional purposes include all communications to the public such as firm name, advertising, letterhead, etc. as well as the name used on pleadings and other professional documents.  If the lawyer decides to change his or her name, that change should first be made with the State Bar Membership Department.  The lawyer should only then begin using the new name professionally.  To avoid confusion, the lawyer may include a parenthetical “formerly known as Jane Doe” on documents and public communications for a reasonable transition period.  What the lawyer should not do is practice under two different names.

An extra practice management tip for names:  Make sure you capture aliases in your contact records.  Also, use social security numbers or other constant identifiers for conflicts checking in addition to names so you don’t miss anyone who happens to change their name!

Tina & Natalie

Listen Up! – Important Change to Advertising Rules

Did you realize that your advertising/marketing materials that were in compliance with the Rules of Professional Conduct on March 20, 2014, may have violated the rules as of March 21st? No? Then please take a little time to review the amended Rule 7.2 which was approved in an order issued by the Georgia Supreme Court on March 21, 2014. http://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=147

The changes to Rule 7.2 require additional disclosures for ads directed to potential clients in Georgia. Advertisements in all media must now include the name, telephone number and full office address of each lawyer or law firm who paid for the ad and takes full responsibility for it. If you use a referral service, you must ensure that the service discloses your office location, or registered bar address, when a referral is made.

If you will refer the majority of callers to other attorneys, you must disclose that fact and also comply with the provisions of Rule 7.3(c) regarding referral services. If you use a non-attorney spokesperson, portrayal of a lawyer by a non-lawyer, portrayal of a client by a non-client, or paid testimonials or endorsements, those must be disclosed.

If you advertise a fixed fee for specified legal services, you must have available to the public a written statement clearly describing the scope of each advertised service. Any ad that includes any representation resembling a legal pleading, notice, contract or other legal document must include a prominent disclosure that the document is an advertisement rather than a legal document.

If you placed ads before the changes became effective, you will have a reasonable time (which will vary based upon the type of ad) to come into compliance. For instance, billboards rented before the changes or ads in printed phonebooks generally cannot be immediately changed. However, renewals of all forms of advertising should be done in compliance with the amended Rule 7.2.

If you have questions about whether your ads comply with the amended Rule 7.2, you are welcome to call Tina Petrig at 404.527.8720.