J. Scott Paul of McGrath North presents remarks on recent ethics decisions during the 13th annual Omaha Bar Association and Creighton School of Law Ethics Seminar held in the Hixson-Lied Auditorium at Creighton’s Harper Center last Friday. (Photo by Scott Stewart)
Seminar Offers Tips to Avoid Ethical Traps
By Scott Stewart
The Daily Record
The Omaha Bar Association and Creighton University School of Law presented their joint 13th annual Seminar on Ethics and Professionalism on Friday afternoon at Creighton’s Harper Center.
J. Scott Paul, an attorney at McGrath North and president of the Nebraska State Bar Association, reviewed recent ethics decisions in Nebraska, Iowa and other jurisdictions as part of the free ethics continuing legal education credit opportunity.
Paul cautioned attorneys to pay attention to any perception of co-mingling of funds or other impropriety with trust accounts. He said that’s an area taken very seriously in disciplinary actions.
“The trust account has always been the third rail for lawyers when it comes to discipline,” Paul said. “If it’s not crystal clear – if it’s not clear as day – you need to get your trust account in order fast.”
It doesn’t matter whether the client suffered harm, Paul said. An attorney in a recent Nebraska case was disbarred after using a trust account as an operating account, even though the client did not suffer any loss attributed to the co-mingling.
Paul also discussed shifting precedence from the Nebraska Supreme Court with respect to final orders governed by Nebraska Revised Statute 25-1902. He encouraged attorneys to file appeals if they have any doubt, rather than miss the window to challenge a possible final order.
“It’s procedural, it’s a bit arcane, but it’s an area where things are in flux, and you need to be aware of it,” Paul said. “The law has been changing extremely in this area to the point where existing precedence isn’t really worth much in these cases.”
Following an ethics opinion in Alaska, Paul also cautioned attorneys against copying clients on emails to opposing counsel using
the “cc” or “bcc” address lines. If a client gets an email and then sends a “reply all,” they could share privileged communication with opposing counsel. Paul said it’s best practice to simply forward the original message to the client instead of copying them.
“It’s a foreseeable risk if you do this,” Paul said. “So you’re exposing your client to a foreseeable risk, and if you’re doing that, you’re exposing yourself to an ethical violation.”
Attendees also heard from 3rd District Appeals Court Judge Francie C. Riedmann, who discussed how zealous representation could become misrepresentation, and Creighton law professor Craig W. Dallon, who reviewed rules and standards for reasonable fees and related money matters.
Details on upcoming ethics CLE opportunities can be found at omahabarassociation.com. Video of Friday’s presentations can be found on the OBA Facebook page at facebook.com/OmahaBarAssociation.