1. The Coming Changes to Your Duties to Safekeep Client Property Christian A. Stiegemeyer | Director of Risk Management Christina Lewis Abate | Risk Manager

2. THE QUIZ

3. 1. But I have a Written Contract? You accept a contested probate case on a contingent fee basis. Your fee agreement states that if the client discharges the firm prior to the completion of the matter or decides not to pursue the matter, the client will immediately pay the accrued hourly rate incurred during the representation to that point. The conversion clause: A. Is enforceable as a matter of contract law. B. Is enforceable so long as the hourly rate fee is reasonable. C. Is enforceable in quantum meruit. D. Unenforceable. THE QUIZ

4. 2. This Land is Your Land You represent a real estate developer. Over the course of several years you draft documents for successive entities of which the developer and investors are partners. The investors never sign an engagement letter or pay you a fee. After the development goes bankrupt and the investors lose $20 million, they sue for malpractice. On the question of whether you had an A/C relationship with the investors, the jury at your malpractice trial should: A. Find an ACR because you did not have the investors sign a non-engagement letter. B. Find there was no ACR because the investors never paid you a fee. C. Find there was no ACR because it is not reasonable for the investors to believe you represented both them and the developer. D. Find there was no ACR because the investors did not sign an engagement letter or fee contract. THE QUIZ

5. 3. Practice, practice, practice? You have learned that Adverse Counsel keeps clients’ notarized signatures on file and subsequently attaches them to discovery documents or documents to be filed in court. It is disputed whether the signer actually reviews the documents prior to the notarized signature being attached. Regarding this practice, you: A. Don’t care what he does with his clients. B. Have a duty to file a report with the OCDC after counseling and obtaining your client’s consent. C. Think it is a nifty time-saving idea and look into incorporating it into your practice. D. Do not have a duty to file a report with the OCDC. THE QUIZ

6. 4. I was Just Trying to be Sociable After prevailing at trial, you are so excited you send out the following Facebook post, “Another million dollar verdict! We got the lying scum!! Who wants to be next?” This goes to relatives, friends, colleagues, acquaintances, some clients, and other people you’ve talked to about possibly representing in similar actions against this adverse party. The post: A. Violates MRPC 4-7.1(c). B. Violates MRPC. 4-7.3(c)(5). C. Violates MRPCs 4-7.1(c) and 4-7.3(c)(5) D. Is permissible because your Facebook site is strictly personal and not linked to any legal sites. THE QUIZ

7. 5. Bar None You are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should find you: A. Met the standard because of the unsettled nature of the law. B. Met the standard because bringing the shooter into the action exposed your client to a malicious prosecution claim. C. Met the standard because bringing the shooter into the action exposed your client to an abuse of process claim. D. Failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue. THE QUIZ

8. 6. It Never Occurred to Me You draft a PoA for Client which includes this language: “The holder of this Power of Attorney shall also file an annual account by January 31st of each year and deliver it to [YOUR NAME HERE],attorney, or any attorney licensed in this state, designated by me or by the holder of this Power-of-Attorney for safe-keeping.” The holder does not file the annual account but does steal $800,000 of Client’s money. Client sues you for malpractice. The above language should be held to: A. Create a duty in you to follow-up and encourage the holder to comply with the scheme. B. Create no duty beyond exercising appropriate care in drafting the PoA. C. Create the duty to be a guardian of Client’s financial well-being. D. Create a duty of being a general overseer of the PoA’s holder’s conduct. THE QUIZ

9. 7. I thought I updated that? After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court should: A. Affirm the district court on the grounds that you did not timely receive notice. B. Find the district court did not abuse its discretion because all factors of Rule 4(a)(6) were in fact met. C. Affirm the district court because the law favors judgment on the merits. D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.” THE QUIZ

10. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo was: A. Permissible because the client waived attorney-client privilege when she alleged you charged an unreasonable fee. B. A permissible “use” under Rule 4-1.9(c)(1) because the memo was “generally known.” C. Permissible under Rule 4-1.6(b)(3) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.” D. Impermissible. THE QUIZ

11. 9. Last Social Media Question As part of your investigation into a represented adverse party, you view their Linked-In page to see what is there. The page has no password protection. The AP has enabled a feature of the system that allows them to “see” who has come onto their page. Because you are a Linked-In user also, you are aware of this feature. Looking at the Linked-in page: A. Is an unethical communication under Rule 4-4.2 Communication with Person Represented by Counsel. B. May be an unethical communication under Rule 4-4.2 Communication with Person Represented by Counsel. C. Is ethical per Rule 4-4.2 because the page was not password protected. D. Ethical pursuant to M.R.P.C. 4-3.2 Expediting Litigation. THE QUIZ

12. 10. Dating Service In the ten year period 2002-2011, the most frequently reported “Error or Omission” malpractice category cited in the 2011 Legal Malpractice Insurance Report issued by the Missouri Department of Insurance was: A. Fail to File Documents with no Deadline. B. Failure to Calendar Properly. C. Failure to React to Calendar. D. Fail to Ascertain a Deadline Correctly. THE QUIZ

13. THE QUIZ ANSWERS

14. 1. But I have a Written Contract? You accept a contested probate case on a contingent fee basis. Your fee agreement states that if the client discharges the firm prior to the completion of the matter or decides not to pursue the matter, the client will immediately pay the accrued hourly rate incurred during the representation to that point. The conversion clause: A. Is enforceable as a matter of contract law. B. Is enforceable so long as the hourly rate fee is reasonable. C. Is enforceable in quantum meruit. D. Unenforceable. THE QUIZ

15. 1. But I have a Written Contract? You accept a contested probate case on a contingent fee basis. Your fee agreement states that if the client discharges the firm prior to the completion of the matter or decides not to pursue the matter, the client will immediately pay the accrued hourly rate incurred during the representation to that point. The conversion clause: ANSWER: D. Unenforceable. See, Guy Bennett Rubin PA v. Guettler, Fla. Dist. Ct. App. 4th Dist., No. 4D09-5055, 10/5/11. “A termination-of-services clause in a contingency-fee agreement, which provides for the client to pay the discharged law firm for all services rendered up through the date of termination at the prevailing hourly rate for firm members, if the client abandons or dismisses the claim, violates rule 4-1.5 on its face.” Such clauses are unenforceable as a matter of public policy…because they have the effect of intimidating the client into not exercising the right to discharge counsel or drop the case. THE QUIZ

16. 2. This Land is Your Land You represent a real estate developer. Over the course of several years you draft documents for successive entities of which the developer and investors are partners. The investors never sign an engagement letter or pay you a fee. After the development goes bankrupt and the investors lose $20 million, they sue for malpractice. On the question of whether you had an A/C relationship with the investors, the jury at your malpractice trial should: A. Find an ACR because you did not have the investors sign a non-engagement letter. B. Find there was no ACR because the investors never paid you a fee. C. Find there was no ACR because it is not reasonable for the investors to believe you represented both them and the developer. D. Find there was no ACR because the investors did not sign an engagement letter or fee contract. THE QUIZ

17. 2. This Land is Your Land You represent a real estate developer. Over the course of several years you draft documents for successive entities of which the developer and investors are partners. The investors never sign an engagement letter or pay you a fee. After the development goes bankrupt and the investors lose $20 million, they sue for malpractice. On the question of whether you had an A/C relationship with the investors, the jury at your malpractice trial should: ANSWER: A. Find an ACR because you did not have the investors sign a non-engagement letter. Holland & Knight failed to convince a Los Angeles jury last month that it didn't represent the plaintiffs…in their real estate deals with [an] Atlanta developer and returned a verdict against the law firm for $34.5 million. http://www.dailyreportonline.com/PubArticleDRO.jsp?id=1202555431438&Holland_amp_Knights_lesson_Get_a_disclaimer_&slret urn=20130014130702 THE QUIZ

18. 3. Practice, practice, practice? You have learned that Adverse Counsel keeps clients’ notarized signatures on file and subsequently attaches them to discovery documents or documents to be filed in court. It is disputed whether the signer actually reviews the documents prior to the notarized signature being attached. Regarding this practice, you: A. Don’t care what he does with his clients. B. Have a duty to file a report with the OCDC after counseling and obtaining your client’s consent. C. Think it is a nifty time-saving idea and look into incorporating it into your practice. D. Do not have a duty to file a report with the OCDC. THE QUIZ

19. 3. Practice, practice, practice? You have learned that Adverse Counsel keeps clients’ notarized signatures on file and subsequently attaches them to discovery documents or documents to be filed in court. It is disputed whether the signer actually reviews the documents prior to the notarized signature being attached. Regarding this practice, you: ANSWER: B. Have a duty to file a report with the OCDC after counseling and obtaining your client’s consent. Informal Opinion: 970029 QUESTION: Attorney is involved in a case in which opposing counsel has admitted to keeping notarized signatures of clients on file and subsequently attaching them to discovery documents or documents to be filed in court. The facts are disputed whether the signer actually reviewed the documents by fax or mail prior to the notarized signature being attached. Has opposing counsel violated the rules? ANSWER: Advisory opinions are not issued on the conduct of an attorney other than the one requesting the opinion. However, based on the information Attorney has provided, Attorney has a duty to report the information, including the name of the attorney, the case, etc., to the Office of Chief Disciplinary Counsel. The duty to report is found in Rule 4- 8.3(a). Because Attorney has a duty under the Rules to provide this information, Attorney may submit it in the form of a "report" or a "complaint." If Attorney submits a complaint, Attorney will be considered the complainant in the same manner as anyone else who files a complaint. If Attorney submits a "report," Attorney will not be considered or identified as the complainant. Attorney also will not be notified of the disposition of the matter. THE QUIZ

20. RULE 4-8.3: REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority. COMMENT [1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense. [2] A report about misconduct is not required where it would involve violation of Rule 4-1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests. [3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule 4-8.3 limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule 4-8.3. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct. RULE 4-8.3: REPORTING PROFESSIONAL MISCONDUCT (c) This Rule 4-8.3 does not require disclosure of information otherwise protected by Rule 4-1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. RULE 4-1.0: TERMINOLOGY (f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. THE QUIZ

21. What Must Be Reported Rule 4-8.3(a) does not require lawyers to report every violation but does require reporting when the violation raises a substantial question about the subject lawyer's honesty, trustworthiness, or fitness as a lawyer. The following conduct has, under certain discreet facts, been deemed as mandatorily reportable: Lying or Stealing Inaccurate Advertising Conflict of Interest Unreasonable Fee Improper Settlement Offer Violation of Confidentiality Failure to Correct Defective Court Order Unauthorized Practice THE QUIZ

22. 4. I was Just Trying to be Sociable After prevailing at trial, you are so excited you send out the following Facebook post, “Another million dollar verdict! We got the lying scum!! Who wants to be next?” This goes to relatives, friends, colleagues, acquaintances, some clients, and other people you’ve talked to about possibly representing in similar actions against this adverse party. The post: A. Violates MRPC 4-7.1(c). B. Violates MRPC. 4-7.3(c)(5). C. Violates MRPCs 4-7.1(c) and 4-7.3(c)(5) D. Is permissible because your Facebook site is strictly personal and not linked to any legal sites. THE QUIZ

23. 4. I was Just Trying to be Sociable After prevailing at trial, you are so excited you send out the following Facebook post, “Another million dollar verdict! We got the lying scum!! Who wants to be next?” This goes to relatives, friends, colleagues, acquaintances, some clients, and other people you’ve talked to about possibly representing in similar actions against this adverse party. The post: ANSWER: C. Violates MRPCs 4-7.1(c) and 4-7.3(c)(5) MRPC 4-7.1(c) - A communication is misleading if it: (c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits; MRPC 4-7.3(c)(5) - (c) A lawyer shall not send, nor knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, the lawyer’s partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm a written solicitation to any prospective client for the purpose of obtaining professional employment if: (5) the written solicitation vilifies, denounces or disparages any other potential party. THE QUIZ

24. 5. Bar None You are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should find you: A. Met the standard because of the unsettled nature of the law. B. Met the standard because bringing the shooter into the action exposed your client to a malicious prosecution claim. C. Met the standard because bringing the shooter into the action exposed your client to an abuse of process claim. D. Failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue. THE QUIZ

25. 5. Bar None You are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should: Answer: D. Find you failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue. Attorneys are not immunized from malpractice liability simply because their purported mistakes involved “unsettled” legal questions and the existence of unsettled law does not excuse an attorney from fulfilling a duty of care. “Where the law is unsettled there is at least a viable claim that the standard of care requires the attorney to advise a client to follow the reasonably prudent course of action in light of the uncertainty.” (L.D.G. Inc. v. Robinson, 290 P.3d 215 (Alaska 2012). THE QUIZ

26. 6. It Never Occurred to Me You draft a PoA for Client which includes this language: “The holder of this Power of Attorney shall also file an annual account by January 31st of each year and deliver it to [YOUR NAME HERE],attorney, or any attorney licensed in this state, designated by me or by the holder of this Power-of-Attorney for safe-keeping.” The holder does not file the annual account but does steal $800,000 of Client’s money. Client sues you for malpractice. The above language should be held to: A. Create a duty in you to follow-up and encourage the holder to comply with the scheme. B. Create no duty beyond exercising appropriate care in drafting the PoA. C. Create the duty to be a guardian of Client’s financial well-being. D. Create a duty of being a general overseer of the PoA’s holder’s conduct. THE QUIZ

27. 6. It Never Occurred to Me You draft a PoA for Client which includes this language: “The holder of this Power of Attorney shall also file an annual account by January 31st of each year and deliver it to [YOUR NAME HERE],attorney, or any attorney licensed in this state, designated by me or by the holder of this Power-of-Attorney for safe-keeping.” The holder does not file the annual account but does steal $800,000 of Client’s money. Client sues you for malpractice. The above language should be held to: Answer: Create a duty in you to follow-up and encourage the holder to comply with the scheme. “We conclude that, by incorporating the inventory and accounting scheme into the power of attorney, [attorney] expanded the scope of his representation of [Client] beyond the mere drafting of legal documents. By setting up the inventory and accounting scheme, [attorney] assumed a responsibility to attempt to make it work. Thus, [attorney] had a duty to follow up with [holder] regarding [the] obligation to complete an inventory and the annual accountings and encourage [holder] to comply with the scheme.” Svaldi v. Holmes, --- N.E.2d ----, 2012 WL 6738345 Ohio App. 10 Dist.,2012. THE QUIZ

28. 7. I thought I updated that? After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court should: A. Affirm the district court on the grounds that you did not timely receive notice. B. Find the district court did not abuse its discretion because all factors of Rule 4(a)(6) were in fact met. C. Affirm the district court because the law favors judgment on the merits. D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.” THE QUIZ

29. 7. I thought I updated that? After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court: ANSWER: D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.” Communication Network International Ltd. v. MCI WorldCom Communications Inc. (In re WorldCom Inc.), 2d Cir., No. 10-4588 (L), 1/24/13 “[L]itigants at all times have an ‘obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal.'” “Rule 4(a)(6) was not designed to reward such negligence,” and that “in light of the systemic importance of the ‘sanctity of final judgments,’” reversal was required. Rule 4(a)(6) permits reopening of the time to appeal so long as: “The court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment,” “The motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier,” and “The court finds that no party would be prejudiced.” THE QUIZ

30. 30 http://www.courts.mo.gov/page.jsp?id=46524

31. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo was: A. Permissible because the client waived attorney-client privilege when she alleged you charged an unreasonable fee. B. A permissible “use” under Rule 4-1.9(c)(1) because the memo was “generally known.” C. Permissible under Rule 4-1.6(b)(3) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.” D. Impermissible. THE QUIZ

32. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo was: ANSWER: D. Impermissible. Rule 4-1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent death or substantial bodily harm that is reasonably certain to occur; (2) to secure legal advice about the lawyer's compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (4) to comply with other law or a court order. THE QUIZ

33. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo: Answer A. Irrelevant. The issue is whether the memo is Confidential Information, not whether it is a Privileged Communication. MRPC 4-1.6 COMMENT [3] The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. THE QUIZ

34. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo: Answer B. Was a permissible “use” under Rule 4-1.9(c)(1) because the memo was “generally known.” Using the memo in this fashion was a “reveal” under 4-1.9(c)(2), not a “use”, but even if it was a use, the memo was not “generally known”, only generally available. See e.g. In re Anonymous, 932 N.E.2d 671 (Ind. 2010). [T]he Rules contain no exception allowing revelation …even if a diligent researcher could unearth it through public sources. We note that…1.9(c)(1) allows for use of information…if the information has become generally known. [T]there is no evidence that the information relating to…the divorce filing, was generally known. THE QUIZ

35. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo: Answer B. Was a permissible “use” under Rule 4-1.9(c)(1) because the memo was “generally known.” RULE 4-1.9: DUTIES TO FORMER CLIENTS (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. THE QUIZ

36. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo: Answer B. Was a permissible “use” under Rule 4-1.9(c)(1) because the memo was “generally known.” RULE 4-1.9: DUTIES TO FORMER CLIENTS COMMENT [8] Rule 4-1.9 (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. THE QUIZ

37. 8. Again with the Social Media During a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo: Answer C. A Facebook page posting is not a “legal claim or disciplinary charge” alleging “complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client,…” MRPC 4-1.6 COMMENT [8]. See, e.g. New York County Ethics Op. 722 (1997), Exception applies only “where the accusation is rendered in such a manner that a person would reasonably conclude that the inquirer is subject to a charge or claim in an imminent (pending or threatened) proceeding”; Exception cannot be invoked by a “passing remark”. THE QUIZ

38. 9. Last Social Media Question As part of your investigation into a represented adverse party, you view their Linked-In page to see what is there. The page has no password protection. The AP has enabled a feature of the system that allows them to “see” who has come onto their page. Because you are a Linked-In user also, you are aware of this feature. Looking at the Linked-in page: A. Is an unethical communication under Rule 4-4.2 Communication with Person Represented by Counsel. B. May be an unethical communication under Rule 4-4.2 Communication with Person Represented by Counsel. C. Is ethical per Rule 4-4.2 because the page was not password protected. D. Ethical pursuant to M.R.P.C. 4-3.2 Expediting Litigation. THE QUIZ

39. 9. Last Social Media Question As part of your investigation into a represented adverse party, you view their Linked-In page to see what is there. The page has no password protection. The AP has enabled a feature of the system that allows them to “see” who has come onto their page. Because you are a Linked-In user also, you are aware of this feature. Looking at the Linked-in page: ANSWER: A. Is an unethical communication under Rule 4-4.2 Communication with Person Represented by Counsel. Under the above definitions [of “communication”], whether the communicator intends to “impart” a message or knowledge is seemingly irrelevant; the focus is on the effect on the receiver. It is the “transmission of,” “exchange of” or “process of bringing” information or ideas from one person to another that defines a communication. In the realm of social media, this focus on the transmission of information or knowledge is critical. A request or notification transmitted through a social media service may constitute a communication even if it is technically generated by the service rather than the attorney, is not accepted, is ignored, or consists of nothing more than an automated message of which the “sender” was unaware. In each case, at a minimum, the researcher imparted to the person being researched the knowledge that he or she is being investigated. If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation of Rule 3.5. New York State Formal Opinion 2012-2: JURY RESEARCH AND SOCIAL MEDIA THE QUIZ

41. 10. Dating Service In the ten year period 2002-2011, the most frequently reported “Error or Omission” malpractice category cited in the 2011 Legal Malpractice Insurance Report issued by the Missouri Department of Insurance was: A. Fail to File Documents with no Deadline. B. Failure to Calendar Properly. C. Failure to React to Calendar. D. Fail to Ascertain a Deadline Correctly. THE QUIZ

42. 10. Dating Service In the ten year period 2002-2011, the most frequently reported “Error or Omission” malpractice category cited in the 2011 Legal Malpractice Insurance Report issued by the Missouri Department of Insurance was: A. Fail to File Documents with No Deadline – 4.9%. B. Failure to Calendar Properly – 6.2%. C. Failure to React to Calendar – 7.6%. D. Fail to Ascertain a Deadline Correctly – 22.64%. THE QUIZ

43. The Coming Changes to Your Duties to Safekeep Client Property Christian A. Stiegemeyer | Director of Risk Management Christina Lewis Abate | Risk Manager

44. Current Safekeeping Property Rule found at MRPC 4-1.15 – Effective January 1, 2010; Contains subsections (a)-(m); Including the COMMENT, 4,769 words. New Safekeeping Property Rule found at MRPC: 4-1.145 – Definitions; 4-1.15 – Safekeeping Property; 4-1.155 – IOLTA Accounts; and 4-1.22 – File Retention Effective July 1, 2013; Including the several COMMENT sections, 5,730 words.

45. No Significant Changes New entries in the Definitions Section are items previously found elsewhere in the Current Rule 4-1.145 DEFINITIONS - SAFEKEEPING PROPERTY AND IOLTA ACCOUNTS

46. No Significant Changes New entries in MRPC 4-1.155 are items previously found elsewhere in the Current Rule 4-1.155 IOLTA ACCOUNTS

47. No Significant Changes New entries in MRPC 4-1.122 are items previously found elsewhere in the Current Rule 4-1.22 FILE RETENTION

48. COMMENT [3] Authorized electronic transfers shall be limited to: (1) money required for payment to a client or third person on behalf of a client; (2) expenses properly incurred on behalf of a client, such as filing fees or payment to third persons for services rendered in connection with the representation; or (3) money transferred to the lawyer for fees that are earned in connection with the representation and are not in dispute; or (4) money transferred from one client trust account to another client trust account. COMMENT [2] - Rules 4-1.15(a)(3) to (7) enumerate minimal accounting controls for client trust accounts. -COMMENT [2] enunciates requirement that only a lawyer or person under direct supervision of lawyer shall be authorized signatory or authorize electronic transfers from a client trust account. -It is permissible to grant limited nonlawyer access to a client trust account, access should be closely monitored. -Lawyer has a non-delegable duty to protect and preserve the funds in a client trust account and can be disciplined for failure to supervise subordinates who misappropriate client funds. (3) Only a lawyer admitted to practice law in this jurisdiction or a person under the direct supervision of the lawyer shall be an authorized signatory or authorize transfers from a client trust account; Changes! MRPC 4-1.15(a)(3)-(7) – Bonus Reading Includes COMMENT Changes Too 4-1.15 SAFEKEEPING PROPERTY

49. Changes! MRPC 4-1.15(a)(3)-(7) – Bonus Reading Includes COMMENT Changes Too 4-1.15 SAFEKEEPING PROPERTY (4) Receipts shall be deposited intact and records of deposit shall be sufficiently detailed to identify each item; COMMENT [4] The requirements in Rule 4-1.15(a)(4) that receipts shall be deposited intact mean that a lawyer cannot deposit one check or negotiable instrument into two or more accounts at the same time, a practice commonly known as a split deposit.

50. Changes! MRPC 4-1.15(a)(3)-(7) – Bonus Reading Includes COMMENT Changes Too 4-1.15 SAFEKEEPING PROPERTY (5) Withdrawals shall be made only by check payable to a named payee, and not to cash, or by authorized electronic transfer; and

51. Changes! MRPC 4-1.15(a)(3)-(7) – Bonus Reading Includes COMMENT Changes Too 4-1.15 SAFEKEEPING PROPERTY (6) No disbursement shall be made based upon a deposit: (A) if the lawyer has reasonable cause to believe the funds have not actually been collected by the financial institution in which the trust account is held; and (B) until a reasonable period of time has passed for the funds to be actually collected by the financial institution in which the trust account is held. COMMENT [5] -Lawyer must wait reasonable time for deposited funds to be collected by the financial institution in which the trust account is located before disbursing funds on that deposit, aka "good funds”; - It is not sufficient to wait only until the deposit is "cleared" or "available" as the transaction may still be reversed by the financial institution if a problem arises; -A reasonable time to wait may vary between financial institutions; - A lawyer must also delay disbursement and take extra measures to ensure collection before disbursement if the lawyer is aware of information that causes doubt about the collection or collectability of the deposit. RULE 4-1.8: CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, including medical evaluation of a client, the repayment of which may be contingent on the outcome of the matter;

52. Changes! MRPC 4-1.15(a)(3)-(7) – Bonus Reading Includes COMMENT Changes Too 4-1.15 SAFEKEEPING PROPERTY (7) A reconciliation of the account shall be performed reasonably promptly each time an official statement from the financial institution is provided or available. COMMENT [18] The potential of these records to serve as safeguards is realized only if reconciliations are regularly performed. Reconciliation each time a statement is generated by the financial institution will enable the easiest identification of an error (whether by the lawyer or the bank).

53. What Else? 4-1.15 SAFEKEEPING PROPERTY (f) Complete records of client trust accounts shall be maintained and preserved for a period of at least five years after termination of the representation or after the date of the last disbursement of funds, whichever is later. MRPC 4-1.15(f)(1)-(11) – Record Keeping – Time Frame – Same as Current Rule

54. What Else? 4-1.15 SAFEKEEPING PROPERTY Upon dissolution of a law firm or of any legal professional corporation, the partners shall make reasonable arrangements for the maintenance of client trust account records. Upon the sale of a law practice, the seller shall make reasonable arrangements for the maintenance of records. MRPC 4-1.15(f)(1)-(11) – Record Keeping – Dissolution or Sale - New

55. What Else? MRPC 4-1.15(f)(1)-(11) – Record Keeping - Minimums 4-1.15 SAFEKEEPING PROPERTY Complete records shall include at a minimum: (1) receipt and disbursement journals containing a record of deposits to and withdrawals from client trust accounts, specifically identifying the date, source, and description of each item deposited as well as the date, payee, and purpose of each disbursement; (2) ledger records for all client trust accounts showing, for each separate trust client or beneficiary, the source of all funds deposited, the names of all persons for whom the funds are or were held, the amount of such funds, the descriptions and amounts of charges or withdrawals, and the names of all persons or entities to whom such funds were disbursed; (3) fee agreements, engagement letters, retainer agreements and compensation agreements with clients; (4) accountings to clients or third persons showing the disbursement of funds to them or on their behalf; (5) bills for legal fees and expenses rendered to clients; (6) records showing disbursements on behalf of clients;

56. What Else? MRPC 4-1.15(f)(1)-(11) – Record Keeping - Minimums 4-1.15 SAFEKEEPING PROPERTY Complete records shall include at a minimum (Con’t): (7) the physical or electronic equivalents of all checkbook registers, bank statements, records of deposit, pre-numbered canceled checks, and substitute checks provided by a financial institution; (8) records of all electronic transfers from client trust accounts, including the name of the person authorizing transfer, the date of transfer, the name of the recipient and confirmation from the financial institution of the trust account number from which money was withdrawn and the date and the time the transfer was completed; (9) reconciliations of the client trust accounts maintained by the lawyer; (10) those portions of client files that are reasonably related to client trust account transactions; and (11) records of credit card transactions with clients to the extent permitted by law and the payment card industry data security standard.

57. Some Other New COMMENTS – Safeguard & Account Partners Always Responsible 4-1.15 SAFEKEEPING PROPERTY [11] The basic financial records that a lawyer must maintain with regard to all trust accounts of a law firm include the standard books of account and the supporting records that are necessary to safeguard and account for the receipt and disbursement of client or third person funds. [12] Regardless of the arrangements the partners or shareholders make among themselves for maintenance of the client trust records, each partner maybe [sic] held responsible for ensuring the availability of these records.

58. Some Other New COMMENTS – Computerized Back-up 4-1.15 SAFEKEEPING PROPERTY [13] Alternative media for the maintenance of client trust account records may be used if printed copies of necessary reports can be produced. If trust records are computerized, a system of regular and frequent (preferably daily) back-up procedures is essential. If a lawyer uses third-party electronic or internet based file storage, the lawyer must make reasonable efforts to ensure that the company has in place, or will establish reasonable procedures, to protect the confidentiality of client information. See ABA Formal Ethics Opinion 398 (1995). Required records shall be readily accessible and shall be readily available to be produced upon request by the client or third person who has an interest as provided in Rule 4-1.15 or by the official request of a disciplinary authority, including but not limited to, a demand under Rule 4-8.1 or a subpoena duces tecum. Personally identifying information in records produced upon request by the client or third person or by disciplinary authority may be the appropriate subject of a protective order.

59. Some Other New COMMENTS – Appointment of Trustee 4-1.15 SAFEKEEPING PROPERTY [14] Rule 5.26 provides for the appointment of a trustee to handle the storage or disposition of a lawyer's client trust account records in the event that the lawyer is suspended, disbarred, disappears, or dies.

60. Some Other New COMMENTS – Download Electronic Images 4-1.15 SAFEKEEPING PROPERTY [15] The physical or electronic equivalents of all checkbook registers, bank statements, records of deposit, pre-numbered canceled checks, and substitute checks must be maintained for a period of five years after termination of each legal engagement or representation. The "Check Clearing for the 21st Century Act" or "Check 21 Act", codified at 12 U.S.C. §§5001 et. seq., recognizes "substitute checks" as the legal equivalent of an original check. A "substitute check" is defined at 12 U.S.C. §5002(16) as "paper reproduction of the original check that contains an image of the front and back of the original check; bears a magnetic ink character recognition ("MICR") line containing all the information appearing on the MICR line of the original check; conforms with generally applicable industry standards for substitute checks; and is suitable for automated processing in the same manner as the original check. "Banks," as defined in 12 U.S.C. §5002(2), are not required to return to customers the original canceled checks. Most banks now provide electronic images of checks to customers who have access to their accounts on internet-based websites. It is the lawyer's responsibility to download electronic images. Electronic images shall be maintained for the requisite number of years and shall be readily available for printing upon request or shall be printed and maintained for the requisite number of years.

61. Some Other New COMMENTS – Automated Clearing House 4-1.15 SAFEKEEPING PROPERTY [16] The ACH (Automated Clearing House) Network is an electronic funds transfer or payment system that primarily provides for the inter-bank clearing of electronic payments between originating and receiving participating financial institutions. ACH transactions are payment instructions to either debit or credit a deposit account. ACH payments are used in a variety of payment environments including bill payments, business-to-business payments, and government payments (e.g., tax refunds.) In addition to the primary use of ACH transactions, retailers and third parties use the ACH system for other types of transactions, including electronic check conversion (ECC). ECC is the process of transmitting MICR information from the bottom of a check, converting check payments to ACH transactions depending upon the authorization given by the account holder at the point-of-purchase. In this type of transaction, the lawyer should be careful to comply with the requirements to maintain documentation of the transaction.

62. Some Other New COMMENTS – Electronic Checks 4-1.15 SAFEKEEPING PROPERTY [17] There are five types of check conversions where a lawyer should be particularly careful to maintain good documentation. First, in a "point-of- purchase conversion," a paper check is converted into a debit at the point of purchase and the paper check is returned to the issuer. Second, in a "back- office conversion," a paper check is presented at the point of purchase and is later converted into a debit and the paper check is destroyed. Third, in an "account-receivable conversion," a paper check is converted into a debit and the paper check is destroyed. Fourth, in a "telephone-initiated debit" or "check-by-phone" conversion, bank account information is provided via the telephone and the information is converted to a debit. Fifth, in a "web- initiated debit," an electronic payment is initiated through a secure web environment. The need for complete documentation applies to each of the type of electronic funds transfers described. All electronic funds transfers shall be recorded and a lawyer should not re-use a check number that has been used previously in an electronic transfer transaction.

63. Some Other New COMMENTS – Typical Documents to Retain 4-1.15 SAFEKEEPING PROPERTY [19] In some situations, documentation in addition to that specified in this Rule 4-1.15 is necessary for a complete understanding of a trust account transaction. The type of document that a lawyer must retain because it is "reasonably related" to a client trust account transaction will vary depending on the nature of the transaction and the significance of the document in shedding light on the transaction. Examples of documents that typically must be retained under this Comment [19] include: 1 - Correspondence relating to a disagreement over fees/costs/distribution of proceeds; 2 - Settlement agreements contemplating payment of funds; 3 - Settlement statements issued to the client; 4 - Documentation relating to sharing litigation costs and attorney fees for subrogated claims; 5 - Agreements for division of fees between lawyers; 6 - Guarantees of payment to third parties out of proceeds recovered on behalf of client, 7 - Copies of bills/receipts/correspondence for payments to third parties on client’s behalf (whether from client's funds or lawyer's funds advanced for client ).

64. Why IOLTA? [[3] The IOLTA requirements conform with the decision in Brown v. Legal Foundation a/Washington, 538 U.S. 216 (2003). IOLTA funds must be deposited with institutions paying interest and dividends comparable to rates paid to the institution's own other similarly-situated non-IOLTA customers. This recognizes that additional options have developed and are being offered in the marketplace by financial institutions from which qualifying IOLTA balances should also benefit. Apart from the important goal of fairness in the treatment of IOLTA funds, the most recent rule changes are important to the purposes of the IOLTA program: providing a source of funds to support civil legal services to the poor, improving the administration of justice, and promoting other programs for the benefit of the public as are specifically approved from time to time by this Court. MRPC 4-1.155 COMMENT [3]

65. Why IOLTA? For 2012, the Foundation Board of Directors awarded $950,000 to four grant recipients in the category of "Civil Legal Assistance to the Poor." The awards will be paid to: LEGAL SERVICES OF EASTERN MO $319,960.00 LEGAL AID OF WESTERN MO $289,940.00 LEGAL SERVICES OF SOUTHERN MO $276,355.00 MID-MISSOURI LEGAL SERVICES $63,745.00 SUBTOTAL $950,000.00 $50,000 in grant awards in the category "Administration of Justice" for 2012 will be paid to the following to accomplish a diverse array of projects: JACKSON COUNTY CASA $4,000.00 ST. LOUIS BAR FOUNDATION $20,000.00 KANSAS CITY BAR FOUNDATION $20,000.00 VOICES FOR CHILDREN $6,000.00 SUBTOTAL $ 50,000 From the Missouri Trust Account Foundation website - http://www.moiolta.org/grants.aspx

66. The Coming Changes to Your Duties to Safekeep Client Property Christian A. Stiegemeyer | Director of Risk Management Christina Lewis Abate | Risk Manager Thank you!