entertaining ethics for success - texasbarcle · gene cavin award for lifetime contribution to...

ENTERTAINING ETHICS FOR SUCCESS

CLAUDE E. DUCLOUX, Austin Hill, Ducloux, Carnes, & de la Garza

State Bar of Texas 23rd ANNUAL ENTERTAINMENT LAW INSTITUTE

September 26-27, 2013 Austin

CHAPTER 9

SEARCH

Claude Ducloux is a Board certified, Austin-based attorney serving a wide variety of legal needs,

including general counsel service, civil litigation, appeals, family law, contract,

administrative work before State agencies, and services the legal community with a widely used

mediation and arbitration practice.

Although board-certified as both a civil trial and civil appellate lawyer, Claude’s practice

philosophy is to look at each legal matter as a problem which needs to be solved.

Mr. Ducloux believes that every legal matter should be reviewed from the perspective of a problem-solver, and that

this question should be answered:

“What is the least expensive yet most effective way to resolve each legal matter which comes to my

attention?”

Very often, a misunderstanding may be resolved through communication. Often, realistic compromise proves effective.

Court is the last route to resolution, although it may be necessary. But litigation should be a last resort in most

situations, as it is usually expensive, and out of the reach of many persons who have inadequate resources to spend

on such pursuits.

Mr. Ducloux is hired regularly to mediate disputes between litigating parties, with very good results.

You can expect to be treated with honesty, courtesy, and a realistic eye toward avenues of resolution.

Education

University of Texas, Austin, B.A., 1972

St. Mary’s University, San Antonio, J.D., 1976

Bar Admissions

1977, Texas

1978, California

2003, Colorado

U.S. District Court, Western, Southern, & Northern Districts of Texas

U.S. Court of Appeals 5th and 11th Circuits

Board Certified

Mr. Ducloux is Board certified by the Texas Board of Legal Specialization in two areas: in Civil Trial Law (since 1984)

and in Civil Appellate Law (since 1987, the year the certification was established).

He also served as the Chair of the Board of Directors of Board of Legal Specialization, after service on the Civil Trial

Law Advisory Committee from 1986 through 1994, and the TBLS Board of Directors from 1994 – 1998.

Professional Honors

Mr. Ducloux has been honored by his profession on numerous occasions spanning three decades. These honors

include:

Gene Cavin Award for Lifetime Contribution to Legal Education, State Bar of Texas -2011 (Statewide Award)

Presidential Citation; State Bar of Texas, 2001, 2006

Professionalism Award, Austin Bar Association, 2007

Outstanding Mentor Award, Austin Bar 2007.

W. Frank Newton Award (Statewide Annual Pro Bono Award given by State Bar of Texas), 2000

Outstanding Director Award, State Bar Board of Directors, 2001

Annual Professionalism Award (Statewide Award), College of the State Bar of Texas, 2002

Outstanding Young Lawyer Award, 1987 (Awarded by Austin Young Lawyers Association)

Pro Bono Award, Volunteer Legal Services of Central Texas, 1991, 1993, 1997, 1999

Contact Claude

400 West 15th Street, Suite 808

Austin, TX 78701

[email protected]

512-474-7054

512-474-5605 Facsimile

Claude Ducloux

Home Law Practices Articles Contact Us

harmstrong

Typewritten Text

harmstrong

Typewritten Text

harmstrong

Typewritten Text

Professional Activities

President, Travis County Bar Association (now, Austin Bar Association); 1997-1998;

President-Elect 1996;Comptroller, 1993-94; Treasurer, 1994-95, Secretary ’95-96; Director 1991-93;

Numerous Committee Memberships

Chair, Texas Board of Legal Specialization, 1997-1998

Director, 1994-1997;

Civil Trial Law Advisory Commission, 1985-1994

Board Certified: Civil Trial Law, 1984; Civil Appellate Law, l987

Chair, Texas Bar Foundation 2005-2006; Secretary-Treasurer (04-05); Trustee 2004-2008; Sustaining Life Fellow,

District Nine Membership Chair 1996-98; numerous awards committees 1996-2005

Chair, Texas Center for Legal Ethics and Professionalism:

2004-06, Trustee 2003-07

Authored numerous Professionalism Video Tapes and Presentations: State Bar video on “Office Procedure and

Practices” 1996, Co-wrote “Ethics Jeopardy,” 1997, “Ethics Jeopardy II,” 2001 (Interactive quizzes on Ethical Issues);

Defense Ethics tapes, Skills updates, 2005.

Chair, College of the State Bar of Texas; 1992-94; Vice-Chair 1990-92; Director, 1988-98, Member 1985-Present;

Board Advisor 1999-2000, Numerous Committees

Chair, State Bar of Texas Annual Meeting (Texas Bar Convention), 2001

Chair, United States Fifth Circuit Judicial Conference, Austin 2004

American Board of Trial Advocates, Member 1999- pres.

Director, State Bar of Texas; District 9, 1998-2001; Executive Committee 1999-2001

Chair, Strategic Long-Range Planning, 1999-2001; Chair, Policy Manual 2000-01 Disciplinary/Disability Oversight

Committee Vice-Chair 1999-2000; General

Counsel Oversight Committee 1998-99; Texas Bar Journal Editorial Committee 1998-2001; Board Advisor- Futures

Committee, MCLE, Administrative & Public Law Section Liaison;

Numerous Committee Memberships including: Litigation Section, Legal Ethics, Appellate Law, Legal Aspects of the

Arts, Settlement Week, 1991-92

Director, Austin Lawyers Care (now: Volunteer Legal Services of Central Texas), 86-89

Director, Austin Young Lawyers Association, 1984-1986

Editor, Travis County Practice Handbook, 1984, 1986

President, St. Mary’s Law School Alumni Board of Trustees, 2004-05, Trustee, 1992-1994, 2001- pres., Secretary

2003-04, Vice-Pres. 2004-05, Pres.-Elect 05-06

Trustee, St. Mary’s University 2007-08

Co-Director, co-writer and co-conspirator: Bar & Grill Variety Show, 1992-2005

Member and Founder: Bar & Grill Singers, A Lawyer Group performing musical parody across the country, and raising

(through Jan 2008) $450,000 for pro bono causes.

Member, Supreme Court Advisory Committee on Court-Annexed Mediation, 1996-1998

Member, American Inns of Court

Copyright © 2006-2012 Hill Ducloux Carnes & de la Garza.

All rights reserved.

Entertaining Ethics for Success Chapter 9

i

TABLE OF CONTENTS POWERPOINT PRESENTATION – Topics to be Discussed .......................................................................................................... 1 Our Cast of Characters .......................................................................................................... 2 Lawyer-Client Relationships .................................................................................................. 2 Three Central Concerns of all Lawyers ................................................................................... 3 Creating the Attorney Client Relationship .............................................................................. 3 Professional Ethics Opinion 626, 2013 ................................................................................... 4 Never Underestimate Fees ..................................................................................................... 5 The Ongoing Relationship ..................................................................................................... 6 The Speeches ...................................................................................................................... 15 Using Your Trust Account ................................................................................................... 21 The Client Triumvirate aka “Claude’s 3 Rules ...................................................................... 24

TOPICS TO BE DISCUSSED1. Running the Office2. Conflicts of Interest

3. Doing Business with a Client4. Hazards of Criminal Law5. Foreign Contract Law

6. Legal Malpractice/Grievances7. Sharing Fees with Non‐Lawyers


1

Our Cast of CharactersAmy Attorney

Gary Guitarist

Steve Songwriter

Andy Author

Lawyer‐Client Relationships

You wear many hats in this biz:

Legal Advisor

Business Advisor

Manager

Investor/Profit Participant


2

Three Central Concerns of All Lawyers:

1. Communicating Effectively

2. Managing Client Expectations

3. Keeping the Ship on Course

Creating the Attorney Client Relationship

The “One‐Way Door”:

Once you create an Attorney‐Client relationship, it always exists in some form or fashion. The fact that you even sever the Attorney‐Client relationship still binds you to protect the confidences of the Client forever.


3

Professional Ethics Opinion 626, 2013

Former attorney could not invest in a competitor to his former client so long as the confidential information he has from the former client remains relevant. (see April, 2013 Texas Bar Journal)

Part II:Documenting Your Representation


4

NEVER UNDERESTIMATE FEES. The client will remember the lowest fee you quote.

DOCUMENTING THE FEE ARRANGEMENT

• Communicate early what your fee arrangement will be:

• Put it in writing

• Discuss the scope of work. Make it clear who will be working on it and when the client may contact you.


5

DOCUMENTING THE FEE ARRANGEMENT

Other issues include:

• Any additional legal matters you will be required to handle

• How you are going to reimburse expenses

• The client’s rights• Termination/withdrawal by attorney

THE ONGOING RELATIONSHIP• NEVER LOSE YOUR COOL: Never write a letter you’d hate to see on a poster.

• NEVER THREATEN, even passively.

• TAKE A BREATH when you want to respond emotionally.


6

THE ONGOING RELATIONSHIPHANDLING BILLING CONTROVERSIES.

Always ask these questions:

• Would you be embarrassed to have your fees reviewed?

• What is the timing of the controversy, i.e. how far are you through the case?

• Ask yourself is it likely that this client will ever pay you?

CRAZY AND DIFFICULT CLIENTS:Just because your client is a jerk/crazy or unreasonably emotional does not give you the right to be the same way. Observe your duties under the Lawyer’s Creed, and ensure your client understands your duty to do so.


7

Part III: Conflicts of Interest

Facts: The Meeting Your client, Gary Guitarist, brings in Sandy, and they want to form an LLC, or a Ltd Partnership to do an album together. They haven’t yet decided how to divide ownership; and they agree that you can have a percentage in return for your legal work and management.

Okay, what are the issues?


8

The Issues Conflicts of Interest?

Whom do you represent?

Confidentiality problems between Gary and Sandy?

Can you negotiate for your own interest?

Can you negotiate for Gary against Sandy?

What do you need to protect yourself?

The Rules: TDRPC Rules 1.06‐1.15, 2.01, 2.02, and 3.08

Texas Case law

The Opinions of the Professional Ethics Committee of the State Bar of Texas

The “Law”


9

The Four Situations Which Prohibit Representation

Litigation:Representing parties in the same litigation.

Hint: Get outside counsel for multi‐party litigation.

Business:Representing someone in a “Substantially Related” matter where interests are Materially and Directly Adverse.



10

Other Duties:Representation when it “Reasonably Appears” your duties to another client, third party or to your firm conflict.


Past MatterPrevious client’s interest conflict when a dispute arises with same matter/ same parties.



11

Rothermel’s 3 Questions

Between Parties:Will my representationof A be materially and

directly adverseto the interest of B?

To Third Parties:Do I have any duties

to third parties which will limit my representation

of either A or B?



12

My own or my firm’s interests:Is my representation of

of A or B adversely limited by my own

interests??


The Lawyerhas the duty to:

a. Discloseb. Secure permission,

andc. Withdraw when

appropriate.

Rights and Duties


13

Watch out for EXCEPTIONS!Complete Disclosure AND Permission

Mere disclosure is not sufficient

Lawyer must still “reasonably believe” that their interests will not be affected by joint representation

DISCLOSURE MUST MEET RULE 1.06 STANDARDS

Complete Disclosure

The existence of the conflict

The “nature” of the conflict

The implications of the conflict

Possible adverse consequences of common representation

Advantages of common representation


14

THE SPEECHES•Discuss conflicts up front.

•Make sure they know whom (which entity) you will represent.

•Are there other entities involved?

DANGEROUS SITUATIONS

• Member of Organization/Counsel to same

• Taking Inconsistent Positions in Similar Cases

• Representing both Officers and Organization

• Representing Organization and Employee

• Imputed Disqualification: If partner can’t, your associate can’t.


15

DANGEROUS SITUATIONS

•Representing both Employee and Company or Agency (multiple representation)

• Imputed Disqualification (Partner/Assoc)

Doing Business with the Client

Must be fair to client

Must have full disclosure

Must have a writing to protect yourself

Give client the right to seek independent advice

GET THE CONSENT IN WRITING !


16

Amy needs to: Get a conflicts letter spelling out the conflicts which meets Tx Disc. Rule 1.06.

Must determine and agree who clients is.

Must determine whether there is or is not a duty of confidentiality between Gary and Amy Attorney in this venture. If not, document that!

Must advise clients to get independent advice before cutting her in for a share.

DO IT IN WRITING!

The Bad ClientAmy learns that a client has either committed a crime, or relates to her that he is ABOUT to commit a crime.

What does Amy do in each situation?


17

Ethical DutiesBIG PICTURE: Lawyers have a duty to the Rule of

Law.

If past crime:

Assuming Amy does NOT practice criminal law, should interview client, and obtain appropriate referral.

If future crime:

If Amy forms a good faith belief that a future crime will be committed, she is under duty to:

a. Convince client to abandon the plan;

b. Make reasonable efforts to prevent crime.

Lawyer’s Right to Breach ConfidentialityLawyer have a limited right to waive confidentiality:

Rule 1.05 (d): To defend herself against malpractice claims including overbilling;

Rule 1.05 (e): To prevent crime resulting in death or serious bodily injury or harm;

Rule 3.03 (a)(2): To prevent a criminal act or fraud on the Court

Rule 3.03 (b): To prevent or correct false evidence

Rule 4.01 (b): To disclose as necessary to prevent making the

lawyer a party to a fraudulent act.


18

Sharing Fees with Non‐LawyersAmy may not SHARE attorney fees with non‐lawyers.

How do you handle that?

1. You hire a non‐lawyer for a task which does not involve the practice of law.

2.You can hire non‐lawyer paralegals, so long as YOU are responsible for their work.

3.Make sure contract which has a fee division does not involve the giving of legal advice.

4.Don’t Bill for non‐lawyers work on YOUR Invoice (other than as a “cost”)

Contracts with MinorsComplex Requirements:

Simply be aware the Probate Code has specific requirements as the result of legislation passed.

Multiple ad litem’s, lawyer must be different for parents (usually appointed as “guardians” to bring them under Probate Code supervision) vs. the minor.


19

Negotiating Under Foreign Law Amy is reviewing the proposed album/recording contract for Gary, Sandy and Steve, which has a conflict of law provision making it’s provisions interpreted and enforced under New York Law.

Is there anything special Amy needs to do??

Contracts under Foreign Law Always make sure you advise/point out to client, that this contract is to be interpreted under [e.g. California] law, advise that best practice is to have a California lawyer review.

If you are asked, “Well, what do you think I need to do?” be careful NOT to express opinion on the other jurisdiction’s law, unless you would be willing to put that opinion in writing.


20

Part IV: Using Your Trust Account

What Belongs In IOLTA Acct? Client funds which have not been earned by you

Client funds being held in escrow for an event or contract or Costs.

What Doesn’t Belong In There?1.Your Money!! When you earn it, take it out and transfer to your operating account.

2. Non‐refundable retainers, absent agreement to contrary (nonrefundables are similar to Flat Fee)


21

What checks/transfers should come out of IOLTA account?

Payment directly to Attorney of Earned Fees

(Have a billing to back that up!).

Payment of Costs on Behalf of client from client’s retainer.

Refunds to Client in appropriate circumstances (e.g., fee for matter completed is less than retainer).

What checks/transfers should NOT come out of IOLTA Account

LAWYER’S personal bills, overhead, costs, etc.

Lawyer’s Payroll, dues, fines, sanctions, etc. (even if it’s from a “non‐refundable retainer”).


22

Bad Things Happen: Handling a Grievance

Always respond timely and completely.

Never respond pro se; always have someone respond for you.

If a grievance committee finds “just cause,” know your deadline. Election must be made within 20 days of receipt.

Bad Things Happen: Handling a Grievance


23

THE CLIENT TRIUMVIRATEaka “Claude’s 3 Rules”Remember to treat that client like you are going to live next door to them.

Always tell the truth. There is far less paperwork when you do.

Never sue your client.

What Clients WantThe Six Concepts:

Competence

Communication

Accessibility

Accountability

Collaboration

Respect & courtesy

“Survey Says--”1 Collaboration2 Accessibility3 Communicator4 Accountability5 Respect & courtesy6 Competence


24

Improve and Defend Your Profession

Support the fair administration of justice.

Make sure people understand the judiciary is the third branch of government.

Speak out as a true professional when you see undue criticism.


25

entertaining ethics for success - texasbarcle · gene cavin award for lifetime contribution to...

Documents