Remotely Ethical

In this episode of Remotely Ethical, we provide some recent updates, discuss radical changes to the Arizona Rules of Professional Conduct, and offer five tips for protecting your attorney escrow account. Brief updates on past stories Governor Cuomo's executive order extends the statutes of limitations on legal claims until October 4, as well as the remote notarization procedures. Read our blog post here. The executive order also extends the ability to execute and notarize documents remotely due to the COVID crisis. Read our blog post here. New Jersey has followed New York's lead in abolishing the rule that prohibits lawyers from using trade names.  We discussed New York's trade name rule in a previous episode of Remotely Ethical. You can also read Tyler's new article about how law firms can protect their trade names, which he co-wrote with our Trademark partner Kim Maynard. Arizona makes radical changes to its Rules of Professional Conduct The rule changes include: Abolishing Rule 5.4, which prohibited fee-sharing with nonlawyers and nonlawyer ownership of law firm Establishing a regulatory system to approve and oversee "Alternate Business Structures" that have nonlawyer owners Abolishing Rule 7.3, which prohibited paying referral fees to non-lawyers Our colleague Ron Minkoff blogged about Arizona's rule changes here. Top Five Tips for Supervising Attorney Escrow Accounts We discussed a recent incident in Rhode Island where a bookkeeper pled guilty to embezzling approximately $740,000 from her own godmother's law firm. This incident brought to mind the Galasso case in New York, where a lawyer's brother embezzled millions of dollars from the firm's escrow account, leading to the lawyer's two-year suspension for a failure to supervise his nonlawyer brother (Galasso was subsequently reinstated) We discussed the importance of making sure your attorney escrow accounts are in order and gave our top 5 tips for supervising escrow accounts.  Watch the episode to find out what they are! Case notes from captivity Finally, we each talked about what we are reading, watching or doing to get us through lockdown. Tyler has a new addition to his family - a red Betta fish. Pics included in the video. Nicole has been watching the Australian miniseries "Upright" on Sundance Now, starring the incomparable Tim Minchin. Highly recommended.

In this episode of Remotely Episode, we give some COVID-related updates for New York lawyers.  We also discuss whether lawyers working remotely from jurisdictions where they are not admitted to practice law are engaged in the unauthorized practice of law (UPL). COVID updates for NY lawyers Governor Cuomo's executive order extends the statutes of limitations on legal claims until September 4. Read our blog post here. The executive order also extends the ability to execute and notarize documents remotely due to the COVID crisis. Read our blog post here. Are lawyers working remotely engaged in UPL? An opinion from D.C. concluded that lawyers who are sitting in D.C. during the COVID crisis but are not licensed in D.C. are engaged in "temporary practice" and, thus, are not committing UPL.  Read our blog post here. A recent proposed opinion from Florida concluded that a lawyer who is not admitted to practice in Florida, but is physical living in the state, is not engaged in UPL.  Our colleague Ron Minkoff blogged about the Florida opinion here. We offer our tips for avoiding UPL when you are physically located in a jurisdiction where you're not admitted to practice law ABA Rule 5.5, which (if adopted by a particular jurisdiction) permits lawyers to engage in the temporary practice of law, even though they are not admitted to practice lawn that jurisdiction, subject to certain conditions New York's temporary practice rule can be found here. Case Notes From Captivity (where we discuss what we are reading, watching or doing to get through lockdown) Tyler has been making delicious pesto sauce from basil plants he has been growing all summer.  Here is his favorite pesto sauce recipe: 2 cups fresh basil leaves Approx. 1/2 cup olive oil 1/4 cup pine nuts 3-4 garlic cloves 1/3 cup grated Parmesan cheese Salt + pepper to taste Nicole is trying a method of gardening called Hugelkultur to start a new garden bed on her backyard. You can watch all of our Remotely Ethical episodes on our YouTube channel. 

In this episode of Remotely Ethical, Nicole and Tyler discuss three stories that illustrate different aspects of physical presence in the practice of law, particularly during the COVID-19 era. First, we have an update on a short-lived federal lawsuit filed by public defender organizations in New York City to enjoin the New York state courts from reopening too quickly during the ongoing COVID-19 crisis. We discussed the lawsuit in our previous episode of Remotely Episode and our colleague Ron Minkoff blogged about it here and here. Second, we discuss the first in-person criminal jury trial in New York since the COVID-19 crisis hit.  The trial originally began in March but was adjourned due to COVID-19. That trial just resumed in The Bronx, with the court implementing various social distancing precautions. You can also read Tyler's blog post about it here. Third, we discuss a 1909 New York statute which requires New York-admitted lawyers who reside in other states to establish a physical law office in New York, if they wish to practice law in New York.  A bill has been introduced in the New York state legislature to repeal the statute, which by most accounts was  antiquated even before the COVID-19 crisis and which has now become even more obsolete and impracticable.  Nicole blogged about the proposed legislation here. Finally, we discussed our Case Notes From Captivity, where we talk about something we are reading, watching or doing to get through lockdown. Tyler's case note is that he is enjoying the new Perry Mason series on HBO. The show covers the famous fictional detective's origin story, including his unusual path to becoming a lawyer. Nicole shared her first attempt at making pizza during the lockdown, including her discovery that there is a huge difference between pasta and pizza sauce.  She found an extremely simple but delicious pizza sauce recipe online. If you want to make your own "lockdown" pizza sauce, the recipe is below or you can read more detailed instructions here. Watch videos of Remotely Ethical on our YouTube channel.

In this episode of Remotely Ethical, Nicole Hyland and Tyler Maulsby discuss updates of previous topics and a new federal lawsuit seeking to enjoin the New York state courts from reopening. We cover: A new update on the New York bar exam being rescheduled and going remote.  We have a blog post about this development here and you can see our prior bar exam updates here. We also mentioned a prior Remotely Ethical episode where we discussed whether the bar exam is obsolete, which you can watch here. An update on the new program that allows law school graduates to practice law temporarily in New York while they wait to take the bar exam and get admitted.  We have a detailed blog post here with links to the instructions and application forms issued by each of New York's four judicial departments. A federal lawsuit filed by several public defender organizations seeking to enjoin the New York courts from reopening due to health concerns. We have a blog post about the lawsuit here. And finally, we have Case Notes from Captivity where we discuss what we are reading, watching or doing to help get us through lockdown. For Tyler's case note, he talked about his week-long vacation in Vermont and the importance of taking time away for mental health reasons. For Nicole's case note, she talked about the mental health benefits of indulging in nostalgia, which she experienced while revisiting old episodes of a favorite television show, Doctor Who. As she mentioned, it is difficult to advise newcomers on where to start watching Doctor Who, but this cnet article takes a stab at it. You can catch episodes on HBO Max. Or revisit your own favorite tv show or movie from the past. You can watch all of our Remotely Ethical episodes on our YouTube channel or subscribe to our podcast here or on your favorite podcast app. For COVID-19 updates for New York lawyers, check out our regularly updated COVID-19 Resource blog post.

Topic 1: I made a mistake on a client matter! What should I do In this segment we discuss the what lawyers should do if they realize they have made a mistake on a client matter. We cover: · Determining whether the mistake needs to be reported to the client. See NY State Bar Ethics Op. 1092 (2016) · Getting advice from in-house or outside professional responsibility counsel · Ensuring that communications within the law firm are protected under the intra-firm privilege rule. See Stock v. Schnader Harrison, which Tyler has previously written about · Determining whether to report the mistake to your malpractice carrier · Lawyers should also consider the potential conflict of interest that may arise when a lawyer commits a mistake in a client-matter. We do not discuss that here but will cover it in a future episode! Topic 2: Is the bar exam obsolete? In this segment, we discuss advocacy efforts around the country to eliminate the bar exam and implement a "diploma privilege" that would allow graduates of accredited law schools to practice law without passing the bar. Here are some other resources on the "diploma privilege": · An emergency law being proposed in New York state to allow law school graduates to practice law without passing the bar, reported in Law.com · Efforts by law graduates advocating for the diploma privilege, reported in Law360 · The disparate impact of the bar exam on people of color, as discussed in Above the Law · Whether New York should eliminate the Uniform Bar Exam, as previously discussed on our blog Whether the bar exam is effective at ensuring attorney competence, as discussed on the ABA website Case Notes From Captivity Tyler’s Case Notes: For the past two weeks, Tyler has literally been in captivity. He is heading to Vermont for a one-week vacation, so he has been completely quarantined prior to the trip, which means no going for walks or trips to the store, even with social distancing and other precautions. Nicole’s Case Notes: Nicole has been watching the HBO show Perry Mason starring Matthew Rhys (of The Americans) whose name she could not remember during the episode. So far, it is an origin story that takes place before Perry Mason becomes a defense lawyer and offers a creative take on the classic character.  Watch videos of Remotely Ethical on our YouTube channel.

Topic 1: NY Lawyers Charged With Serious Crimes This segment covers the arrest and prosecution of two attorneys who stand accused of throwing a Molotov cocktail at a police vehicle during a Black Lives Matter protest. We discuss: · The recent battles over whether bail should be granted for the attorneys, which went up to the Second Circuit Court of Appeals · An amicus brief submitted by former prosecutors arguing that the Government's position on bail was too aggressive · Whether the Government's position was unusually aggressive, because the individuals involved were lawyers · Whether lawyers should be held to a higher standard in criminal matters because they are "officers of the court" · The possible disciplinary ramifications for lawyers who are charged with or convicted of serious crimes. Topic 2: An Unusual Sanctions Order In this segment, we are joined by special guest, Ned Rosenthal, to discuss a recent sanctions order issued by a federal judge against copyright lawyer Richard Liebowitz, which made waves within the copyright bar. Ned and Tyler wrote a blog post on this unusual sanctions order, which you can read here. We discuss several extraordinary aspects of the sanctions opinion, including that the Court ordered Liebowitz to: · serve a copy of the opinion on all of his current clients · file a copy of the opinion in all of his pending cases · file a copy of the opinion in all new cases he files for the next year · include a deposit copy of the allegedly infringed works with all copyright complaints that he files for the next year, in order to establish that the copyrights have been registered We also discuss whether the Court had the power to issue such a far-reaching sanctions order and what affect it could have in a future grievance proceeding against Liebowitz. A contrasting view of Liebowitz can be found in a 2018 profile published by Slate.com, which you can read here. Case Notes From Captivity Tyler’s Case Notes: Tyler has been taking a nostalgic trip back to the 1990s, by watching episodes of The Practice on Hulu.  In addition to being very entertaining, the show offers a host of legal ethics hypotheticals. Nicole’s Case Notes: Nicole has been enjoying an irreverent cooking show on YouTube called Nat’s What I Reckon, hosted by an extremely potty-mouthed Australian bloke. Seriously, you have never heard anyone swear this much on a cooking show. NSFW. You can watch videos of Remotely Ethical on our YouTube channel.

Topic 1: Tips for Ethically Marketing Your Legal Practice In this segment, we discuss our top five ethics tips for marketing your legal practice online during the COVID-19 crisis.  Topic 2: Substance Use and Abuse Among Lawyers In this segment, we are joined by special guest, Greg Boyd, to discuss substance abuse in the legal profession.  Greg is a partner at Frankfurt Kurnit, but in a previous life, he was a scientist, researcher and medical doctor.  Greg shares his scientific insights and clears up some misinformation about substance use. We cover: · The 2016 Hazelden study commissioned by the ABA, which reported on the prevalence of substance abuse in the legal profession · The importance of using scientific knowledge to demystify and destigmatize substance use Qualities of different substances, including the effective dose, the lethal dose, the safety ratio, and the dependency potential.  You can see copies of the substance use chart that Greg discusses here.  You can watch our webcast version of this segment on YouTube here. For information and resources on substance use in the legal profession, here are some links: · ABA Mental Health Resources · ABA Directory of Co-LAP (Lawyer's Assistance Programs) in each state · The ABA Task Force Report on Substance Use · The newly-formed NY State Bar Task Force on Lawyer Well Being Case Notes From Captivity Greg’s Case Notes:  Greg is watching Yellowstone, starring Kevin Costner, an experience he enjoys sharing remotely with his father during their FaceTime chats.  He also recommends the animated series The Midnight Gospel by Duncan Trussle, who lives in a trailer out in the universe and interviews real-world individuals on his “spacecast.” Tyler’s Case Notes: Tyler has taken up fishing with his four-year-old son at a local pond in New Jersey (where they practice social distancing of course). Nicole’s Case Notes: You may recall that Nicole previously talked about a potting bench she built from Home Depot pallets. While researching woodworking tips, she came across the YouTube channel “Woodworking for Mere Mortals.”  She particularly enjoyed this funny video where the host, Steve Ramsey, spoofs overly-dramatic woodworking videos, while building a hurdle that he is trying to teach his cat to jump over. You can watch videos of Remotely Ethical on our YouTube channel. For more information about attorney ethics and professional responsibility, please visit our blog.

Topic 1: Can I Practice Law Under a Trade Name? In this segment we discuss: · Until recently, Rule 7.5 of the New York Rules prohibited lawyers from using trade names, because they were viewed as inherently deceptive · A recent lawsuit against New York and other states challenged the trade name rule as unconstitutional because it infringed on commercial speech · In response, New York opted to change the trade name rule to permit trade names · Why this is a positive trend that makes sense because it gives lawyers more options for naming their law firms Topic 2: Does a New Rule Change Allow Lawyers to Post Bail for Clients? In this segment we discuss: · Until recently, Rule 1.8(e) of the New York Rules of Professional Conduct prohibited lawyers in litigation from providing financial assistance to clients for non-litigation related expenses · We discussed the rule in a previous episode about whether lawyers can pay bail for their clients · Rule 1.8(e) has now been amended to allow financial assistance to indigent clients in pro bono cases, as long as certain conditions are met · Whether this rule change - called the "humanitarian exception" - would now permit lawyers to pay bail for their clients and, if so, would that create a conflict under other rules If you are interested in contributing to a charitable bail fund or learning more about how bail funds work, here is a list of organizations: · The Bail Project · Brooklyn Community Bail Fund · New York Immigrant Freedom Fund · National Bail Fund Network Case Notes From Captivity Tyler’s Case Notes: Tyler ordered and assembled his new standing desk, which he says is a “life saver.”  Here is a link to the desk that Tyler got, but there are many other options on the market. Nicole’s Case Notes: Nicole has been riveted by a podcast called Breakdown from the Atlanta Journal Constitution, which covers criminal trials in Georgia and addresses issues relating to the justice gap.  Most recently, Breakdown has been covering the Ahmaud Arbery shooting.  You can download and listen to Breakdown on your favorite podcast platforms. You can watch videos of Remotely Ethical on our YouTube channel. For more information about attorney ethics and professional responsibility, please visit our blog.

Topic 1: The Court Awarded Me $1 in Legal Fees. What Should I Do? In this segment we discuss: Vines v. Welspun Pipes, where a law firm applied for $96,000 in legal fees in an Fair Labor Standards Act case, but the judge awarded only $1. Factors a court might consider in determining whether to grant a fee application. How lawyers can reduce the risk of having their fee applications denied or substantially reduced. Who has standing to appeal an adverse decision on a fee application - the lawyer or the client? Topic 2: Is My Litigation Funding Deal Enforceable and Ethical? In this segment we discuss: Fast Trak Investment Co. v. Sax et al., No. 18-17270 (9th Cir.), where the Ninth Circuit certified a question the New York Court of Appeals, as to whether a litigation funding agreement constitutes a loan or an investment. If the arrangement constitutes a loan, it may violate New York's civil and criminal usury statutes. The importance of carefully selecting your choice of law provisions in litigation funding agreements. People v. RD Legal Funding, LLC, No. 2020 N.Y. Slip Op. 31382(U) (N.Y. Sup. Ct.), a New York case that the Court of Appeals may consider when it evaluates the litigation funding agreement at issue in the Fast Trak case. New York City Bar Ethics Opinion 2018-5, which opined that a non-recourse litigation funding agreement between a litigation funder and a New York lawyer constitutes fee-sharing in violation of Rule 5.4. A report issued by the New York City Bar Litigation Funding Task Force that recommends amendments to Rule 5.4, to allow lawyers to enter into certain non-recourse litigation funding agreements. Case Notes From Captivity Tyler’s Case Notes: Tyler has been making his own delicious cold brew coffee. Here is the recipe. Nicole will not be making cold brew coffee, because she thinks it tastes terrible.  She recognizes that this may be a minority view. Nicole’s Case Notes: Nicole spent last weekend building a potting bench out of two pallets that came with a Home Depot delivery. You can see photos of the original pallets and the final potting bench on Nicole’s (otherwise rarely used) Instagram account here. You can watch videos of Remotely Ethical on our YouTube channel. For more information about attorney ethics and professional responsibility, please visit our blog.

In this episode of Remotely Ethical, Nicole Hyland and Tyler Maulsby discuss the following topics: Topic 1: As a lawyer, can I pay for my client’s bail? In this segment, we discuss: How the recent protests over systemic racism in law enforcement and the judicial system have led to mass incarceration and have spurred many lawyers to ask what they can do to help. Whether lawyers can post bail for their clients, under Rule 1.8(e) and Rule 1.7. What alternatives are available for lawyers who want to help at this time. A proposed amendment to Rule 1.8(e), which would allow pro bono lawyers to provide some financial assistance to clients under certain conditions If you are concerned about this issue and are interested in contributing to a charitable bail fund or learning more about how bail funds work, here is a list of organizations: The Bail Project Brooklyn Community Bail Fund New York Immigrant Freedom Fund National Bail Fund Network In this segment, we discuss: A recent Oregon Supreme Court decision, In re Harris, which concluded that an out-of-state lawyer who moved to Oregon and applied for admission was not engaged in the unlicensed practice of law, but was covered by the state's temporary practice rule. Even though New York has a temporary practice rule, which you can find here, it is unclear whether a New York court would find this conduct to qualify as temporary practice. What out-of-state lawyers who move to New York can do to minimize the risk of UPL, including: promptly applying for admission being supervised by a New York lawyer not "holding out" as a New York lawyer accurately describing one's jurisdictional limitations on all communications, including email signature lines, letterhead, websites, social media, etc. Case Notes From Captivity Tyler’s Case Notes: Tyler is enjoying Bad Blood, a book about the Theranos scandal, written by John Carreyrou, the journalist who broke the story. He says it’s a fascinating and quick read. Nicole’s Case Notes: Nicole is enjoying the YouTube videos of, Randy Rainbow, who writes and signs satirical songs about current events, usually to the tune of musical theater songs. A recent favorite is “Andy,” – Randy’s tribute to Governor Andrew Cuomo, set to the tune of “Sandy” from the musical Grease. Or, if you’re a traditionalist, enjoy John Travolta singing “Sandy” from the movie version of Grease. Watch our Remotely Ethical webcasts on our YouTube channel.  For more information about attorney ethics and professional responsibility, please visit professionalresponsibility.fkks.com.

In this episode, Nicole Hyland and Tyler Maulsby cover Parts 2 and 3 of our series on doing business with clients. In Part 1 of this series, we covered renegotiating fee agreements with clients. Topic 1: Alternate Fee Arrangements In this segment we address: How certain alternate fee arrangements, such as taking stock in a client’s business or accepting crypto-currency for fees may constitute a business transaction with a client; New York City Bar Ethics Opinions 2000-3, which addresses ethical considerations when a lawyer exchanges legal services for stock in a client’s business; New York City Bar Ethics Opinion 2019-5, which addresses accepting cryptocurrency and other non-monetary property in exchange for legal services; Complying with Rule 1.8(a), including ensuring that: the transaction is "fair and reasonable" to the client; the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; the client is advised in writing of the desirability of seeking, and be given a reasonable opportunity to seek, the advice of independent legal counsel on the transaction; and the client gives written "informed consent" to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. Litigators should also be aware of Rule 1.8(i), which prohibits attorneys from taking an ownership interest in a cause of action or the subject matter of the litigation. Topic 2: Business Ventures With Clients In this segment, we discuss: Ethical issues for lawyers to consider when going into business with clients. Determining whether Rule 1.8(a) applies to the transaction and complying with its requirements. Complying with Rule 5.7 – the “ancillary business rule” – which requires the lawyer to consider whether the business is “distinct” from the attorney’s legal services. Case Notes From Captivity Tyler’s Case Notes: Tyler has been learning how to compost and has made his own diy compost bin out of an old garbage can. If you have a little outdoor space, composting is an easy, inexpensive, and fun activity to enjoy with your kids. Just google “how to make your own compost” for useful blogs and videos, like this one, to get you started.  Nicole’s Case Notes: As a Harry Potter fan, Nicole has been enjoying JK Rowling’s Harry Potter at Home (free subscription required), where various celebrities are reading chapters of Book One: Harry Potter and the Philosopher’s Stone. The first chapter is read by Harry Potter himself, Daniel Radcliffe. You can watch videos of Remotely Ethical on our YouTube channel.  For more information about attorney ethics and professional responsibility, visit our blog. 

Topic 1: Hoarding and Dabbling Nicole and Tyler discuss the risks for lawyers of hoarding work and dabbling outside one’s practice area. What are "hoarding" and "dabbling"? Why does hoarding and dabbling by lawyers increase legal malpractice liability? Why might lawyers be tempted to hoard or dabble during the current COVID-19 crisis? What can law firms can do to minimize the risk of hoarding and dabbling? Topic 2: Doing Business With Clients, Part 1: Renegotiating Legal Fees This is the first installment of a three-part series on doing business with clients.  We will cover Parts 2 and 3 of this series in our next episode of the podcast. In Part 1, Nicole and Tyler discuss: The fact that lawyers may face pressure to renegotiate fee agreements with clients, particularly during the current health and economic crisis; Whether renegotiating a fee arrangement constitutes a business transaction with a client, subject to Rule 1.8(a) of the New York Rules of Professional Conduct; New York State Bar Ethics Opinion No. 910, which discusses factors that are relevant to whether a fee negotiation constitutes a business transaction with a client; Complying with Rule 1.8(a) when entering into a business transaction with a client, including ensuring that:   the transaction is "fair and reasonable" to the client;   the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;   the client is advised in writing of the desirability of seeking, and be given a reasonable opportunity to seek, the advice of independent legal   counsel on the transaction; and   the client gives written "informed consent" to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. Case Notes From Captivity Tyler’s Case Notes: Tyler is revisiting a pastime from his youth – learning how to play the piano.  He is finding YouTube to be a great resource for teaching yourself how to play the piano. Nicole’s Case Notes: Nicole was excited to learn that the movie version of Hamilton – the Broadway musical – is slated for an early July 3, 2020 release on Disney+.  You can read more about that here.  Nicole also recommends listening to the Hamilton cast album on Spotify, Amazon, Apple Music, or your own favorite streaming platform. If you’re really ambitious, you can read the biography of Hamilton by Ron Chernow, on which the musical was based. You can watch videos of Remotely Ethical on our YouTube channel. For more information about attorney ethics and professional responsibility, please visit our blog.

In this episode of Remotely Ethical, we discuss the following topics: Topic 1: I lied on my law school application. Can I still be a lawyer? Nicole and Tyler discuss whether inaccurate information on a law school application might impede a law school graduate's subsequent admission to the bar. This topic was inspired by a New York Times article that discussed Tara Reade’s undergraduate and law school education, which you can read here. Important disclaimer:  We have no knowledge or opinion about whether Ms. Reade's statements about her undergraduate education are accurate. Topic 2: The Ethics of Civil Disobedience In this segment, we discuss whether lawyers are ethically permitted to engage in civil disobedience or counsel clients about doing so. For more on this topic, check out Tyler’s blog post: Confronting the Ethics of Civil Disobedience. Case Notes From Captivity Tyler’s Case Notes: Tyler is catching up on Season 3 of Better Call Saul and is more troubled by Kim’s ethical behavior than by Jimmy’s (i.e. Saul). If you want to read some of Nicole’s old blog posts about the Ethics of Better Call Saul (Season 1), you can find them here. Nicole’s Case Notes: Nicole was amused and entertained by a YouTube video entitled “Building the Perfect Squirrel Proof Bird Feeder.” You’ll laugh. You’ll cry. You’ll develop a deeper respect for the ingenuity of squirrels. You can watch videos of Remotely Ethical on our YouTube channel. For more information about attorney ethics and professional responsibility, please visit our blog.