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Alabama State Bar

Alabama State Bar. Roman Ashley Shaul General Counsel Calhoun-Cleburne County Bar Association Meeting Anniston, Alabama April 18, 2019. Roman Ashley Shaul. University of Alabama (1995) University of Alabama School of Law (1998)

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Alabama State Bar

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  1. Alabama State Bar Roman Ashley Shaul General Counsel Calhoun-Cleburne County Bar Association Meeting Anniston, Alabama April 18, 2019

  2. Roman Ashley Shaul • University of Alabama (1995) • University of Alabama School of Law (1998) • Worked in title office of a Tuscaloosa, AL law firm (1990-1996) • Insurance defense practice in Tuscaloosa, AL (1998-2000) • Plaintiff’s practice in Montgomery, AL (2000-2017) • Circuit Court Judge, Montgomery County, AL (February 1, 2017-June 15, 2018) • General Counsel, Alabama State Bar (June 16, 2018)

  3. What is my view of the World?

  4. My Guiding Principle

  5. What is my view ofthe role of the OGC?

  6. Hopefully you don’t think this…

  7. …. or this ….

  8. … but instead think this.

  9. Updates in theOffice of General Counsel

  10. Updates in theOffice of General Counsel • OGC Restructure (Discipline/Ethics) • Character & Fitness Appeals • Practice Management Assistance Program (“PMAP”) has moved. • Online Submissions (Rule 7.2/Discipline) • Website

  11. What is Our Jurisdiction?

  12. What Is Our Jurisdiction ? Rule 1(a)(1) Alabama Rules of Disciplinary Procedure: “Lawyers admitted to practice law in this state, including…, • District attorneys and assistant DAs; • United States attorneys and AUSA; • Attorney General and AAG; • Lawyers admitted to any Court in the state for a particular proceeding. • Judges (NOT while they are a Judge though – 1 exception) ** “(the above)…are subject to the exclusive disciplinary jurisdiction of the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar, with review by the Supreme Court of Alabama.”

  13. 2018 Disciplinary Stats • Complaints Received 1181 • Complaints Screened Out 873 • Formal Investigations Opened 303 • Private Reprimands 32 • Public Reprimands 11 • Probation (w/ discipline) 8 • Suspensions 34 • Disbarments (3 by consent) 8 • Surrender of License 1 • Formal Opinions Issued 0 • Informal Opinions Issued 3273

  14. Beware Criminal and Family Law?

  15. Most Violated Rules Rule 8.4(g) Conduct adversely reflecting fitness to practice law (32) Rule 1.4(a) & (b) Communication (22) Rule 1.3 Willful Neglect (17) Rule 1.15 Safeguarding client/3rd party property (14) Rule 1.16 Declining/terminating representation (9)

  16. Most Violated Rules Rule 5.5 Unauthorized practice of law (9) Rule 8.4(c) Conduct involving dishonesty/fraud (7) Rule 1.5 Fees (7) Rule 1.1 Competence (6)

  17. Data Breaches

  18. ABA Formal Op. 483 (10/17/2018) “Lawyers’ Obligations After an Electronic Data Breach or Cyberattack” • Before breach, develop data breach plan • Must monitor for data breach • Stop breach and restore systems • Reasonably determine what occurred • Provide notice of data breach to clients • Notice must give sufficient information

  19. ABA Formal Op. 477R (5/21/2017) “Securing Communication of Protected Client Information” • Reviews 2012 Model Rules Technology Amendments • Duty to prevent inadvertent or unauthorized disclosures • Reasonable efforts standard (safeguards) (sensitivity, likelihood, cost, difficulty, ease to use) • Special protections by agreement, law or circumstances

  20. Model Rule 8.4(g)

  21. Model Rule It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

  22. Alabama Rule It is professional misconduct for a lawyer to: (g) engage in any other conduct that adversely reflects on his fitness to practice law.

  23. Advertising Update

  24. Advertising Update • New ABA Rules • Alabama State Bar Committee on Disciplinary Rules and Enforcement • Rule 7 subcommittee • UPL issues

  25. Social Media and Ethics What you follow, follows you

  26. Beware of the Kudzu EffectIf you Post It – It Will Spread

  27. Multiple federal prosecutors in New Orleans admitted to posting pseudonymously about judges, pending investigations and cases. • A South Carolina lawyer received a public reprimand in 2012 for violating advertising rules by false and misleading statements about his qualifications, such as listing 50 practice areas in which he had little or no experience. (In re Dickey, 722 S.E.2d 522 (S.C. 2012)).

  28. An Illinois defense attorney uploaded discovery video of an undercover drug buy involving his client on YouTube, and described it as evidence of police planting drugs. Later, after viewing it more closely, he admitted that it incriminated his client. • A former chief lead counsel to the Missouri governor posted nude photos of his ex-girlfriend--a prosecutor in Virginia--on Twitter.

  29. On or about January 29, 2015, the Office of General Counsel received copies of screen shots from a website, www.avvo.com. The website allows clients to post comments regarding their lawyers. On the website, a former client posted an anonymous negative review. • The Alabama attorney responded to the negative review by posting an online response attacking his former client and revealing confidential information. The lawyer posted that the client was ignorant and then revealed that the client had been charged with DUI, a drug charge, and also had a divorce case. The lawyer also revealed that the client had been “locked up in the looney bin” for months due to “numerous and severe” psychological conditions. The lawyer also told the client to “show some fortitude and man up boy.”

  30. Professionalism “Professionalism ultimately is a personal, not an institutional, characteristic…[I]ndividual lawyers must be the ones to cultivate this characteristic in themselves” *A National Action Plan on Lawyer Conduct and Professionalism. A Report of the Working Group on Lawyer Conduct and Professionalism, Submitted to the CCJ Committee on Professionalism and Lawyer Competence, July 17, 1998, p.1.

  31. Perception v. Reality In a well-known ABA Study: * 74% of respondents think lawyers are more interested in winning than in seeing that justice is served. * 73% think lawyers spend too much time finding technicalities to get criminals released. * 69% agree that lawyers are more interested in making money than in serving their clients. American Bar Association Section of Litigation, Public Perception of Lawyers: Consumer Research Findings (2002).

  32. Perception v. Reality Ranking the Honesty and Ethical Standards of each Profession: Nurses 84% Medical Doctors 67% Pharmacist 66% Police Officers 54% Clergy 37% Lawyers 19% **2018 Gallup Poll

  33. Perception v. Reality 91% of Lawyers describe colleagues as civil/professional – however- 85% have experienced unprofessional behavior or rudeness in the last 6 months; 9% experienced prejudice (age, sex, race, culture); < 90% agree incivility makes it harder to resolve cases; increases cost of litigation and discourages people from going into/staying in the profession. Survey of Illinois Lawyers. Illinois Supreme Court Commission on Professionalism. (2014)

  34. Don’t Rely on Your Friends for Ethics Advice

  35. Why Get an Ethics Opinion?

  36. Ethics Opinions Alabama Rules of Disciplinary Procedure Rule 18. Conduct not subject to disciplinary action. If, before engaging in a particular course of conduct, a lawyer makes a full and fair disclosure, to the Office of General Counsel, said inquiry shall be considered confidential. Additionally, if said lawyer receives a formal or informal opinion from the Office of General Counsel that the proposed conduct is permissible, such conduct shall not be subject to disciplinary action.  

  37. My Client is Having a Crisis…What Do I Do?

  38. Protecting Clients From Themselves • Rule 1.6 CONFIDENTIALITY OF INFORMATION (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;…

  39. Lawyer Assistance Program • Robert B. Thornhill, MS, LPC, MLAP Director(334) 517-2238 - Phone (334) 517-2239 - Fax (334) 224-6920 - 24 Hour Confidential Helpline robert.thornhill@alabar.org • http://www.alabar.org/alap/

  40. Alabama State Bar

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