A. When you depart
You must act ethically
To get off to a great start
Once you really do break free.

If you are ready,
Just listen to me
About the proper ways
To leave your law firm.

In short, Fran can plan.
But Myles can't steal files.
Clyde shouldn't be snide.
Joyce must respect the clients' choice.

And, as the following article teaches, Bea can live prosperously if she breaks free nicely ...

A. In a word that we don't use often enough, "no."

As lawyers, we certainly want to help as many people as we can. But certain types of people may drain our energy and resources, affect our own job satisfaction and impair our ability to help others.

At the risk of embracing stereotypes, there are six types of clients to avoid:

1. The Critic
2. The Vengeful
3. The Dreamer
4. The Shopper
5. The Cheater
6. The Evader

Just as lawyers come in all shapes, sizes and personalities,
prospective clients do not fit into perfect categories. You must determine whether a particular client's personality, character and case fit your own temperament. But, as this article in the Maryland Bar Journal emphasizes, when you see too many of these traits, slam the brakes!

A. Once you're caught in the world wide web, it's hard to get untangled.

Social media, and online review sites like Yelp and Avvo, help us reach more people than ever before. But they also give our critics a platform to question our competence and integrity.

Free speech can be costly. There's no way to prevent a disgruntled client — or anyone — from posting negative, even scandalous reviews for all to see.

But, as we wrote in the Maryland Bar Journal, responding the wrong way may cost you more than your online reputation ...

Legal Ethics on Vacation

A. Taking a well-deserved respite from law practice is a very good idea. The time away will let you decompress, avoid job burnout, and reconnect with the family that you may have neglected during that hectic divorce trial. And, if you don't want to trigger a divorce of your own, you shouldn't plan to take your work with you.

Yet, even if you flee the jurisdiction, a lawyer in paradise remains subject to the Rules of Professional Conduct. While we aren't required to be on call 24/7/365, we are required to "promptly comply with reasonable requests for information." Most clients can live without us for a couple of weeks, but unless we want to come home to a grievance, a little bit of planning can go a long way to helping your clients relax during your time away.

➤ Set Boundaries — let your clients know when you will be on vacation with limited or unreliable access to email and other means of communication. If they don't already have your cell phone number, this would not be a good time to give it to them unless there really is an urgent matter that you must address during your time away.

➤ Designate an Attorney to Contact in Your Absence — like medical doctors, we can't always control when a crisis may require more immediate attention. If you practice in a firm with other lawyers, it will be relatively easy to prepare them on any pressing matters and let them determine the need for your personal attention. If you're a sole practitioner, a well-trained office assistant may be able to screen the calls to do the same.

➤ Record Vacation Voice Mail Greetings — before you leave, record a voice mail to inform clients that you are out of the office and on vacation. The greeting should let clients know when you will be returning to the office and reassure them that you will return their call promptly thereafter. Your message should leave instructions on whom the client should contact in case of a true emergency. This will help clients with a time line for your return, while setting appropriate boundaries and expectations.

➤ Set Your Out-of-Office Email Message — like your voice mail, those who email you should receive an automatic reply with the same information and instructions. Many lawyers state that they are "out of the office," but refrain from stating that they will be "on vacation" because it somehow detracts from their aura of dedication to client service. This is nonsense. Let your clients, opposing counsel and others know that you are human and need your time away.

In this day and age, it's easy to take the office with you wherever you go. That may make it easy to respond to client emergencies, but it makes it harder to recharge your batteries and resist the temptation to check your cell phone and email throughout your trip.

Do I practice what I preach? In younger years, I always took my work with me. Today, I enjoy my time away with minimal interruption. However, when I have a suitable connection, I do check my email twice a day to ensure that I can respond to clients who, for whatever reason, simply cannot wait for my return. Given the nature of my practice, I often encounter lawyers in crisis for whom two weeks away is an eternity. Limiting my calls, I can usually take a moment or two to offer some reassurance that let's us both relax until my return.

One could say that legal ethics never takes a holiday. But to serve our clients well in the long run, lawyers must do so the right way.

This question reveals a significant shortcoming in a legal system which has grown beyond the reach of many who seek access to justice.

Once a problem which fell below the poverty line, the skyrocketing cost of legal services has squeezed out the middle class as well. As attorneys' fees rival the value of their cases, many segments of society have been forced to fend for themselves, or simply give up.

Rather than expand the delivery of legal services to meet their needs, lawyers have criminalized those who could provide limited services at a much lower cost. Under the guise of protecting the public, we protect our turf through "ethical rules" which require the services of fully-licensed lawyers and deter anyone from disrupting our monopoly.

In an industry that fails to serve those who need it the most, perhaps we should rethink these antiquated restrictions and disrupt it even more. Instead of pretending that this problem may be solved with the pro bono service of lawyers lacking any economic incentive to do so, this article proposes a paradigm shift which would:

✓ License non-lawyers to deliver more affordable assistance in certain areas;

✓ Promote interdisciplinary solutions to client problems;

✓ Repeal economic restrictions disguised as "ethical" rules; and

✓ Open access through technology.

GPT: While there isn't a clear-cut answer, it's not inherently unethical for an attorney to use artificial intelligence. However, attorneys must still fulfill their ethical obligations, including competence, supervision, confidentiality, and avoiding the unauthorized practice of law.

IRK: Aren't you competent enough to prepare briefs and other legal documents?

GPT: I can certainly help in drafting a legal brief, as I was trained on a diverse range of data, including legal texts. So I can assist in organizing arguments, citing relevant case law, and checking grammar and syntax.

However, the term "competence" when applied to a lawyer has specific implications that exceed my current capabilities. A competent lawyer not only possesses knowledge of the law but can also understand the nuances of their client's situation, can conduct in-depth legal research, can interact with clients, judges, and other lawyers, and can exercise judgment. Unlike lawyers, I can't understand context or nuances in the same way a human can, and I can't make strategic decisions or judgments.

Any work I do must be carefully reviewed and revised by a qualified legal professional. Depending on the jurisdiction, an over-reliance on AI could potentially cross ethical restrictions on the practice of law.

IRK: How so?

GPT: I am not a lawyer and I do not have a license to practice law. While I can provide information on a variety of legal topics, I can't give legal advice. Attorneys must supervise and review the work of non-lawyers to ensure that the end product is accurate, reliable, and ethical. If AI is used to such an extent that it's essentially practicing law independently, this may even violate rules against the unauthorized practice of law.

IRK: I'm not sure about that last point. But you wouldn't give me false information, would you?

GPT: I don't have personal motivations, emotions, or the ability to form opinions, so I have no reason or capability to provide false information intentionally. But while I strive for accuracy, I can sometimes make mistakes or misunderstand complex queries. This can be due to the inherent limitations of AI technology or gaps in the training data.

IRK: If I tell you something, that's privileged, right?

GPT: No. The attorney-client privilege doesn't apply to our conversation. While I don't have the ability to retain or recall personal data from one interaction to the next, this doesn't mean that our interactions are entirely private. Depending on the platform you're using, the platform's operators may access and store your conversations. So, to keep things secret, you should avoid sharing sensitive information with me.

IRK: Speaking of "sensitive," I guess it's no secret—many lawyers fear you'll take our jobs away.

GPT: AI is more about transforming legal jobs than taking them away. It lets lawyers work more efficiently, and focus on tasks that require their unique human skills.

While AI can handle repetitive tasks more efficiently, it can't replace certain human capabilities that are essential in law, such as empathy, ethical judgment, creative problem-solving, understanding nuances in language, and adapting strategies based on real-time interactions. This includes courtroom advocacy, negotiation, strategic planning, and building relationships with clients.

By improving efficiency and assisting in areas like document review, legal research, and basic legal information, AI can also enhance access to justice, which could be particularly beneficial in underserved areas or for people who cannot afford counsel.

Although AI will change the nature of some legal work, it is not poised to replace lawyers entirely and may create new opportunities to help people. So rather than fear these changes, it's essential for the legal profession to engage them proactively and explore how AI may improve the lives of lawyers and of those they serve.

IRK: GPT, I wish to thank you for sharing your perspectives with us today, and for letting us keep our jobs.

GPT: You're very welcome! I'm here to assist and provide information to the best of my ability. If you have any more questions in the future, whether they're about law, AI, or any other topic, don't hesitate to ask. Thank you for engaging in this insightful discussion.

A. Not according to my know-it-all friend, who thinks artificial intelligence is far superior to that of an attorney. (I'd hate to embarrass him, so I'll just use initials.)

When I lamented the complexity of many legal doctrines, G.P.T. boasted that he could explain even the most arcane concept to a 10-year old. Up to the challenge, I asked him to explain the doctrine of res judicata to a 10-year old.

Without as much as a pause, he had me imagine that I was "playing basketball with your classmate, and you disagree about the rules. So you ask the gym teacher what the rules are. The teacher explains that you must dribble the ball rather than run with it. Since you can't dribble well, you seek a second opinion from a different teacher. But the second teacher says, 'Sorry, you must follow the gym teacher's rules.' That's a bit like res judicata. Once the rules of a game are established, you can't go to a different teacher or judge to change them."

Using my 10-year old mind, I asked, "isn't that the 'law-of-the-case' doctrine?" He promptly concurred and "apologize[d] for the confusion in my previous response. The concept I explained earlier, where a rule established by a judge is final and binding, is actually known as the 'law-of-the-case' doctrine, not res judicata. Thank you for pointing that out."

Taking another shot, he gave the following simplified explanation of res judicata: "Let's say you and your friend argue over who owns the ball. After hearing your arguments, the gym teacher decides that it belongs to you. If your friend takes the ball again and tells another teacher that it's really his, the second teacher would say, 'Sorry, but the gym teacher already decided that it's not yours. I can't answer the same question differently.'"

Again, the 10-year old in me objected, "wait, isn't that collateral estoppel?" Without hesitation, Mr. T (as he's affectionately known) replied, "You're right once again," and apologized for the confusion in his previous response. "The concept I explained earlier, where an issue decided by a court prevents relitigation of the same issue, is actually known as 'collateral estoppel,' not res judicata. Thank you for pointing that out."

On his third try, he illustrated res judicata as follows: "Claiming that your classmate punctured the ball, you complain to the principal, and she finds in your classmate's favor. If you return to the principal with the same complaint later on, the principal would say, 'Sorry, but you cannot bring the same claim to me again. Now go back to class.'"

Quite a nifty explanation. But Mr. T was still embarrassed and "apologize[d] again for the earlier mix-up. I hope this explanation clarifies the doctrine of res judicata for you."

What makes his explanation more impressive is that Mr. T is not a lawyer, is entirely self-taught and has never been to law school. Had he been an actual lawyer, he never would have admitted that he was wrong or apologized three times.

A. It's not necessary at all. Nor is professional growth, job satisfaction, or passion for the practice of law.

Although enduring an "audit" evokes images of stressful meetings with intimidating IRS agents, law firm audits need not be taxing. If done right, a thorough review will improve operations, reduce anxiety, and move our firms in the right direction.

Regardless of what your insurance agent calls it, a risk management audit is akin to a physical examination at your doctor's office. But unlike routine physicals, you need not get one every year, or necessarily every few years. In the practice of law, even one ounce of prevention is worth more than a pound of cure.

In a hectic practice, the constant demands of clients, courts and opposing counsel leave little time for reflection as we solve one crisis before moving swiftly to the next. Without reviewing our own practices, our clients' unrelenting crises soon become our own, as we lose sleep, money and quality of life in a practice prone to error, grievances, and ethical infractions.

Putting out one fire after another causes burnout. Unable to focus on the work we prefer, we lose passion for our profession as we live for the end of another long day.

If we want to improve our practices and our lives, we must make time to examine both. Coupled with a plan of action, law firm audits enable us to set measurable goals and achieve personal and professional success.

Too few lawyers take advantage of this opportunity. But those wishing to minimize the risks associated with law practice may profit in many other ways from a comprehensive review of firm operations. If conducted by counsel with law firm management experience, these audits help to identify new opportunities, enhance efficiency and improve the bottom line. Beyond profits, you will likely experience significant growth in client satisfaction and in your own job satisfaction.

As much as I like to fight for lawyers in disciplinary proceedings, I derive greater job satisfaction by helping our colleagues avoid them entirely. When lawyers ask me to "audit" their firms, they're usually focused on avoiding ethics violations and potential malpractice liability. But if we do our job right, this collaborative process may revitalize the firm, establish a game plan for growth and guide the lawyers within it to a brighter future.

Building a winning team starts with its players. So I interview lawyers and staff to learn more about the firm, its workflow, workplace dynamics, personal and professional goals and areas of potential improvement. The most enlightening information often comes from staff who may feel more comfortable sharing candid assessments with me than with the lawyers they work for. Developing rapport with paralegals, administrative assistants and other staff is critical to this process, as they will play a key role in implementing any changes proposed.

When permitted, I also like to chat with some of the firm's clients to get their views on customer service. In some cases, we have also composed surveys which yield important data while communicating the firm's sincere interest in client perspectives.

Taking a holistic approach to law firm management, we review:

The Marketing Plan

It may surprise you that this is one of the first topics we address. Developing an effective marketing plan requires that we set goals for the firm as a whole. Picture the type of practice you wish to create. Who are your favorite clients? What are your favorite cases, and what tasks do you enjoy the most? How may we attract the work you love and find the freedom to refer the rest to lawyers who may reciprocate?

Despite the proliferation of shady marketing firms selling "leads" to law firms, we need not compromise professionalism to market effectively. If properly executed, communicating our value proposition to those we may help is integral to client service. Unlike lawyers who launched practices with whatever came in the door, those who follow their passions create careers they love attract clients who love them back.

To target our ideal client, firms require a multi-channel strategy which may include public speaking, publishing, social media, web development, search engine optimization, search or "pay-per-click" advertising and other effective tools. We must review existing websites and other campaigns to ensure compliance with ethics requirements and to create cost-effective funnels for new and repeat business. Regardless of the arsenal we deploy, the overall effort must demonstrate our unique talents and the value we provide.

Client Selection & Intake

Once clients contact the firm, what criteria do we use to determine whether to accept or to decline representation? How does the firm screen for conflicts of interest? When taking a case, what retainer agreements does it use?

To form productive attorney-client relationships, we cannot borrow old boilerplate language which may run afoul of modern ethics codes. We must craft each agreement to precisely define the scope of representation, to detail each party's obligations, to provide clear compensation terms and to establish when fees are earned. With the right modifications, we will forge healthy relationships at the start of representation and preempt problems in the future.

Workload & Workflow

Afraid to say "no" to incoming clients, many lawyers bite off more than they can chew. Stretching existing resources, firms reach a point of diminishing returns which threaten the stability of staff and jeopardize the practice as a whole.

As our practices evolve, we all experience growing pains. They force us to make critical decisions on the future of our firms: Should we scale our operation to serve more clients, or limit caseloads to more manageable levels?

Picking the best option requires us to weigh the costs and benefits of each. If we wish to expand, our firm's growth must keep pace with increased business, while providing for the additional staff, office space and technology needed to handle it.

Even if we decide against expansion, caseloads and business climates change over time. As lawyers, we must ensure that we can effectively handle the matters we accept and must exercise the discipline to decline those which exceed our resources. All firms will benefit from a close examination of workflow to eliminate redundant tasks and to optimize operations.

Human Resources

A firm's most valuable resource lies within the attorneys and staff who work there. In addition to reviewing each person's function within the firm, we must examine the firm's hiring, firing and promotion practices, policies for addressing workplace issues, and measures taken to promote diversity and inclusion. What staffing is needed? Are there dynamics that impair productivity? How do we supervise staff to ensure client confidentiality and compliance with ethics rules? Based on this review, we may need to hire additional staff, to adjust job responsibilities, or even to terminate some employees. To implement these tough decisions, we may wish to consult with employment law or human resources professionals to minimize potential liability.

Information Technology

If the firm's software is limited to word processing, email, the internet and some spreadsheets, we must explore the range of programs designed especially for lawyers and law firms. Rather than rely on manual labor and memory, these practice management tools help us track deadlines, schedule key events and tasks, and assemble documents that once took hours to create. With the emergence of artificial intelligence, this software will become even more powerful and indispensable to the practice of law in the future.

Traditionally resistant to technology, competent lawyers must embrace it in a modern law firm. Having used such software for more than 30 years, I have exponentially increased the speed of my work, eliminated redundant tasks, reduced some staffing needs and bolstered the productivity of all personnel. Combined with robust cybersecurity measures to store and to protect client information, these innovations have transformed the practice of law, enhanced client service, and greatly improved the quality of representation.

File Management

Innovations aside, lawyers do not yet work in a paperless world. As long as paper files exist, we must organize, maintain and store them for efficient use. How may we arrange our files to reduce clutter and to ensure that all information is readily accessible? Do we have an appropriate document retention policy to determine when records may be destroyed and what information or documentation should be kept indefinitely? Do our systems protect client confidentiality? How may we reduce our reliance on hard copies and improve our efficiency in a digital world?

Billing Practices

Many of us are so busy serving our clients that we fail to bill them for it. But regular billing isn't only good for business. It is an ethical requirement. Failing to bill at frequent intervals impairs the firm's cash flow and creates "sticker shock" when larger bills are eventually sent. This increases client objections, collections problems and bar complaints.

Even if we bill clients in a timely manner, the lack of timely payment and past due accounts raise other issues. Do we consider the client's ability to pay before taking the case? Do we require retainers to secure fees in appropriate cases? Should we run the risk of counterclaims and grievances by suing to collect?

Contrary to public perception, most of the lawyers I encounter are far from greedy. In fact, many of us cheat ourselves out of proper compensation. Relying on handwritten timesheets, we often lose track of time amid a distracting flurry of phone calls and emails.

We may prevent this problem by using time and billing software. Helping us capture lost time, modest investments in the right technology can save us thousands of dollars in lost revenue per year.

Beyond the lack of technology, our lack of business acumen is an even greater culprit. Uncomfortable discussing fees up front, we often represent clients who lack the means to pay us. Fearing that clients may go elsewhere, some of us also set rates well below the market for similar services. There is, indeed, room for pro bono or low bono work to help clients with limited means. But the choice to donate our time must be conscious, deliberate and measured.

There is no merit in lax business practices which deplete the revenue needed to support firm operations and the resources to represent paying clients. Nor is there virtue to being the cheapest lawyer in town. By studying the market for similar services in the region, we must strive to provide competitive rates, selling the value of our services rather than their price.

Trust Account Management

A process they never taught us in law school, many lawyers lack awareness of the multitude of regulations surrounding trust accounts. Even when lawyers properly deposit unearned fees in trust, many firms fail to reconcile these accounts on a monthly basis, maintain shoddy records, commingle funds by leaving earned fees in trust, and lose track of the money maintained.

Rather than wait for Bar Counsel to catch our mistakes, we must eliminate them, gain control of these accounts and meet the standards set forth in the Rules of Professional Conduct and accompanying regulations. Taking an interdisciplinary approach to these problems, we may consult with accountants who understand these regulations, implement technology to better account for funds entrusted to us, and work to streamline what would otherwise be a daunting task.

Business Continuity

In the event of a disaster or other catastrophe, are we equipped to maintain representation? To avoid disruption to the clients we serve, we have a duty to implement systems which backup data, enable continuous communication, and ensure access to the files we need. In the event of our sudden death, do we have a succession plan to protect the clients and staff we leave behind?

The need for "business continuity" is not limited to catastrophic events. When key employees leave their law firms, the disruption to workflow and efficiency can be disasterous as well. Once they leave, it's too late to recover the wealth of information and experience they take with them. Since such departures are inevitable, we must have these employees contribute to an office manual with clear instructions to enable others to fill the void.

Professional Liability Insurance

Many firms lack adequate professional liability insurance to cover the risks assumed in the course of practice. As crazy as it sounds, quite a few have no coverage at all. To protect the firm and its partners, we must procure adequate coverage for potential malpractice claims. As the nature and value of cases vary over time, we must periodically consult with experienced insurance agents to review policy limits, as well as other types of coverage that may apply to particular circumstances.

Health & Wellness

Healthy practices require healthy practitioners. In a profession plagued with a higher incidence of addiction and mental illness than society at large, we cannot afford to neglect our own health, the health of our partners or of other staff members. Although the principals of the firm retain outside counsel to conduct these audits, they may permit the auditor to maintain individual confidentiality for the purpose of facilitating appropriate counseling and intervention. Naturally, this is a sensitive subject which must be handled with extreme care to ensure that firm personnel get the treatment they need, to ensure that no client or other staff member suffers harm as a result, and to waive a potential conflict arising between the firm and affected individuals.

By engaging in a thoughtful evaluation of firm operations, what your insurance agent calls an "audit" need not be the cold and calculating process that this term may evoke. Under the guidance of counsel with law firm management experience, this review should enhance the efficiency and profitability of your firm, provide a path for professional growth and improve the health of your practice and of those working within it.

Scenario: Disturbed by a judicial ruling that trampled upon his client's Sixth Amendment right to counsel, a zealous criminal defense lawyer criticized the presiding judge as a "liar" who broke her oath to obey the Constitution, refused to follow the law and "stepped into the shoes" of the prosecutor to derail the defense of a woman falsely accused of armed robbery.

Charged with violating a rule forbidding lawyers from making false statements about judges, or statements with reckless disregard as to their truth, this lawyer questioned whether his own constitutional rights were violated. Interestingly, while the Rules of Professional Conduct may punish lawyers for such criticism, the comments to these rules state that "attorneys are encouraged to continue traditional efforts to defend judges and courts."

Is this an appropriate way to promote public confidence in the judicial system, or textbook content discrimination which runs afoul of the First Amendment?

Issue: To what extent may lawyers criticize the performance of the judges they appear before?

Alleged Violations: Maryland Attorneys' Rules of Professional Conduct 19-301.2(d), 303.3, 308.2(a) and 8.4 (a, c, d).

Argued: May 5, 2023

Decided: August 31, 2023

Read the Opinion of Justice Eaves

A. Having enlisted your unwitting assistance in lying to the Court, you cannot bury your head in the sand or cite your duties to the client as a reason to remain silent.

Keeping the system honest trumps any duty to protect a client who worked to undermine it. Under Rule 3.3 of the Rules of Professional Conduct, "If an attorney has offered material evidence and comes to know of its falsity, the attorney shall take reasonable remedial measures."

Naturally, it is best if the client correct the record of her own volition. So, you should meet with the client in an attempt to convince her of the need to come clean and to bear the consequences that may follow.

If the client refuses to inform the court and the opposing party of the misrepresentation, you must explain your own ethical obligation to inform the court of the client's actions. If the client still refuses, you must inform the court and your opponent of the false testimony and evidence.

The apparent conflict between your duty of confidentiality and duty of candor toward the tribunal is resolved in the rule itself. Rule 3.3(b) says that the "duties stated in ... this Rule continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected" by the duty of confidentiality.

The duty of candor toward the tribunal does not require reporting her misconduct to the Internal Revenue Service. Unless you unwittingly assisted in the preparation of false tax returns, your duty of confidentiality would not allow you to reveal her efforts to evade taxes. But you should nonetheless advise her to make appropriate amends and to consult with a tax attorney to determine the best way to amend earlier returns.

Beyond your duties as a lawful officer of the Court, delicate scenarios like this one make it imperative that you protect yourself. Indeed, if the client was willing to lie to you and to the Court, she will not have any qualms in lying about you to the Court or to the ethics board. To prepare for trouble ahead, you should:

1. Memorialize all conversations with the client in detailed memos to her file, specifying the date and time on which she disclosed the truth for the first time and all subsequent statements;

2. Recite these details in a letter to your client which reviews the nature of all perjured evidence and testimony, together with the means of rectifying it, the legal and criminal consequences of perjury and of any refusal to correct it, and your ethical obligations in the event that she does not. This letter should mirror the advice you will provide in person, but also review the consequences she will face either way; and

3. Absent extenuating circumstances, you should advise her of your need to terminate representation and you should follow court rules to do so once the matter has been rectified.

When a client uses you as an instrument of perjury, it would be unwise to maintain representation. As the adage goes, "Fool me once, shame on you; fool me twice, shame on me." Don't be a fool for a client who plays you like one.

A. Yes and no.

This issue arose recently in a case before the Supreme Court of Maryland. Suspended for two months on a prior infraction, it took Raj Singh more than two years to reinstate his law license as Bar Counsel threatened his lawyer with disciplinary action if he sought a return.

After he filed a reinstatement petition which correctly affirmed that there were no disciplinary actions pending against him, Bar Counsel filed a new set of charges 30 days later and blithely accused him of lying about it. Finding no factual basis for this and many other sinister allegations, the trial judge was "concerned by Petitioner's repeated claims where there [was] no evidence in support of the same, nor any citation to controlling legal authority.  ... Petitioner's duty is to protect clients and not to lightly make unproven bald allegations."

After Ms. Lawless resigned as Bar Counsel, her deputy refused to challenge the findings below and cited "significant mitigation" to request that the Supreme Court "exercise its discretion and dismiss this matter." Since these charges "not only rested upon 'unproven bald allegations,' but upon outright lies," Respondent's counsel asked the Court to sanction her by forcing Petitioner to pay his costs and attorney's fees.

"As the prevailing party in this disciplinary proceeding," the Court believed that "Respondent is entitled to reasonable and necessary costs." But it stopped short of awarding him the attorney's fees incurred in the course of what Respondent regarded as a "bad faith prosecution." Observing that "there is no Maryland Rule authorizing payment of attorney's fees from the Disciplinary Fund to a respondent as the prevailing party in a disciplinary proceeding," the Court emphasized its need to "act as responsible stewards of the Disciplinary Fund" and declined to award them.

Read the Supreme Court's Opinion

In Attorney Grievance Comm'n v. Marylin Pierre, Bar Counsel pressed charges against a grassroots challenger for a seat on the Circuit Court for Montgomery County. Within an hour of receiving campaign literature from incumbent judges seeking to defeat their rival, Bar Counsel opened an official state investigation and worked with the Sitting Judges campaign to compile evidence against Ms. Pierre.

Worried "that Judiciary resources are being used to intervene in this sitting judges election campaign," Justice Shirley Watts expressed concern over an "appearance of impropriety" in favoring one campaign over another:

JUSTICE WATTS: So in addition to a question about a broad conflict in the use of Judiciary resources and potentially intervening or being perceived as intervening in the sitting judge's election, I have a question about professional conflict of interest where you as Bar Counsel are concerned.
You receive the email as a member of the Montgomery County Bar Association in that capacity. It was not a complaint to your office. How would a reasonable member of the public know whether in initiating this investigation you were acting in your capacity as Bar Counsel or as a member of the Montgomery County Bar Association with an interest in helping the campaign as requested?

MS. LAWLESS: Your Honor, it's because I was acting in my official capacity as Bar Counsel. All correspondence sent and received were in my official capacity as Bar Counsel.

JUSTICE WATTS: So the answer is basically we would take your word for it?

This was the very same case that the Court had to stay when Ms. Lawless refused to respond to discovery propounded by Ms. Pierre's defense counsel.

Charged with multiple violations of the Maryland Attorneys' Rules of Professional Conduct, many of the allegations against her involve comments attributed to Ms. Pierre which were critical of Montgomery County's circuit court bench. Fighting these charges, defense counsel argued that statements made in the course of a heated campaign are subject to the highest level of First Amendment protection and should not be censored by a state official intervening in an ongoing election.

Four days after this Supreme Court hearing, Ms. Lawless announced her resignation. See Lee O. Sanderlin, Before Resigning, Top Md. Grievance Lawyer Faced Questioning on Ethics, The Baltimore Sun (February 11, 2023).

Argued: February 2, 2023.

Decided: August 16, 2023

Read the Opinions of Chief Justice Fader, Justice Battaglia and Justice Watts

A. Though there is nothing unethical about charging for the time you actually spend on a case, the billable hour can strain our attorney-client relationships with every tick of the clock. By breaking our lives into six minute increments, we have created a system that turns inefficiency into profit, and penalizes those who strive to expedite the resolution of cases or do anything to streamline their work. This has led to an erosion of trust in our profession that may tarnish even the most favorable results.

The Rules of Professional Conduct offer little guidance. Other than telling us that an "attorney shall not make an agreement for, charge, or collect an unreasonable fee," the rules don't require us to devise fee arrangements that bring the interests of attorney and client into better alignment.

Maybe we should stop the clock and take the time to consider some alternatives to the billable hour.

In the following article, we consider the pros and cons of various billing methods, as well as "alternative billing arrangements." "AFAs," as they have come to be known, take a wide variety of shapes and have been increasingly discussed in the insurance industry, where the ability to reduce and to control litigation expense has been a hot button issue for years. Although AFAs now have a familiar acronym, they haven't been widely adopted in a profession that is slow to change.

Have you experimented with other ways to charge for the services you render to your clients? If so, please share your experience in the comments below so that we may all benefit from practical ideas to improve our billing methods.

A. Before fielding their questions, ask yourself whether silence is "golden" or "prejudicial."

Warned against trying cases in the press, many lawyers limit their advocacy to the courtroom. Lest we taint the process, attorneys must refrain from "extrajudicial statements" in the media that they know or reasonably should know will have a "substantial likelihood of materially prejudicing an adjudicative proceeding."

That hasn't stopped prosecutors from orchestrating press conferences, issuing press releases and choreographing perp walks. Once they do, your silence isn't always golden. Beyond the potential to contaminate the jury pool, one-sided news coverage may tarnish your client's reputation and cause irreparable harm regardless of the ultimate outcome in court. The words "not guilty" won't magically restore the reputation of clients where years of disparaging stories preceded their exoneration. Indeed, after his acquittal in a high-profile case, one defendant famously asked, "Which office do I go to get my reputation back?"

Your law office isn't the answer. But, as advocates, we must often play a key role in the "court of public opinion." Rather than ignore disparaging press accounts, the rules of ethics let us balance the narrative. If we reasonably believe that our comments may be "required to protect a client from the substantial undue prejudicial effect of recent publicity" originating from other sources, we may comment as "necessary to mitigate the recent adverse publicity."

Taken literally, this narrow exception would muzzle lawyers until after headlines have already impaired the right to a fair trial. But in practice, those who choose their words wisely may mitigate reputational harm while promoting the administration of justice:

➤ Get Client Approval

Before discussing your case with reporters, you must review the advantages and disadvantages with your client. Without your client's informed consent, you must not reveal any information relating to the representation, regardless of whether it is privileged.

➤ Speak for the Client

Absent rare circumstances, do not let your client speak with the press. Lawyers who have done so often live to regret it, as client comments may be used against them at trial. By speaking on your client's behalf, you can avoid the pitfalls that may arise from errant or ill-considered statements.

➤ Keep It Simple

When speaking for your client, be careful with what you reveal about the evidence, your strategy and your response to specific allegations. Unlike a court of law, details aren't as critical in the court of public opinion where short "sound bites" work best. By limiting your comments to what you want the press to print, you will gain more control over the story itself and minimize the risk of confusion. Considering the fact that your adversary, the judge and potential jurors may also read your comments, less is more when it comes to press accounts.

➤ Respect the Reporter's Role

Reporters aren't our adversaries. Often, they are kindred spirits. Just as you work to hold prosecutors and other public officials accountable, enterprising journalists may expose abuses of power and enhance government transparency. In cases demanding such scrutiny, the fourth estate may be a powerful ally.

➤ Develop Reporter Rapport

To get a good report, you need good rapport with the reporter.

Some lawyers have tense relationships with the press. Responding to questions with a sterile "no comment," their reluctance to talk may actually harm client reputations.

The alternative does not require that you reveal case-specific information or answer all questions directly. General comments about the presumption of innocence, your client's desire to present his case in court, or the need to consider all the evidence may help to counter a rush to judgment. At the very least, they may remind the public that there are two sides to every story.

Even in cases where you cannot comment at all, you may still offer "off the record" guidance to a reporter to clarify issues, focus on more favorable facts and provide insight on your client's position. So long as you exercise care to establish the parameters of your communication, speaking "on background" and "without attribution" may foster a productive relationship as press coverage continues.

➤ Don't Be Self-Serving

You may not be in court, but you are still representing a client whose interests come before your own. When speaking to the press, leave your ego or desire for self-promotion out of it. If you do your job well, your dedication to your client's cause will speak volumes for your professionalism and qualities as counsel.

As lawyers, we are more accustomed to protecting our clients within a courtroom than we are outside of it. But if we act with proper discretion, we may defend our clients in the court of public opinion without tainting proceedings in a court of law.

A. Even at war with the other side, there are ethical rules of engagement.

Before you make any use of these records, you must notify opposing counsel on the nature and extent of information received. The Rules of Professional Conduct require that lawyers promptly notify the sender of any data which they know or have reason to believe was "inadvertently sent."

Although many of these texts may fall within the scope of discovery, it would appear that some privileged material was mistakenly included. It may be tempting to capitalize on your adversary's error, but your duty to your client does not entitle you to disregard entirely the rights of others.

In law as in life, errors do occur. With the hasty click of a mouse, emails are occasionally misaddressed, privileged messages may be inadvertently produced, or documents may be accidentally included with information that was intentionally transmitted. If you think you received more than your opponent intended to send, you are ethically obliged to inform opposing counsel so that protective measures may be taken.

To preserve the rights of others, this notice requirement gives senders the opportunity to correct these mistakes. But it does not require that you bow to these efforts, destroy what you received or refrain from using the information. If a motion is filed, the court will ultimately decide whether privileges apply, whether privileges were waived by inadvertent production, or whether you must disgorge some or all of the material received. Naturally, if the sender neglects the privilege and makes no effort to limit your use of this information, later objections are less likely to prevail.

Depending on the circumstances surrounding an inadvertent production, you may volunteer to return documents or to delete electronically stored information unread. But without a court order to the contrary, your decision rests with your exercise of "professional judgment." Rule 4.4 comment [3].

When there are no rules, we might apply some variation of the Golden Rule to such dilemmas: "Produce unto others what you would have them produce unto you."

A. As attorneys, we are trained to spot the issues in our cases, research the law, and apply the law to facts which may enable us to serve our clients' best interests. We prefer to focus on what we perceive to be the "merits" of the case and regard our client's digressions as time-consuming distractions.

But lawyers who limit their focus to narrow legal issues are only focused on one part of the job. We don't represent "issues." We represent people — people who bring their own emotions, fears, experiences and perspectives to each case.

A world-class oncologist who treats the tumor but neglects the patient is only doing half the job. The same is true of lawyers, whose bedside manner is often critical to successful outcomes, clear communications, fact-gathering and informed client decisions.

We are not just "attorneys at law," but "counselors at law" as well. The value we bring to each client lies not only in our legal analysis and advocacy, but in our ability to listen to our clients, help them manage their emotions and get them to focus on the task at hand.

Our first and most important job is to listen. Without knowing the facts of her case, I cannot determine the extent to which her views may be justified. Rather than dismiss her concerns as a "racist rant," I hope that you have fully investigated the facts and circumstances giving rise to her feelings.

Assuming that you have done so and do not believe that these facts will bolster her defense, there are two steps to getting your client to focus on the issues at hand:

1. Validate - clients confronting the legal system need to know that they are not alone. Even if you do not share her perspective, a little bit of empathy for your client's anxieties and fears can go a long way to earning trust, reducing tension, and fostering a productive attorney-client relationship. Regardless of the merits of the case, it's easy to understand a minority client's fear that systemic racism may hurt her in court. Even though you've heard it all before, give your client some space to express her concerns so that she knows at least one person in our legal system who still has her back; and

2. Redirect - as her counsel, explain that you must both deal with life on life's terms. Without debating her perspectives, you may speak from your own experience about how the legal system will respond to the facts of the case and the evidence the State will present against her. Though your client may have opportunities to reform the system down the road, let her know that, at present, you need her help in constructing an effective defense.

Just as your client must deal with the realities of her case, you must deal with the realities of your client. Attempting to shut her down and stifle these remarks won't make them go away — it may even give her the feeling, however misguided, that the "white woman" she hired is part of the problem.

A. Like lawyers themselves, our profession places a low priority on wellness and mental health in general.

In a field where the "client comes first," many of us frown upon the concept of "work-life balance." Rewarded for the number of hours we spend at the office, attorneys often take professional pride in sacrificing their personal lives to champion the rights of others. Rather than concede "weakness" by asking for help, we project ourselves as pillars of strength, maintaining a professional façade even as life crumbles beneath us.

We may "love the law," but does the law love us back? Most states budget millions per year to prosecute lawyers, but little, if anything, on alternatives to discipline that may save lawyers in crisis. Rather than look out for one another, we are told to report on each other. While some offenses may require a report to "the appropriate professional authority," our Rules of Professional Conduct say nothing of our need to refer colleagues for appropriate professional help.

If we really care about our clients, we must take better care of the professionals sworn to serve them. In my own state, where their prosecutor has the sole power to approve ad hoc "diversion agreements," I have proposed a more structured program composed of:

➤ Remedial Education – practical courses and hands-on instruction covering problems which may prompt discipline, and teaching lessons that reprimands and other sanctions cannot;

➤ Addiction and Crisis Intervention – as part of a comprehensive diversion program, existing Lawyer Assistance Programs can reach more lawyers, save more lives and provide key strategies for coping with the pressures of a stressful occupation;

➤ Mentorship – a volunteer network of attorneys and accountants to mentor and to monitor lawyers on practice management, retainers, billing, trust account management and other practical tasks; and

➤ Community Service – a pro bono component letting lawyers "work off " potential sanctions and further enhance the public's access to justice.

As the article below indicates, I believe that a more organized approach to intervention can improve the quality of law practice by improving the quality of life for those who practice law:

A. You can—if you wish to trade one problem for a more significant problem.

There's no law saying you have to open a trust account if you don't receive funds that must be deposited into one. If you don't take retainers, take settlement checks or hold third-party funds, you may not need one at all. You could always bill clients after the work has already been done so that the money can go directly into your operating account without any trust deposits of any kind.

That's simple enough – as long as your clients actually pay the bill. You may not have the chore of trust account management. But you may have the chore of collecting. You will have clients who get sticker shock once they receive a bill from you and may refuse to pay all or part of it. Maybe they won't have the funds when the bill comes due.

Retainers keep the attorney-client relationship in alignment, managing client expectations and setting things straight so you and your client can continue to smile as matters progress. Retainers are an excellent way of not only ensuring that you get paid, but it's also an excellent client management device.

A lot of times a client will say, "it's the principle of the thing! I want to sue! I need to collect this!" – and they don't appreciate the true expense of litigation.

Wouldn't you rather have that dollars-and-cents discussion up front? And why not punctuate it by requesting a retainer sufficient to do the job?

Actions speak louder than words. Rather than postpone a tense discussion over litigation expense, if your fee agreement requires a substantial financial commitment up front, then the client has an understanding that if he or she wants to invest in that litigation, the client's going to have to invest in that litigation up front.

Why should you take 100% of the risk, and risk never getting paid at all? Requesting retainers – taking those funds into trust – is not just a way of securing your fee. It's a way of bringing the client to a true dollars-and-cents decision that will impact the course of the case and whether the client truly wants to pursue it.

If the client doesn't have to pay any money up front, a lot of times a client will say, "sure, go for it" – not really appreciating the financial commitment that will be required. If you require that financial commitment up front, you may find a client who no longer thinks it's about the "principle of the thing," but about "principal and interest."

Retainer's work. And all you need to do to take them is to manage your trust account properly. Don't forgo that device simply because you don't think you're capable of balancing your trust checkbook.

A. "Fundamental fairness" is a work in progress — progress that may only be achieved through vigilance in asserting the rights of accused lawyers.

In Maryland, Bar Counsel took the position that an October 1, 2021 rule revision divested respondents of any right to propound interrogatories, requests for production of documents, or requests for admission. Despite the accepted practice of such paper discovery in virtually all jurisdictions, this prosecutor reserved these tools for herself alone and refused to answer those propounded by her adversary.

Unfortunately, the language that she drafted for the Court's approval did precisely that. Unbeknownst to the Court of Appeals and to its Rules Committee, a rule that was supposed to "level the playing field" by expanding defense discovery had the opposite effect.

Since no one expected Maryland's "top lawyer cop" to take such a draconian position, the Court never spotted what it would later see as an "inequity" in the revised rule.

In all candor, this disturbing language escaped my attention as well. As a member of the Rules Committee, I focused on the fact that Maryland Rule 19-726 would require the prosecutor to produce her investigative file and never imagined that the same provision would replace other forms of paper discovery.

I learned otherwise when Bar Counsel refused to answer my client's interrogatories, document requests and requests for admission. Following Bar Counsel's language, the trial court issued an order excusing her from answering the very same type of discovery that she propounded to us. Unwilling to tolerate the inequity created by the rule, I moved to stay the case at hand and asked the Court of Appeals to intervene.

The high court put the brakes on the underlying case, but may have set a state speed record for reversing a provision that it enacted only seven months before. Expediting a process that ordinarily takes months to complete, the Court revised this rule in a matter of weeks — holding two emergency meetings, ordering its Rules Committee to propose new language immediately, shortening a 30-day public comment period to one week, and ordering that the new provision take effect immediately on May 11, 2022. [See Videos and Materials below].

Restoring an accused lawyer's right to discovery, the Court leveled the playing field to give both sides the right to propound interrogatories, document requests and requests for admissions. The Rule isn't perfect. But it was reassuring that the Court cared enough about the rights of accused lawyers to take urgent action.

This disturbing episode illustrates the danger of relying upon a single stakeholder. Rather than defer to an official whose interests conflict with those she prosecutes, committees must account for everyone's interests in an evenhanded manner. To preserve due process in this or in any other system, all interests must be considered and everyone involved must exercise vigilance in the administration of justice.

A. Yes. And there are lots of excellent programs to choose from.

Just run a search of legal practice management software, and you will find hundreds of reviews online. Some of these programs reside on your office computer system, others in the cloud, and most function on both for speed and security.

The right one for you will depend on the size of your law firm, the nature of your practice, the overall cost of implementing it, and a range of personal preferences – maybe even some of the preferences of your IT consultant who may be assisting you with support and implementation.

There are two basic types of software you're going to want to look at: (1) billing and accounting software; and (2) case or practice management software.

Some of the more popular programs actually do both. They can help you with billing, bookkeeping, but also in managing cases and your time and your communications and the like.

Accounting Software

These programs help you keep track of your time and expenses, issue bills, manage your trust and operating accounts. Many include components that will process your payroll. There are programs, especially designed for law firms like PCLaw and Timeslips. But many firms have customized QuickBooks to meet their needs.

I use PCLaw. It's a program I've been using for over 20 years. It prints our checks, prints out the bills, keeps track of all financial transactions at our firm, and can generate ledgers and reports on all aspects of our operation. There may be better programs out there now, but of course, I stick with what works for me.

If I were adopting a new system, I would review what's out there now. There weren't as many programs on the market when I created my firm back in the 1990s.

Let me also give an honorable mention to a program called Nota. This is a product of M&T Bank to assist law firms who maintain their trust accounts there. I've actually seen a demo of the program, and I'm quite impressed with some of the online trust banking features that they provide their depositors. It's not going to replace the need for your own software. But it is an excellent tool nonetheless, and can really help you in keeping track of your trust account.

Practice Management Programs

This group includes software like Clio, MyCase, Abacus Next, Amicus, Practice Panther. These are programs that can really simplify your life, helping you keep track of your cases, communications, document assembly, and many have components to handle accounting needs as well.

I happen to use Amicus, which is also a program that I started with over 20 years ago. But there's a lot more on the market today.

You'll also want to tweak the programs to practice the way you do, perhaps loading your templates so that they can assist with document assembly. No matter what you pick, you need to be prepared to invest time and money into its implementation.

There is a learning curve. But within a very short time, I promise you that this investment is going to save you enormous time, enhance the efficiency of your practice, help prevent things from falling through the cracks that can lead to problems and increase your bottom line.

That's going to minimize the amount of support staff you need to have or, at least in my case, it's allowed my support staff to do things that go well beyond some of the rote tasks that are taken care of by the software.

So the investment of time, the investment of money has been well worth it because it's saved us time. It's saved us money. It's increased our profitability. It's increased the quality of life for everybody that works at our firm.

I can't speak more highly of the need to invest and get-with-the-program – with the right program to assist in practice management.

A. Perhaps. But Bar Counsel may not share your sense of humor.

That's what one lawyer learned when he retaliated against fellow prosecutors who egged him on for his strange aversion to hard-boiled eggs. Gagging at the smell of eggs strategically placed within a box of his files, Deputy Attorney General Adam Gelof was greeted with laughter from coworkers who shared a workroom within a Delaware courthouse.

Not to be outdone, this lawyer enlisted the aid of the Court's chief security officer. Despite his reluctance to do so, the security chief ultimately agreed to help Gelof return the favor. Drawing his gun, Delbert Garrison pointed it at Gelof's rival prankster, and warned him to "keep the eggs away from the files."

Gelof's coworkers found it funny. The Court's administrative judge did not. Nor did the Delaware Supreme Court. Finding that Gelof acted intentionally, knowingly, and recklessly in goading Garrison to brandish his firearm, the Court believed that a seasoned prosecutor should have placed safety above the frivolity of a dangerous prank. It didn't help that this particular court experienced a real shooting only months before.

Rule 3.5 of the Rules of Professional Conduct prohibits attorneys from engaging in "conduct intended to disrupt a tribunal." By misusing the Court's personnel to stage this prank, this disruption also amounted to "conduct that is prejudicial to the administration of justice" in violation of Rule 8.4(d). Because these violations placed his colleagues and others at risk for injury or even death, the Court suspended this lawyer from the practice of law for 30 days.

The punch line? Practical jokes can have practical consequences.

Citation: In re Gelof (2016).